Humboldt-Universität zu Berlin - Integrative Research Institute Law & Society (LSI)

Humboldt-Universität zu Berlin | Faculty of Law | Integrative Research Institute Law & Society (LSI) | People | Researchers | Valentin Feneberg, M.A. | Home of the Others. Country of Origin Information in asylum appeal adjudication in Germany

Home of the Others. Country of Origin Information in asylum appeal adjudication in Germany

 

Refugee status determination is full of knowledge gaps: Reliable information from totalitarian or volatile states is difficult to obtain, and the asylum decision is a risk prognosis that refers to an unavoidably uncertain future. How administrative judges construct the reality in countries of origin in in the face of these empirical and prognostic uncertainties is the topic of this thesis in which I follow the path of Country of Origin Information (COI) in court from its research to its application in written decisions.


According to the inquisitorial administrative justice procedure in Germany, asylum judges must “explore” the facts of the case. They are thus not only decision makers, but also fact finders. In a first step, I analyse the investigation of COI at administrative courts and how judges form a personal conviction necessary to decide a case. Based on 40 interviews with judges and staff the COI Units supporting them, I illustrate the manifold implementation of the inquisitorial administrative justice procedure and the strategies judges use to cope with the flood of information and the lack of evidence at the same time.


Building on a theory of the co-constitution of law and facts, I examine in a second step how judges construct reality in written decisions. Case studies are the case law on Syrian conscientious objectors (refugee protection, subsidiary protection) and on forced migrants from Afghanistan, for whom the risk of life-threatening deprivation upon return must be determined (national ban on deportation). For both, the assessment of the overall situation in the country of origin is decisive, not so much the individual case. Although using the same COI, courts assess this situation incoherently. I show that these divergent constructions of reality are grounded in different patterns of interpretation (frames) and factual assumptions with which the courts bridge the evidentiary gaps about the persecutor’s motives (Syria) and the risk of deprivation (Afghanistan) and how these patterns influence the recontextualization of COI in written decisions. While interpretive patterns about the character of the state are crucial in the case of Syria, those about the character of the humanitarian crisis (exacerbated by the Covid pandemic) are at stake in the case of Afghanistan.


On this basis, I critically discuss the use of COI in refugee status determination and analyse the role of courts as knowledge-producing, knowledge-processing, and adjudicating institutions in the asylum regime.