European courts have a complex relationship to migrants' human rights: on the one hand, there are strong legal norms on both the domestic and supranational levels to protect migrants' rights, on the other hand, there are systematic violations of migrants' rights across the continent. Trying to explain this paradoxical situation, this chapter reviews the role of courts in three different strands of literature: political science research on immigration policy, public administration research on judges' everyday decision-making in lower courts, and socio-legal research on strategic litigation over migrants' rights in courts. The immigration policy literature shows how judicial and political institutions are governed by different institutional logics, which create tensions and sometimes open opposition between them about migrants' rights. The public administration research demonstrates how different institutional norms are at play simultaneously within one court organization, and how this positions judges in various ethical dilemmas. Socio-legal research portrays European courts as forums for political struggles over migrants' rights, and shows that the outcome of these struggles sometimes leads to stronger protection of migrants' rights in the short-term but often to widened accountability gaps in the longer run.

Migration control policies are marked by contradictory policy goals set in a complex web of intersecting international, national, and local regulations. This grants significant discretion to frontline workers. Despite the extensive research undertaken on discretion in migration control, there is a lack of comprehensive knowledge on how discretionary practices are patterned across countries and policy domains, what consequences these patterns have for migrants’ lives and for receiving states’ capacity to govern. Based on a systematic review of 125 articles published between 2001 and 2024, this article addresses this gap. Our findings reveal widespread discretionary practices that vary by decision-making situation but share common patterns, such as frontline workers’ perceptions of migrant ‘deservingness’, institutionalized suspicion, and racialized biases. We offer the concept of ‘predictable unpredictability’ to theorize the dynamics of frontline discretion. Itcaptures how discretion produces arbitrary outcomes and can be used as a mode of state control which allows state authorities to govern migration without codifying discriminatory sorting mechanisms in formal policies. By this informalization of power, states can avoid responsibility for harmful outcomes of their migration policies, at the same time as the predictable unpredictability in decision-making offers liminal agency to migrants if they ‘play the game’ of migration control.

This literature review summarizes findings from 63 articles published between 2001 and 2020 that study discretion of frontline workers at migration control. The results demonstrate that discretionary practices in various migration control situations (e.g., border zones, migration agencies, courts, public welfare services, and detention centers) are widespread but share common patterns. Frontline workers’ racialized prejudices and perceptions of migrant deservingness were the most dominant patterns found in the data, although there were some disagreements about which were most influential. Discretion of frontline workers was described as foremost detrimental to migrants, as itamplified the migrants’ vulnerable situations, even if it occasionally could increase individual migrants’ room for agency and strategic maneuvering. Contrary to the assumption underpinning the control gap-thesis in immigration policy literature that governments’ capacity to control migration is hampered by the significant discretion at the frontlines, many studies in our sample describe how governments shape the discretionary practices of frontline workers through informal, subtle, and opaque governing strategies. These informal governing strategies enable central governments to deflect responsibility for discriminatory and inhumane policy outcomes. 

The legal right to be heard by a judge is an important human right. However, what happens if a claimant does not meet the requirements of legal communication when given the opportunity to be heard in court? In this article, I address this question by exploring how temporal, spatial, and relational conditions encourage or silence vulnerable claimants’ voices in asylum hearings and compulsory psychiatric care hearings in Swedish administrative courts. In addition, I analyze the multiple functions orality has when judges make decisions in these case types. The results provide nuance to claims in previous studies about the importance of enough time, spaces that signal solemnity, and flexibility in judges’ approaches to vulnerable claimants’ voices by demonstrating how these conditions interact with each other and generate different communicative atmospheres. Moreover, this study challenges the idea that oral hearings are necessarily beneficial for claimants as it demonstrates that under certain conditions orality can place claimants at a disadvantage and amplify their defenselessness. However, orality brings legitimacy to court proceedings even in these cases as it communicates justice to the public evaluating these procedures from a distance.

Asylum determinations are highly complex and difficult decisions. At the heart of this decision lies a credibility assessment of the asylum claimant’s narrative, which confronts the decision-maker with a seemingly straightforward question: do I believe this person’s story? To uphold legitimacy of this assessment, semi-legal criteria have been established internationally. However, these criteria have been criticized for relying on inaccurate and simplistic assumptions about human behavior, autobiographical memory, and communication. In light of this contestation, I ask how the legal-administrative practice of assessing credibility of asylum applications gains legitimacy in the eyes of the public, policy-makers, and legal professionals despite resting on highly disputable assumptions? To answer this question, I draw on interviews, observations, and written judgements from the Swedish administrative courts to explore how symbolic messages are tacitly conveyed through the use of judicial language, activities, and objects. The analysis suggests that cohesive, albeit tacit, messages about credibility assessments being accurate (rather than arbitrary), objective (rather than subjective), professional (rather than lay), and just (rather than unjust) are produced to both near and distant audiences. The study contributes to the literature on credibility assessments by offering a theoretical perspective that can unpack the relationship between symbolic communication in courts and perceived legitimacy for disputed practices within asylum determinations and migration control.