Asylum in Germany

Initial reception center and housing for refugees in Freiburg, Germany

The right of asylum for victims of political persecution is a basic right stipulated in the German basic law.

In a wider sense, the right of asylum recognises the definition of 'refugee' as established in the 1951 Refugee Convention and is understood to protect asylum seekers from deportation and grant them certain protections under the law. Generally, these protections are a part of the asylum procedure itself and are verified by the Federal Office For Migration and Refugees (Bundesamt für Migration und Flüchtlinge, 'BAMF') without any further application.

In 1993 and 2015, the initially unlimited right of asylum was revised in essential points and also limited.

In light of the refugee crisis in the second half of 2015, a transformation of the fundamental right of asylum (section 16a GG) into an objective guarantee was demanded in order to give the state the legal opportunity to impose an upper limit or quota.

Asylum and refugee status

Refugee housing in Berlin (Siemensstadt Motardstraße)

The German residence act (Aufenthaltsgesetz) only regulates refugee status. Neither the residence act nor the asylum law (Asylgesetz) defines the concept of asylum. Its content and limitations are primarily a result of the court ruling by the Federal Constitutional Court concerning Section 16a GG in the German Basic Law. In accordance with Section 16a (1) GG, a person is considered to be experiencing political persecution if he or she is suffering from infringements of his or her rights by the state or third person measures that can be attributed to the state, because of religious or political convictions or other inaccessible features that mark the individual's otherness. These infringements of the personal rights violate human dignity and, depending on their intensity and severity, exclude the individual person from the state's general keeping of the peace and put him or her in a desperate situation.[1]

More commonly, politically persecuted people are granted protection based on the Convention relating to the Status of Refugees (also known as 1951 Refugee Convention). Although the Refugee Convention has been valid in Germany since 24 December 1953, the German legislature often did not consider it necessary to grant refugees full refugee status. Instead, it simply granted them a recognition of asylum. This procedure only changed with the Qualification Directive (2011/95/EU) and a law that was passed along with it in August 2007.[2] Today, official refugee status is conferred on refugees, in addition to the status of being entitled to political asylum when necessary (Section 3 (1) and (4) Asylum Procedure Act). Now, refugee status is equal to the status of a 'person entitled to political asylum' (Asylberechtiger), in regard to the right of residence. Furthermore, admitted refugees have no disadvantages compared to people entitled to political asylum concerning social benefits, participation in the employment market and the granting of travel documents. For more information concerning the definition of refugees in Germany see the German article on Flüchtlingseigenschaft.

The asylum law regulates the administrative proceedings that grant the asylum seeker the status of a person entitled to political asylum. During the asylum proceedings the asylum seeker receives temporary permission to stay.

Refugee housing constructed from repurposed shipping containers in Hannover, Germany.

Application procedures

To file an application for asylum, refugees have to personally register in one of the German reception centres (Section 22 AsylVfG). Here the country of nationality, number of people, sex, and family ties of the asylum seeker will be recorded[3] with the assistance of the 'EASY' programme (Erstverteilung von Asylbewerbern, "Initial Distribution of Asylum-seeker"[4]). This then determines which reception centre is most able to take care of the refugee.[5] The refugees have to go to the assigned centre and after being admitted they must apply for asylum personally at their assigned federal agency office as soon as possible.

In Germany applications for asylum are processed by the Federal Agency for Migration and Refugees.

Section 13 AsylVfG defines the application for asylum as follows:

  1. An asylum application shall be deemed to have been made if it is clear from the foreigner’s written, oral or otherwise expressed desire that he is seeking protection in the federal territory from political persecution or that he wishes protection from deportation or other removal to a country where he would be subject to the persecution defined in Section 3 (1) or serious harm as defined in Section 4 (1).
  2. Every application for asylum shall constitute an application for recognition of entitlement to asylum and to international protection within the meaning of Section 1 (1) no. 2. The foreigner may limit the application for asylum to the application for international protection. He shall be informed of the consequences of such limitation. Section 24 (2) shall remain unaffected.
  3. Any foreigner who does not have the necessary entry documents shall apply for asylum at the border (Section 18). In the case of unauthorised entry he shall immediately report to a reception centre (Section 22) or apply for asylum with the foreigner’s authority or with the police (Section 19).

