It’s not what you know, it’s how you use it: On the application of country of origin information in judicial refugee status determination decisions

Abstract

Existing research has emphasised the different forms of knowledge available to refugee status determination (RSD) decision makers, as well as the differing conditions under which it is produced, but very little work has addressed how judges interpret, represent and mobilise evidence within written decisions. This study investigates how country of origin information (COI) is used in written RSD decisions, taking Germany’s Higher Administrative Courts’ decisions on Syrian draft evaders as a case study. Our analysis shows that the courts draw different conclusions from the same evidentiary basis, freely utilising a menu of techniques including interpretation, framing and citation styles to amplify or dampen the argumentative force of COI within their reasoning. As such legal reasoning dominates evidence, meaning that evidence is discursively highly malleable, frequently incidental to legal reasoning, and unable to produce legal consensus. Our findings raise concerns that courts use COI selectively to justify the positions they have adopted, rather than allowing their positions to be directed by COI. We conclude by reflecting on what, if anything, should be done about these seemingly opaque and unaccountable textual and discursive forms of discretionary judicial power