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5
‘PartoftheGame’
Government Strategies against European Litigation
Concerning Migrant Rights
∗
5.1 Introduction
Even in times of changing legal practices, the courtroom remains sym-
bolically the ultimate place for states to ‘encounter’ international law. The
rise of ‘new-style’ international courts with expanded and compulsory
jurisdictions has been one of the driving forces behind the legalization of
world politics.1Rather than simply oering venues for the peaceful settle-
ment of disputes, they are increasingly becoming the assertive guardians
of their respective legal instruments. The European Court of Human
Rights (ECtHR) in Strasbourg for instance continuously develops the 1951
European Convention on Human Rights (ECHR),2to which it famously
referredtoas‘aninstrumentofEuropeanpublicorder’.
3From a tradi-
tional legal-theoretical viewpoint, such condence is not necessarily to be
expected.Statesastheoriginal‘mastersofthetreaty’werelongassumedto
hold sucient power to override and even dismantle international courts
∗This research has been funded by the Interuniversity Attraction Poles Programme initiated
by the Belgian Science Policy Oce, more specically the IAP ‘The Global Challenge of
Human Rights Integration: Towards a Users’ Perspective’. I am greatly indebted to Tanja
Aalberts and Thomas Gammeltoft-Hansen for their thorough editorial input and to Shai
Dothan, Sarah Ganty and t he anonymous reviewers for very helpful comm ents on an earlier
version of this chapter.
1Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton, NJ:
Princeton University Press, 2014).
2European Convention for the Protection of Human Rights and Fundamental Freedoms,
4 November 1950, 213 UNTS 222.
3Loizidou v. Turkey, European Court of Human Rights, Application no. 15318/89, 23 March
1995, para. 93.
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if they deemed so necessary.4As so often the case, reality turns out to be
more complicated. Although more frequently lacking direct control over
courts, states and their governments are developing ways to manage the
inuence of even the most independent ones like the Court of Justice of the
EU (CJEU).5Achieving greater ‘sovereign manoeuvrability’ in the Euro-
pean legal order(s) is hereby particularly important where politically sen-
sitive questions such as migration are concerned. As one government o-
cial has stated, international courts are now simply ‘part of the game’ in
the intricate process of policymaking in such domains.6
This chapter explores the strategies that governments have used to con-
tain the inuence of fundamental rights jurisprudence of the two afore-
mentioned European courts in cases concerning migrants and asylum
seekers. Over the last two decades, growing migration ows and right-
wing political climates in many European countries have created a dicult
situation in which governments have enacted legally questionable poli-
cies. This, in turn, has led to a rise in litigation before European courts.
But despite this increased ‘legalization’ as reected in an expanded juris-
diction of the CJEU and the strong involvement of the ECtHR, the degree
and the type of their inuence remains unclear. This chapter argues that
government strategies play an essential factor in this context, as they inu-
encetheeectivenesswithwhichtheEuropeancourtscanprotectmigrant
rights. In the domain of migration, four such strategies appear to be partic-
ularly prominent: legal argumentation concerning the scope of the relevant
instruments, policy implications and procedural requirements; anticipa-
tory measures aiming to strike out cases or to dampen public reactions
to adverse rulings; peer mobilization exerting collective pressure on the
courts; and post-judgment positioning vis-à-vis the judgment or the court
in question. To prove the existence and relevance of these practices, this
chapter relies amongst others on original research in the form of inter-
views that were conducted with persons involved in litigation before the
European courts, including lawyers, NGO representatives and govern-
ment ocials.7Theprimaryfocuswillbeonthosepoliticallycharged
4Eric A. Posner and John C. Yoo, ‘Judicial Independence in International Tribunals’ (2005)
93 California Law Review 1–74.
5See Lisa J. Conant, Justice Contained: Law and Politics in the European Union (Ithaca, NY:
Cornell University Press, 2002) and Andreas J. Obermaier, The End of Territoriality? The
Impact of ECJ Rulings on British, German and French Social Policy (Aldershot, UK: Ashgate,
2009).
6Interview with government ocial, August 2014.
7Twenty-two semi-structured interviews were conducted in Belgium, Luxembourg, the
Netherlands, Spain and the UK in the period of August 2014 to May 2015.
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‘ ’
migration cases in which governments had a heightened interest in act-
ing strategically.
The chapter is divided into ve parts. The rst section describes the
judicialization of migration policy in Europe and summarizes the most
important legal interventions of the two European courts. The following
four sections each address in greater detail one strategy in the follow-
ing order: legal argumentation, anticipatory measures, peer mobilization
and post-judgment positioning. The conclusion sums up the ndings and
places them into the general context of the changing practices in interna-
tional law.
5.2 The European Courts and the Question of Migrant Rights
While both the ECtHR and CJEU have recently become more involved
in matters relating to the human rights of migrants and asylum seekers,8
their interventions remain rmly based on distinct legal frameworks. On
the one hand, the ECtHR relies on human rights law in the form of the
ECHR, and especially on article 3 (prohibition of torture and inhumane
and degrading treatment) and article 8 (right to family life). The CJEU, on
the other hand, in applying EU law, deals with questions of both asylum
and immigration law and the EU Charter of Fundamental Rights.9One
important similarity shared by both legal frameworks is, however, that
they impose clear limits on the judicial control of migration policy. The
ECtHR has thus continuously recognized ‘the Contracting States’ concern
to maintain public order, in particular in exercising their right, as a matter
of well-established international law [ . . . ] to control the entry, residence
and expulsion of aliens’, although ‘subject to their treaty obligations’.10
And while the CJEU now has jurisdiction over EU asylum and immigra-
tion law,11 it does not have the competence to regulate the central aspect
of immigration of workers which, according to article 79(5) of the 2007
8In this chapter, the expression ‘migrants’ does not refer to citizens of other EU Member
StateswhounderEUlaw,andespeciallyduetotheprincipleofthefreedomofmovement,
enjoy far greater protection than so-called ‘third-country nationals’.
9Charter of Fundamental Rights ofthe European Union (OJ 2012 no. C 326/391, 26 October
2012).
10 Moustaquim v. Belgium, European Court of Human Rights, Application no. 12313/86,
9 February 1991, para. 43. See also Abdulaziz, Cabales and Balkandali v. United Kingdom,
European Court of Human Rights, Application nos 9214/80, 9473/81, 9474/81, 28 May
1985, para. 67.
11 States expanded the jurisdiction of the CJEU to also cover asylum and migration law with
the signing of the Treaty of Amsterdam in October 1997.
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Treaty on the Functioning of the EU,12 remains a competence of the Mem-
ber States.13 SomeauthorsthusconcludeprovocativelythatintheEUlegal
framework, ‘the ow and volume of migration is left to the autonomy and
control of Member States, but once the migrants are within EU borders,
EU law regulates residence and expulsion’.14
The mandate limitations set on both courts have signicant repercus-
sions. Saroléa claims that the departing principle of the ECtHR functions
as ‘a limit of the judicial control that will be exercised and a standard pre-
sented as higher than the human rights whose protection is required’.15
What is more, the situation highlights that migration policy is usually
regarded as a domaine réservé area which states do not want to concede
to international courts.16 Still, both European courts have witnessed a
notable rise in their caseloads relating to migrants and their rights, with a
small but growing number of NGOs and specialized lawyers even engag-
ing in strategic litigation.17 One of the reasons for this expansion has
been the reinforcement of the already strong institutional positions of
the European courts in recent decades. On the one hand, Protocol 11
12 Consolidated version of the Treaty on the Functioning of the European Union (OJ 2012
no. C 326/391, 26 October 2012.
13 Art. 79(5) reads: ‘This Article shall not aect the right of Member States to determine
volumes of admission of third-country nationals coming from third countries to their ter-
ritory in order to seek work, whether employed or self-employed’.
