Between strategy and tactics: litigating the externalisation of migration control

Date: 28 November 2024
Time: 15:00-16:30 CET
Location: In-person event at the T.M.C. Asser Instituut, R.J. Schimmelpennincklaan 20-22, 2517 JN, Den Haag
Registration: This seminar is invite-only. Should you wish to join, please send an email with your name, affiliation and a few lines expressing your interest to c.lewis@asser.nl.

Speakers: 

  • Zoe Bantleman – legal director, Immigration Law Practitioner’s Association
  • Kris van der Pas – postdoctoral researcher, Tilburg University
  • Dr Annick Pijnenburg – assistant professor, Radboud University

Overview:

In the field of international migration, states engage in externalisation when they transfer the territorial location wherein their migration and asylum functions are conducted to the territory of another country, allegedly to mitigate claimed security threats and irregular migration. This is not a new practice amongst states. Yet, the recent proliferation of externalisation policies, including the conclusion of various forms of extraterritorial processing and outsourcing agreements between states, could be seen as signaling a status quo. Consider, for instance, how the United Kingdom’s incumbent Prime Minister, after having recently derided and scrapped the UK’s ‘Rwanda scheme’1, which sought “…to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by enabling the removal of persons to the Republic of Rwanda…”2, seemingly entertained ‘the concept’ of the Protocol between Italy and Albania3, by which Italy would essentially ‘offshore’ asylum processing to the territory of Albania.4 Ursula von der Leyen, President of the European Commission, has even referred to Italy’s protocol with Albania as an example to potentially draw from when inviting EU Member States to continue “…to explore possible ways forward as regards the idea of developing return hubs outside the EU, especially in view of a new legislative proposal on return.”5 

From an international legal perspective, the idea that externalisation policies ought to be understood as forming part of the new status quo is cause for concern. Numerous legal challenges have been brought against such policies and resulting agreements between states. Civil society organisations, international accountability mechanisms and domestic courts have pointed to how such schemes violate international law.

It is in this context that our panel, drawing from their experience and research on litigating externalisation policies, will consider the role strategy and tactics play as key considerations for (re)imagining, creating and challenging the status quo of international legal ordering, as well as what tools and practices international lawyers – whether as scholars or practitioners - may employ to do so.

Guiding Questions:

  • What added value (if any) is there to litigating migration control policies on multiple levels (international, regional, national)?
  • What role does the interplay between international and domestic law play when litigating externalisation policies?
  • How can we find, explore, and hold open the space for tactical and rhizomatic interventions to uphold the rights of migrants and the international rule of law and disrupt (trans)national ‘offshoring’ and ‘outsourcing’ strategies?

Speaker bios

  • As a barrister, legal director of the Immigration Law Practitioners’ Association (ILPA), and an editor of the Journal of Immigration, Nationality and Asylum Law, Zoe Bantleman has spent her career in the United Kingdom writing, teaching legal professionals, and conducting court, policy, and parliamentary advocacy. In recent years, she has helped lead opposition to various iterations of the Rwanda policy, by helping to support and coordinate strategic litigation and by drafting amendments, briefings, and evidence to oppose the Illegal Migration Act 2023, the Safety of Rwanda (Asylum and Immigration) Act 2024, and the UK-Rwanda Treaty.
  • Kris van der Pas is a postdoctoral researcher at Tilburg University,, working on the sectorplan project 'Judicial lawmaking in a globalized legal order'. In her research, she will look specifically at public interest litigation cases. Her PhD research was on strategic litigation in the field of asylum law in Europe, exploring decision-making of civil society organizations in strategic litigation procedures. She has published widely on strategic litigation, legal mobilization, international/European human rights, and European & Dutch migration law.
  • Annick Pijnenburg is an assistant professor in International and European Law at the Research Centre for State and Law (SteR) and department of International and European Law, at Radboud University. She has an interdisciplinary background, combining social sciences and law, with a strong focus on international human rights law and migration. Annick teaches and supervises in the Bachelor and Master programmes. She is a member of the Radboud Young Academy.

References

  1. K Starmer, Speech ‘PM’s remarks at the opening plenary session of the European Political Community: 18 July 2024’, available here (accessed 5/11/2024).
  2. Safety of Rwanda (Asylum and Immigration) Act 2024, 1(1)(a).
  3. Protocollo tra il Governo della Repubblica Italiana e il Consiglio dei Ministri della Repubblica di Albania per il Rafforzamento della Collaborazione in Materia Migratoria. For an English Translation by the Odysseus Academic Network, see here (accessed 5/11/2024).
  4. For K Starmer’s comments in this respect, see the UK Prime Minister’s response to a question by A Forsyth (BBC) during the ‘Joint press conference with Prime Minister Giorgia Meloni of Italy on 16 September 2024’, viewable, with original audio, here (accessed 5/11/2024).
  5. U von der Leyen, ‘Migration Letter’, European Commission, 14 October 2024, Ref. Ares(2024)7288990-14/10/2024, 5 – available here (accessed 5/11/2024).