Strategic Litigation for Refugee Rights Empowerment

An update from the UN Annual Consultations with NGOs

Global Policy Director Jessica Therkelsen.
Global Policy Director Jessica Therkelsen.

This June, Asylum Access went to Geneva for the UNHCR Annual Consultations with NGOs with a big goal: to foster dialogue and learning about the use of strategic litigation as a tool to alter refugee laws and policies, ultimately shaping policies that would enable them to  access fundamental rights and obtain protection.

Together with HIAS and UNHCR, we organized a side session on strategic litigation attended by about 50 participants. There was clear interest in the use of Courts and impact litigation to shape refugee protection, but few advocates have applied this approach within Africa, Asia and Latin America.

As a tool for change, strategic litigation can expand rule of law and access to justice for refugees, by bringing compelling cases before the Court that will set new precedents and advance legal standards for refugees. An example of impact litigation would be the Brown vs. Board of Education case, which abolished race-segregated schools in the USA. In Ecuador, Asylum Access has successfully used strategic litigation to challenge the unlawful detention of a refugee who was detained for 8 months for use of a false passport and denied access to refugee officials.

Strategic litigation is rarely used by refugee rights advocates for a number of reasons.

It is often perceived as confrontational and may jeopardize already strained relationships with government authorities. For some legal aid providers, this may also put refugee clients at risk, whose cases may be affected simply by association. As a result, it is often the seen as the approach where direct negotiation is no longer feasible.

Our discussion in Geneva also illuminated a few other thought- provoking questions on pursuing effective strategic litigation, and where we might act. For example, many judges lack adequate knowledge about international refugee law and the applicable standards of domestic laws and policies relating to refugees.How can we build the knowledge and capacity of judges and facilitate training on substantive legal issues relating to refugees? Given the interest of other colleagues, how can we provide more opportunities for learning and collaboration on strategic litigation? How can we facilitate information sharing and partnerships to allow for case support?

We walked away from the consultations with food for thought, and a great deal of excitement about how we might fill these gaps. Within Asylum Access, we have begun exploring strategic litigation beyond Ecuador, beginning with Tanzania. As we develop our methods, we will also be adding this to our Refugee Rights Toolkit and thinking about how we might work with other refugee rights advocates on strategic litigation. Stay tuned for updates!

By Communications and Development Coordinator Anna Chen and Global Policy Fellow Anna Wirth