14 Sonia Morano-Foadi and Stelios Andreadakis, ‘The Convergence of the European Legal
System in the Treatment of Third Country Nationals in Europe: The ECJ and ECtHR
Jurisprudence’ (2011) 22 European Journal of International Law 1071–88, at 1084. Evi-
dently, the latter will have a substantive impact on the former, rendering the conclusion
somewhat simplistic. The authors are still correct in highlighting the problem that funda-
mental aspects of migration policy remain outside the scope of EU law.
15 Sylvie Sarolé a, ‘From Protection of the Migrant to t he Rights of the Migrant Person : Free the
Migrant from His Legal Exile . . . ’, in Jean-Christophe Merle (ed.), Spheres of Global Justice
(Dordrecht: Springer, 2013), 357. A similar argument is presented and elaborated upon in
Marie-Bénédicte Dembour, When Humans Become Migrants: Study of the European Court
ofHumanRightswithanInter-AmericanCounterpoint(Oxford: Oxford University Press,
2015).
16 Whether or not the unwillingness of states eectively prevents legalization has been ques-
tioned in research focusing on the inuence of EU law on social and taxation policy, espe-
cially with a view to ensuring long-term compliance. See Diana Panke, ‘Socil and Taxation
Policies – Domaine Réservé Fields? Member States Non-Compliance with Sensitive Euro-
pean Secondary Law’ (2009) 31 European Integration 489–509.
17 Interviews with several lawyers and NGO representatives, November 2014 to February
2015. For a more detailed discussion, see Moritz Baumgärtel, ‘From Decit to Dilemma:
An Evaluation of the Contribution of Europe’s Supranational Courts to the Promotion of
the Rights of Vulnerable Migrants’, unpublished PhD thesis, Université libre de Bruxelles
(2016), 84–89.
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‘ ’
to the ECHR of 1994 facilitated direct individual access to the ECtHR.
The resulting high number of petitions even threatened, at some point, to
make the Court the ‘victim of its own success’. On the other hand, states
have expanded the jurisdiction of the CJEU to cover asylum and migration
law with the signing of the Treaty of Amsterdam in October 1997. Taken
together, these institutional and political developments have brought the
European courts to the very heart of migration controversies in Europe.
At this point, several important legal interventions can be highlighted
without covering all the details of this sometimes technical jurisprudence.
Firstly, the European courts have, on several occasions, expanded the con-
ditions under which groups of persons are eligible for residency. Especially
signicant are the decisions regarding the scope of the non-refoulement
principle, which the European courts found to be applicable when asylum
seekers are not personally targeted, but threatened by generally or cumu-
latively high risks of mistreatment upon return.18 Moreover, the CJEU
has held that persons could not be expected to hide or restrain their reli-
gious convictions or their sexual orientation to ‘avoid’ persecution.19 In
the latter case, states are also barred from subjecting asylum seekers to
certain types of credibility assessments such as a detailed questioning of
sexual practices.20 Aquitedierentbutalsoexpandinggroundforres-
idency is derived from the right to a family life.21 The ECtHR ruled in
thiscontextthatevenpersonswhohadlivedinacountrywithoutavalid
permit for a long time could have their presence regularized if this was
in the best interest of their children.22 The CJEU went even further in
18 The Strasbourg Courtin particular has gradually extended the scopeof the principle under
Art. 3 of the ECHR. See most notably Salah Sheekh v. the Netherlands, European Court of
Human Rights, Application no. 1948/04, 11 January 2007, para. 148, N.A. v. the United
Kingdom, European Court of Human Rights, Application no. 25904/07, 17 July 2008,
para. 147 and Su and Elmi v. the United Kingdom, European Court of Human Rights,
Application nos 8319/07 and 11449/07, 28 June 2011, para. 293. The CJEU has come to
a similar conclusion in looking at the scope of subsidiary protection as established in the
Qualication Directive 2004/83/EC, and more specically Art. 15(c). See Case C-465/07,
Meki Elgafaji, Noor Elgafaji v. Staatssecretaris van Justitie, [2009] ECR I-921, para. 35.
19 Joined Cases C-71/11 and C-99/11, Bundesrepublik Deutschland v. Y and Z, ECLI:EU:C:
2012:518, paras 78–79, and Joined Cases C-199/12 to C-201/12, Minister voor Immigratie
enAsielv.X,Y,andZ, ECLI:EU:C:2013:720, para. 71.
20 Joined Cases C-148/13 to C-150/13, A, B, and C, v. Staatssecretaris van Veiligheid en Justitie,
EU:C:2014:2406.
21 See Daniel Thym, ‘Respect for Private and Family Fife under Art. 8 ECHR in Immigration
Cases: a Human Right to Regularize Illegal Stay?’ (2008) 57 International and Comparative
Law Quarterly 87–112.
22 Rodrigues Da Silva & Hoogkamer v. the Netherlands European Court of Human Rights,
Application no. 50435/99, 31 January 2006, para. 44, and more recently Jeunesse v. the
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stating that non-EU parents could remain in Europe solely by virtue of
their dependent child holding European citizenship.23 On another occa-
sion it held that EU law did not permit decisions about family reunica-
tion to be determined based on the point in time (that is, before or after
immigration of the ‘sponsor’) when the relationship was formed.24
Some of the most crucial judgments concern the question of state
responsibility. Indeed, extra-territorialization and ‘outsourcing’ of migra-
tion control to private actors are two principal methods by which states
try to circumvent international obligations in human rights and refugee
law.25 The ECtHR in particular has addressed these practices with some
force. In Hirsi, the Court decided that Italy had violated several human
rights obligations by intercepting and ‘pushing back’ a vessel with around
200 migrants on board on the high seas.26 It has also handed down a num-
ber of decisions that deal with the EU’s Dublin Regulation,27 which estab-
lishes the principle that asylum seekers have to submit their application
in the country in which they rst entered the Union. Reversing its ini-
tially cautious approach towards this principle,28 the Court held in M.S.S.
v. Belgium and Greece that Belgium had violated the Convention by return-
ing an asylum seeker to Greece because it ‘knew or ought to have known
that he had no guarantee that his asylum application would be seriously
examined by the Greek authorities’.29 States cannot therefore deny legal
Netherlands, European Court of Human Rights, Application no. 12738/10, 3 October 2014,
paras 120–122.
23 Case C-34/09, Gerardo Ruiz Zambrano v. Oce national de l’emploi (ONEm), [2011] ECR
I-1177, para. 45. The fact that this judgment is primarily based on the rights derived from
EU citizenship arguably constitutes a decisive dierence in comparison to other ‘pure’
immigration cases related to the right to family life.
24 Case C-578/08, Rhimou Chakroun v. Minister van Buitenlandse Zaken, [2010] ECR I-1839,
paras 59–66.
25 See Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the
Globalisation of Migration Control (Cambridge: Cambridge University Press, 2011).
26 Hirsi Jamaa and Others v. Italy, European Court of Human Rights, Application no. 27765/
09, 23 February 2012.
27 The most recent version (‘Dublin III’) of which is Regulation (EU) No 604/2013 of the
European Parliament and of the Council of 26 June 2013 establishingt he criteria andmech-
anisms for determining the Member State responsible for examining an application for
international protection lodged in one of the Member States by a third-country national
or a stateless person (recast) (OJ 2013 no. L 180/30, 29 June 2013).
28 See T.I. v. theUnited Kingdom, European Court of Human Rights, Application no.43844/98
(admissibility), and K.R.S. v.the United Kingdom, European Court of Human Rights, Appli-
cation no. 32733/08 (admissibility), 2 December 2008.
