Sian Donkers

This book offers a bold reconceptualisation of refugee law through the lens of irregular migration and the deadly journeys it entails, treating harms experienced during journeys themselves as a protection issue. Grundler’s central thesis is that the harm experienced during dangerous migratory journeys can constitute persecution and that a risk of irregular a person having to undertake a dangerous journey again if returned home could ground a claim to refugee status. Her work engages deeply with refugee law doctrine, vulnerability theory, and comparative case law on protection of victims of trafficking.
Grundler makes clear that many individuals who travel irregularly face harms as serious as, or even more serious than, those endured by refugees in their home countries. Yet, if they are deemed not at risk in their country of origin, they are typically classified as “economic migrants” who supposedly travel voluntarily and so fall outside the protective scope of asylum law. She contests this voluntariness as largely illusory: many travel under conditions of vulnerability and desperation. She uses the term “irregularised migrants” to capture that irregularity is produced by legal and policy choices rather than ideas of the criminal circumvention of migration controls.
Traditional interpretation assumes the feared persecution occurs in the country of origin. Grundler’s reconceptualisation posits that persecution can also occur in transit or on return, via the peril of irregular re-migration. The harm encountered on dangerous routes, physical violence, sexual assault, trafficking, enslavement, is likened to persecution for the purpose of refugee status. A refugee’s fear must be forward-looking and assessed in light of anticipated harm, therefore, if return today means a high likelihood of another life-threatening journey tomorrow, the future harm lies not only in the country of origin but in the risk of being driven to repeat the journey.
The dichotomy between trafficked vs. smuggled is not justified by the realities on the ground. Indeed, smuggling and trafficking frequently overlap in practice, a journey that begins with consensual smuggling may turn into trafficking through coercion and abuse, and vice versa. The key distinction is: trafficking is framed as a crime against the person, whereas smuggling is framed as a crime against the state’s borders, leading to markedly different legal outcomes. To close this gap, Grundler invokes vulnerability theory. She introduces “consequential vulnerabilities” (arising from prior migration experiences) and “route causes” (factors and experiences of the journey that increase the likelihood of irregular re-migration). These concepts show how dangerous routes and state policies combine to generate ongoing risk. If states create the conditions that make journeys deadly, then refusing protection to those harmed exposes a serious legal lacuna.
This analysis shifts the narrative away from blaming migrants for “choosing” dangerous routes and toward understanding how personal and structural vulnerabilities converge to compel them. Drawing on psychological research on trauma, Grundler explains why trafficking survivors may remain susceptible to re-victimisation despite awareness of the risks, tracing how UK jurisprudence developed to recognise this and extended recognition to male victims. Her legal analysis is enriched by interdisciplinary research from psychology, sociology, and international relations, giving a fuller account of trauma, migrant agency, and border governance. With this vulnerability-based rationale in place, Grundler turns to persecution, responsibility, and protected characteristics.
Refugee law already accepts that cumulative harms can amount to persecution; she extends this to sequential harms of cycles of exit, return, and re-exit with repeated exposure to border violence, exploitation and other harms. Drawing an analogy with refugees sur place, whose risk arises from events occurring after departure, she argues that persecution need not be fixed to a single place or moment and proposes that the prospective dangerous journey itself be recognised as the site of persecution. On responsibility, Grundler maintains that a state’s failure of protection at origin includes its inability to prevent nationals from facing serious harm through repeated dangerous migration. If a state cannot provide basic safety or conditions that make staying viable, it is failing to protect against a known cycle of harm. In trafficking-related cases this is clearer: where a state cannot shield a survivor from re-trafficking, it fails to protect them from persecution by traffickers.
