Why courts are the life buoys of migrant rights: anti-immigrant pressure, variation in judicial independence, and asylum recognition rates

Abstract

A rise in anti-immigrant pressure can reduce asylum recognition rates, irrespective of individuals’ protection needs. Independent courts, which often act as a safeguard of migrant rights vis-à-vis such pressures, have been subject to increasing political interference. Yet, we know very little about how variation in the level of judicial independence–especially among lower courts–affects policy outcomes. In this paper, we assess the impact of anti-immigrant pressure and judicial independence on first and final instance refugee status determination decisions across 28 European Union member states over a ten-year period (2008–2018). We find that the relative independence of courts makes the biggest difference in asylum recognition rates at first and final instance when levels of anti-immigrant pressure are particularly high. This effect can be demonstrated not just regarding asylum appeals, but also for first instance decisions, suggesting that independent courts can have a liberal ‘foreshadowing effect’ on national asylum agencies.