U.S. Committee for Refugees World Refugee Survey 2002 - Germany

At the end of 2001, Germany hosted at least 116,000 refugees and asylum seekers in need of protection. These included 56,111 asylum seekers awaiting first-instance decisions on their asylum applications; 26,102 persons granted either asylum, protection against refoulement (forced return), or temporary protection; an estimated 10,000 to 35,000 members of ethnic minority groups from Kosovo, many with toleration status (Duldung) or pending asylum applications; and some 24,000 Bosnians holding either temporary protected status or toleration status.

Additionally, a large number of Kosovar Albanians, roughly estimated at between 45,000 and 90,000, remained in Germany without legal status at the end of the year. According to the UN High Commissioner for Refugees (UNHCR), asylum applications from most ethnic Albanians from Kosovo have been routinely rejected by the German Federal Office for the Recognition of Foreign Refugees (Bundesamt). The U.S. Committee for Refugees (USCR) regards these Yugoslavs as living in "refugee-like" circumstances.

Some 88,287 asylum seekers filed first-time asylum applications during 2001, a 12 percent increase from 2000. In addition, 30,019 persons who had previously sought asylum resubmitted an asylum application after a denial or receipt of another status. The 118,306 asylum applications filed in 2001 represent a significant decrease from the 438,191 claims filed in 1992, the year before a historic asylum reform entered into force.

During 2001, the largest number of asylum seekers (both first-time applicants and claimants resubmitting applications) came from Iraq (17,708), Yugoslavia (16,746), and Turkey (16,006). Large numbers also came from Afghanistan (11,421), the Russian Federation (4,824), Iran, (4,387), Vietnam (4,188), Bosnia (3,010), and India (3,009).

The Bundesamt, which is responsible for deciding asylum claims, issued merits decisions on 81,504 applications during 2001, granting political asylum in 5,716 cases, a 7 percent approval rate. Applicants from Afghanistan (26 percent), Turkey (12 percent), and Iran (10 percent) received the highest recognition rates.

An additional 17,003 persons, or 21 percent of the applicants whose cases were decided on the merits, were deemed to be ineligible for asylum on safe-third-country grounds, but were nevertheless accorded protection against refoulement under Section 51 of the Aliens Act. Germany recognizes recipients of protection against refoulement as refugees within the meaning of the UN Refugee Convention, but their status in Germany is less secure and the benefits they receive less generous than for persons granted asylum.

In the past several years, the Bundesamt increasingly has refused asylum interviews to applicants it strongly suspects, despite lack of definitive proof, of arriving in Germany via a safe third country. If it was impossible to remove the applicants to a safe third country, they received a status determination under Section 51 of the Aliens Act. In the appeals process in recent years, German administrative courts almost exclusively have made status determinations based on Section 51 rather than the asylum statute, Article 16a of the Constitution.

During 2001, the Bundesamt also granted temporary protection (under Section 53 of the Aliens Act) to 3,383 applicants.

Germany admitted 98,484 ethnic Germans (Aussiedler) from Eastern Europe and the former Soviet Union during 2001, a 3 percent increase from the 95,615 admitted in 2000. Ethnic Germans arriving in Germany automatically have the right to citizenship, although a German language test is required for Aussiedler and their accompanying family members.

Germany denied asylum and other status to 55,402 persons in 2001. Of these, 37 percent were denied as "manifestly unfounded," up from 30 percent in 2000. The Bundesamt administratively closed 25,689 cases during the year.

New Developments

In response to the September 11 terrorist attacks in the United States – and subsequent reports that terrorist cells had operated in Germany prior to the attacks – the German government passed new anti-terror legislation during 2001, scheduled to come into force in early 2002. The legislation amended numerous laws, including the Aliens Act and other regulations relating to foreigners. The new provisions will allow the government to carry out more stringent checks on incoming foreigners, including asylum seekers, through the collection of biometric data and by making immigrants' personal information more widely available to law-enforcement agencies.

The amendments will also permit law enforcement officials to monitor immigrants more carefully during their residence in Germany, deport "extremist" foreigners more easily, and in accordance with the Article 1F exclusion clause of the Refugee Convention, exclude persons who have committed certain crimes from the asylum procedure.

In a related issue, the federal government in November announced its intent to repatriate a recognized refugee wanted on charges of terrorism in Turkey, on the condition that Ankara promised he would not face the death penalty for treason. Refugee advocates protested the plan, saying that Turkey could not be trusted to protect the rights of the refugee, an Islamic fundamentalist who received asylum in Germany and later was convicted of inciting a murder in Germany and sentenced to a four-year prison term. The Turk, who had planned to apply for conditional release after serving two-thirds of his prison sentence, decided to remain in prison rather than be returned to Turkey to face the treason charge, which carries a death sentence.

In December, two German nongovernmental organizations charged that they had documented 40 cases in which rejected asylum seekers repatriated to Turkey had been tortured upon their return, and called Turkey's claims to observe human rights "absolutely not credible."

Asylum Procedure

In 1993, Germany revised its Constitution and asylum and aliens laws to incorporate "safe-third-country" and "safe-country-of-origin" amendments and an accelerated procedure for asylum seekers deemed to have "manifestly unfounded" claims, as well as for those arriving at German airports. The 1993 asylum reform package, designed to restrict access to the asylum procedure, also required Germany to conclude readmission agreements with its neighbors and other refugee/migrant-producing countries, and provided for enhanced border checks and patrols.

Safe Third Country

According to German law, claimants who travel through a safe third country are ineligible for asylum in Germany because they could – or should – have filed their claims in the first safe country of asylum. The statute lists safe third countries, which include all member states of the European Union (EU), the Czech Republic, Norway, Poland, and Switzerland.

