The Institutionalisation of Judicial Independence and its Influence on Asylum Decisions

This project investigates the influence of judicial independence on asylum decisions. The starting point is the observation that anti-mobile public opinion leads to lower asylum recognition rates. Non-majoritarian institutions, especially courts, serve as a safeguard against such influence by making decisions based on established legal principles, free from political interests. However, this protective function is undermined when the independence of the judiciary itself is at risk. Previous quantitative analysis for the EU-28 has shown that independent courts have higher recognition rates than less independent courts, and that asylum authorities in systems with an independent judiciary tend to make more liberal decisions than those in systems with a less independent judiciary. Building on this, the project aims to identify the causal mechanisms underlying this relationship. The goal is to understand how changes in judicial independence influence asylum decisions. How is pressure exerted on the judiciary, and how do judges deal with this pressure? How do the authorities and the judiciary react to or anticipate each other's decisions, and how does this dynamic affect the outcomes in the determination of a protection status? The case studies investigated in this project are Poland and Austria between 2012-24. In both countries, there has been a change in the independence of lower judicial instances during this period: In Poland, independence decreased sharply between 2015 and 2023, while courts in Austria have enjoyed greater independence since 2020 after a period of limited judicial independence. This countervailing development allows us to examine varying degrees of judicial independence at points in time (temporality) when both countries faced similar asylum policy challenges that were accompanied by an increased salience of the issue. The project draws on a neo-institutionalist theoretical framework and combines a qualitative content analysis with process tracing of contested asylum cases. The data basis includes asylum decisions, political and administrative documents, NGO and media reports, and interviews with judges, asylum lawyers, case workers, and NGO representatives. By examining how the institutionalisation of judicial independence as a central dimension of the rule of law affects the contested mobility of asylum seekers, the project contributes to a better understanding of conflictive institutional dynamics (rule of law vs. democratic representation). Based on this, a (middle-range) theory is developed on the effect of judicial independence on asylum adjudication practice.