Abstract
Supra -national and municipal courts are increasingly involved in determining the
parameters of European states' refugee and asylum policy. Yet, little attention has been
paid to how and why governments choose to comply with judicial decisions which
constrain their policy goals. In the UK, judicial oversight of asylum control has
occasionally met with outspoken political opposition, which has even challenged the
legitimacy of judicial scrutiny. Nevertheless, `compliance' typically follows. This
makes it all the more important to consider how and why judicial decisions on the
lawfulness of asylum and deportation controls do nevertheless impact upon policy
change and its justification by government.
To identify key mechanisms which condition the impact of judicial decisions on the
politics and policies of asylum control, this thesis presents comparative qualitative case
study research into UK government responses to European Court of Human Rights
(ECtHR) and municipal court rulings which concern deportation and asylum control
policies. Comparative consideration is given to significance attached by governments to
the source of the ruling (UK / ECtHR) and whether compliance was politically
contested. Politicisation and domestic rulings are each expected to allow greater
governmental opposition to judicial impact on policy goals. To capture variation, my
analysis differentiates judicial impact on two typological planes: governmental response
and the level of generality of governing ideas 'at stake' therein. This mobilises the
explanatory potential of governmental framings of `the problem' of compliance, in
terms of how constraining it is perceived to be; whether removing a policy instrument
which can be readily replaced, challenging the continuity of underlying programmatic
logics, or even the guiding public philosophy informing deportation and asylum control.
Where more general governing ideas are at stake, governmental responses can be
expected to reflect opposition to judicial impact.
Critical framing analysis of the government's discursive response is applied to four key
cases, ranging from 1990 to 2012. Framing is presented as a necessarily observable
process through which judicial impact is manifest within government, and can be
traced. Specifically, I analyse how the 'problem' of compliance and its policy impact
are framed in political rhetoric which responds to the courts and in documents through
which government interprets and inscribes the meaning and implementation of judicial
decisions. My findings suggest that whilst governance of asylum and deportation in the
UK may labour under a judicial shadow, this has not precluded legal risk taking and
efforts to `contain' the impact of individual rulings on the viability of the overarching
policy regime. By identifying the role of governing ideas `at stake' in governmental
framings of judicial impact, I argue that it is possible to account for varying political
responses to the courts, including politicisation of compliance. Where impact is framed
as more general, politicisation of compliance follows. In contrast, the source of the
ruling appears to have no independent significance to responses. The importance of a
distinction between judicial impact on justificatory political rhetoric and the practice of
administrative compliance is also reinforced.