Anticipating the objection that no one “persecutes” migrants who voluntarily undertake risks, she further dismantles the idea of free choice by stressing the role of destination-state policies in producing perilous conditions. Extraterritorial controls by other states such as strict visa regimes and carrier sanctions funnel migrants onto more dangerous routes. Grundler stops short of calling European states “the persecutors” as it remains that countries of origin are aware of the dangers that people would face if they leave in the same way that the dangers of trafficking are understood. Additionally, in the conclusion she refers back to this subject, arguing that making the case for the persecutory nature of dangerous journeys will incentivise states to reverse the harmful effects of migration control policies.
Many “route causes” are rooted in protected characteristics: migrants taking dangerous routes may belong to marginalised social classes or ethnic minorities amounting to Particular Social Group (PSG), come from war-torn regions (imputed political opinion or nationality), or be women challenging social norms (PSG of women in a given society). For those whose initial migration appears purely economic, she turns to social group formulation such as “people with past experience of irregular migration”. She frankly acknowledges the doctrinal difficulties, especially concerns about circularity and lack of particularity if groups are defined directly by dangerous-journey experience. She also notes the potential for a political opinion ground, where irregular migrants are viewed as having a political character in challenging state authority by defying border.
Grundler’s approach is radical in that she seeks to significantly stretch the Convention. One might view her thesis as an attempt to close the gap between “Convention refugees” and those who currently rely on complementary forms of protection or fall outside of protection altogether. The most immediate question is whether refugee law institutions (courts, tribunals, UNHCR) will accept Grundler’s reconceptualisation. There is a risk that courts might view this as a bridge too far, more appropriate for legislative change than judicial interpretation. Even if risk of irregular re-migration is accepted as persecution, establishing a Convention ground, most plausibly PSG, remains challenging It is unclear whether having undertaken a dangerous journey is an immutable characteristic or fundamental aspect of identity, but it may be comparable to being a former gang member or former victim of trafficking, which many courts have accepted as PSGs because of the lasting effects. However, as with the general claim of the book, expanding PSG in such a way could be too broad and encompassing too many disparate individuals.
The thorniest issue is state attribution, as she seeks to apply refugee law to structural vulnerability. While she insists that her model is applied case by case, based on concrete vulnerabilities and credible risks of re-migration, it is unclear how courts would make a distinction between risk of remigration and experience of poverty – stretching the refugee definition entirely. Resistance to such an expansion is likely. Nonetheless, despite the idealism and political unfeasibility, the proposal is grounded in the Convention’s ethical reasoning and in the need to address harms caused by migration control (largely with impunity) and by climate- or disaster-induced movement. Her work is intentionally challenging states’ migration control policies.
Rather than promising a sudden transformation of refugee law, the book offers doctrinal tools and normative arguments that could, over time, reshape it. Some readers might prefer more discussion on whether alternative solutions (like humanitarian visas or expanded complementary protection regimes) might address the issue without redefining “refugee.” Grundler touches on complementary protection in Chapter 6, and her stance seems to be that while complementary or temporary protection is a stopgap, true refugee status, with its stronger rights, should not be denied to people whose plight is equivalent to that of refugees as traditionally understood.
Overall, this book is a significant and ambitious contribution to refugee law scholarship. It compels a re-examination of who deserves international protection in an era of brutal realities of mobility restrictions. Clear, methodical, and doctrinally rigorous, the book moves from concept to theory to doctrine and to application. The framework of “route causes” equips scholars, practitioners, and policymakers with tools to show why neat binaries, voluntary vs. forced, poverty vs. protected characteristic, and territorial harm vs. extraterritorial harm, fail those whose suffering unfolds on dangerous migratory journeys.

