By Pierre G. Van Wolleghem
Refugees are not only born of persecution; they are also made by states. Although people fleeing war, persecution, and political violence may be regarded as refugees within the meaning of international law, they only benefit from effective protection once their protection needs are recognised by a state. In plain words, asylum is not simply a humanitarian matter. Nor does it depend on the mere application of international law. It is also a question of how states work.
Every asylum application passes through the machinery of the state. It is evaluated by the public administration, where civil servants, in application of the rules in place, assess evidence, examine conditions in origin countries, and ultimately produce decisions on behalf of the state. At the same time, these administrations operate within political and institutional systems where governments are elected, where they respond to public opinion, and where they pursue their policy preferences.
Understanding asylum therefore requires us to understand the intricate relationship between politics and public administration. More explicitly, it begs the question: how political are asylum decisions? The answer, of course, is a nuanced one: asylum decisions are neither purely legal nor simply political. Instead, they emerge from a continuous interaction between legal obligations, administrative institutions and democratic politics. My research in the past few years has tried to open up this machinery in three articles, which I summarise here.
The puzzle: same rules, different outcomes
International protection rests on the principles established in the 1951 Refugee Convention. Simply put, people who have a well-founded fear of persecution should receive protection, regardless of where they apply. Yet, 25 years of comparative research on recognition rates have consistently established that this is not exactly the case. While it is true that asylum decisions reflect, on the whole, the conditions in countries of origin, two people fleeing similar circumstances may still receive very different decisions depending on where they seek asylum. This means that there are considerations, beyond the sheer merit of asylum claims, that affect people’s chances of receiving protection. The question is: what are these considerations?
Fig. 1. Refugee recognition rates for Afghan and Syrian applicants, first instance, 2008-2019, mean and standard deviation.
Granting asylum: an administrative process
At the heart of every asylum claim is an administrative process whereby civil servants are tasked with evaluating the merit of applications in a situation of high uncertainty and information scarcity. How effectively the administration conducts this process is of utmost importance. My research in European Union Politics (together with H.G. Sicakkan) demonstrates that countries with effective asylum administrations tend to produce decisions that are more closely aligned with the merits of individual claims. Administrative expertise allows officials to better assess complex cases and consistently apply international protection standards. Strong institutions also allow the administration to withstand political pressure for migration control, which may negatively affect protection recognition.
Beyond effective administrations, the institutional rules under which they operate also influence asylum outcomes. While refugee protection is a matter of international law, it is up to the state to devise the procedures through which it is granted. Consequently, every asylum system is organised differently. Countries vary in how decisions are produced, who participates in the decision-making process, what the rights of applicants are, or how detention is used. These choices are not merely technical; they have important substantive consequences and ultimately shape how likely applicants are to receive protection. My research in Journal of Ethnic and Migration Studies (together with H.G. Sicakkan) investigates the effect of different institutional choices on the granting of international protection. It shows how increasingly restrictive asylum institutional arrangements curb the recognition of international protection.
Why politics still matters
Strong administrations and institutional arrangements go hand in hand. Together, they create rules and constraints that contrast and outlast the political pressures exerted by rotating governments. Politics still matters though, albeit not always in the way we think. While asylum decisions are often thought of as a binary outcome — i.e. protection is granted or denied — my most recent research in Political Research Quarterly suggests a more nuanced exercise of government preferences on asylum policy.
Alongside refugee status, countries in the European Union can also grant subsidiary protection or, in some cases, nationally defined humanitarian protection. While these different statuses protect from deportation, they are far from providing identical rights. Refugee status generally offers greater security by providing longer residence permits, easier family reunification and clearer pathways towards permanent residence or citizenship. Other forms of protection tend to be more temporary and provide fewer rights.
These differences create an interstice where governments can pursue restrictive immigration policy while, at the same time, comply with international law. That is, rather than deciding whether protection should be granted or denied, governments may seek to influence which type of protection applicants receive—e.g. granting subsidiary protection instead of refugee status—thus allowing them to fulfil their legal obligations while simultaneously shaping the long-term consequences of asylum decisions. Indeed, governments cannot ignore the specifics of a given claim or the conditions in countries of origin altogether. Neither can they overlook public attention on migration issues, which constrains their room to manoeuvre. But where asylum claims cannot be rejected outright, governments can nudge recognition towards statuses granting lesser rights to the protected person.
Looking inside the State
Recognition of international protection cannot be understood solely as the product of administrative processes or humanitarian imperatives. Nor does it depend on politics alone. Instead, it is a negotiated outcome produced at the intersection between human rights, legal obligations, administrative institutions and democratic politics. Understanding asylum outcomes thus requires looking inside the state—the institutional apparatus that encompasses the government, the administration, and the rules that govern their interactions. Twenty-five years of research reassuringly confirms that the risk of persecution remains a consistent driver of protection. But the fairness of the asylum system rests on the robustness of the institutions designed to uphold its principles. What my research demonstrates is a need for a better understanding of the internal dynamic of the state—which may in turn lead to a fairer implementation of international protection law.
Pierre G. Van Wolleghem (NORCE Research and University of Bergen)
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