Courts and the Shaping of Asylum Policy. The Case of Accelerated Border Procedures in Italy

The paper engages with the existing literature on judicialization, the role of courts, and the effects of court decisions on migration and asylum policy. While some scholars argue that courts act as safeguards against restrictive government policies due to their autonomy and adherence to legal norms (Jöppke 1998; Hollifield 2000; Hampshire 2013), others have questioned the assumption that judicial actions consistently result in expansionist policies (Ellermann 2006; Boswell 2007; Bonjour 2011, Johannesson 2018). Additionally, the impact of judicial interventions has been variously assessed in academic scholarship and understood to depend on several internal and external dynamics of the judiciary (Epstein and Lindquist 2017). To contribute to this open debate, the article looks at two main research questions: 1) if and how does the judiciary intervene in the asylum policy field, 2) if and how this intervention impacts the implementation and evolution of asylum policy, and 3) under which conditions this impact occurs, considering both internal and external factors to the judiciary. This article aligns with a sociolegal constructivist approach to studying the judicial role in migration policy at the national level (Bonjour 2016; Miaz and Kawar 2021). By conceptualizing courts as co-producers of social meanings and political narratives, it looks at judicial decisions in national courts as discursive resources invoked, interpreted, and appropriated by various actors in the field of asylum policy, including governments and advocacy networks. Through this angle, the iterative and contested nature of judicialized asylum policymaking is thus particularly stressed in the present research. To answer these questions, this paper examines the Italian case and a peculiar asylum procedure, the accelerated border procedure introduced in 2018 and revised in 2023. This procedure, designed to restrict asylum determination at borders and limit territorial access and asylum seekers’ mobility, provides a valuable case study to explore judicial intervention and its consequences on policy implementation. The Italian case is particularly significant in the context of the European Union. First, it aligns with the border asylum procedure anticipated under the 2024 Common European Asylum System (CEAS). Second, it forms the legal basis for externalizing asylum processing through the Italy-Albania Protocol, a policy experiment that has garnered interest among EU Member States. Finally, it has been a focal point of conflict between the judiciary and the executive in Italy, generating significant public and political debate. Regarding methods, the article develops a detailed tracing of policy-making concerning the Italian asylum accelerated border procedure. It relies on thematic analysis of judicial decisions in combination with other relevant sources (e.g., public statements of courts, judicial networks, legal associations, government representatives, and various prominent experts in the field). The article relies on data collected within the ERC ACCESS project.