The EU’s Human Rights Responsibility Gap: Deconstructing Human Rights Impunity of International Organisations

This book extensively analyses of the European Union’s (EU) approach to Integrated Border Management (IBM), its impact on human rights and EU accountability. Joyce De Coninck tackles the legal and operational challenges that arise and discrepancy with human rights obligations due to operational priorities. The book is particularly relevant in light of the increasing complexity of EU IBM, with further cooperation with third states and increased mandate of agencies such as Frontex. With a robust interdisciplinary methodology, De Coninck provides a nuanced examination of human rights accountability in IBM. Through comparative legal analysis, she contrasts EU and international legal frameworks, as well as EU lex specialis and lex generalis, identifying critical areas of misalignment. Her work is firmly grounded in both practical realities and the broader academic discourse. As the book’s central thesis, EU IBM is characterised by normative incongruence between its formal commitments to human rights and its operational practices, identified by systemic accountability gaps stemming from the EU’s fragmented governance structure, the use of informal agreements with third states, and the operational focus on migration control. The book situates these issues within the broader context of the EU’s sui generis legal framework and its complex relationship with international human rights law. De Coninck ultimately calls for a recalibration of the EU’s legal and operational frameworks to ensure alignment with its human rights obligations.
De Coninck divides her analysis into four parts in eleven chapters. In Part 1, she introduces IBM and systemic accountability gaps, using the example of EU cooperation with the Libyan Coast Guard to facilitate pushbacks leading to the return of people to unsafe states. De Coninck critiques the EU’s reliance on externalisation techniques, including carrier sanctions, visa restrictions, and the deployment of migration management teams and technology in third states, restricting individuals’ right to leave and safe access to protection. In Part 2, she addresses the EU’s historical position as an entity not originally conceived as a human rights actor. De Coninck critiques the EU's delegation of border control to third states, shifting human rights compliance to actors with weaker accountability mechanisms, emphasising that this delegation does not absolve the EU of its international law obligations. Procedural barriers hinder effective human rights protections and limit individual redress. She concludes Chapter 3 by arguing that the EU’s relationship with international human rights law is characterised by selective engagement. In Chapter 4, she describes the unique legal and structural framework of the EU as a hybrid entity that combines supranational and intergovernmental elements. This enables the EU to create binding obligations that extend directly to individuals, embedding its legal authority within member states’ jurisdictions.
However, this structure complicates accountability, fragmenting responsibilities among EU institutions, member states, and third parties, creating compliance gaps. De Coninck cites informal agreements like the EU-Turkey Statement as an example of externalising responsibilities while avoiding direct legal obligations. She critiques reliance the Bosphorus presumption, which while reinforcing mutual trust among EU member states and upholding mechanisms like the Charter for Fundamental Rights, it inadequately addresses EU policies or practices that fall short of European Convention on Human Rights standards. De Coninck also discusses Article 14 of the Draft Accession Agreement as potentially useful but notes that the co-respondent mechanism, despite recognising the EU's composite governance, presents practical and procedural challenges in ensuring accountability for actions stemming from informal agreements with third states.
Part 3 assesses systemic accountability gaps. In Chapter 5, De Coninck critiques the Court of Justice of the European Union (CJEU) for its limited approach to non-refoulement, focusing on individual cases while neglecting systemic violations from EU policies, such as cooperation with third states. Procedural hurdles, like restrictive standing requirements under Arts. 263 and 340 Treaty of the Functioning of the European Union, hinder challenges to EU actions or omissions, particularly in indirect violations like pushbacks by third-state partners. The division of responsibility among the EU, member states, and third states further exacerbates accountability gaps. De Coninck contrasts the CJEU’s reluctance to directly assess EU responsibility for actions with the European Court of Human Rights Hirsi Jamaa ruling. She argues that the CJEU must scrutinise EU policies and practices more thoroughly to align with broader international human rights frameworks. Chapter 6 considers the procedural and practical barriers that prevent people in need of international protection from accessing EU visa regimes. De Coninck critiques the X and X v Belgium ruling for failing to align the EU’s normative commitments with its practices of limited humanitarian visas, inconsistent member state application, and documentation requirements often unfeasible for those fleeing war and persecution.
