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From the Field

Lawyers and Borders: Using Legal Recourse to Oppose State Discretion?

In the autumn of 2020, the prefecture of the Pas-de-Calais département, in northern France, prohibited associations not mandated by the state from distributing food aid to migrants on the street. While opponents of this decision have taken their case to the administrative courts, Annalisa Lendaro shows the central role of lawyers in challenging migration policies.

In a context of reinforced controls at the French–Italian border for the last 10 years, a small group of lawyers has specialized in the defense of asylum seekers and "solidarity offenders", i.e. people involved locally in the defense of foreign nationals. [1] To what extent is the expertise of these legal professionals perceived and used as a "weapon" (Israel 2009) in mobilizations? What professional and reputational issues are raised by their commitment to the cause of foreigners and in support of activists? Based on an ongoing field survey, [2] this article proposes to shed light on the implementation of migration policies through the prism of legal strategies, political commitments, and professional stakes for the lawyers involved.

The exception that has become the rule for border controls

Since the mid-2010s in France, solidarity with migrants has become a major judicial issue and its media coverage has intensified (de Massol de Rebetz 2017, Lopez-Sala and Barbero 2019). As early as June 2015, the French government made the decision to reintroduce identity checks at its southern border with Italy. Following the attacks in Paris and Nice, the state of emergency was introduced and extended until November 2017. In this border territory, the devices adopted in response to these events served - both law enforcement and judicial authority - to list, or even prevent, deter or punish, acts of solidarity towards foreigners in migration situations (Lendaro 2018).

The institutionalization of states of emergency and border controls

Since the summer of 2015, controls (identity, vehicles, etc.) have been reintroduced at the French-Italian border: initially justified by the need to adopt preventive security measures in view of the organization of the 2015 Paris Conference (COP21), these controls were intensified after the Paris attacks of November 13, 2015, for "serious threat to public order or internal security." Supposed to be temporary, as they responded to a situation of exceptional danger, these measures were extended several times until they were included in common law when French law no. 2017‑1510 of October 30, 2017, strengthening internal security, was enacted. Despite the theoretical end of the state of emergency in November 2017, the controls were maintained until March 2020, whereas the "Schengen borders" code provides for a maximum duration of two years. If, before that date, the extensions were justified by a "persistent terrorist threat," from spring 2020 the argument put forward is that of the fight against the Covid‑19 pandemic.

The risk of terrorism has thus been widely brandished by public authorities as an argument legitimizing police controls (Huysmans 2014) in an increasingly extended border zone, with the consequence of almost systematic deportation to Italy of those stopped. [3] Asylum seekers and unaccompanied minors are no exception, despite their eligibility for registration in the procedure for the former, and for shelter for the latter. These control mechanisms also concern European nationals, temporarily or permanently resident in these border zones, and particularly those who support these "undesirables" (Agier 2008). When the latter do not act discreetly, and sometimes in spite of this, they may be subject to judicial investigations, for example, and have to undergo multiple identity checks near informal settlements and food distribution sites, or even at their residence.

The state and its agents, in addition to bypassing and suspending the procedures and legal provisions of common law that they theoretically guarantee, thus participate largely in the criminalization of acts of solidarity by ordinary citizens, threatened with prosecution for "facilitating the entry and stay on the territory of an illegal person" and other associated offenses (Slama 2017; Fekete 2018). Since 2016, these solidarity practices have been the subject of socio-legal controversies. Courts and sometimes the highest legal authorities - up to the Constitutional Council - are called upon to express themselves on what is legal and what is legitimate, or what is subject to sanctions. Through this judicialization of solidarity, different projects of society come to light. One is subordinated to the will of states to limit and select their immigration, the other is more extensive and aims to transform general principles into subjective rights. These projects and visions of the problem clash, among others, in the courts, brought respectively by representatives of the state (prefects, prosecutors, police officers, etc.) and by lawyers who defend the cause of "solidarity delinquents" and of people in migration.

What is the "crime of solidarity?"

The misnamed "crime of solidarity" refers to an activist category and not a legal qualification, designating the criminalization of aid to migrants. According to Article L. 622‑1 of the Code of Entry and Residence of Foreigners and the Right to Asylum (CESEDA), "any person who will have, by direct or indirect assistance, facilitated or attempted to facilitate the entry, movement or illegal residence of a foreigner in France" risks up to five years in prison and a fine of 30,000 euros. A 2012 amendment to the code specifies the circumstances under which the assisting person may enjoy immunity, including that immunity should be granted to persons who provided assistance that "did not give rise to any direct or indirect consideration and consisted of providing legal advice or food, lodging or medical care intended to ensure dignified and decent living conditions for the foreigner, or any assistance aimed at preserving the foreigner’s dignity or physical integrity." Nevertheless, not only is there still a risk of being prosecuted, but people who show solidarity are more and more often prosecuted. [4]

Lawyers and the "solidarity crimes": tensions and professional readjustments

Research on cause lawyering [5]

Despite this heterogeneity of backgrounds and positions, the three lawyers from Nice share a certain disenchantment with regard to their hopes for impartial justice. One of the lawyers, having passed the emotion of donning the robe, is now more "realistic", aware of the limits of a "human" justice. Another, known for a long time by the unions, associations and collectives of the region, even speaks of a subjection of justice to political power. A last one, met during the investigation, the youngest, discovers the litigation of the foreigners and around the "solidary" people very quickly in her career. She is struck by the differences in the interpretation of the texts, but considers that, as a lawyer, she must play the game of this random justice:

Some judges recreate the law for us. Sometimes this can have dramatic consequences for the litigants, but here we are... we continue as lawyers to fight. Justice is human. Once we have understood this, I think we have understood everything. That is, with its beauty, but also with its great defects.

