Master’s thesis affiliated with PRIO and the PRIO’s Migration Centre examines the effectiveness of litigation-based approaches to reforming immigration control practices in Norway. Over
the past few decades, human rights have evolved to become enforceable legal
rules that place significant constrains on policymaking, creating new opportunities for organised interests to influence society, but also leading many to
question their democratic legitimacy. Nowhere is this conflict more visible
than within the field of migration management.
Across Europe, national politicians insist on their sovereign rights to control the country's borders, decide who gets to enter and to detain and deport foreigners. At the same time, international law demands that any person on their territory, citizens and illegal residents alike, be given their due protection from an ever growing list of human rights.
Student associate at PRIO's Migration Centre, Ludvig Fæhn Fuglestvedt devoted his master's research to exploring what this new reality entails for civil society organisations who seek to influence immigration policies. In a socio-legal study titled Advocacy for the human rights of asylum seekers: a strategic analysis, Fuglestvedt charted the various strategies deployed by activists to achieve legislative reforms by lawsuits against the government, what is known as strategic litigation.
In Norway, its chief practitioners include the Norwegian Bar Association, Norwegian Organisation for Asylum seekers (NOAS), as well as an informal network of cause lawyers surrounding academia. Grassroots organisations too have adopted similar tactics to defend the right to work for undocumented migrants, seeking to have their voice heard in criminal trials provoked by acts of civil disobedience.
Drawing from interviews, courtroom observations and vaults of case material, the study attempts to pinpoint the forces that lead to political victories—or setbacks for the activists, and how their strategies are shaped accordingly. Despite mixed results for the campaigns in question, a main argument of the thesis is that the purely legal outcome of a case is a poor guide to its political impact. Win or lose, litigation can be effective if only for demonstrating the adverse consequences of current laws.
The objective, normally, is to make the judge pronounce on certain principled interpretative questions that hold significance for future cases, making small gains, little by little, often through a series of similar cases. Representatives of the state, likewise, are acting strategically to prevent the judge from elaborating on those same human rights provisions, for example by granting asylum to a plaintiff only to see the case settled.
Litigation also derives its usefulness from a long list of indirect, agenda setting effects including media publicity, alliance building and the promotion of competence. Contrary to the warnings given famously by sociologist Thomas Mathiesen (1933-2021) against using the courtroom as a political arena, the study concludes that for asylum seekers, the situation is different. One of society's most destitute and unorganised groups, whose grievances there is hardly room for within conventional channels for political participation, the justice system is really their best bet to get their voice heard.
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