Section 14 AsylVfG outlines the application procedure. After application the asylum seekers will receive a temporary residence permit for the duration of their asylum procedure.

Section 16 AsylVfG states that every refugee's identity must be recorded. Only children under the age of 14 are exempt from this rule.

Holders of a temporary residence permit are not allowed to work within the first 3 months after receiving the permit. After this time they are allowed to apply for a work permit, which can be granted by the federal agency. However, holders of temporary residence permits will only receive secondary access to the labour market.

In accordance with Section 14a AsylVfG the procedure can vary greatly if it falls under the so-called 'airport procedure' (Flughafenverfahren), an altered jurisdiction for refugees travelling to Germany by plane and applying for asylum before entering German borders. In short, it states that refugees may be processed within 3 days, and be sent home much quicker if the police can determine that the refugees started their journey in a country previously defined as safe by the German government. The law was put in place to keep airports from having to house refugees for extended periods of time and potentially becoming overrun while refugees waited for their application for asylum to be processed.

Processing

Applications for asylum are processed by the Federal Office for Migration and Refugees.

According to section 10 of the Asylum Procedure Act (AsylG or AsylVfG,) asylum seekers are required to disclose any change in address to the aforementioned migration agency (BAMF) without delay for the entire course of their asylum in Germany; this also applies to any move that was dictated or enacted by the agency itself.

The most important aspect in gaining asylum is the official hearing in front of the migration office.[6]

In the summer of 2015, the average processing time of an application for asylum was 5.4 months, as reported by the migration office BAMF. However, experts claim the number is actually significantly higher, closer to one year. The difference in these figures is said to be due to the fact that BAMF measures the processing time starting at the moment an asylum seeker files with the migration office; this can be many months after they enter the country. Furthermore, the office processes those applications which are easier to decide on more quickly, putting them in front of a pile of about 254,000 unprocessed applications.[7]

Example of a letter received by a refugee informing of a denial to the right of asylum

Applications to be disregarded

Section 29 of the Asylum Procedure Act (AsylVfG) constitutes that an application for political asylum has to be disregarded if the asylum seeker can be removed into a third country where he or she is safe from political persecution.

Manifestly unfounded applications

Section 29 of AsylVfG determines how to treat an asylum seeker from a safe country of origin: his application shall be rejected as manifestly unfounded, unless the facts or evidence produced give reason to believe that he or she faces political persecution in his or her country of origin in spite of the general situation there.

Section 30 of AsylVfG sets further terms about when an application has to be rejected as manifestly unfounded and Section 36 determines the following proceedings for these cases.

An application that has been rejected as manifestly unfounded has a barrier effect as long as the rejection is justified by Section 30 (3.1–6) AsylVfG, since with regard to Section 10 (3) Act on the Residence (AufenthG) prior to leaving the federal territory no residence title can be granted. An exception is granted when an unsuccessful asylum seeker is otherwise entitled to a residence permit. One common example is when an asylum seeker joins a German family (Section 28 (1) AufenthG).

The German Bar Association demands the second sentence of Section 10 (3) AufenthG be removed, because its barrier effect, which prevents refugees from receiving a permanent permission to stay, results in the office granting temporary residence permissions multiple times, despite integration efforts. Other arguments include that the section conflicts with European and international laws and is an unjustifiable discrimination compared to expelled foreigners.

False or incomplete information

False or incomplete information that is given on the asylum application and any following inaccuracies can lead to significant consequences for the asylum seeker, according to Section 30 AsylG. This especially concerns false identity information which can make procedures like weddings, childbirth or targeted naturalisation more difficult or even impossible until correct information can be clarified. Additionally, if these untrue personal details are also intentionally used apart from the application for asylum, criminal liability according to the Act on Residence (AufenthG) can come into consideration.

If the foreigner is able to clear up the facts after a successful application, the asylum which is based on incorrect or incomplete information will usually be considered for a possible revocation by the Federal Office for Migration and Refugees. Parallel to this procedure the authorities can, if necessary, make further decisions and can even disregard deception which was relevant for the right of residence or deception for the right of residence which was used a long time ago. The verification can, however, also lead to a deportation. In some federal states of Germany false or incomplete information can exclude a consideration of the Hardship Commission.[8]

Otherwise false or incomplete information for relevant questions for the decision can also lead according to the European secondary law to revoke or deny renewal of the legal status as a refugee.

