Dr. Nicole Hoellerer and Prof. Nick Gill presented a paper at the 5th Annual Conference of the Refugee Law Initiative (RLI). This virtual conference (9 -11 June 2021) had the title ‘Ageing Gracefully? The 1951 Refugee Convention at 70’, and was hosted by the School of Advanced Study, University of London.
Our presentation with the title ‘Offloading responsibility and over-burdening courts and judges with refugee status determination decisions in Europe – Judicial perceptions in Germany’ was hosted in the panel The Role of National Legislation and Courts in Shaping Refugee Protection, chaired by Prof. Steve Meili (University of Minnesota).
Offloading responsibility and over-burdening courts and judges with refugee status determination decisions in Europe – Judicial perceptions in Germany
The possibility to appeal a decision on an asylum application at an appeals court or review panel has become a fundamental aspect of refugee status determination as set out by the 1951 Refugee Convention. Across the EU, over 100,000 asylum seekers had their claims for asylum either recognised or improved in 2019 via court appeal processes (with similar numbers in 2017 and 2018). Given the seriousness of the potential consequences of a wrong decision on an asylum claim, such as detention and deportation, these statistics reveal the fragility of the asylum determination regimes and institutional practices in Europe, as well as the importance of asylum appeal processes themselves.
Analyses of European states’ responses to their international obligations towards refugees identified the persistence with which states divest their responsibilities. In our presentation we highlight judicial perceptions of the displacement of responsibility for refugee status determination from the German state to courts and judges. In this context, we reveal the fragility in asylum determination that is fraught with disruptions and uncertainties for both asylum seekers and state institutions.
Based on qualitative, ethnographic observations of over 280 German asylum appeal hearings, we empirically explore judges’ frustration with the perceived lack of upstream quality of decision making and the negative consequences for the quality and reliability of appeal adjudication. Conceptually, we illustrate the multi-scalar and polymorphic nature of state power, its incoherence, fragility and modes of disruptions, and the role of inaction as well as action in states’ truculence towards their obligations as set out in the 1951 Refugee Convention. Practically, we reflect on some policy options that could help to avoid over-burdening courts with asylum cases in the future, and thus reduce the fragility inherent in the asylum determination system.
Keywords: refugee status determination, state abandonment, responsibility and fragility, withdrawal, judicial perceptions, government procedures