Chapters 7 and 8 expand on the interaction between lex specialis and lex generalis by analysing what she describes as “incongruence clusters”, the interconnected legal, procedural, and operational failures in the EU’s approach to human rights accountability. While lex generalis provides a theoretical foundation for human rights protection, its practical application is frequently subordinated to lex specialis rules and the EU’s fragmented governance structure. De Coninck argues the EU's indirect complicity in third-state human rights violations through EU funding, support, and policies, described as “outsourcing accountability” to evade scrutiny while benefiting from stricter border controls. Additionally, she proposes the precautionary principle as a tool for addressing human rights risks such as high-risk partnerships with Libya and Turkey. Chapter 9 concludes Part 3 by examining the processes of legalisation and de-legalisation in IBM. Legalisation brings procedural clarity but often prioritises operational efficiency over substantive rights protections which she critiques for lacking effective oversight mechanisms and failing to address systemic issues like inadequate reception conditions. De-legalisation, alternatively, involves shifting toward non-binding agreements or operational arrangements which she identifies as a deliberate strategy to maintain flexibility and evade legal scrutiny. De Coninck concludes that the use of legalisation and de-legalisation creates systemic accountability gaps, enabling the EU to prioritise migration control over human rights.
Part 4 explores challenges and solutions for systemic accountability gaps. The distribution of roles across entities creates ambiguity, complicating accountability for specific actions. She critiques existing EU and international legal frameworks as inadequate for multi-actor scenarios. De Coninck proposes relational responsibility, focusing on shared accountability and interconnectedness. This approach ensures the EU remains accountable for its contributions to harmful practices, even when violations are executed by others. She advocates for binding legal frameworks for external agreements with explicit human rights safeguards and judicial review mechanisms and independent oversight bodies with clearly delineated responsibilities to monitor and enforce accountability in EU operations. Additionally, she stresses strengthening the European Parliament's role in scrutinising external agreements and activities. Framing EU governance as a test of its human rights commitment, she views accountability gaps as fundamental challenges to the EU’s identity as a normative power, urging bold reforms to align actions with commitments.
This book is a significant contribution to the study of IBM and human rights accountability of the EU. A key strength of the book is its functional approach, which thoroughly examines IBM’s interconnected methods and highlights overlooked issues like restrictive visa regimes blocking safe access to protection. By addressing systemic issues, the book captures the real-life implications of EU policies, making its analysis both practical and impactful. De Coninck aptly highlights how courts inconsistently apply attribution tests undermining access to justice. A major asset of the book is its critique of the inadequacy of the current human rights accountability system in addressing the realities of multiple actors. De Coninck effectively argues for a clarification of human rights responsibilities and who they are owed to in which situations, emphasising the need for shared responsibility frameworks to ensure consistent outcomes across different forums of adjudication that reflect the complex realities of modern governance. Her analysis of legalisation and delegalisation trends within EU migration governance is particularly relevant now regarding the New Pact on Migration and Asylum. On one hand, the pact introduces many additional procedural hurdles, such as border procedures and possible non-suspensive appeals, echoing the ineffective humanitarian visa regime. On the other hand, the pact also exemplifies delegalisation through its encouragement of further third-state cooperation and allowance for derogations with vague clauses in the Crisis Regulation, reflecting the EU’s continued reliance on flexible yet legally ambiguous mechanisms to manage migration.
A key innovation of the book is De Coninck’s proposal for a relational human rights responsibility framework. By decentering traditional state-centric models and unveiling power imbalances, she offers a nuanced approach that reflects the complexities of contemporary migration governance. The book's focus on power imbalances between individuals seeking protection and the hurdles of IBM could open avenues for further research into the geopolitical dynamics between the EU, its member states, and third states. These broader dimensions of relational responsibility could provide a more holistic understanding of power dynamics in migration governance. Overall, this book is a rigorous and thought-provoking work that challenges existing paradigms of migration governance and accountability. Its comprehensive analysis, innovative frameworks, and practical critiques make it an essential read for scholars, policymakers, and practitioners. The outcomes of De Coninck's further research into developing a more detailed framework for a relational system of responsibility will be highly anticipated and valuable for advancing this area of study.