29 M.S.S. v. Belgium and Greece, European Court of Human Rights, Application no. 30696/09,
21 January 2011, para. 385.
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‘ ’
responsibility solely on the grounds that they were implementing the
Dublin regulation. Subsequent rulings further lowered the threshold for
rebutting the presumption that another EU Member State was comply-
ing with its obligations under the ECHR.30 The CJEU has by and large
followed this approach,31 though not using the opportunity to clarify
whether EU Member States had further obligations under the EU Charter
of Fundamental Rights.32
Finally, the ECtHR has, on several occasions, found that asylum seek-
ers had been deprived of their right to an eective remedy – a recurrent
problem in some countries, such as, for example, Belgium.33 In M.S.S.,
the Court concluded that Belgium and Greece had violated the right
to an eective remedy under the ECHR. To qualify as eective under
Article 13, a remedy has to be accessible ‘in practice’, as ensured, amongst
others, by a timely and functioning system of communication of deci-
sions and a realistic prospect of obtaining legal aid.34 It also has to con-
sider the vulnerability of certain groups of asylum seekers such as moth-
ers with underage children.35 In the context of asylum procedures, an
eective remedy is also required to have suspensive eect, which would
preclude a measure of return to be executed during appeal.36 In con-
trast to this, the CJEU has been somewhat more cautious on this specic
aspect.37
30 Tar a k h e l v. S w i t z e r l a n d , European Court of Human Rights, Application no. 29217/12,
4 November 2014, and Shari and others v. Italy and Greece, European Court of Human
Rights, Application no. 16643/09, 21 October 2014.
31 Joined Cases C-411/10 and C-493/10, N. S. v. Secretary of State for the Home Department
and M. E. and Others v. Refugee Applications Commissioner and Minister for Justice, Equality
and Law Reform, [2011] ECR I-13905.
32 More specically, the CJEU could have addressed the obligations under Arts 1 (human
dignity)and18(righttoasylum)oftheCharter.Thedecisionnottodosowasreceived
critically by those involved in the case, as several lawyers and NGO representatives stated
during the interviews (November 2014 to February 2015).
33 Sarah Ganty and Moritz Baumgärtel, ‘Eective Remedies as Capabilities: Towards a User
Perspective to Human Rights of Migrants in Belgium’ (2014) 8 Human Rights & Interna-
tional Legal Discourse 215–34.
34 M.S.S., paras 318–19.
35 S.J. v. Belgium, European Court of Human Rights, Application no. 70055/10, 27 February
2014, paras 103–4.
36 Gebremedhin [Gaberamadhien] v. France, European Court of Human Rights, Application
no. 25389/05, 26 April 2007, para. 66.
37 According to Basilien-Gainche, the CJEU apparently considers restrictions of ‘the right to
be heard’ a legitimate policy tool in the ght against illegal migration. See Marie-Laure
Basilien-Gainche, ‘Immigration Detention under the Return Directive: The CJEU Shad-
owed Lights’ (2015) 17 European Journal of Migration and Law 104–26, at 122.
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The growing involvement of the two European courts has been gen-
erally welcomed. In some cases, it has even been hailed as ‘a beacon for
protecting the rights of migrants’.38 Yet, considering the hypothesis of this
volume, the courts’ practical inuence may well be inuenced (that is,
diminished) by the changing and increasingly strategic approach of states
in dealing with international law. In this context, obligations concerning
the human rights of migrants are no exception.39 The following sections
describe and analyze some of the strategies that governments have used
to manage and contain the impact of some of the most important judg-
ments. To perform this analysis, this work relies on rst-hand accounts of
individuals who were directly involved in the litigation process before the
European courts.
5.3 Legal Arguments and Strategies in Court
The rst aspect that needs to be considered is the strategies employed
by governments in the European courts as opposed to in the domestic
sphere or vis-à-vis the claimant. Most obviously, in-court strategies
include attempts of ‘interpretive framing’ of rules which, as Gammeltoft-
Hansen and Aalberts point out, are widespread and even ‘inherent in the
operation of (international) law’.40 Whilecourtsaregenerallytheforum
par excellence for the deployment of such practices, interpretative framing
can be particularly eective when new or unclear provisions oer the
litigating parties the chance to advance their own readings. This, in fact,
is frequently the case regarding the human rights of migrants and asylum
seekers. EU law on migration and asylum remains arguably ‘a legisla-
tive patchwork’41 and a ‘bric-à-brac’ system,42 in which the relationship
between various parts is often unclear. Moreover, international obligations
regarding, for example, the prohibition of refoulement are at the same time
38 Maarten Den Heijer, ‘Reections on Refoulement and Collective Expulsion in the Hirsi
Case’ (2013) 25 International Journal of Refugee Law 265–90, at 265.
39 Gammeltoft-Hansen, Access to Asylum, and Itamar Mann, ‘Dialectic of Transnationalism:
Unauthorized Migration and Human Rights, 1993–2013’ (2013) 54 Harvard International
Law Journal 315–523.
40 See Chapter 1, this volume, p. 14.
41 Kees Groenendijk, ‘Recent Developments in EU Law on Migration: The Legislative Patch-
work and the Court’s Approach’ (2014) 16 European Journal of Migration and Law 313–35.
42 Vincent Chetail, ‘The Common European Asylum System: Bric-à-Brac or System?’, in
Vincent Chetail, Philippe De Bruycker and Francesco Maiani (eds), Reforming the Com-
mon European Asylum System: The New European Refugee Law (Leiden: Martinus Nijho,
2016).
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‘ ’
subject to constant reinterpretation due to evolving state practice such as
the establishment of external border controls.43 Another example, which
is discussed in greater detail in this section, are governments’ frequent
contestations of the scope of various relevant legal instruments. Yet, in-
court strategies can go beyond the interpretive framing of obligations and
into the terrain of ‘regime and treaty shopping’. This is most notably the
case when governments propose arguments regarding policy implications
or procedural requirements, which will be discussed thereafter.
Considering the aforementioned state of the law in the migration
domain, it is unsurprising that governments frequently try to put their
stamp on the interpretation of the scope of protective provisions. Espe-
cially the CJEU has dealt with many questions regarding the application
of certain provisions and the scope of EU law. In N.S./M.E.,therespon-
dent and intervening governments argued that they were not bound by
European law in exercising their discretionary right to assume responsi-
bility for an asylum seeker as established in the Dublin regulation.44 Being
outsidethisscopewouldalsohaveimpliedthenon-applicabilityofthe
EU Charter of Fundamental Rights – a view that the CJEU rejected. In
Zambrano, a total of seven governments contested the application of EU
law, arguing that European citizens, including minor children, would have
to have crossed EU internal borders for their non-EU family members to
be able to claim residency on the grounds of their European citizenship.45
The CJEU did not share this view to the strong dismay of the involved
governments.46 However, in some cases governments have successfully
impacted the development of EU law, for example in X, Y and Z where
they opposed the applicants’ claim that criminalizing homosexual activi-
ties alone constituted an act of persecution according to the EU Quali-
cations Directive.47
43 Gammeltoft-Hansen, Access to Asylum, 94–96.
44 N.S./M.E., para. 61. 45 Zambrano, para. 37.
46 Interviews with lawyers, NGO representatives and government ocials, August to Decem-
ber 2014. It is however worth noting that the argument was accepted by the Court in
later cases, which did not include minor children. See for instance Case C-434/09, Shirley
McCarthy v. Secretary of State for the Home Department, [2011] ECR I-3375. In fact, the
Court ‘ne-tuned’ its decision in Zambrano, which therefore represents somewhat of an
exception. See Susanne K. Schmidt, ‘Judicial Europeanisation: The Case of Zambrano in
Ireland’ (2014) 37 West Eur o p e a n Poli t i c s 769–85, at 774–6.
47 See X, Y and Z, as well as the opinion of Advocate-General Eleanor Sharpston, deliv-
ered on 11 July 2013, paras 40–45. The most recent version of the instrument is Directive
2011/95/EU of the European Parliament and of the Council of 13 December 2011 on stan-
dards for the qualication of third-country nationals or stateless persons as beneciaries
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While narrowing interpretations about the scope of protection are rou-
tinely proposed, in-court strategies take a more creative shape when they
featureareferencetothejurisdictionoftheotherEuropeancourt.Inthis
context, governments seek to engage in ‘regime or treaty shopping’, high-
lighting its close link to legal argumentation and the fact that the latter
may be attempted not only prior but also during judicial proceedings.48
For instance, the UK government, when appearing before the European
courts, has repeatedly sought to benet from the co-existence of the two
European legal frameworks dealing with the human rights of migrants.
