Assistance to Refugees and Migrants in Legal Clinics of the Russian Federation
Clinical Legal Education for the Benefit of Asylum Seekers, Refugees and Migrants in Europe
By Ulrich Stege
Director of the Clinical Program of the International University College of Turin (IUC)
Lecturer at Law Clinic of the University of Pretoria (South Africa)
Executive Secretary of the European Network for Clinical Legal Education (ENCLE)
Steering Committee Member of the Global Alliance for Justice Education (GAJE)
Clinical Legal Education in Europe
Clinical Legal Education (CLE) in Europe has reached a new level of dynamism in recent years; many European law schools are now running CLE programs or are discussing opening one.
This is not entirely new. In some European regions, this has been the case for many years (such as in the UK since the 1970s or in Eastern Europe since the 1990s).
The new quality of the European CLE movement lies in the fact that CLE programs can now be found in almost all European regions. The relatively recent developments (in the last 5-15 years) of CLE programs in countries like Germany, France, Italy or Spain are important elements of this dynamic.
Another strong indication of this new dynamic is the establishment of the European Network for Clinical Legal Education (ENCLE) in 2012/2013. The growing number of members (more than 160 from more then 30 European and non-European countries – as of January 2018) and the successful organisation of different annual activities (annual ENCLE conferences on CLE, training of trainers workshops, advocacy events at the European level, etc.) are testimony to the liveliness and gradual strengthening of the European CLE community. The desire to meet, share and discuss innovation in the field of legal education as well as to exchange experiences amongst clinicians and law clinics in Europe is huge and over the years the ENCLE conference has become the main annual meeting point for European clinicians. In 2018, ENCLE is organising its sixth annual conference on the 20thand 21stSeptember 2018 in Turin/Italy (see: www.encle.eu) with around 150 participants from all-over Europe and abroad expected to attend.
Interestingly, this new dynamic has, for the most part, not been driven by US donor organisations, as was the case in Eastern Europe. Some argue that the Bologna process, which seeks to bring higher education systems in Europe closer together, has been a major source of inspiration. Others speculate that this new dynamic is also fuelled by the fact that the traditional legal education model in Europe is being increasingly called into question. Indeed, law students, along with a new generation of law teachers, are unsatisfied with the traditional way law is being taught. CLE is perceived as an interesting and innovative alternative, which has the potential to bridge the gap between written law and law in action, to get students engaged and involved and, in so doing, to make law and law schools more appealing and meaningful.
Law clinic programs explore law in action, investigating the myriad legal and non-legal factors which influence the social, legal, political and economic arrangements in society, while at the same time preparing students for the rigorous demands of public or private practice as well as synthesizing their theoretical understanding with actual experience.
In addition, many law clinics share a strong social justice mission which combines some broad components, such as (1) to provide support to people/communities falling out of the institutional system of support, (2) to build among students an awareness of social problems, promoting the role of lawyers as “social actors”, (3) to build systemic change and (4) to understand the law as a social policy tool. As such, CLE contributes to the establishment of a new generation of legal professionals who interpret their role in society in a critical, reflective, competent and social way, breaking down the „(r)eproduction of hierarchy” (Duncan Kennedy), for which classical and traditional legal education is often criticized.
Clinical Legal Education for the Benefit of Asylum Seekers, Refugees and Migrants
Another possible explanation for the recent dynamic of CLE in Europe is the fact that Europe is experiencing strong social and economic challenges which bring with them deep changes in many areas. In this context, many students and law teachers started to question the ability of the current legal systems to provide suitable answers to the changes and crises. As a result of that reflection, a number of law clinics were initiated, in a spirit of social activism, distancing themselves from traditional forms of legal education and affirming themselves as tools of systematic social change.
This is particularly true for the field of migration and refugee law, which in recent years has become an important area of discussion in many countries across Europe due to the increase in numbers of asylum seekers and refugees, but also due to increased political and public attention. Given the fact that asylum seekers/refugees and migrants are often left in a sort of legal limbo and thus are often a particularly vulnerable part of the society, and that there is currently a lack of legal systems and political will to resource appropriate capacities and to provide suitable solutions for these communities, many law students and law teachers in Europe started to see the need to focus their activism in this area. Out of these engagements, many CLE projects all over Europe were initiated around this specific focus and it is indeed impressive to notice how many new “Refugee Law/Migration Law/Human Rights Law Clinics” have been created all around Europe only in the last 5 to 10 years.
