Germany: Whether individuals who are granted refugee status in Germany can later be deported

1. Overview

According to a report of the Intergovernmental Consultations on Migration, Asylum and Refugees (IGC) entitled Asylum Procedures: Policies and Practices in IGC Participating States 2009, Germany's Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtling, BAMF) may make one of the following decisions on an asylum claim:

• Grant asylum status in line with Article 16a para. 1 of the Constitution and refugee status in line with the 1951 Convention;·
• Grant refugee status in line with the 1951 Convention;·
• Grant subsidiary protection;·
• Deny asylum status, refugee status and subsidiary protection; [or]·
• Determine that the claim should not be processed as the asylum-seeker entered Germany via a safe third country - thus, the claim is not examined on its merits. (IGC May 2009, 175)

If unsuccessful, asylum seekers may be able to receive "'toleration'" status (ibid., 182). As well, Germany's Residence Act contains provisions for granting temporary protection based on a resolution of the Council of the European Union (Germany 2004, Sec. 24). The US Department of State's Country Reports on Human Rights Practices 2010 indicates that

[i]n practice, the government generally provided protection against the expulsion or return of refugees to countries where their lives or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion. (US 8 Apr. 2011, 14)

2. Persons Granted Refugee or Asylum Status

2.1 Granting of Status

Two sources indicate that refugees may be recognized under Article 16a, para. 1 of the German constitution (PRO ASYL 8 Dec. 2011; IGC May 2009, 174), which states that "[p]ersons persecuted on political grounds shall have the right of asylum" (ibid., 184). According to the IGC, refugee status is also granted in "accordance with Section 3 para. 4 of the Asylum Procedure Act, which reproduces the 1951 Convention inclusion criteria" (ibid., 174). Persons who are granted refugee status are entitled to residence permits that are valid for three years (PRO ASYL 8 Dec. 2011; IGC May 2009, 176). The IGC notes that the residence permits are renewable (ibid.). Persons who are granted refugee status are also entitled to the same social welfare benefits, health care and employment rights as nationals (ibid.). As a rule, after three years, a refugee becomes eligible for an "unlimited settlement" permit (PRO ASYL 8 Dec. 2011; IGC May 2009, 176).

Sources report that refugees can apply for German citizenship after six years (US 8 Apr. 2011, 16; PRO ASYL 8 Dec. 2011), if they meet the criteria (ibid.).

2.2 Removal of Refugees

In correspondence with the Research Directorate, a representative of PRO ASYL, a Frankfurt-based (n.d.b) non-governmental organization (NGO) that seeks to protect the rights of refugees (n.d.a), stated that people with refugee status are not allowed to be deported (PRO ASYL 29 Nov. 2011). However, both a BAMF study on the voluntary and forced return of third-country nationals and PRO ASYL note that the status of foreigners whose asylum applications have initially been granted can be revoked and that they may be under legal obligation to leave the country (ibid.; Germany 2006, 17).

The reasons for revocation can include changes in the situation in the country of origin (PRO ASYL 29 Nov. 2011) or that the basis for granting asylum no longer exists (Germany 2006, 17). The IGC also reports that, to this end, BAMF reviews all positive decisions not more than three years after the decision becomes final and non-appealable (IGC May 2009, 176). If the conditions for granting refugee status are no longer met, the refugee status will be withdrawn (ibid.). After that, "the competent Aliens Office will decide whether to withdraw the residence permit" (ibid.). Such a decision will be based on "a number of factors, inter alia the degree of integration of the individual into German society, the length of stay in the territory, length of absence from the country of origin, any criminal record, and family ties" (ibid.). Refugee or asylum status, and, "normally," the residence permit, can also be revoked if "the granting of protection status was incorrect"; for instance, in cases in which "the decision was based on false information provided by the asylum-seeker" (ibid., 177).

The PRO ASYL representative indicated that "there have been many revocation procedures [affecting] Iraqi refugees after the death of Saddam Hussein" (29 Nov. 2011). A July 2007 press release issued by PRO ASYL also mentions that, in 2006, 4,400 revocation procedures were initiated by BAMF, "to deprive Iraqi refugees of their refugee status" since, "[a]ccording to Germany, there is no persecution in Iraq after Saddam Hussein's fall …" (21 July 2007). PRO ASYL said the revocation procedures affected more than 18,000 people (21 July 2007). Deutsche Welle (DW), Germany's international broadcaster (n.d.), similarly reported that Germany revoked the refugee status of more than 18,000 Iraqis between November 2003 and 2008 (27 June 2008).

In separate submissions to the UN Human Rights Council's Universal Periodic Review, Amnesty International (AI) and Forum Menschenrechte (FMR), a coalition of 51 German human rights NGOs (FMR Feb. 2009, 1), expressed concerns about the revocation of refugee status when the circumstances for which an individual has been recognized as a refugee have ceased to exist (ibid., 8; AI 8 Sept. 2008, 7). Both organizations contend that neither the German authorities nor the courts take into account the ability of the countries of origin to provide adequate protection (ibid.; FMR Feb. 2009, 8). According to PRO ASYL, "[t]he German revocation practice is unique in Europe" (21 July 2007).

