Gatekeepers to International Refugee Law? – The Role of Courts in Shaping Access to Asylum

Introduction

Pushbacks, walls, fences, detention measures, and externalisation of asylum proceedings are the most widespread barriers that States around the globe implement to keep refugees out, and consequently prevent their access to international protection. In a global refugee context lacking an international court to interpret the 1951 Refugee Convention (RC), the burden of assessing the compatibility of these barriers with the RC lies on domestic and supranational courts.

Legal Context

These separate jurisdictions are interpreting the same treaty, are often presented with similar factual circumstances, and have a duty to uphold the rule of law. Yet, we do not know if courts around the globe have systematically yielded similar or different interpretations on the compatibility of State-developed barriers with the RC. Furthermore, if common patterns have developed, it remains unclear whether or not they uphold those barriers in light of the RC.

Literature Review

Despite these overarching problems, the literature has, so far, had a piecemeal approach; we thus lack an empirically driven socio-legal comparative analysis of the role of courts in interpreting the right to access asylum.

Project Overview

ACCESS will introduce an empirically driven theoretical model of how domestic and supranational courts develop international refugee law (IRL) and advance the executive-driven model of migration governance in response to State-developed barriers. More specifically, we will investigate:

1. How do judges apply the same legal treaty (RC) and related international norms in different political and socio-legal contexts?
2. To what extent are there any discernible patterns in the courts’ decisions related to barriers to asylum (either restricting or expanding access to asylum)?
3. What are the socio-legal factors influencing adjudication?
4. How have courts developed IRL in response to these barriers?

Relevance

Given that we are faced with the highest displacement figures on record and the increasing barriers to asylum, ACCESS is of topical importance.