Blog post by Valentin Feneberg (Integrative Research Institute Law & Society, Humboldt-Universität zu Berlin)
Evidentiary uncertainty makes fact-finding a major challenge in Refugee Status Determination (RSD). To assess the risk of a well-founded fear of persecution or of serious harm upon return, decision makers apply Country of Origin Information (COI) from different sources such as state departments, NGOs or expert witnesses. In asylum appeal adjudication in Germany, judges are legally required to gather evidence on their own initiative. The difficulty of collecting sufficient country knowledge coincides with judges’ wide discretion in combining COI with the legal standards of refugee law. In the case of draft evaders from Syria and Eritrea, (higher) administrative courts in Germany politicise or depoliticise claimants by constructing different realities of the “character” of the two regimes. Drawing on the same evidentiary basis, courts interpret COI differently in order to strengthen their legal argument. This strategic use of country knowledge leads to inconsistencies in the way courts view the regimes’ actions and, thus, to different decisions of similar cases.
Asylum seekers from Syria and Eritrea in Germany
Syrians are by far the largest group of asylum seekers in Germany; Eritrea is, since 2013, among the annual top ten countries of origin. While from 2011 to 2015, the great majority received refugee protection (Syria: 84%, Eritrea: 79%), the German Federal Office for Migration and Refugees changed its decision-making in early 2016, now more often awarding subsidiary protection. Between 2016 and 2019, only 50% of Syrian and 55% of Eritrean applicants received refugee protection at the initial decision of the Federal Office. The difference between those statuses relies, in a nutshell, on the assessment of whether a feared act of persecution is causally connected to one of the grounds of persecution of the 1951 Refugee Convention, in this case: political conviction. Thus, refugee protection requires an ill-treatment targeted at an individual attribute of the asylum seeker. This makes the question if the Syrian or Eritrean government considers draft evasion an act of political opposition so crucial. If ill-treatment is seen merely as an inhumane action that happens disregarding the individual attributes of the victim, it is only considered a serious harm and leads to subsidiary protection.
Even though both statuses prevent deportation from and guarantee basic rights in the receiving country, legal effects are not the same: people with subsidiary protection have a limited right of family reunification, their status is re-assessed only after one year and permanent residence is more difficult to achieve. This causes a status insecurity with potential effects on their labour market and social integration. Moreover, the categorization of asylum seekers with different protection statuses has also a symbolic consequence: denying an individual recognition of refugee status and instead conferring subsidiary status fosters an image of less deserving and, thus, less legitimate refugees which might influence their social acceptance.
The change in administrative decision-making was followed by an increase in so-called ‘upgrade-claims’ of asylum seekers with subsidiary protection in order to improve their status. Even though courts can rely on numerous pieces of COI on different aspects of the situation in Syria and Eritrea, they lack reports about the actual treatment of draft evaders upon return. Therefore, courts mainly focus on the behaviour of the relevant regime and its practice of sanction and ill-treatment, assessing the “real risk” of a political persecution of draft evaders on this basis.
Syria: Draft evasion as political statement?
Court decisions that have found a real risk of political persecution for Syrian draft evaders describe a regime which considers every behaviour against it an act of political conviction (for the following sections, see list of verdicts at the end). This description is typically supported by the provision of detailed evidence of the intensity of general human rights violations reported by different organisations. Drawing on a variety of COI, courts argue that a government this cruel will most likely apply these methods targeted at a victim’s political conviction. This argument is supported by the provision of evidence implying that the Syrian state is under enormous pressure and, thus, uses persecution to discipline deviant behaviour such as draft evasion, especially as a means of deterrence. As the state thinks in a friend-foe-dichotomy, young men refusing to serve the military are automatically considered traitors and treated as such. Courts affirming refugee protection use COI to construct the character of a regime fighting for its existence, desperately trying to secure its power. The few sources providing expert statements on the actual real risk for draft evaders being treated as political opponents – mainly UNHCR reports – are quoted at central parts of the argument.
