GPPi researcher says asylum jurisprudence in Germany, UK and Netherlands regarding non-state harm is flawed

GPPi Research Associate Julian Lehmann argues that the asylum decisions made by the courts of Germany, the United Kingdom and the Netherlands concerning the threat of harm by non-state actors are flawed.

At a conference on Refugee Law at the Human Rights Consortium of the School of Advanced Study, University of London, Lehmann presented an analysis of results from some 200 recent national court decisions in Germany, the UK and the Netherlands.

Ever since an EU Directive in 2004 regulated the criteria to determine refugee status, all EU member states can determine refugee status based on harm by non-state actors. However, asylum seekers will obtain refugee status only if they do not receive ​“effective protection” at home.

According to Lehmann, courts in Germany, the UK, and the Netherlands apply the notion of ​“effective protection” differently and their application of the notion is often flawed. In German, British and Dutch case law, there are three major problems. Dutch courts expect asylum seekers to demonstrate they could not turn to authorities at home for ​“effective protection,” creating an additional test for the recognition of refugee status that is not foreseen in international law. In Germany and the UK, some courts base their decisions on the state’s ability to protect in general terms instead of making individual assessments.

These courts say there is ​“effective protection” when the states does its best to avert harm from a person. But under international law a person is still considered a refugee when the state fails, in spite of its best efforts, to protect the person.

Lehmann argues that these problems are not so much caused by EU law as faulty domestic interpretations of the law from before 2004. But both the 2004 EU directive and its 2011 revision have not defined ​“effective protection” in a way that would have resolved these problems.