Although often different and quite diverse (in terms of content and structure), most of these CLE projects share some common features. After content-based preparation (on refugee and migration law, often covering international, European and national legal obligations) and skills-based preparation (linked to lawyering skills such as legal writing or interviewing), the practical clinical activities engage law students in a variety of legal work, covering areas from direct pro bono legal advice (for asylum seekers/refugees/migrants) to strategic litigation (e.g. support in claims at the European Court of Human Rights in Strasbourg), research, advocacy and street law activities.
Some of them are working as in-house law clinics, where asylum seekers/refugees can access university facilities at specific office hours in order to receive supervised legal advice by law students (like the Immigration law clinic of the University of Roma Tre/Italy).
Other law clinics also receive their clients at the university settings, but their cases are pre-selected by refugee associations according to certain criteria (e.g. by selecting persons in a specific stage of the asylum procedure, where professional legal advice is often not available due to the lack of public legal aid schemes). This is the case with the Human Rights and Migration Law Clinic in Turin/Italy, for example, which offers legal advice for asylum seekers before their interview with the local asylum commission.
Another possibility to engage students in live client work is to work closely with refugee associations (in a sort of externship law clinic model), where students will encounter their clients using the knowhow and the facilities of the local refugee association. This is the case with the Migration Clinic of SciencesPo Paris/France.
In addition, more and more law clinics also engage law students in strategic litigation work to national or supranational courts (like the Migration Law Clinic of the VU University of Amsterdam), where through cooperation with refugee associations or specialized law firms students are involved in the drafting/filing of court applications.
Some law clinics also involve students in research and awareness raising activities aimed at identifying and highlighting human rights violations. In these clinical projects, students become critical observers and investigators and help to identify and highlight problems of the law in practice (and their institutions). Good examples of these practical clinical research activities are projects regarding the detention of migrants. Different legal clinics in different countries (Law Clinic of the University of Valencia/Spain, the Migration Clinic of SciencesPo in Paris/France or the Human Rights and Migration Law Clinic in Turin/Italy) have worked in their local context on the situation of migrants in detention.
Finally, some law clinics engage in street law activities, where students provide street law training sessions either to people working for refugees/asylum seekers or to asylum seekers/refugees directly and focusing on practical information regarding how asylum seekers and refugee can access their rights (like the Goethe University Law Clinic in Frankfurt/Germany).
All these programs are indeed good paradigms showing how the traditional legal education model can be challenged. Law students get a deeper knowledge of migration and asylum law as a result of the “learning by doing” format. In addition, they are elaborating on practical skills, like the capacity to interview a client in particularly multi-cultural and often psychologically challenging settings. Furthermore, within the clinical settings, the students get individual feedback from peers, from specialized lawyers and sometimes even from non-legal professionals, which helps law students to reconsider well-established legal conceptions, fostering the effort to become a better and more aware professional.
Nowadays, examples of CLE programs focusing on asylum or migration matters can be found in almost all European countries, but probably the most impressive example of the current “Refugee/Migration Law Clinic movement” can be found in Germany. Some of them were created by university law teachers/researchers within a curriculum-based CLE program (like at the Refugee law clinic of the University of Giessen). But mostly, they have been commenced as students-run initiatives outside the university settings (like the Refugee Law Clinic in Cologne).
One important aspect, which certainly fuelled the creation of a veritable law clinic movement in Germany and which is – at least at this stage – unique in Europe, is the fact that in 2008 the German legal advice law (the “Rechtsdienstleistungsgesetz”) was amended, opening up the possibility for students to provide legal advice (although not to represent a client before a court) under the supervision of a qualified lawyer. This is unfortunately not yet the case in many other countries, where only qualified lawyers are allowed to provide legal advice. Here, the faculties who designed the clinical models therefore had to find other ways to bring students closer to legal practice. In most situations, where direct contact to clients was foreseen, students are therefore allowed to provide “only” legal information (under the supervision of lawyers). However, for areas of law (e.g. refugee law) where lawyers are usually absent (because, for example, the State does not provide legal aid in a certain phase of the procedure – such as certain phases of an asylum claim), the legal information provided by students can be fundamental. Other legal clinics have tried to avoid any conflict with the legal advice monopoly for lawyers and have therefore developed the model of practical clinical research projects (as described above).
In addition, the creation of refugee law clinics (in particular in Germany) has often been directly influenced by the refugee protests in the recent years. Many of those protests against the so-called Dublin system or the restriction on freedom of movements received support by civil society organisations including law students/law teachers, who volunteered to support asylum seekers and refugees in their daily lives and bureaucratic struggles. From there it naturally evolved into providing more law-oriented forms of support and into the creation of more structured legal clinics for the benefit of asylum seekers and refugees.
For this reasons, we can certainly see some similarities to the student-run clinical movement in the United States in the late 1960s. There, as in Germany today, students who were seeking to use their legal knowledge for social changes started to be the main drivers behind a well-established clinical movement.
