Header

UZH-Logo

Maintenance Infos

Like cases alike or asylum lottery? Inconsistency in judicial decision making at the Swiss Federal Administrative Court


Spirig, Judith. Like cases alike or asylum lottery? Inconsistency in judicial decision making at the Swiss Federal Administrative Court. 2018, University of Zurich, Faculty of Arts.

Abstract

What determines if an asylum seeker’s appeal of a negative asylum decision is granted? Do factors other than the merits of the appeal influence its outcome? Building on insights from the literature on judicial politics, group decision making and how immigration shapes citizens’ attitudes, this dis-sertation draws attention to three extra-legal factors that matter in Swiss asylum appeal decision making.
The Swiss Federal Administrative Court, which decides all asylum appeals in Switzerland, exhibits several institutional features that allow for the causal iden-tification of the impact of extra-legal factors on asylum appeal decisions. Chief among them is a case allocation system that quasi-randomly assigns judges to panels of decision makers.
In a nutshell, this dissertation provides evidence that the composition of panels matters for asylum appeal decisions (Paper 1), that three-judge panels are more likely to grant appeals than a single judge with the consent of a second (Paper 2) and that judges decide more restrictively when newspapers report more on asylum and refugee issues (Paper 3).
The first, co-authored study explores the influence of judges’ individual prefer-ences on appeal decisions and investigates how they play out in panels of judges. In the absence of information about judges’ individual votes, we estimate both the best model to explain how judges aggregate their preferences into a joint panel decision and their individually preferred grant rates. We find that three-judge panels make decisions according to a mix of chair-as-dictator and simple majority vote model and that judges’ individual preferences matter, regardless of the aggregation rule we use. Making use of the fact that Swiss asylum judges are commonly political party members, we show that judges’ preferred grant rates and party affiliation correlate in expected ways: judges from left-wing parties are on average more likely to grant appeals than judges from right-wing parties.
The second study exploits an institutional change implemented in January 2008. While in 2007 all substantively tried asylum appeals were decided by three-judge panels, the introduction of a ‘simplified procedure’ in January 2008 has since entitled chair judges to decide appeals they consider ‘clearly with or without merit’ in an expedited procedure, with the consent of a second judge. A fuzzy regression discontinuity design approach reveals that the introduction of the new procedure led to a decrease in the grant rate for the cases it affected. In particular, this concerns appeals lodged by Nigerian asylum seekers, of dismissive asylum application decisions, and those handled by judges affiliated with center-right parties.
The third paper examines the impact of the frequently high political salience of asylum and refugee issues. Drawing on a large corpus of newspaper articles that report on asylum and refugee issues, this paper shows that, like ordinary citizens, judges are impacted by the salience of asylum issues. Despite—or perhaps due to—the high political salience of asylum issues, party affiliation is not found to condition the effect of media coverage: judges of all parties become more restrictive in times of high asylum issue salience.
Taken together, the three studies provide evidence that asylum appeal decisions are influenced by several factors that go beyond the legal merits of each case: the judges who decide them, the structure of the decision-making process that drives preference aggregation, the number of judges on the panel and the public salience of the broader political context of judges’ work. Beyond raising serious concerns about the procedural fairness, the documented disparities also call into question the consistency of decision making.

Abstract

What determines if an asylum seeker’s appeal of a negative asylum decision is granted? Do factors other than the merits of the appeal influence its outcome? Building on insights from the literature on judicial politics, group decision making and how immigration shapes citizens’ attitudes, this dis-sertation draws attention to three extra-legal factors that matter in Swiss asylum appeal decision making.
The Swiss Federal Administrative Court, which decides all asylum appeals in Switzerland, exhibits several institutional features that allow for the causal iden-tification of the impact of extra-legal factors on asylum appeal decisions. Chief among them is a case allocation system that quasi-randomly assigns judges to panels of decision makers.
In a nutshell, this dissertation provides evidence that the composition of panels matters for asylum appeal decisions (Paper 1), that three-judge panels are more likely to grant appeals than a single judge with the consent of a second (Paper 2) and that judges decide more restrictively when newspapers report more on asylum and refugee issues (Paper 3).
The first, co-authored study explores the influence of judges’ individual prefer-ences on appeal decisions and investigates how they play out in panels of judges. In the absence of information about judges’ individual votes, we estimate both the best model to explain how judges aggregate their preferences into a joint panel decision and their individually preferred grant rates. We find that three-judge panels make decisions according to a mix of chair-as-dictator and simple majority vote model and that judges’ individual preferences matter, regardless of the aggregation rule we use. Making use of the fact that Swiss asylum judges are commonly political party members, we show that judges’ preferred grant rates and party affiliation correlate in expected ways: judges from left-wing parties are on average more likely to grant appeals than judges from right-wing parties.
The second study exploits an institutional change implemented in January 2008. While in 2007 all substantively tried asylum appeals were decided by three-judge panels, the introduction of a ‘simplified procedure’ in January 2008 has since entitled chair judges to decide appeals they consider ‘clearly with or without merit’ in an expedited procedure, with the consent of a second judge. A fuzzy regression discontinuity design approach reveals that the introduction of the new procedure led to a decrease in the grant rate for the cases it affected. In particular, this concerns appeals lodged by Nigerian asylum seekers, of dismissive asylum application decisions, and those handled by judges affiliated with center-right parties.
The third paper examines the impact of the frequently high political salience of asylum and refugee issues. Drawing on a large corpus of newspaper articles that report on asylum and refugee issues, this paper shows that, like ordinary citizens, judges are impacted by the salience of asylum issues. Despite—or perhaps due to—the high political salience of asylum issues, party affiliation is not found to condition the effect of media coverage: judges of all parties become more restrictive in times of high asylum issue salience.
Taken together, the three studies provide evidence that asylum appeal decisions are influenced by several factors that go beyond the legal merits of each case: the judges who decide them, the structure of the decision-making process that drives preference aggregation, the number of judges on the panel and the public salience of the broader political context of judges’ work. Beyond raising serious concerns about the procedural fairness, the documented disparities also call into question the consistency of decision making.

Statistics

Downloads

90 downloads since deposited on 23 Nov 2018
75 downloads since 12 months
Detailed statistics

Additional indexing

Item Type:Dissertation (monographical)
Referees:Steenbergen Marco R, Lauderdale Benjamin E, Soskice David, Rauhut Heiko
Communities & Collections:06 Faculty of Arts > Institute of Political Science
Dewey Decimal Classification:320 Political science
Language:English
Place of Publication:Zürich
Date:2018
Deposited On:23 Nov 2018 14:50
Last Modified:24 Sep 2019 23:51
Number of Pages:171
OA Status:Green

Download

Green Open Access

Download PDF  'Like cases alike or asylum lottery? Inconsistency in judicial decision making at the Swiss Federal Administrative Court'.
Preview
Content: Published Version
Filetype: PDF
Size: 1MB