Enforcing refugee rights under EU procedural law: the role of collective actors and UNHCR

Harmonisation in asylum carries the potential for the Court of Justice of the European Union (CJEU) to shape EU asylum, and by extension international refugee law, as well as to enforce refugees’ rights. Strict procedural rules circumscribe the CJEU’s potential to become an ‘asylum Court’. Nevertheless, provisions in the EU asylum acquis influence the conditions for asylum seekers and refugees to gain access to national courts. Proceduralisation has been an explicit goal of the EU asylum policy since its inception. It has materialised in three legislative waves. The first resulted in the creation of a basic set of procedural guarantees, alongside a plethora of exceptional procedures. The second resulted in modest improvements in terms of harmonisation, and adherence to fundamental rights, but saw exceptional procedural arrangements either retained or introduced. The third, forthcoming wave, aims at further harmonisation that would, however, be heavily focused on the underlying goal of externalising protection to third countries. Procedural harmonisation sought to enhance the role of collective actors and the Office of the United Nations High Commissioner for Refugees (UNHCR). While a ‘defence clause’ is absent, the legislation envisages information - provision to applicants, legal aid, and feeding into the establishment of country of origin information as their primary involvement. Additional functions are reserved for UNHCR, falling, however, short of establishing a genuine supervisory role. In practice, collective actors engage in strategic litigation on behalf of refugees, and both they, and UNHCR, have formally intervened in cases that reached the CJEU. They also engage in ‘hidden’ forms of support: legal advice to lawyers, liaison, and training.