Asylum in Germany
The right of asylum for victims of political persecution is a basic right stipulated in the Constitution of Germany. 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 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 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
The German residence act only regulates refugee status. Neither the residence act nor the asylum law 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 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.More commonly, politically persecuted people are granted protection based on the Convention relating to the Status of Refugees. 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 and a law that was passed along with it in August 2007. Today, official refugee status is conferred on refugees, in addition to the status of being entitled to political asylum when necessary 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.
Refugees under the age of 18 who have been separated from their parents or are traveling alone are afforded extra protection under [international law">Welfare spending">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.
Refugees under the age of 18 who have been separated from their parents or are traveling alone are afforded extra protection under [international law and EU law. Germany considers such people "children first and refugees second" and gives them access to youth housing, German lessons and education.
Change in asylum policy from WWII to the 1990s
Following World War II, Germany's parliamentary Council adopted the Federal Republic of Germany's Basic Law in 1949, which states that 'persons persecuted on political grounds shall enjoy the right of asylum.'The provision, though simple in language, offered foreign people protection against being denied entry at the border, as well as safety from extradition and expulsion.
Those who were recognized by this political persecution would receive similar rights as West Germans with regard to family, social, and labor laws.
Following this law was the Asylum Ordinance in 1953, as the following Basic Laws were not considered procedural rules by the German governing body.
The ordinance did not contain any specific provisions regarding asylum-seekers, rather it gave Germany's immigration police a large discretion over granting individuals asylum.
Following the ordinance, any stateless persons in 1953 would be granted asylum in Germany, so long as such a person was 'not seen as an enemy of Germany's new constitutional order, didn't threaten the Federal Republic's foreign policy interests, and didn't compromise the West German executive's political views on the demographic structure.'
This posed many problems, the lack of provisions allowed for more asylum seekers than anticipated to be housed in Germany.
Germany would see an influx of refugees in 1956 due to Soviet intervention in the Hungarian uprisings. Moreover, the political shift caused by the Cold War caused Germany to adopt a more pragmatic asylum policy.
In 1966, as a result of the Cold War ramping up, Germany made the decision to not send Eastern Europeans that had their asylum application denied, back to their home countries.
In the 1970s, Germany would see continual growth in refugee applications would reach over 10,000, and over 100,000 in the 1980s.
This rapid growth allowed for the CDU party to raise its profile by accusing the governing body of inactivity when it came to asylum. Between 1978 and 1993, West Germany introduced stricter regulations with regards to the asylum procedure.
Application procedures
To file an application for asylum, refugees have to personally register in one of the German reception centres. Here the country of nationality, number of people, sex, and family ties of the asylum seeker will be recorded with the assistance of the 'EASY' programme. This then determines which reception centre is most able to take care of the refugee. 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:
- 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 or serious harm as defined in Section 4.
- Every application for asylum shall constitute an application for recognition of entitlement to asylum and to international protection within the meaning of Section 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 shall remain unaffected.
- Any foreigner who does not have the necessary entry documents shall apply for asylum at the border. In the case of unauthorised entry he shall immediately report to a reception centre or apply for asylum with the foreigner's authority or with the police.
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', 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. The processing is based around an Inquisitorial system, meaning that the government has to evaluate why an applicant had to leave their homeland, beyond the statements made in the initial application.According to section 10 of the Asylum Procedure Act asylum seekers are required to disclose any change in address to the aforementioned migration agency 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.
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.