While decisions rejecting refugee status apply the same evidentiary basis as to the situation in Syria, they interpret this evidence very differently. In some decisions a position is advanced that it is precisely because the state is fighting for its existence and is under enormous military pressure that the political persecution of draft evaders is unlikely. Rather, it is suggested that the government aims to send these men directly to war, so the state has no interest in persecuting returnees based on their political convictions. Moreover, the arbitrary and widespread application of torture and other ill-treatment is taken to undermine the case that there is targeted persecution of draft evaders. Further, courts consider the high number of fleeing draft evaders that their motivation is not political opinion but stems from a general fear of dying in combat. The above-mentioned reports providing a more precise evidentiary basis for the opposite decision are rejected: the expert statements are considered value-driven and UNHCR is suspected to be politically motivated. The statements are also considered to lack evidentiary support, drawing on only a few direct sources or merely the experts’ general experience. In 2019, some courts formerly awarding refugee protection changed their decisions: drawing on more recent COI, they argue that the Syrian government regained military strength and will therefore carry out conciliatory steps towards returning draft evaders.
Eritrea: The national service as political project?
While there is wide agreement in German courts that Eritreans having left the country to avoid national service (obligatory for male and female citizens) will face ill-treatment upon return, only a minority (and, so far, no higher administrative court) consider draft evaders to be political refugees. Administrative courts affirming refugee protection use COI to proof the highly political character of the national service itself: it is not so much a military service, but can be understood as a “school of the nation” and a civil service whose maintenance is indispensable for the regime’s stability. Refusing to serve is, therefore, considered an act of opposition. That the Eritrean government applies sanctions without a legal basis and arbitrarily to every returnee stresses the political character of those acts. Furthermore, the positive decisions made by German courts often refer to the scarcity of reliable sources available for an assessment of the actual situation in Eritrea, indicating the opaque, totalitarian character of the Eritrean regime. However, even though information is limited, those decisions provide more details on human rights violations by the Eritrean state, drawing on different COI.
The main argument in verdicts rejecting an asylum claim is that neither the duty to serve the national service nor the punishment for evading conscription relates to a person’s individual properties but threatens every (returning) citizen. At the same time, however, courts argue that even though all citizens face persecution, they do not all face the same sanctions which could be expected when the state sees political opponents in all evaders. Drawing on a variety of COI, the courts conclude that the punishment of draft evaders seeks to establish a “general climate of fear” and is, therefore, an expression of the totalitarian authority of the Eritrean regime. As in the case of Syrian draft evaders, courts consider the “mass exodus” of Eritreans as an indicator against a political motivation to leave the country. In common with decisions affirming refugee status, negative decisions consider the national service a political project due to its non-military character. However, they use COI to describe the service as a mainly economic project, guaranteeing the functioning of the Eritrean state and weighing against the treatment of those refusing to serve being political persecution. That Eritrean draft evaders who illegally left the country have the possibility to return to Eritrea unpunished when paying a “diaspora tax” and signing a so-called repentance letter shows that the state has a greater interest in its citizens paying this tax than in sanctioning their political conviction.
Depoliticisation by rationalisation
This brief presentation of the jurisprudence shows, on the one hand, how courts depoliticise draft evaders from Syria and Eritrea when denying refugee protection, stating that their migration stems from the fear of dying in war (Syria) or from the bad conditions in the national service (Eritrea). On the other hand, decisions granting refugee status politicise applicants in ascribing a political conviction to every draft evader leaving the country. This politicisation goes along with a de-rationalisation of the relevant regime by focussing mainly on the cruelty of ill-treatment and the simple friend-foe dichotomy as its main cause. Contrarily, negative decisions use COI to strengthen the image of a rational regime, having no reason to persecute its citizens based on their political conviction.
In the case of Syria, rationalisation is most visible when courts argue that COI shows that the government of Bashar al-Assad has mainly a military interest in returning draft evaders and will therefore refrain from political persecution. Decisions in favour of refugee protection disagree with this view, stating that it implies a one-dimensional image of the Syrian state which does not follow from COI. For Eritrea, rationalisation is seen when courts construct national service as a mainly economic enterprise of which the state legitimately obliges its citizens to become part. The argument that the payment of a “diaspora tax” will prevent political persecution supports this logic. While verdicts refusing refugee status use COI to describe this tax’s logic theoretically, opposing judgements quote COI in order to show that there is no guarantee that this tax will actually protect returnees from persecution. Substantiating the rationalisation rhetorically, the decisions often ascribe “life experience” to the state and its officials, preventing them from politically persecuting returnees as it makes them “aware” that migration is not based on political conviction.
