Prof. Nick Gill and Dr. Nicole Hoellerer (with data input by Dr. Jessica Hambly and Dr. Daniel Fisher) have presented a paper at the CEASEVAL conference at the University of Technology in Chemnitz , Germany, 1-2 October 2019. The conference’s theme “Refuge Europe – a question of solidarity?” brought together researchers from across Europe to discuss CEAS in line with the CEASEVAL project.
We had the opportunity to present our work in the panel The Politicization of
Responsibility, convened and chaired by Dr. Blanca Garces (CIDOB, Spain).
You decide! How European states have divested their responsibilities for asylum determination to courts
This paper examines the divestment of responsibility for deciding asylum claims away from nation states onto courts, judges and asylum appellants, resulting in lower quality refugee protection in Europe.
In 2017, 30% of the decisions made by Europe’s governments on asylum claims were overturned on appeal, illustrating not only the importance of appeal processes for the safety of refugees in Europe, but also the temptation to rely upon forms of redress to detect inaccurate initial decisions.
Drawing on over 500 ethnographic observations of asylum appeal hearings in Germany, France, the UK, Belgium and Austria, the paper identifies the implications of this phenomenon. Within courts, the quantitative pressure that is produced results in ‘thinning out’ of legal procedures with negative consequences for judicial deliberation. For judges themselves, the disengagement of states manifests in progressively fewer legal representatives of the state attending appeal hearings, meaning that judges have to fill in for them, proliferating their workload, and confusing their roles in the eyes of appellants. With respect to appellants – many who would have relied upon state-funded legal aid – are now unable to do so, meaning that they must represent themselves in court, which can lead to grave legal errors.
In general, the divestment of the nation-states of Europe of their responsibility to give asylum claims due consideration poses serious risks to refugees, and raises fundamental questions about the configuration of administrative and judicial powers in contemporary democracies.
Keywords: asylum courts; asylum adjudication; legal ethnography; legal procedures