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.