An independent COI unit
The comparison shows that courts draw different conclusions from the same evidentiary basis, framing COI strategically in order to strengthen their argument. This becomes most visible when they agree that the governments of Syria and Eritrea are under pressure but disagree what this means for the persecution of returning draft evaders. Drawing on the legal standard that an act of persecution must be caused by a ground of persecution to grant refugee status, courts affirm or reject this causation by constructing different realities of foreign states.
This construction of different realities challenges the principle of fairness in RSD. As the higher administrative courts of the 16 federal states (Bundesländer) are the highest judicial level ruling on facts in Germany, jurisprudence for similar cases is often fragmented. Since 2017, federal country guidance determinations like those in the UK have been discussed as a remedy. However, as the German Federal Administrative Court rules only on matters of law and does not reassess the facts, this option faces institutional challenges and is far from being implemented. As an alternative, scholars discuss the foundation of a federal research unit, providing courts and the asylum administration with COI produced by independent experts. Such a research unit would allow for a better integration of interdisciplinary and consistent country knowledge in RSD and make it less likely that COI is rejected by courts based on the accusation of an author’s political partisanship, like in the case of UNHCR reports on the situation in Syria. In order to raise both the acceptance by lower courts and to guarantee political independence, the idea is to establish the unit at the Federal Administrative Court. Procedurally, the unit’s reports should have at least the same weight as the widely used reports of the German Federal Foreign Office: Not taking them into account should be considered as a breach of administrative courts’ inquisitorial duty and, thus, as a legitimate reason for appeal at a higher court. While the Foreign Office’s reports are treated as confidential information, accessible only for decision makers and lawyers, COI produced by an independent research unit should be published in order to guarantee transparency.
While federal country guidance would have advantages, its use may increase the risk of the emergence of a consistent view that draft evaders from Syria and Eritrea are not political refugees. Courts should refrain from using COI strategically in a way that depoliticises migrants by conferring rationality to oppressive regimes. They should also avoid the legal arguments that the high number of people fleeing a country, and that anyone may suffer inhumane treatment, militate against the conferral of protection as a political refugee. The rationalisation of the regimes implies their partial validation, making the flight of people less legitimate and leading, alongside with the depoliticisation of migrants, to lower protection statuses in the long run. This is most visible for the jurisdiction on Syria: While in 2016, 80% of upgrade claims were successful, this quota fell to 18% in 2019. That Syria and Eritrea do not persecute citizens politically will serve as the argumentative basis for future decision-making and, thus, promotes the categorization of certain migrants as less legitimate refugees.
List of verdicts (examples):
- Syria (refugee protection): Higher Administrative Court Bavaria, 12 December 2016 (21 B 16.30372), Higher Administrative Court Hesse, 6 June 2017 (5 K 1854/16.KS.A)
- Syria (subsidiary protection): Higher Administrative Court Rhineland Palatinate, 16 December 2016 (1 A 10922/16), Higher Administrative Court North Rhine-Westphalia, 4 May 2018 (14 A 2023/16.A).
- Eritrea (refugee protection): Administrative Court Halle, 29 September 2017 (4 A 219/16), VG Cottbus, 12 April 2018 (6 K 652/16.A)
- Eritrea (subsidiary protection): Higher Administrative Court Hambourg, 21 September 2018 (4 Bf 186/18.A), Higher Administrative Court Bavaria, 5 February 2020 (23 B 18.31593)
Valentin Feneberg studied Political Sciences, Sociology and Philosophy in Munich, Berlin and Oxford. From 2018 to 2019 he was research assistant at the German Center for Integration and Migration Research (DeZIM). Since May 2019 he is research assistant at the Integrative Research Institute Law & Society (LSI) at Humboldt Universität zu Berlin. He works in the field of socio-legal studies, with a focus on asylum adjudication and administrative courts, as well as on assisted return policies, particularly on the case of Senegal.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.