The following guidelines – considered along with the section on impact themes – may help determine which cases to prioritize for impact litigation and how to go about selecting the right cases, but they are not intended to discourage organizations from pursuing other useful litigation avenues.
Cases may well affect only a few refugees but still be strategically important to your organization. A case may, for instance, result in setting a precedent for the violation of a core human right – such as the prohibition on discrimination or the prohibition on cruel, inhuman and degrading treatment – which may carry significant weight in certain contexts and result in increased awareness raising, public opinion, advocacy and publicity. Indeed, this may take place even in the face of a negative decision. A case may also be politically impactful, or serve to discredit an institution, further bolstering public pressure and campaign efforts.
It is likely that your organization will identify more potential strategic litigation cases than you have the capacity to work on. This may result in making difficult decisions not to represent some very worthy clients. This is both normal and understandable, and should not discourage your organization from making a difference in specific focus areas.
Turning away cases with impact potential due to a lack of resources is disappointing, and often inevitable. Not taking a case further may require great sensitivity when communicating this decision to a client or a group of clients. It is important to maintain good ongoing client and community relations. Again, it could help to keep an extensive directory of sympathetic legal practitioners who may be able to take on referrals for impact litigation cases – including national and international agencies mandated to assist refugees, survivors of sexual and gender-based violence, children and other vulnerable groups. It may help to reassure those refugees whose cases cannot be pursued that litigation is not necessarily the only avenue to pursue, and that in many context refugees can, and do, organize politically to demand their rights.
Following the notification of a potential litigation case, or a referral from a partnering organization or other external source, a strategic litigation team member should undertake an initial consultation with the client to explain the litigation purpose, process, and its potential gains, risks and difficulties. If the client chooses to explore this route, they should sign an agreement indicating their willingness to have the case assessed for strategic litigation. The client can then be interviewed to determine if the case meets the basic selection criteria for inclusion into the strategic litigation agenda. The staff member or volunteer conducting the interview should be direct and clear that the conversation is not a guarantee that Asylum Access will pursue litigation.
Review the following information and the ‘Sample Case Selection Checklist’ before choosing your case.
- The case is sufficiently aligned with an impact theme (i.e. it relates to a central issue that significantly affects many refugees’ lives). It deals with a problem that is widespread, or a pattern of rights violations.
- The case would most appropriately be dealt with through strategic litigation, as opposed to other advocacy methods such as negotiation, political pressure, or campaigning.
- The client is a recognized refugee, an applicant, or a refugee under your organization’s criteria (base your organization’s criteria on international law – use in cases where refugee status has been denied domestically).
- The client is credible
- The client is willing to be involved, wishes to actively participate in the litigation, and commits to being in touch with your organization, long-term.
- The client has a good relationship with your organization and the lawyer representing him/her.
- The client understands potential risks and benefits of litigation.
- There are no conflicts of interest, according to the code of ethics for lawyers, such as the Nairobi Code.
- The safety of the client, your organization’s staff and/or any related parties will not be jeopardized through the use of strategic litigation.
Once the above requirements have been met, assess the following further considerations for selection. However, if at this stage it is clear that the case is not suited for strategic litigation by your organization, but the case could be pursued elsewhere, try and refer the case to partnering NGOs or legal assistance elsewhere, providing the client is in agreement (e.g. if the matter falls outside the scope of your work or is too controversial).
Further considerations for selection
If the case is to be explored further by your organization, consider the following matters and start to develop a litigation plan for any necessary approval stages:
1. Appropriate forum
- What institutions are available on the national, regional, sub-regional and UN levels to pursue the complaint?
- Which of these institutions is the most independent, impartial, well-regarded, sympathetic to the issue, generous with reparations, and has the widest jurisdiction over the case?
- Which forum offers the best prospect for success with respect to issues that must be resolved?
- Do you have relationships with forum officials that can propel your case forward?
If you are attempting to exhaust local remedies quickly to access a regional or international forum, consider a local forum that will expedite the final decision.
2. Admissibility requirements
- Does the case meet statute of limitation requirements?
- Does this case meet the exhaustion of local remedies requirement (if any)?
- Other admissibility requirements?
3. Parties to the lawsuit (standing)
- Who will be named as the complainant/petitioner (your organization, an individual, a group of individuals, etc.)? All standing requirements must be carefully reviewed.
- Who will be named as the defendant?
- If your organization intends to bring the case in its name as the complainant, are there partnering agencies with which it could/should join in bringing that action?
- What evidence will be relied upon to support the case? All rules of evidence should be carefully considered.
- Would the client feel comfortable and be able to provide oral evidence before a court if necessary?
- What are the strengths and weaknesses of the claims and individual facts surrounding the claims?
- How reliable is this evidence? If the reliability is in doubt, can you use authoritative international NGO or UN reports for further proof?
- What laws will be relied upon to support the case?
- How clearly have these laws been written, interpreted and applied?
If the claim relies upon international law principles, it may need to be considered how those laws interact with the jurisdiction in which the claim will be brought.
- Is it appropriate or necessary to apply for interim injunctions?
- If the suit is successful, will the defendant have the resources – funds and infrastructure – to supply the relief sought?
- Are decisions binding?
- Are decisions final? If not, what are the opportunities and procedures for appeal?
8. Extent of impact
- How great is the potential for media coverage for this case?
- Would the key issues of the case be easy to understand for the media and general public?
- Will the case generate attention and change on the local, state, regional level etc.?
9. Required resources
- What is the projected time-frame (approximate) for pursuing this case from start to finish?
- How many staff members/volunteers would be required to pursue this case?
- Are there adequate facilities to support the staff required for the case?
- Will this case require expert support (for expert testimony or otherwise)?
- Will this case require the use of an outside attorney? Is pro bono available?
- In consideration of printing costs, filing fees (if applicable), etc., what is an approximate estimation of costs to pursue this case from start to finish?
10. Safety & well-being of participants as a priority
- Given that a media campaign could accompany litigation, would the litigation process jeopardize the safety and well-being of your organization’s staff or volunteers, clients, or other parties associated with the action?
- Will psychological support be available for the client if necessary?
- Will involvement in a larger support network be necessary / feasible?
Clients are more likely to remain engaged if they have a participatory program designed to help their psychological reconciliation and empowerment.
On balance and in consideration of all of the above, the strategic litigation team should determine whether they are going to pursue the case. If the matter warrants litigation, you may wish to proceed with formal internal approval procedures, client agreements, and a litigation plan. A written memo analyzing the above-listed criteria can be used to seek preliminary approval from your organization’s management or directors, inform funders, streamline appeals, and build media campaigns.