Legal prosecution

If asylum seekers enter the country without the required visa they cannot be prosecuted for this action according to Article 31 of the Convention relating to the Status of Refugees, provided they present themselves to the authorities without delay and show good cause for their illegal entry or presence.

Furthermore, a common legal opinion is that a clearly unfounded application for asylum does not automatically represent an abusive misuse of the law. This would only be the case if purposeful, abusive activity can be proven. Contrary to common belief, false or incomplete statements during the process of the asylum procedure are not immediately prosecutable.[9]

Furthermore, the residence act does not apply during the first asylum procedure. Thus, punishability according to Section 95 (1.5) and Section (2) of the Residence Act does not apply in this case.[10] The German legislature has also intentionally abstained from defining a legal norm of penalisation in the asylum law.

Asylum seekers will only be prosecuted in the following cases: If they used fake or falsified passports they could be prosecuted according to Section 267 StGB; also if they use falsified personal data in their residence permit.[11]

However, merely making false statements during the asylum procedure does not qualify as a criminal offence and is regarded as an administrative offence.

The aforementioned criminal offences of the Residence Act can only be fulfilled if false statements are made and used in following lawsuits concerning the rights of foreigners.

A decree released by the ministry of internal affairs and justice of North-Rhine Westphalia states that false or incomplete statements or the submission of false documents during official asylum procedures conflicts with public interest because it raises public expenses and could tend to encourage xenophobia and the formation of criminal organisations.[12] These actions shall in retrospect lead to expulsion according to Section 55 of the Residence Act. Also, since 1 November 2007, Section 96 (2.2) penalises the use of false identification documents with the goal of suspending deportation.[13][14][15] Thus, false or incomplete statements will be punished with prison sentences of up to one year (Section 95 (1)) or three years (Section 95 (2)) according to the Residence Act. According to Section 84 and 84a tempting somebody to make false statements while applying for asylum is prosecutable as well.

Revocation procedure

Until 1 August 2015, the Federal Office for Migration and Refugees was legally responsible for checking that a positive decision was still valid no later than 3 years after the decision was made. One criteria for revising the decision would be a felony that was penalised with more than three years in prison or a crime against peace.

If an infringement is found, the Foreigner's Registration Office reviews the claim to residency. Under certain circumstances, such as a complete lack of integration or a severe felony, the residency is ended.[16]

If the protection of the Federal Office for Migration and Refugees is not revoked, the refugee is granted a permanent residence permit. In practice, it has been granted to 95 percent of all refugees.[17]

The renewal of the asylum law (Gesetz zur Neubestimmung des Bleiberechts und der Aufenthaltsbestimmung), which became effective on 1 August 2015 is supposed to cut efforts for the Federal Office of Migration and Refugees on individual assessments.[17] The Foreigner's Registration Office is allowed to grant the right to stay after three years, if the Federal Office of Migration and Refugees does not give notice of an exceptional case that justifies the revocation of protection.

Extensive individual assessment of applications of asylum with personal hearing which have been agreed on by the Conference of Ministers of the Interior in Koblenz on 3 December 2015 are part of the procedure since 1 January 2016: Applications from refugees from Syria, Iraq, Afghanistan and Eritrea are processed like that for safety reasons.[18]

Development in the Volume of Asylum Applications and their Rate of Success

Chart (in German) showing refugees to Germany by country of nationality for 2015.

Volume of asylum applications

Before 2015, the previous peak in the number of applications for asylum was in 1992, when over 400,000 applications were received. At that time, most applicants came from the former Yugoslavia. However, after 1993 (the year of the German 'Aslyum Compromise' (Asylkompromiss)), there had been a continual decline in applications. In 2005, for example, 29,000 applications were received. The number of first-time applicants continued to decrease throughout 2007, when Germany saw only 19,164 applications, the lowest amount since 1977.[19]

Since 2008, however, the number of applications has started to increase again. In 2014, the highest amount since 1993 was recorded.[20] The reasons for this increase included the surge in asylum seekers from Serbia and Macedonia as a result of the abolishment of the visa requirements for both countries in December 2009.[21] In the first half of 2013, the number of first-time applications for asylum increased 90% [22] when compared to the same period in the previous year. The majority of the asylum seekers in this year came from Russia, followed by Syria and Afghanistan.[23]