In N.S./M.E., it suggested that a restrictive interpretation of the scope of
EU law did not mean that there would be no human rights protection
because the ECHR and the 1951 UN Refugee Convention would still have
to be considered.49 The non-application of EU law was thus presented as
unproblematic in human rights terms. At the same time, in some ECtHR
cases the UK used precisely the reverse argument. Regarding the scope
of the non-refoulement principle under the ECHR, the UK argued that
the EU Qualications Directive oered ‘a higher level of protection than
that provided for by the Convention’.50 In Su and Elmi,itstatedeven
more explicitly that the adoption of the Directive ‘clearly chose a wider
scope than that of the Convention’, thus warning the ECtHR not to equate
the protection frameworks ‘in the absence of the express agreement of the
Contracting States’.51 The exible and strategic way of construing the rela-
tionship between the two legal regimes is further illustrated by the fact
that the UK government claimed before the CJEU in Elgafaji that the EU
legislature ‘did not intend to burden the Member States with new obliga-
tions . . . concerning the right to asylum’.52 The arguments in these cases
did not persuade either European court, both of which retained a focus
on their own instruments.
of international protection, for a uniform status for refugees or for persons eligible for sub-
sidiary protection, and for the content of the protection granted (OJ 2011 no. L 337/9,
20 December 2011).
48 Chapter 1, this volume. In relation to immigration, treaty shopping may similarly be
observed in relation to public international law, notably the law of the sea, see Chapter 8,
this volume.
49 N.S./M.E., para. 61. 50 N.A., para. 105. 51 Su and Elmi, para. 223.
52 See Elgafaji, Opinionof Advocate-General PoiaresMaduro, delivered on 9 September 2008,
para. 27. The Advocate-General was highly critical of this stance, claiming that the position
oftheUK(andtheNetherlands)‘playdown,ifnotevade,thereferencemadebyrecital
25 to other international and European instruments for protection of human rights and
practices existing in Member States’.
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‘ ’
A less frequent and arguably more surprising strategy used during
proceedings has been to appeal to the possible policy consequences of
an expansive judgment. In Zambrano, for example, several governments
drew attention to the consequences of granting non-EU parents a right to
remain on Union territory on the basis of the EU citizenship of their chil-
dren. According to Advocate-General Sharpston, the Irish authorities, in
particular, proposed a ‘oodgates’ argument, drawing ‘a dramatic picture
of the wave of immigration by third country nationals’ that would lead
to ‘“unmanageable” results’.53 An interview with two persons present at
the hearing suggests that the governments of Germany and the UK made
equally strong appeals on the same basis.54 A dierent type of claim con-
cerning possible policy consequences was advanced by Belgium, Italy and
Poland in N.S./M.E. regarding the lack of ‘instruments necessary to assess
compliance with fundamental rights by the Member State responsible and,
therefore, the risks to which the asylum seeker would be exposed were he
to be transferred to that Member State’.55 Although the arguments did not
succeed in these specic cases, these propositions are generally not unre-
alistic regarding the CJEU’s modes of interpretation. In fact, the Court
itself has frequently relied on consequentialist arguments, though nor-
mally with precisely the opposite intention, namely trying to expand the
scope and application of EU law and to further European integration.56
Finally, in the case of the ECtHR, another very common and eec-
tive practice for governments has been to challenge applications regard-
ing the rights of asylum seekers on procedural grounds. Legal arguments
aboutprocedureareinfactonlyseeminglyformalandoftenturnoutto
imply important substantive questions for the Court, particularly where
they can inuence decisions about returns of asylum seekers.57 This per-
tains for example to Article 35 of the ECHR about the necessity to exhaust
53 Zambrano, Opinion of Advocate-General Eleanor Sharpston, delivered on 30 September
2010, paras 112 and 114. Interestingly, Schmidt nds the reaction of the Irish government
to Zambrano ruling to be more proactive than would have been strictly necessary since
the CJEU subsequently ‘ne-tuned’ (that is, qualied) its stance. One of the explanations
provided for such unexpected behaviour is the change in government, which occurred
around the time. See Schmidt 2014.
54 Interview with lawyers, December 2014. 55 N.S./M.E., para. 91.
56 Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cam-
bridge: Cambridge University Press, 2012).
57 Thomas Spijkerboer, ‘Subsidiarity and “Arguability”: The European Court of Human
Rights’ Case Law on Judicial Review in Asylum Cases’ (2009) 21 International Journal of
Refugee Law 48–74, at 57–58.
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domestic remedies at the time of application, which is in practical terms
a submission that ‘responding governments will frequently raise, wher-
ever possible’.58 A cursory look at some of the migration-related cases
before Strasbourg conrms the general trend.59 More recent and forceful,
however, are attempts of governments to rely on Article 37 of the ECHR
according to which the Court may strike out an application when ‘the mat-
terhasbeenresolved’orwhen‘foranyotherreason...itisnolongerjus-
tied to continue the examination of the application’, for example when
defending lawyer have diculties to maintain regular contact with their
migrant clients.60 In practice, the ECtHR has used this and other reasons
to invoke this article and to thereby reduce its caseload, also encouraging
friendly settlements and (more problematically) unilateral declarations of
governments accepting allegations of violations together with commit-
ments to provide adequate redress.61 In Salah Sheekh,theDutchgovern-
ment invoked the article, claiming that the applicant had already obtained
protection covering a certain category of people (namely Somalis).62
The Court disagreed.63 The Dutch government was consequently taken
by surprise, having considered the matter to be settled.64 The Belgian
authorities were luckier in the Grand Chamber case of S.J.,wherethey
reached a friendly settlement with an HIV-positive applicant with chil-
dren who demanded a leave to remain on medical grounds.65 In a burning
58 Philip Leach, Taking a Case to the European Court of Human Rights (Oxford: Oxford Uni-
versity Press, 2011), 126.
59 One of the earliest occasions at which the Court was confronted with the argument in
this context was Bahaddar v. the Netherlands, European Court of Human Rights, Applica-
tion no. 25894/94, 19 February 1998, para. 38. But see also, amongst others, Salah Sheekh,
para. 119, N.A., para. 86, M.S.S., para. 283, and Hirsi, paras 60–61.
60 This can be the case when vulnerable migrant clients are in hiding, dicult to trace, or
when they have lost condence in the legal system, including in their own lawyers. Two
high-prole cases that problematically were struck down for this reason are Hussun and
others v. Italy, European Court of Human Rights, Application no. 10171/05, 19 January
2010, and more recently V.M . a nd o t h e r s v. Be l g i u m , European Court of Human Rights,
Application no. 60125/11, 17 November 2016.
61 For a more detailed analysis of the eects of this provision, see Lize R. Glas, ‘Changes in
the Procedural Practice of the European Court of Human Rights: Consequences for the
Convention System and Lessons to Be Drawn’ (2014) 14 Human Rights Law Rev ie w 671–
99, at 677–78.
62 Salah Sheekh, para. 115.
63 More specically, it held that it could not see the matter as settled since the reconsidera-
tion of this temporary protection policy had explicitly been related to the Court making a
decision on the merits of a case regarding a Somali national. Ibid., para. 117.
64 Interview with government ocial, February 2015.
65 S.J. v. Belgium, European Court of Human Rights, Application no. 70055/10, 19 March 2015
(striking out).
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‘ ’
dissenting opinion, Judge Pinto de Albuquerque stressed that in this case
a substantive decision would have been ‘necessary for the sake of decent
protection of the human rights of seriously ill persons in Europe’.66 In his
opinion, reliance on Article 37 enabled the government to ‘resolv[e] the
situation of the present applicant in order to remain free ‘to do business as
usual’ with all other foreign nationals in a similar situation’.
