Chapter 4 focuses on protection from refuge claims made in the European context. It examines cases in which refugees use human rights law to challenge a European externalisation practice or request or resist a transfer made pursuant to the European Union’s Dublin System. Such claims are made before the European Court of Human Rights or domestic adjudicative decision-making bodies under the European Convention of Human Rights. They are also made before United Nations treaty bodies using international human rights law. I argue that in initial and early European protection from refuge claims, decision-makers identified common aspects of refugeehood and used human rights to engage with the functions and nature of refuge. There was an understanding that refuge is a remedy that must address present, future and past vicissitudes of displacement but decision-makers now search for the ‘good’ or ‘peculiarly vulnerable’ refugee. This has resulted in decision-makers approaching refuge as a scarce commodity and one stripped down to the barest minimum of protections. In searching for the exceptional refugee, most decision-makers approach questions of gender, age and disability in a nominal manner.

In Chapter 5, I examine cases in which refugees directly challenge regional containment instruments. This has occurred in North America (a safe third-country agreement between the US and Canada), Asia-Pacific (offshore processing agreements between Australia and Malaysia, Australia and Papua New Guinea and Australia and Nauru), Europe (the Dublin System and a refugee swap agreement between Europe and Turkey) and Libya (an externalisation agreement between Libya and Italy). I examine the ways decision-makers manoeuvre juridical borders in constructing ideas of refuge and determining the legality of states’ attempts to prevent refugees crossing international borders. I observe that when courts consider the significance of refugeehood and expand their juridical borders, they set high thresholds for refuge and characterise it as a duty owed by states. However, in most cases courts ignore the salience of refugee status and retract their juridical borders. This means that there is no minimum standard of refuge set and refuge morphs from an obligation to a discretion. Refugees become trapped in the resisted place of refuge, unable to continue their journey except in extraordinary circumstances. What is considered exceptional is highly gendered with the narrow frameworks developed sidelining experiences of male and also many female refugees.

Several approaches have emerged for understanding how policy advisory systems are organised and operate. A dominant early theme in PAS research has been location, focusing on distributional issues about where the supply of advice was located and the ability of a government to control it. Research charted the ascendency and decline of advisory units, with an emphasis on the public service’s changing role, and the impacts on policymaking and governing of new sources of supply and shifting demand. A second approach has been the content of policy advice. This has recognised that, while location was important, the composition, operation, and influence of units within these systems were in part a result of the congruence of the content of advice with demand, regardless of the location or government control. Third are the dynamics linked to the stability and change of individual components or entire systems over time. The main focus has been the externalisation and politicisation of these systems because of their significance and identifiability. Another approach is to examine change according to its magnitude: from overarching frameworks to micro adjustments. Finally, organisational dynamics are considered as types of advisory units rise and fall in significance or change character.

Chapter 8 analyses the patterns of change and the state of the respective systems. Comparative analysis provides an understanding of the types and nature of change, drawing attention to system-wide and localised modifications to advisory instruments. It also highlights distinct types of changes and the shared and distinct trajectories that have impacted the configuration and operation of these systems. The analysis focuses on differences in types of change by adapting Hall’s (1993) three ‘orders’ of change: first-order policy advisory systems (PAS) changes involving routine adjustments to existing practices or units; second-order change addressing the ascendency and decline of categories of advisers and shifts in advisory practices; and third-order macro-level changes. The trajectories of PAS change are distinguished by differences in tempo and sequencing, some being gradual and longer-term (e.g., erosion of public service capacity), while others are abrupt and transformational (e.g., responses to the global financial crisis). The cases feature different sequencing when (de)institutionalisation occurs (e.g., partisan advisers). The dynamics of externalisation and politicisation are reappraised using subtypes that reveal their breadth. The flexibility and adaptability inherent in PAS, government preferences and environmental pressures will lead to continuing change and the need for comprehensive approaches to understand it.

Quality policy advice is essential for good governance, but the advice needed, who provides it and how, have evolved in Westminster policy advisory systems (PAS). The public service role has been transformed as new sources of advice have emerged and ministers have been critiqued for ignoring officials’ advice while focusing on the short term. In a contestable environment, public service advice is replaced by that of consultants, think tanks and political aides. Four themes guided the analysis of advisory systems: the place of advisory work in the Westminster administrative tradition; structural and organisational trends; comparative analysis of advisory systems’ stability and change; and managing PAS and implications for policy making. The main arguments are: PAS is more dynamic and complex than is currently depicted; politicisation and externalisation continue as important dynamics but need to be explained; parallel processes have operated to increase flexibility in using advice instruments and independent agencies; and PAS change has been gradual and endogenous. At the macro level, dimensions of an evolving advisory system are identified based on the directions of change, which indicates a more expansive understanding of PAS that takes into account the complexities of public policy and the centrality of government.

The externalisation dynamic widely attributed to these four systems is analysed here. External advisers are an important consideration in how policy advisory systems (PAS) operate and figure in analysis of their evolving nature. The external category is expansive, but this chapter is limited to analysis of two major external advisory units – think tanks and private sector consultants – with some attention paid to lobbyists and international bodies. There is consideration of the changing nature of the external environment as an important source of pressure on governments to open up or integrate external advice. The focus is on the displacement of public service advisers by outsiders and the shifts in influence to external units. Comparative analysis reveals important differences in the prominence of externals agents and underscores the elasticity of PAS and the Westminster tradition. Some countries and governments favour think tanks or consultants; others are more insular. Externalisation can arise because ministers are dissatisfied with internal advice or agendas driven by ideological preferences for smaller, more efficient government. Externalisation also functions as a pressure on government, which derives from international agencies, agreements, or contexts (e.g., Brexit) or from domestic proponents of ‘open’ government and policy.