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Title: Reframing unlawful controls : judicial impact on UK asylum and deportation policy, 1990-2012
Author: McIntosh, Ewen
ISNI:       0000 0004 7228 1526
Awarding Body: University of Edinburgh
Current Institution: University of Edinburgh
Date of Award: 2014
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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.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available