5.4 Anticipatory Measures
The dissenting opinion of Judge Pinto de Albuquerque in S.J. draws atten-
tion to a wider governmental ‘cost-benet strategy consisting in “buying”
a strike-out decision’.67 In his view, governments seek friendly settle-
ments in order to limit the impact of the Strasbourg Court in par-
ticular cases. However, such a strategy requires the taking of steps
outside the (European) courtrooms. In the case of S.J.,theBelgiangov-
ernment proposed to grant the applicant a residence permit on the basis
of ‘strong humanitarian considerations’.68 The applicant posed additional
conditions, including unconditional and indenite leave for her and her
children to remain in Belgium and compensation of 7000 euros for ‘the
suering undergone . . . as a result of the Belgian State’s decision’.69 The
government accepted, thereby avoiding further proceedings and even
thehearingbeforetheGrandChamber,whichwould,however,cometo
pronounceitselfontheissueinPaposhvili two years later.70
Empirical evidence shows that the strategy in S.J.,althoughheavilycrit-
icized by one of the Court’s own judges, is by no means atypical. In fact,
governments frequently adopt what one could call anticipatory measures,
which pursue the goal of limiting the inuence of European courts as
much as possible, mostly in cases where the factual situation is about to
lead to an undesirable judgment such as the nding of a violation. From a
governmental viewpoint, the complete strike-out of a case will represent
the optimal result. More specically, preventing a decision on the prin-
ciples will allow governments to maintain interpretative exibility in the
future, thereby maximizing ‘sovereign manoeuvrability’. To achieve this
goal before the Strasbourg Court, they must, in principle, acknowledge
the violation and oer some redress, meaning that it is insucient simply
66 S.J., 19 March 2015, Dissenting Opinion of Judge Pinto de Albuquerque, para. 1.
67 Ibid., para. 1, note 3. 68 S.J., 19 March 2015, para. 56. 69 Ibid., para. 57.
70 Paposhvili v. Belgium, European Court of Human Rights, Application no. 41738/10,
13 December 2016.
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to prove that the situation of the applicant now complies with the Con-
vention’s provisions, as for instance argued by France in Gebremedhin.71
In practice, however, states manage to strike o a substantive number of
cases, at times even without an explicit acknowledgment of a violation.72
In fact, the latter is frequently not ‘worth its price’, which is why govern-
ments will try to avoid it wherever possible. Anticipatory measures thus
take dierent forms, depending on the ‘stakes in the case’73 and the pro-
cedural possibilities in the proceedings before the two European courts.
In proceedings before the CJEU, national courts have the right to with-
draw the reference for a preliminary ruling that they have submitted
earlier.74 Governments can consequently try to reach a settlement and pre-
vent the CJEU from handing down a ruling.75 This has been tried in some
important instances, although the generally lower number of cases before
the CJEU also translates into fewer such attempts when compared to the
ECtHR.76 For example, the Belgian government granted a temporary res-
idence permit for the duration of the national proceedings in Zambrano,
most likely in the hope that the Court would not hand down a judgment
regarding the right to stay.77 According to one of the involved lawyers,
the Court decided to address the question only because the applicant’s
claim to unemployment benets concerned the period not covered by
this permit. In another instance, the strategy proved at least temporarily
71 Gebremedhin, para. 56.
72 Dembour, for example, mentions that there were around fteen ‘Dutch hidden cases’ with
similar facts to Salah Sheekh, where the granting of residence permits led to the cases being
struck o. Dembour, When Humans Become Migrants, 324.
73 As Galanter pointed outin a s eminal article, repeat players (such as European governments
in the present context) will ‘trade o’ tangible gains in a single case to ‘rule gains’ that may
lead to favourable outcomes in future proceedings. See Marc Galanter, ‘Why the ‘Haves’
Come Out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law and Society
Review 95–160, at 100–101.
74 Rules of Procedure of the Court of Justice of 25 September 2012 (OJ 2012 no. L265,
29 September 2012), as amended on 18 June 2013 (OJ 2013 no. L173, 26 June 2013).
75 However, Art. 100(1) also states that ‘[t]he withdrawal of a request may be taken into
account until notice of the date of delivery of the judgment’, which has been interpreted
as meaning that the Court may after this date hand down a decision even if a case has been
withdrawn. See Morten Broberg and Niels Fenger, Preliminary References to the European
Court of Justice (Oxford: Oxford University Press, 2014), 324.
76 One can also assume that given there is still a signicant backlog of cases, the ECtHR will
still be open to accepting a wide variety of settlements in order to reduce its caseload. This
assessment is also in line with the conclusions drawn in Helen Keller, Magdalena Forowicz
and Lorenz Engi, Friendly Settlements before the European Court of Human Rights: Theory
and Practice (Oxford: Oxford University Press, 2010).
77 Interviews with various lawyers, November and December 2014.
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‘ ’
successful. In the Imran case, the Court found that a ruling was ‘not nec-
essary’ after the Dutch government had granted a provisional visa to the
spouse of the applicant.78 The case concerned the highly pertinent ques-
tion of whether the application for family reunication could be rejected
solely on the grounds that a spouse had not passed a civic integration
examination. A similar case in Germany was not even referred to the CJEU
for the same reason, leading Block and Bonjour to state deantly that the
‘covert strategy of selective lenience [ . . . ] may postpone an EU Court deci-
sion, but it cannot permanently diuse the “liberal constraint” emanating
from the EU judiciary’.79 The fact that the question nally re-emerged in
thecaseofKandAconrms their assessment.80 Seeking a ‘removal’ of
casesappearsthustobealessprotablestrategybeforetheCJEUascom-
pared to the ECtHR, although it has been tried there with some limited
success.
Besides oering individual remedies, another way for governments
to anticipate a ruling of the CJEU has been to enact partial legislative
changes. This practice is reected in a number of recent Dutch cases, in
which asylum was claimed on the grounds of persecution due to sex-
ual orientation. In X, Y and Z,thequestionreferredtotheCourtwas
whether foreign nationals could be expected to conceal their orientation
after returning to their country in order to avoid persecution.81 As argued
not only by the Court, but before the judgment also by Advocate-General
Sharpston and scholars,82 this view was not compatible with legal obli-
gations. According to Sharpston, ‘a requirement that applicants should
conceal their sexual orientation might be regarded as constituting an act
of persecution in itself’.83 However, interviews with members of NGOs
78 Case C-155/11 PPU, Bibi Mohammad Imran v. Minister van Buitenlandse Zaken, [2011]
ECR I-5095, para. 22.
79 Laura Block and Saskia Bonjour, ‘Fortress Europe or Europe of Rights? The Europeani-
sation of Family Migration Policies in France, Germany and the Netherlands’ (2013) 15
European Journal of Migration and Law 203–224, at 221.
80 The CJEU held in this case that civic integration exams should not make it excessively
dicult or impossible for families to reunite, for instance regarding the fees required to
prepare and participate in such an examination. See Case C-153/14, Minister van Buiten-
landse Zaken v. K and A, ECLI:EU:C:2015:453.
81 X, Y and Z, para. 37.
82 See e.g. Sabine Jansen, ‘Introduction: Fleeing Homophobia, Asylum Claims Related to
Sexual Orientation and Gender Identity in Europe’, in Thomas Spijkerboer (ed.), Fleeing
Homophobia: Sexual Orientation, Gender Identity and Asylum (London: Routledge, 2013),
1–31.
83 X, Y and Z, Opinion of Advocate-General Eleanor Sharpston, delivered on 11 July 2013,
para. 64.
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revealedthattheDutchgovernmenthadbeenquiteawareofthisfact.It
responded quickly to the reference and adjusted its practices already prior
to the judgment by shifting towards a stricter assessment of the credibil-
ity of the applicants. Since these aspects were not covered in the questions
posed in X, Y and Z, they had to be addressed in the subsequent case of
A, B and C, where the CJEU held that assessments could not be based
on stereotyped questions, detailed questions about sexual practices or the
performance (or oering evidence thereof) of homosexual acts.84 Again,
interviewees suggested that the government took action already prior to
the delivery of the judgment after having seen the questions that were
referred to the Court.85 While these quick reactions were benecial for the
asylum seekers making such claims, they also had downsides. As one NGO
representative points out, the problem is that the resulting judgments rep-
resent ‘a more dicult story to spin’. Governments are able to downplay
the failings of their former restrictive policies and agendas:
[T]hey will say, ‘Well . . . that’s what they said and that’s what we’re doing!
