Complementary Protection and Judicial Regime Stretching. Understanding the Different Responses of European Asylum Regimes to the Taliban Takeover in Afghanistan
European Union
Human Rights
Policy Analysis
Courts
Qualitative
Asylum
Comparative Perspective
Judicialisation
Abstract
The fall of Kabul in August 2021 and the Taliban takeover have led to an overall increase in the recognition rate of Afghan asylum seekers in Europe. However, the responses of European countries have varied: Germany, Austria, and Switzerland granted full recognition but primarily through non-harmonised domestic complementary protection. In these countries, asylum bureaucracies and courts determined that Afghan nationals would not face persecution upon return but would encounter life-threatening socio-economic conditions, amounting to a violation of the European Convention on Human Rights (ECHR). In contrast, the UK, Greece, the Netherlands, Italy, and Spain granted full recognition primarily through refugee protection, based on the assumption of a real risk of individual persecution for every Afghan returnee. Meanwhile, recognition rates in France, Belgium, and Sweden were significantly lower, with positive decisions mostly involving refugee protection.
Analysing the different institutional settings in protection regimes of European destination states, this paper demonstrates why only Germany, Austria, and Switzerland were able to grant complementary protection to most Afghans following the fall of Kabul in 2021. Compared to full refugee status, complementary protection offers limited rights, such as shorter residence permits and stricter family reunification policies. This creates an incentive for destination states seeking to restrict forced migration to their territory to use complementary protection as an alternative to full refugee status: While applicants are still granted protection, the status is easier to revoke, and the absence of family reunification prevents an additional increase in numbers. In the case of the fall of Kabul in 2021, this substitution required a complementary protection regime applicable to a large group of applicants, for which three institutional conditions must be met: First, complementary protection must be automatically examined as part of the national asylum procedure. Second, domestic law must provide the possibility to grant protection due to the humanitarian situation in the country of origin. Third, domestic courts must apply complementary protection beyond its original scope by interpreting the ECHR in line with the European Court of Human Rights (ECtHR) jurisprudence, engaging in what is referred to as “regime stretching”. Among European destination states, only Germany, Austria, and Switzerland meet all three conditions.
This paper not only enhances understanding of the varied responses of European destination states to the Taliban takeover in 2021 but also highlights non-harmonized complementary protection as a key component of asylum policy in Europe. It explores the diverse national approaches to applying ECtHR case law, revealing varying degrees of domestic “stretching” of the European human rights regime. This stretching can be seen as part of the judicialization of politics, with domestic courts playing a pivotal role in shaping national asylum policy. Finally, the paper offers empirical evidence and a topical case study of the ambivalent effects of comprehensive complementary protection regimes: while extending protection to include harm not intentionally caused by a human actor, such as severe poverty, these regimes simultaneously reduce protection by substituting full refugee status with lower forms of protection.