De-mystifying asylum adjudication - judicial perspectives on law and experience in German Administrative Courts

Thesis

Refugee status determination is often described as one of the most complex adjudication functions in industrialised democracies. Such statements are driven by the legal and factual complexities of asylum adjudication. As a result, refugee law and status determination are seen as different to other legal areas and described as particularly ambiguous and discretion-heavy. At the same time those legal professionals who make asylum decisions every day - like judges - lack attention. This study therefore interrogates how judges in German administrative courts make asylum decisions and how they deal with uncertainty, investigating asylum adjudication from the perspective of the judge.

This research is based on extensive fieldwork at two different administrative courts in Germany, including courtroom observations, case and file material and semi-structured interviews with judges. It argues that judges use different strategies and techniques, referring both to law and experience to make sense and solve a case reaching a rationally justifiable decision. Thereby it promotes a holistic idea of decision-making or ‘judgecraft’ in which elements like professional experience and intuition become active parts of the reasoning and decision-making process, questioning the binaries of reason and emotion, rules and discretion that underpin much of the decision-making literature. This thesis further argues that a crucial part of judges’ experience is formed by those cases a judge decided in the past, the dialogue, discourse and exchange between colleagues and his or her chamber, as well as the use and acceptance of intuition as a technique, such as letting time pass and writing. By revealing how these strategies interlock in the daily decision-making practices of judges, this thesis’ findings challenge the assumption that asylum decisions are arbitrary, subjective or akin to a ‘lottery’. Instead, this research nuances these debates by showing how legal norms and professional methods come together, and how judges employ intuition, experience and emotions pro-actively as part of a decision-making strategy underpinned by the rationalizable confines of procedure and principle.

Authors: Büchsel, TS

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: Socio-Legal Studies; Asylum Adjudication; Refugee Studies; Courts; Judgecraft; Judicial Decision-Making; Germany
• Subjects: Asylum, Right of; Judges; Law and Society; Immigration courts