What do they want us to change?’, which makes the position of those criticiz-
ing the government beforehand a little bit dicult, because then we have to
say, ‘Well, they already adjusted their behaviour’.86
The interviewee stressed with some frustration the practical problems
that this strategy causes for post-judgment mobilization and lobbying as
the story becomes ‘not that sexy to sell for papers, for news, and then
it doesn’t get the attention it should because there was a big issue about
the Netherlands’.87 A similar eect was also achieved in the Elgafaji case,
where the government had introduced a temporary policy of protect-
ing certain categories of persons (categoriaal beschermingsbeleid), namely
those originating from central Iraq. This measure, which was granted by
the State Secretary for Justice ona discretionary basis ‘protected’ the appli-
cant at least for a temporary period during the proceedings and – accord-
ing to the Dutch government – regardless of the protection eventually
oered under EU law.88
84 A, B and C, para. 72. 85 Interview with civil society representative, February 2015.
86 Ibid. 87 Ibid.
88 The national and discretionary nature of this kind of protection (former art. 29(1)(d) of
the Dutch Aliens Law of 2000, which no longer exists in this form) was of paramount legal
importance to this case. More specically, the applicant was covered by this measure at the
time of the hearing before the Court on 8 July 2008, though it was ocially abolished for
migrants from Central Iraq already on 22 November 2008 (thus before the nal judgment
of 17 February 2009). Having granted this kind of protection, the government argued that it
did not amount to a type of ‘subsidiary protection’ in the meaning of the EU Qualications
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‘ ’
While anticipatory measures against European court judgments can
be employed in dierent domains, they are particularly eective in cases
dealing with migration and asylum. Especially asylum seekers are satis-
ed when litigation achieves ‘concrete, particular, individual immigration
measures, such as the revocation of a deportation order or the granting of
a residence permit’89 due to their vulnerable position and a fear of being
returned. The interviews revealed that lawyers and civil society organi-
zations across countries face a dicult dilemma between accepting set-
tlements benecial for their clients and pursuing promising cases with a
potential strategic value for persons with similar interests.90 Where it is
not possible to pursue both goals, interviewees stated a strong preference
for the former. However, the examples of Imran and S.J. both show that it
is unclear whether the strategy can indeed secure ‘sovereign manoeuvra-
bility’ in the long term. Where large numbers of persons are aected, it is
likely that legal challenges will continue to be led, especially as lawyers
and civil society organizations are also increasingly driven by a strategic
approach to litigation. Hypothetically, the launching of subsequent cases
could even lead to a ‘complete surrender’ by a government on a certain
point if only enough applications are led – a question that needs to be
addressed in future research.91
5.5 International Cooperation: Peer Mobilization
In the past, International Relations scholars claimed that the power of
international courts was strongly constrained by their mandate providers,
especially states.92 However,bytheendoftheColdWar,thisviewhad
been heavily challenged and qualied in mainstream theory: rather than
Directive (and more specically Art. 15(c)). This would leave the discretionary nature of
the provision intact while possibly convincing the Court that persons in a similar situation
like the applicant were in principle protected under Dutch law. The nal ruling in Elgafaji
thus represents a success for the Dutch government since it did not address the question of
whether national legislation oered sucient protection for such persons under EU law,
providing instead a general interpretation and status of Art. 15(c) of the Directive.
89 Dembour, When Humans Become Migrants, 324.
90 Even strategically oriented lawyers and organizations are therefore forced to act like ‘one
shotters’, while the governments enjoy the position of ‘repeat players’ before the European
courts. The asymmetry of these two positions is well known in scholarship, having been
elaborated upon in Galanter, ‘Why the “Haves” Come Out Ahead’.
91 I thank Shai Dothan for drawing my attention to this point.
92 See most notably Georey Garrett and Barry Weingast, ‘Ideas, Interests, and Institutions:
Constructing the EC’s Internal Market’, in Judith Goldstein and Robert Keohane (eds),
Ideas and Foreign Policy (Ithaca, NY: Cornell University Press, 1993), 173–206.
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Table 5. 1 Number of Third-Party Interventions by Governments before the
CJEU and the ECtHR
CJEU ECtHR
Name Case no.
Appl.
no. Name Case no.
Appl.
no.
N.S. and M.E. C-411/10 13 Ta r a k hel 29217/12 5
Elgafaji C-465/07 7 Ramzy 25424/05 4
Zambrano C-34/09 7 M.S.S. 30696/09 2
OandB C-456/12 7 Saadi 37201/06 1
Abdullahi C-394/12 6 Slivenko 48321/99 1
Note: As can be found in EUR-Lex (available at http://eur-lex.europa.eu) and
HUDOC (available at http://hudoc.echr.coe.int) databases.
being mere ‘agents’ of state power, international courts were argued to rep-
resent ‘trustees’. As a consequence, states would rarely nd themselves in
a position of using heavy-handed ‘recontracting powers’ and institutional
sanctions to inuence international courts.93 Whilethisobservationholds
particularly true for the relatively independent European courts, it would
be a mistake to ignore the persistent desire of states to defend their legal
and political status as ‘principals’ vis-à-vis the European courts.94 One
eective way of doing this is through peer mobilization. The concept refers
to the collective intervention of a multitude of contracting states before
European courts (or any other international court for that matter) in order
to demarcate a domaine réservé and to stress the high political stakes of a
case. As such, it can be classied as a special type of ‘international cooper-
ation’ through which governments attempt to shape (rather than circum-
vent) the ‘constraints’ imposed by international legal obligations.95 While
it is dicult to gather reliable data about this practice, a few observations
can still be made.
Firstly, one has to consider the frequency of its usage. Table 5.1
illustrates the ve ‘most popular’ migration-related cases before each
93 Karen J. Alter, ‘Agents or Trustees? International Courts in Their Political Context’ (2008)
14 European Journal of International Relations 33–63.
94 On this same basis, compelling arguments have recently been made to privilege the per-
spective of mandate providers (especially states) in the evaluation of the eectiveness of
international courts. See Yuval Shany, Assessing the Eectiveness of International Courts
(Oxford: Oxford University Press, 2014).
95 See Chapter 1, this volume.
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‘ ’
European court, with CJEU cases shown on the left and ECtHR ones on
the right. More concretely, the table displays the ve instances in which
governmentssubmittedthemostthird-partyinterventions(TPIs).
96 Peer
mobilization appears to be more common before the CJEU than the
ECtHR. One state agent to the latter explained this fact by referring to
the more limited resources that are available for regular interventions in
Strasbourg.97 Still, the Tarakh e l ruling (delivered in November 2014) pos-
sibly indicates a change in practice in very salient Strasbourg cases, as
it sets a new record regarding the number of government TPIs. In con-
trast, Member States routinely le TPIs before the CJEU. Like Ta r a khel ,the
case with the most TPIs by governments in Luxembourg (N.S. and M.E.)
concerned the application of the Dublin regulation. As previously men-
tioned, in two of the ‘popular’ CJEU cases – N.S. and M.E. and Zambrano –
intervening governments drew particularly gloomy scenarios regarding
the consequences of rights-conrming judgments. Regarding Zambrano,
the 2011 annual report of the Dutch Ministry of Foreign Aairs on the
jurisprudence of the CJEU actually underlines that the Court ‘diverged
from the point of view of the Commission and all intervening EU States,
including the Netherlands’.98
The idea of peer mobilization implies that states will encourage and
coordinate their TPIs. Several interviewees suggested that this is indeed
the case, although degrees of coordination and formality vary. With gov-
ernments intervening more rarely in Strasbourg, connections between
states remain mostly informal. Peer mobilization is consequently ad hoc,
with agents asking their colleagues for support only when cases are par-
ticularly salient.99 One interesting (although somewhat atypical) example
in this context is the case of Ramzy v. the Netherlands,wheretheUKused
its Presidency of the Council of the EU to inform other EU Member States
about ‘the possibility for the European Court of Human Rights of revisit-
ing an earlier Court decision in the 1996 Chahal case’.100 Lithuania, Por-
tugal and Slovakia joined the UK as interveners, arguing that the ECtHR
shouldreconsidertheextenttowhichArticle3oftheECHRwastobe
96 The number of inter ventions is indicated on t he ocial judgments and t hus publicly avail -
able on the InfoCuria and the HUDOC database.