AI and the FMR also note that a person's refugee status does not prevent the authorities from extraditing persons to their country of origin (AI 8 Sept. 2008, 6; FMR Feb. 2009, 4) "in contravention of international law" (ibid.).

2.3 Deportation of Citizens

Two sources indicate that refugees who have become German citizens cannot be deported from Germany (Professor 28 Nov. 2011; PRO ASYL 29 Nov 2011).

3. Subsidiary Protection

3.1 Granting of Status

According to the IGC, subsidiary protection is granted to an asylum-seeker if he or she does not qualify for asylum "but cannot be removed to the country in question for one of the following reasons":·

• A risk of the death penalty or execution,·
• A risk of torture or inhuman or degrading treatment or punishment, or·
• A serious and individual threat to a civilian's life or person by reasons of indiscriminate violence in situations of international or internal armed conflict. (IGC May 2009, 175)

Subsidiary protection is also granted based on these other legal criteria:·

• A breach of rights under Article 3 [which affords protection against torture and inhuman or degrading treatment or punishment (Council of Europe 2007, 20)] of the ECHR [European Convention on Human Rights], or·
• Other substantial and concrete dangers to life, limb or liberty, such as natural disasters or risks arising from the particular situation of the applicant. (IGC May 2009, 175)

Persons granted subsidiary protection receive a one-year, renewable residence permit (ibid., 176). They are also entitled to the same social welfare and health care benefits as nationals, but employment is subject to a labour-market test (ibid.). After seven years, persons granted subsidiary protection may obtain a permanent residence permit from the Aliens Office (ibid.).

3.2 Removal of Persons with Subsidiary Protection

According to the IGC, although subsidiary protection can be withdrawn "if the person no longer meets [the] criteria for being granted protection," the decision can be appealed (ibid., 177). The IGC notes that "it is up to the competent Aliens Office to decide whether the residence permit should be withdrawn as well" (ibid.). Its decision is based on a number of factors, such as the level of integration of the individual in Germany, length of stay and other criteria (ibid.). The subsidiary protection can also be revoked if it was granted on the basis of false information provided by the asylum-seeker (ibid.).

4. Temporary Protection

4.1 Granting of Status

Temporary protection is granted on "a group basis outside the asylum procedure, in accordance with Section 24 of the Residence Act" (IGC May 2009, 181). According to the Residence Act, a foreigner "who declares his or her willingness to be admitted into the Federal territory shall be granted a residence permit for the duration of his or her temporary protection" (Germany 2004, Sec. 24). The IGC notes that temporary protection is granted for a maximum of two years (IGC May 2009, 181), and that beneficiaries of temporary protection are entitled to benefits much like those accorded to beneficiaries of subsidiary protection (ibid.).

4.2 Removal of Persons with Temporary Protection

According to the BAMF's study on voluntary and forced return, refugees who have been entitled only to temporary protection, such as refugees from Kosovo, belong to a category of individuals who are under a legal obligation to leave the country (Germany 2006, 17-18). In his book, The Ethics and Politics of Asylum, author Matthew J. Gibney notes that while Germany granted temporary protection to Kosovo refugees ("asylum for the duration of the conflict"), it "showed an indecent haste in returning refugees from the Former Yugoslavia" (Gibney 2004, 104).

5. "Toleration" Status

According to the BAMF study, "tolerated" foreigners are those "whose deportation has been temporarily suspended" (Germany 2006, 18). However, the "obligation to leave the country, its reason or the status of the toleration do not … predetermine as to whether the person in question will finally leave voluntarily or will be deported" (Germany 2006, 18). The BAMF study indicates that there is an "option … to leave the country voluntarily while the legal proceedings on the deportation are ongoing" (ibid.). The German and Kosovar UNICEF groups note that

[a]ccording to figures from the German Federal Government, between 1999 and 31 August 2009 a total of 114,092 people returned from Germany to Kosovo. Most of these were registered as voluntary returnees, 19 percent or 21,852 people had been forcibly repatriated. While voluntary returnees were in the majority from 1999 to 2001, in each subsequent year, with the exception of 2003, they have been outnumbered by deportees. (UN 2010, 21)

5.1 Residence Permits for "Tolerated" Foreigners

The IGC explains that

[a]n asylum seeker who has received a negative decision on a claim, or any other foreign national who has an obligation to leave Germany, may be eligible for a residence permit on humanitarian grounds, if removal cannot be implemented for reasons of fact or law and the obstacle to removal is not likely to cease in the foreseen feature.

If a suspension of removal ("toleration" or "Duldung") has lasted for 18 months, a residence permit will generally be granted. ...