The Federal Office of Migration and Refugees expected 450,000 applications for asylum in their calculations for 2015,[24] based on the number of applications they received in the first half of the year. In August 2015, however, the Federal Ministry of the Interior corrected this number, claiming up to 800,000 applications.[25]

Data released by Germany’s Federal Office for Migration and Refugees (BAMF) in January 2016 showed that Germany received 476,649 asylum applications in 2015, mainly from Syrians (162,510), Albanians (54,762), Kosovars (37,095), Afghans (31,902), Iraqis (31,379), Serbians (26,945), Macedonians (14,131), Eritreans (10,990) and Pakistanis (8,472).[26][27]

Success of asylum applications

In 2014, 202,834 asylum applications were filed in Germany. 128,911 decisions were made. 1.8% of the applications led to a recognition of refugee status according to Article 16a GG;[28] another 24.1% were recognised as refugees from Section 3 (1) AsylG; 4% received subsidiary protection of Section 4 (1); and 1.6% were granted a prohibition of deportation. Therefore, 31.5% of all applications were "successful" in the broadest sense (so called "protection rate").[29][30] 33.4% of the applications were rejected after substantive examination. Following the calculation of charity organisations, Germany has an adjusted protection rate of 48.5% (not including those whose cases were passed on to other EU countries according to the Dublin Regulation). If successful legal claims against the decisions of the office are counted as well, more than half of the refugees were granted a status of protection in 2014 [31]

In 2015, Germany made 282,762 decisions on asylum applications; the overall asylum recognition rate was 49.8% (140,915 decisions were positive, so that applicants were granted protection). The most successful applicants were Syrians (101,419 positive decisions, with a 96% recognition rate), Eritreans (9,300 positive decisions; 92.1% recognition rate) and Iraqis (14,880 positive decisions; 88.6% recognition rate).[26][27]

Of about 200.000 people who were legally bound to leave in 2015, after their applications for asylum had been rejected, only 20914 were deported. A major obstacle for deportation was the lack of cooperation from the home countries. In February 2016 the German government did send complaints to 17 nations who do not fulfill their international obligations and insufficiently cooperate, either by not helping to identify their own citizens, by not issuing ID cards for those whose asylum applications have been rejected, or by taking only those people back who voluntarily leave. Those nations are, in Asia: India, Pakistan, Bangladesh and Lebanon. In Africa: Algeria, Egypt, Morocco, Mali, Nigeria, Niger, Ethiopia, Tunesia, Ghana, Guinea, Burkina Faso, Benin and Guinea-Bissau.[32]