97 Interview with government representative, February 2015.
98 Ministerie van Buitenlandse Zaken, Jaarbericht 2011: Procesvertegenwoordiging Hof van
Justitie van de EU (Den Haag: Het ministerie van Buitenlandse Zaken, 2012), 21 (own
translation).
99 Interview with government representative, February 2015.
100 Council of the European Union, Press Release 2683rd Council Meeting Justice and Home
Aairs, Luxembourg, 12 October 2005, 12645/05 (Presse 247), 12.
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applied in expulsion cases, especially where an applicant was suspected of
terrorist activities, thus posing a risk to national security.101 Peer mobi-
lization was therefore combined with an argument regarding policy con-
sequences, as discussed above.
ArrangementsseemtobemorestandardizedinsomeoftheCJEUcases.
For instance, some governments promised to submit TPIs whenever a cer-
tain issue was at stake.102 In both courts, TPIs were especially made in the
‘Dublin cases’, probably because many governments faced similar situa-
tions with sometimes hundreds of appeals pending. Yet, peer mobiliza-
tion is more subtle and uncoordinated in other cases. As one government
ocial notes, submissions of more powerful states might embolden the
smaller ones to follow suit or, where they are the respondents, to pick
a ght when they usually would not.103 However, states do not always
adoptthesamepointsofview.ThejudgmentinN.S. and M.E. shows that
the thirteen intervening governments proposed quite dierent arguments.
But even in this instance, there were groups of states which shared and
defended the same position.
As with other factors, the condentiality of judicial deliberations in
European courts makes it dicult to estimate the impact of peer mobi-
lization on specic judgments. Cases like Zambrano prove, on the one
hand, that even the intervention of a large number of governments with
similar points of view does not necessarily bring about the outcome they
desire. On the other hand, interviewees argued that European courts do
not ignore such eorts. As one CJEU judge stated, ‘the general tendency is
to take very serious[ly] what the Member States are saying, particularly in
[a] situation where . . . a large number are intervening’.104 One government
ocial argued with regard to the ECtHR that by increasing the pressure,
they can at least postpone undesired rulings in some cases.105 NGO mem-
bers, therefore, stress the need to rally multiple civil society organizations
101 See Ramzy v. the Netherlands, European Court of Human Rights, Application no. 25424/
05, 27 May 2008 (admissibility), paras 125–30. The case was eventually struck o the list
before being considered on the merits as the Court concluded that the applicant had lost
interest in his application, not having been in contact with his lawyers for over two years.
102 As one interviewee suggested, at some point three major EU Member States agreed to
submit supporting TPIs in all cases concerning the Turkish Association agreements to
stress the political relevance of the issue to the CJEU. Interview with former government
representative, August 2014.
103 Interview with government representative, December 2014.
104 Interview with CJEU judge, June 2014.
105 Interview with government representative, December 2014.
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‘ ’
as a counterweight to governments.106 Given the growing number of gov-
ernment TPIs in migration cases before the ECtHR, it is not far-fetched to
hypothesize a sort of ‘judicial arms race’. As the political deadlock forces
a growing number of lawyers and support groups to take their struggle to
the European courts, peer mobilization might become an essential tool for
governments to defend their primacy in this policy domain.
While peer mobilization is both strategically sensible and corroborated
by some evidence from qualitative interviews, further research is certainly
needed to clarify the spread of this practice and the circumstances of
its usage. Particularly interesting is the question of whether eorts have
become more coordinated in recent years.
5.6 Post-Judgment Positioning
Finally, a strategic approach of governments can sometimes also be identi-
ed in the follow-up to judgments. More concretely, where other in-court
or litigation strategies have not been employed or where these have failed
to prevent an adverse decision, governments might try to attach a narra-
tive to a certain judgment. While simply refraining from oering any reac-
tion in some cases, they adopt deliberate and even surprising positions in
others. The goal is generally to contain the impact of adverse European
court rulings, although precise objectives vary depending on the case and
the political aliation of a government. Such post-judgment positioning
in the migration context highlights that practices of interpretative fram-
ing often do not end at the moment when a judgment has been handed
down. Rather, they also appear afterwards, in the ‘tribunal of public opin-
ion’, where they frequently take on an overtly political character. At times,
post-judgment positioning even challenges the authority of a European
court as an institution rather than merely dealing with the concrete policy
questions at stake in a certain case.
Confronted with adverse decisions in migration cases, the most com-
monpositionistoseekanalignmentwiththeEuropeancourtwhiledown-
playing the gravity of the violation and the political signicance of a case.
For example, the Swiss authorities took ‘interested notice’ of the Tarak h e l
judgment, pledging analysis and verication of measures required for
compliance.107 At the same time, they seemed to convey the impression
106 Interview with civil society representative, February 2015.
107 Bundesamt für Justiz, ‘EGMR verlangt Garantien vor der Überstellung einer afghanischen
Familie nach Italien’, S chweizerische Bundeskanzlei, 2014, www.news.admin.ch/message/
index.html?lang=de&msg-id=55075 (accessed 28 May 2015) (own translation).
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that this ‘individual case’ did not cast doubt on the Dublin system.108
In Hirsi, most Italian government ocials expressed their respect for the
ECtHR as a supreme judicial organ, promising to examine the situation
and to establish a ‘clear, transparent and fair immigration policy’.109 But
seemingly in contradiction to this attitude, the Ministry of Foreign Aairs
also stated that ‘the treatment ofrescued migrants and refugees has always
been in line with international obligations’.110 Such deections can be par-
ticularly eective where anticipatory measures have created a temporar-
ily acceptable human rights situation. Migrant supporters are then unable
to direct attention to specic questionable practices. However, short-term
compliance after or at the time of a ruling might not at all be indicative of
the longer-term approach. While not performing overt ‘pushbacks’ after
the Hirsi judgment, Italy continued to engage in policies that are dubi-
ous from a human rights standpoint even after the judgment. Only the
death of around 300 migrants in a shipwreck close to the Italian island
of Lampedusa in 2013 led to a more humanitarian approach in the form
of search-and-rescue operations such as Mare Nostrum. However, accord-
ing to a 2014 report by Amnesty International, the authorities still closely
cooperated with Libya in questions of migration control while falling short
of oering eective asylum procedures in the context of its operations in
the Mediterranean.111 In spring 2015, the government introduced a new
proposal at the EU level, focusing especially on the creation of detention
centres and the stepping up of coastal guard capabilities in countries like
Tunisia and Egypt.112
The second and more confrontational approach consists of highlighting
one’s dissatisfaction with judicial outcomes and shifting the blame to other
108 Carlos Hanimann, ‘Ein Urteil gegen die Gleichgültigkeit’, Die Wochenzeitung, no.
45/2014, 6 November 2014, www.woz.ch/-5665 (accessed 29 May 2015) (own
translation).
109 Polchi, Vladimiro, ‘Strasburgo, l’Italia condannata per i respingimenti verso la Libia’, La
Repubblica, 23 February 2012, www.repubblica.it/solidarieta/immigrazione/2012/02/23/
news/l_italia_condannata_per_i_respingimenti-30366965/ (accessed 29 May 2015) (own
translation).
110 Ibid.
111 Amnesty International, ‘Submission to the Council of Europe Committee of Minis-
ters: Hirsi Jamaa and Others v. Italy (Application no. 27765/09)’, Amnesty International,
2014, www.amnesty.eu/content/assets/Doc2014/B1525_-_second_submission_Hirsi_-_
11_Feb_2014.pdf (accessed 30 May 2015).