There have in the past been temporary, ad hoc regularisation programmes to grant residence permits to foreign nationals under tolerated status (Duldung). The Act on the Implementation of Residence and Asylum-Related Directives of the European Union of 19 August 2007 includes a legal regularisation programme for foreign nationals who inter alia have been continuously resident in the Federal territory for a minimum of eight years on 1 July 2007 and fulfill certain integration requirements. … These requirements include adequate accommodation space, knowledge of the spoken German language, secured livelihood, and no convictions or suspicion of having participated in extremist or terrorist activities or serious criminal offences. (IGC May 2009, 182, n. 9)

5.2 Granting of Tolerated Status

According to Country Reports 2010, during the year, 2,691 persons were granted "temporary suspension of expulsion due to the situation in their countries of origin or based on other humanitarian grounds" (US 8 Apr. 2011, 14). Deutsche Welle reports that around 73,000 Iraqis live in Germany as "'tolerated persons'" (27 June 2008). UNICEF Kosovo and the German Committee for UNICEF report that an estimated 12,000 Kosovar Roma, Ashkali, and Egyptians, who escaped the Yugoslav wars, currently live in Germany under the "'toleration'" status (UN 2010, 7). However, the German and Kosovar UNICEF groups explain that the toleration status means that they "have no secure right to stay in Germany" and that, in accordance with the German federal government's "'Readmission Agreement'" with Kosovo, they can be "repatriated over the coming years" (ibid.). Country Reports 2010 notes that, "in April 2009, the German and Kosovo Interior Ministries concluded an agreement that provides for return of Kosovar refugees" (US 8 Apr. 2011, 15).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Amnesty International (AI). 8 September 2008. Germany: Submission to the UN Universal Periodic Review. [Accessed 22 Dec. 2011]

Council of Europe. 2007. Jean-François Akandji-Kombe. Positive Obligations under the European Convention on Human Rights: A guide to the Implementation of the European Convention on Human Rights. [Accessed 20 Dec. 2011]

Deutsche Welle (DW). 27 June 2008. "German Court Blocks Deportation of Four Iraqi Refugees." [Accessed 15 Dec. 2011]

_____. N.d. "About Us." [Accessed 28 Dec. 2011]

Forum Menschenrechte (FMR). February 2009. Joint NGO Submission - UPR on Federal Republic of Germany. [Accessed 22 Dec. 2011]

Germany. 2006. Federal Office for Migration and Refugees (BAMF). Axel Kreienbrink. Voluntary and Forced Return of Third Country Nationals from Germany. Document sent to the Research Directorate by the German Embassy in Ottawa on 8 December 2011.

_____. 2004 (last amended 19 August 2007. Residence Act of 30 July 2004. Document sent to the Research Directorate by an official of PRO ASYL on 29 November 2011.

Gibney, Matthew J. 2004. The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees. Cambridge: Cambridge University Press.

Intergovernmental Consultations on Migration, Asylum and Refugees (IGC). May 2009. "Germany." Asylum Procedures: Reports on Policies and Practices in IGC Participating States 2009. Geneva, Switzerland: IGC.

PRO ASYL. 8 December 2011. Correspondence from an official to the Research Directorate.

_____. 29 November 2011. Correspondence from an official to the Research Directorate.

_____. 21 July 2007. "Iraqi Refugee Disaster." [Accessed 7 Dec. 2011]

_____. N.d.a. "About Us." [Accessed 29 Nov. 2011]

_____. N.d.b. "Contact Us." [Accessed 28 Dec. 2011]

Professor of Law, University of Konstanz, Konstanz, Germany. 28 November 2011. Correspondence with the Research Directorate.

United Nations (UN). 2010. UNICEF Kosovo and the German Committee for UNICEF. Verena Knaus et al. Integration Subject to Conditions: A Report on the Situation of Kosovan Roma, Ashkali and Egyptian Children in Germany and After Their Repatriation to Kosovo. [Accessed 12 Dec. 2011]

United States (US). 8 April 2011. Department of State. "Germany." Country Reports on Human Rights Practices for 2010. [Accessed 7 Dec. 2011]

Additional Sources Consulted

Oral sources: Representatives of the Refugees Branch at Citizenship and Immigration Canada were unable to provide information within the time constraints of this Response. Attempts to contact several academics specialized in deportation (Boston College Law School, University of Bern, University of British Columbia, University of Ottawa, University of Oxford, University of Toronto) and officials at the German Federal Foreign Service and Federal Office for Migration and Refugees were unsuccessful.

Internet sites, including: British Broadcasting Corporation; Centre for German Legal Information; Deportation Nation; Detention in Europe; Europa World Plus; European Centre for Minority Issues; European Commission Immigration Portal; European Policy Centre; European Union Court of Justice; European University Institute; Factiva; Freedom House; Frontex; German Institute for Human Rights; Germany — Federal Administrative Court, Federal Foreign Service, Federal Ministry of Defence, Federal Ministry of Interior, Federal Office for Migration and Refugees; Goethe Institute; Human Rights Watch; International Crisis Group; International Federation for Human Rights; International Society for Human Rights; Institute for War and Peace Reporting; Jane's Intelligence Review; Journal of Refugee Studies; Max Planck Institute for Comparative and International Private Law, Hamburg; Migration Policy Group; Migration Information Source; Der Spiegel; United Nations — High Commissioner for Human Rights, Integrated Regional Information Networks, Refworld, UN Development Programme; UN Women; Die Zeit.