Preserving Refugee Protection in the Era of Externalisation 2.0

Scholars have long noted that the refugee regime is a regime of containment, with many barriers in place to prevent refugees from seeking protection in the Global North. Notwithstanding decades of policy failure and legal challenges with mixed results, many states and regions in the Global North, notably the UK and EU, are doubling down on containment practices, and facing renewed legal challenges. We characterise this as the era of externalisation 2.0.  While earlier scholarship has identified a process of a ‘cat-and-mouse game’ between law and politics, with the norm of non-refoulement preserving protection (Hathaway and Gammeltoft-Hansen 2015), scholars now ask whether we have entered an era of ‘demolition’ of the institution of asylum, rather than endogenous contestation (Lavenex 2024).

This project explores the legal and political contestation around externalisation 2.0 and its implications for the global refugee regime, at a critical juncture where containment and externalisation practices are both deeply embedded and attracting renewed political attention. The project treats the post-Brexit United Kingdom as an index case to understand these legal contestations, with particular attention to legal challenges within the UK (noting the diverse constitutional positions of the UK Supreme Court and Northern Irish courts), its neighbours (taking into account litigation in Ireland and France) as well as potential challenges before global and African human rights bodies. 

The research builds on previous scholarship of the PIs, examining the principles of non-refoulement, non-discrimination, and non-penalisation in contesting externalisation and containment practices, and their scholarship on the growing role of global (eg United Nations Treaty Bodies) fora to challenge these practices. 

References

James C Hathaway and Thomas Gammeltoft-Hansen (2015) ‘Non-Refoulement in a World of Cooperative Deterrence’, Colum. J. Transnat'l L 235-84.

Sandra Lavenex (2024) ‘The International Refugee Regime and the Liberal International Order: Dialectics of Contestation’. Global Studies Quarterly.