112 Manasi Gopalakrishnan, ‘The EU’s Plan to Restrain Migrants in North Africa Worries
Rights Groups’, Deutsche Welle, 26 March 2015, www.dw.com/en/the-eus-plan-to-
restrain-migrants-in-north-africa-worries-rights-groups/a-18342598?maca=en-rss-en-
eu-2092-rdf (accessed 10 July 2015).
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‘ ’
actors. For instance, in the aftermath of M.S.S.,theBelgianStateSecretary
of Asylum and Migration overtly criticized Greece, stating that he ‘can-
not accept that a country like Belgium is being condemned by the Euro-
pean Court of Human Rights because another country does not respect
Community law’.113 More often, however, governments will oppose the
position taken by the court in question. This is particularly true for the
Strasbourg Court, which is increasingly confronted with strong criticism
directly challenging its institutional legitimacy.114 The strategy is then
used to rally the conservative and nationalist parts of the electorate, which
are usually opposed to both immigration and interferences of the Euro-
pean courts in domestic politics. As Myjer points out, ‘[t]he political mes-
sage is a simple one: blame the Court, emphasize that the State should
take care of its ‘own’ people rst, and the last word on immigration mat-
ters should not be given to international judges’.115 In Hirsi,forexample,
some (former) Italian ocials displayed such deant behaviour, going as
far as challenging the legality of the judgment. Indeed, the Italian defence
attorney declared that the Court had formulated ‘an ideological manifesto
against Italy and its policies’ and that this was ‘not the place to debate this
matter’.116 Roberto Maroni, though ‘only’ the former Minister for the Inte-
rior at that time, lamented ‘an incomprehensible blow by hypocritical do-
gooders’.117 The Hirsi case illustrates that post-judgment positions might
dier according to the political aliation of governments or even indi-
vidual ocials, possibly resulting in a multitude of government positions.
Still, where this diversity of views successfully caters to various political
interest groups at once (as for example Europhiles and Eurosceptics), it
113 Pascal Martin, ‘Asile: Dresser des murs ne résoudra rien’, Le Soir, 29 March 2011, www
.lesoir.be/archives?url=/actualite/belgique/2011–03–29/asile-dresser-des-murs-ne-
resoudra-rien-831147.php (accessed 30 May 2015) (own translation).
114 See Barbara M. Oomen, ‘A Serious Case of Strasbourg-Bashing? An Evaluation of the
Debates on the Legitimacy of the European Court of Human Rights in the Nether-
lands’ (2016) 20 The International Journal of Human Rights 407–25 and SpyridonI.
Phlogaites, Tom Zwart and Julie Fraser (eds), The European Court of Human Rights
and Its Discontents: Turning Criticism into Strength (Cheltenham, UK: Edward Elgar,
2013).
115 Egbert Myjer, ‘Why Much of the Criticism of the European Court of Human Rights is
Unfounded’, in Phlogaites, Zwart and Fraser (eds), TheEuropeanCourtofHumanRights
and Its Discontents, 41.
116 Arnd Riekmann, ‘Italy Told Not to Send Back Intercepted Refugees’, Deutsche
Welle, 24 February 2012, www.dw.de/italy-told- not-to- send-back-intercepted-refugees/
a-15765553 (accessed 30 May 2015).
117 Polchi, ‘Strasburgo, l’Italia condannata per i respingimenti verso la Libia’ (own transla-
tion).
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might end up beneting the popularity of a government despite apparent
inconsistencies.
Finally, some interviewees made the interesting point that governments
may, at times, seek a confrontation with the European courts. One gov-
ernment ocial explained, for instance, that at one point the election of
a right-wing government brought about a strategy of pushing the bound-
aries of European law with particularly narrow interpretations to, ‘in the
end, have the Court . . . tell you that it is not possible what you are doing’.118
The result would either be the approval of the policy or a new opportu-
nity to contest the authority of the European court in question. According
to an NGO representative from the same country, governments can thus
shift political blame in a way that is usually not possible with domestic
courts.119 Put more simply, when unassertive domestic judiciaries force
theEuropeancourtstobeactiveintheenforcementofmigrantrights,gov-
ernments might successfully combine highly restrictive migration policies
with a confrontational post-judgment positioning. To borrow a concept
that has been developed with regard to judicial strategies,120 governments
areable‘towalkonthebrinkofnoncompliance’withhumanrightsobliga-
tions while risking very little given the critical attitude of their electorates.
While future research needs to inquire into the spread of such tactics
among right-wing governments, this plausible scenario shows the poten-
tial import of post-judgment positioning into EC litigation on migrant
rights.
5.7 Conclusion
Focusing on cases dealing with the human rights of migrants and asy-
lum seekers, this chapter has sought to identify and explain a number of
government strategies aimed at managing the inuence of the European
courts and maximizing their ‘sovereign manoeuvrability’ in the European
legal order(s). While the varying political impact of international courts
has recently come under closer scrutiny in scholarship, such practices of
political contestation in legal engagement have so far remained under-
researched. Based on original research and some general observations,
this chapter has tried to elucidate four particular strategies, namely legal
118 Interview with former government representative, August 2014.
119 Interview with civil society representative, February 2015.
120 See Shai Dothan, Reputation and Judicial Tactics: A Theory of National and International
Courts (Cambridge: Cambridge University Press, 2014), 117–22.
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‘ ’
argumentation in court, anticipatory measures, peer mobilization and
post-judgment positioning. The rst aspect refers tothe practice of trying
to persuade the European courts during the proceedings of the application
or the interpretation of legal provisions, especially where they relate to the
scope of legal instruments, policy implications and the ‘correct’ applica-
tion of procedural requirements. The adoption of anticipatory measures
such as the granting of temporary residence permits or partial legislative
changes are meant to remove cases from the courts or to temper public
reactionstoimminentadversejudgments.Moreover,statesarefoundto
mobilize their peers to intervene alongside them in particularly politi-
cally salient cases, thus increasing the pressure on the European courts
to respect the preferences of contracting states. Finally, governments may
adopt dierent positions in the aftermath of negative rulings in migration-
related cases, trying either to show respect and alignment with the Euro-
pean court or to directly confront judicial authority.
To be sure, governments do not always act in strategically optimal ways.
For instance, the UK arguably ‘lost’ the case of Su and Elmi by submitting
a report of poor quality about the human rights situation in Somalia at
that time.121 The ECtHR consequently concluded that a return of asylum
seekers is not permissible under the Convention. However, the increasing
reliance on the European courts by organizations and lawyers supporting
migrants is likely to inspire more calculated, resourceful and coordinated
government strategies in the future. This trend is already visible in the
growing number of TPIs by governments, especially in cases relating to
the Dublin regulation. As the most signicant judicial interventions in the
migration area are quite recent, it is not unlikely that actors will engage in
a sort of ‘judicial arms race’ before the European courts for at least as long
asthepoliticalplatformsremaindeadlocked.
The examples discussed in this chapter illustrate how governments
employ various strategies before, during and after European courts liti-
gation. This nding conrms the general observation in this volume that
the practices in international law are changing as governments act increas-
ingly strategically to maximize their political room for manoeuver. How-
ever,havingfocusedonlyontheEuropeancourtsandthemigrationarea,
it needs to be seen how this trend plays out across international courts and
other policy areas. The strategies identied here are generic in the sense
of being transferable to other domains even if the adoption of anticipa-
tory measures, for example, seems particularly ‘promising’ in the context
121 Interview with civil society representative, January 2015.
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of migration. But the motivations for the application of various measures
might dier, with governments either trying to retain control over certain
particularly salient policy areas or simply being afraid of general reputa-
tionalcosts.Furthermore,thechapterillustratesthatitisdiculttoassess
the actual eectiveness of these strategies. The fact that governments had
to accept negative outcomes in many of the examples cited here does not
disprove their value. The question is rather: what would the courts have
decided in their absence? The analysis thus nally highlights the ambi-
guity of judicial outcomes. Even the reinforcement of a legal regime by
a strong and assertive international court does not necessarily lead to its
promotion. More clarity about the prevalence and eectiveness of gov-
ernment strategies will be necessary for a dierentiated evaluation of the
inuence of the growing number of international courts on the changing
practices of international law.
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