Decision-making in Legal Mobilization: the Why and How of Strategic Litigation by Civil Society Organizations in the Field of Asylum Law in Europe

Legal mobilization in the field of asylum law, specifically through the use of strategic litigation, is much used by European Civil Society Organizations (CSO). Several landmark cases, both at the national and supranational level, were the result of a deliberate strategy of these actors. Current research approach into this phenomenon focus mainly on the moment of choosing to mobilize the law, or, on the other end of the spectrum, on the impact and aftermath of litigation procedures. There is a lack of attention for the ‘strategy’ within strategic litigation. Therefore, the present research looks at four decision-making moments in the litigation process: choosing litigation as strategy, the forum (judicial body) at which litigation takes place, the type of involvement of CSOs, and the legal claim and argumentation put forward in litigation. The research relies upon different strands of literature (on legal mobilization, strategic litigation, and public interest litigation) to establish a theoretical framework. Relevant factors include Political and Legal Opportunity Structures, financial and human resources, relations, and framing. Qualitative case studies have accordingly been carried out to assess this framework, through interviews with six CSOs across three European jurisdictions. The Netherlands, Italy, and Germany are selected due to their different procedural legal opportunities for organizations to go to court directly or as third-party intervener. The CSOs differ in size, identity, and level of use of strategic litigation. The research shows that legal mobilization theory, usually focused on the ‘turn to the courts’ is highly useful to adapt and apply to other moments of decision-making during strategic litigation as well. A range of factors, both external and internal to CSOs, explains why and how strategic litigation is pursued. Moreover, external factors, such as legal opportunities, are shaped by the internal views of organizations and are valued differently, despite their ‘static’ nature.