Now we can talk about a movement that has arrived in almost all German law faculties. Around 33 refugee law clinics have been established all over Germany. And even if there are still differences in the value given to the overall objectives (educational vs. social justice) and the organisational structure (which is also evolving over time – for example in Hamburg, where the student-run RLC has been now incorporated at the University of Hamburg curriculum), both law clinic models (university-based and student-run) share again a series of common features in regard to the training/preparation of the law students relying on local legal experts/selected faculty members and the structured and supervised law students' involvement in legal work for asylum seekers and refugees.
The Role of Networking in Order to Support Clinical Legal Education Projects
Looking again at the example of the German refugee law clinic movement, it appears fundamental for its development that already at a very early stage the different law clinic projects (of both models) shared their experiences and structures with new emerging refugee law clinics. Network meetings were organised in order to share material and tools and in order to reflect on how this movement could facilitate the further development of refugee law clinics and secure the innovation of this CLE and legal support model in Germany. After some informal network meetings, the creation of the network association “Refugee Law Clinic Germany” in 2016 is now allowing this interaction to reach even a higher level. The network, based on the membership of the individual refugee law clinics, is now able to provide the structure and potentially also the funding in order to keep the refugee law clinic movement in Germany alive and develop it even further.
The Refugee Law Clinic Germany along with other formal and informal CLE networks in Europe (such as the transnational European Network for Clinical Legal Education (www.encle.eu) or the Réseau des Cliniques Juridiques Francophones (www.cliniques-juridiques.org), or the national CLE networks in Italy, Poland, Russia, Spain, and the UK) are playing a fundamental role in enhancing CLE programs. They are recognized as a valuable peer network and places to get access to training/input/advices/ideas/support from other clinicians (through platforms, conferences, training of trainers, joint projects etc.) when starting or expanding a clinical project.
As such, they play a fundamental role in the development of sustainable CLE programs in the long run by supporting the institutional backing (by universities), setting common standards or organising/distributing available funding. But it is likely that networks are even more fundamental when it comes to the human factor of the CLE movements. Especially in sectors like asylum and migration, law clinics are driven by the motivation and enthusiasm of those who are leading and pursuing law clinic activities. Without this human factor, law clinics couldn’t exist. Networks can indeed be important in this regard, by providing a platform for the persons involved to meet and share their problems and solutions and to learn how to nurture the motivation of the law clinic team and students, despite all the frustration related to the legal work in this particular sector working with vulnerable persons.
The Future of Clinical Legal Education in Europe
The experience of the many innovative and interesting CLE programs across Europe (especially in the area of asylum and migration) demonstrates on the one hand the strength, the utility and the success of this particular form of legal education. It is proving to be an adequate tool for the endowment of young professionals with competence and values, who are then able to confront an increasingly globalised world and at the same time to provide qualified and socially relevant support for communities in need (as is particularly the case for asylum seekers/refugees/migrants).
However, each of these CLE programs shows moreover the complexity of CLE enterprises. Not only do they have to tackle strong reservations and confrontations (e.g. with traditional educational structures, public authorities, bar associations), they also have to overcome many logistical obstacles (such as infrastructure, funding, available time). The CLE history in Europe shows that it is therefore not only necessary to invest enormous efforts to establish a new CLE program; it is furthermore necessary to have sufficient power, means and support to maintain the CLE project in its daily practice.
In addition, we cannot yet say that clinical programs enjoy full acknowledgement everywhere in Europe. Even if CLE programs are expanding, we are still talking about a very small number of students able to get one of the rare places available within CLE programs. Also, many CLE programs face sustainability problems or are fighting for broader acceptance within law school curricula, and in that sense, their future might be problematic.
That being said, there are many reasons for being optimistic with regards to the future of CLE in Europe. Nevertheless, some major points needs to be tackled in the upcoming years – especially by the different CLE movements (be they transnational or national):
(1) CLE programs should be stabilized and expanded – including the number of students who can participate. In this regard, it is important to note that law clinics in the field of asylum and migration have proven to be interesting as they combine the potential to gather motivation amongst students and teachers with the evident need for social justice engagements (which most probably will unfortunately not cease in the upcoming years).
(2) Universities should find adequate ways within the academic settings structures and resources to keep and to encourage the engagement of faculties who run a CLE program. Academic recognition as well as regular and specific funding for clinical programs will be fundamental.
(3) The CLE network and community in Europe should be strengthened (especially in the area of asylum and migration), which would allow further experience sharing, joint capacity building and research, and the setting of joint standards capable of preserving the quality of the law work provided by law clinics.