References

  1. ↑ BVerfG, Beschl. v. 10. Juli 1989 – 2 BvR 502, 1000, 961/86 – BVerfGE 80, 315 (334 f. und 344 ff.).
  2. ↑ Vom 19. August 2007 (BGBl. I S. 1970).
  3. ↑ Reiner Burger / Rüdiger Soldt: Registrierung von Flüchtlingen. Behörden im Handbetrieb. Frankfurter Allgemeine Zeitung. 10. Oktober 2015. Abgerufen am 29. November 2015
  4. ↑ http://www.uniya.org/research/asylum_germany.pdf
  5. ↑ "Verteilung der Asylbewerber". BAMF. Retrieved 2015-11-29.
  6. ↑ "Das behördliche asylrechtliche Verfahren" (PDF). Archived from the original (PDF) on 5 November 2014. Retrieved 2013-04-30.
  7. ↑ Marcel Leubecher: So wird die Dauer von Asylverfahren verschleiert. In: Die Welt, 25. August 2015.
  8. ↑ "Die Härtefallkommissionen der Bundesländer" (PDF). Retrieved 2013-04-29.
  9. ↑ Zur Rolle des Art. 31 Abs. 1 siehe: Andreas Fischer-Lescano, Johan Horst: Das Pönalisierungsverbot aus Art. 31 I GFK. Zur Rechtfertigung von Straftaten bei Flüchtlingseinreisen, Zeitschrift für Ausländerrecht und Ausländerpolitik 3/2011, S. 81–90
  10. ↑ "OLG Bamberg, Beschl. v. 28. Februar 2014 – 2 Ss 99/13". Archived from the original on 3 September 2014. Retrieved 2014-00-00. Check date values in: |access-date= (help)
  11. ↑ "OLG Karlsruhe, Urteil vom 16. Juli 2008 – 3 Ss 226/07" (PDF). Retrieved 2013-05-03.
  12. ↑ "Konzeption zur Bekämpfung missbräuchlicher Verwendung des Asylantragsrechts, Gemeinsamer Runderlass des Innenministeriums – IV D l/l C-6592/2 und des Justizministeriums 4725 – III A-6 vom 1.8.1995". Retrieved 2013-04-30.
  13. ↑ In der vom 1. Januar 2005 bis 31. Oktober 2007 gültigen Version des AufenthG war die Erschleichung der Duldung nicht strafbar, siehe: Versionsunterschiede § 95 AufenthG.
  14. ↑ „Der Gesetzgeber hat bewusst von einer Strafandrohung der Erschleichung der Asylanerkennung sowohl im Asylverfahrensgesetz als auch im Ausländerrecht abgesehen“, KG, Urteil vom 15. Dezember 2008, Az (4) 1 Ss 284/08 (222/08)
  15. ↑ vgl. auch: "1 Ss 410/08 (156/08), KG Berlin, Beschluss vom 22.12.2009" (PDF). Retrieved 2013-04-30.
  16. ↑ "Widerrufsverfahren". Bundesamt für Migration und Flüchtlinge. Archived from the original on 2011-08-07. Retrieved 2014-04-27.
  17. 1 2 Neue Rechtslage: Widerrufsprüfung ändert sich, BAMF.de vom 13. August 2015
  18. ↑ "Asylanträge von Syrern werden wieder einzeln geprüft". Deutsche Welle. 2015-12-31. Retrieved 2015-12-31.
  19. ↑ "Zahl der Asylbewerber auf historischem Tiefstand". Financial Times Deutschland. 2008-01-10. Archived from the original on 2008-01-13. Retrieved 2013-05-03.
  20. ↑ BAMF: Aktuelle Zahlen zu Asyl Archived 5 August 2015 at the Wayback Machine., S. 3
  21. ↑ Süddeutsche Zeitung: Flüchtlingsstrom vom Balkan versiegt – Nach dem steilen Anstieg 2010 kommen auf Druck der EU deutlich weniger Serben und Mazedonier in die Bundesrepublik., 14. Januar 2011
  22. ↑ Bundesamt für Migration und Flüchtlinge, Homepage vom 14. August 2013, gesichtet am 15. August 2013
  23. ↑ bamf.de: „Aktuelle Zahlen zu Asyl“ Zahlen für 1995 bis 2013 vom Dezember 2013 Archived 5 August 2015 at the Wayback Machine.
  24. ↑ Manuel Bewader, Karsten Kammholz: „So viele Asylsuchende in Deutschland wie noch nie“ Die Welt vom 1. August 2015, gesichtet am 1. August 2015
  25. ↑ „Zahl der Asylbewerber erreicht neues Allzeithoch“ Bundesministerium des Innern. Nachricht vom 19. August 2015.
  26. 1 2 "476.649 Asylanträge im Jahr 2015". BAMF. 6 January 2016.
  27. 1 2 "Asylgeschäftsstatistik 12/2015". BAMF. 6 January 2016.
  28. ↑ Bundesamt erwartet 300.000 Asylanträge in diesem Jahr In: FAZ vom 19. Februar 2015, gesichtet am 8. Mai 2015.
  29. ↑ BAMF: „Das Bundesamt in Zahlen 2014“ – Modul Asyl" vom 10. April 2015 Archived 18 May 2015 at the Wayback Machine.
  30. ↑ BAMF: Schlüsselzahlen Asyl 2014 vom 16. Februar 2015.
  31. ↑ PRO ASYL „Zahlen und Fakten 2014“
  32. ↑ Manuel Bewarder; Karsten Kammholz; Marcel Leubecher (23 February 2015). "Diese 17 Staaten behindern Abschiebungen aus Deutschland". Die Welt. Retrieved 23 February 2015.

Translated from the German article Asylrecht (Deutschland)

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