Edifying experiences that call into question the relationship with the law

Just like those who support migrants, whether in solidarity or as activists, lawyers go through experiences of awareness that often change their view of justice:

Justice, it is human beings who render it. [...] I became radicalized when I saw how much everything happens on the bangs of the law: the holding areas, the prohibitions to access his or her client in an undeclared waiting area, [the client] whose papers had been sequestered, or the minors in detention... (Lawyer 1, Nice).

The lawyer’s fight then includes the respect of the law, of the procedures and especially of the principles that are supposed to guide their application. It is on this last ground that these professionals try legal strategies, with the aim of orienting the reasoning of magistrates in favor of fundamental principles (solidarity, child protection, etc.). One of the interviewees insists in particular on the importance of reversing the roles and pointing out the illegality of public institutions, making a half-hearted observation about the effectiveness of this strategy:

We received reports of numerous abuses committed by representatives of the state, in particular with the drafting of false documents, obstacles to the exercise of the right to asylum, endangerment of vulnerable persons and more specifically unaccompanied minors. So, given this observation, it was all very well to publicize it, etc. Except that we had no authority of any kind. So, this time it really appeared to us to make civil resistance and to organize a political defense of all the solidary ones. [...] It worked, at least on the administrative level. It doesn’t work on the criminal level, you know…

Despite the mixed results so far in the criminal field, the law continues to be perceived by this lawyer as the most appropriate instrument of resistance. When I ask her what she thinks of the practices of disobedience, she does not hesitate and calls for a justice that would protect the justiciables from the abuses of the state:

I think that it must first go through the law, no matter what, because it is the most intelligent, insofar as everyone is being attacked, is being considered as delinquents. Except that in reality, there are no offenses; in reality, it is the state that commits them and I think it is absolutely essential that at some point, a jurisdiction that is supposed to be independent of political power restores things.

The reclassification of the acts of which their clients are accused as legitimate practices, and therefore not subject to sanction, is at the heart of the work of raising awareness that lawyers do with judges. Their attempt to bring the judges’ interpretation of the law closer to the principles that are supposed to guide it in their eyes represents what the lawyers describe as a "fight to defend the rule of law" (Lawyer 1). This posture, widely shared in the legal field (Willemez 2015), is not unanimous among activists. Indeed, some have an even more critical view of the legal system and the constraints of vocabulary, format and temporality that it imposes on their claims (Chappe 2010). As a result, they may criticize lawyers for wanting to "stay within the law." [6] But if the activists are thus led to think their action in legal categories, the lawyers, on the contrary, are often forced to leave the strict register of the law to prepare their defense.

In this contribution, we wanted to point out the stakes and the limits of the judicial fight of lawyers defending people mobilized in favor of foreigners who, in a context saturated with legal and moral norms, play a role in the evolution of both solidarity practices and jurisprudence in this field.

These lawyers, whose profiles and degrees of commitment to the cause vary considerably, try to convince the judges that the practices of those "in solidarity" with migrants comply with the law and, in particular, with its higher principles. However, there is sometimes a glaring discrepancy between the conceptions of the fight and therefore of the most relevant registers to mobilize. Some of their clients assume loudly and clearly, including before the judge, the choice to disobey the law. In this context, how can recourse to the law and to justice be used as a weapon to counter the processes of criminalization of solidarity?

Lawyers in Nice see the court as a fundamental arena for legitimizing the cause: in the face of the increasing number of legal attacks on migrant supporters, the response must take place in front of the judge, who is trusted to decide what is (il)legal and (il)legitimate. This posture, which is a professional disposition specific to lawyers (Willemez 2015), can evolve over the course of more or less disappointing judicial experiences. Nevertheless, despite the disappointments regarding its impartiality, the desire to contribute to the emergence of a more equitable judicial system that respects higher values is one of the driving forces behind lawyers’ commitment. Respect for the law and procedures is considered desirable, as they are supposed to limit the discretionary power of state agents and guarantee the fundamental rights of migrants and their supporters.


Article translated with the support of the Luxembourg National Research Fund: C17/SC/11608387/REFUGOV • Traduction soutenue par le Fonds national de la recherche, Luxembourg : C17/SC/11608387/REFUGOV

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To cite this article:

Annalisa Lendaro & translated by Oliver Waine, “Lawyers and Borders: Using Legal Recourse to Oppose State Discretion?”, Metropolitics, 6 May 2022. URL :

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