Because Germany lists all states sharing its border as safe, it considers virtually all asylum seekers who arrive overland ineligible for asylum. German border guards routinely refuse entry to asylum seekers who present their claims directly at German land borders. If asylum seekers lack visas, the guards turn them back to the bordering country. Unlike asylum regulations in most Western European countries, German law denies the right of appeal to asylum seekers arriving via safe third countries. Consequently, the number of persons applying for asylum at Germany's land borders has dropped dramatically since the new asylum law entered into force.

The vast majority of asylum seekers instead have filed applications after entering Germany, with far greater success at being admitted to the procedure. Like border applicants, persons applying "inland" are also subject to the safe-third-country rule, but the authorities have often lacked proof of their travel route (passport stamps, tickets found with the applicant, etc.) necessary to convince transit countries to readmit them. To stay in Germany, many applicants destroy their travel documents and claim they cannot remember which countries they traveled through. If their removal to a safe third country is impossible, claimants are admitted to the procedure, where authorities review their applications on their merits, albeit under Section 51 of the Aliens Act rather than under the asylum statute, Article 16a of the Constitution.

Critics of the safe-third-country law have pointed to cases in which its implementation has led to chain deportations, some resulting in refoulement. USCR, UNHCR, the European Council on Refugees and Exiles, Amnesty International, and other humanitarian organizations have long advocated for Germany to adopt procedural safeguards to ensure that persons denied entry on safe-third-country grounds will be admitted to the asylum procedure when returned to the countries they transited. No such safeguards exist in Germany's implementation of the safe-third-country rule.

Safe Country of Origin

According to 1993 amendments to the asylum law, persons arriving from "safe" countries (recognized as free of persecution) enter an accelerated procedure that gives them the chance to argue that the country's "persecution free" label does not apply to them as individuals. In 2001, Germany's list of safe countries of origin included Bulgaria, the Czech Republic, Ghana, Hungary, Poland, Romania, Senegal, and the Slovak Republic.

The Airport Procedure

Amendments to the asylum law enacted in 1993 stipulate that asylum seekers arriving at German airports without proper travel documents or from safe countries of origin must remain at the airport, where officials decide their cases in an accelerated procedure. Oral hearings with a representative of the Bundesamt are to occur within 48 hours of the asylum seeker's arrival. Officially, asylum seekers cannot be held in airport detention longer than 19 days, although some have reportedly been detained for months. Applicants whose cases are rejected as "manifestly unfounded" have seven days to appeal the decision. An administrative court must decide the appeal within two weeks. Final appeals to the Federal Constitutional Court, however, do not guarantee suspension of deportation pending the court's decision.

In practice, few asylum seekers have been subject to the airport procedure since it was implemented. If either the Bundesamt or the administrative court cannot make a decision within its prescribed limits, the applicant is admitted to the country and to the normal procedure. During the year, 1,209 asylum seekers filed claims at German airports. Authorities approved 25 applications, denied 234 others as manifestly unfounded, and admitted some 930 claimants to the normal procedure.

Agents of Persecution

Since 1989, Germany has denied asylum and protection against refoulement under Section 51 of the Aliens Act to those seeking protection from persecution by nonstate agents. Germany's position on nonstate persecution, considered erroneous by UNHCR and most asylum countries, has particularly affected asylum applicants from such countries as Afghanistan, Algeria, and Somalia, where nonstate persecution has been prevalent. Because Germany did not, until February 2001, recognize Afghanistan's Taliban rulers as a government and because Somalia lacked a central government, the German position has held that there can be no persecution within the Refugee Convention's meaning, regardless of the danger posed to the applicant. Germany also has denied asylum routinely to Algerian asylum seekers fleeing persecution by radical Algerian Islamic groups, denying them Convention-based refugee status because the Algerian authorities had neither tolerated nor encouraged the persecution.

In February, after reconsidering the cases of several Afghans who had been active in the former communist regime in Afghanistan and later fled the Taliban, the Federal Administrative Court ruled that the Taliban could be deemed an agent of persecution, since the group controlled nearly all of the country. While the ruling did not signal a change in Germany's official interpretation of the Refugee Convention as applying only to victims of state actors, it indicated a willingness to interpret "state" persecution more broadly. The cases of the Afghans, who were protected from expulsion under Section 53 of the Aliens Act (temporary protection) but did not have refugee status, were referred back to regional High Administrative Courts.

During 2001, the rate at which Afghans were granted asylum rose dramatically, to 26 percent from 1 percent in 2000. Additionally, 43 percent of Afghan applicants were granted protection under Section 51 of the Aliens Act. In November, in the wake of the September 11 terrorist attacks and the subsequent U.S.-led military campaign in Afghanistan, the Bundesamt suspended the processing of claims by Afghan asylum seekers, pending a reassessment of the political situation in Afghanistan.

Also in November, the federal cabinet adopted a revised immigration and asylum bill that contained important new provisions for asylum seekers who flee gender-specific persecution and nonstate persecution. Under the amendments, victims of gender-specific and nonstate persecution would be eligible for protection under Section 51 of the Aliens Act.

(In March, the German Parliament's upper house passed the bill in a close, controversial vote that conservative leaders vowed to challenge in court).

Internal Flight Alternative

In the wake of a December 1998 ruling by Germany's Federal Administrative Court, which stated that an internal flight alternative exists in the Kurdish-controlled regions of northern Iraq for individuals fleeing persecution by the Iraqi regime in Baghdad, the asylum approval rate for Iraqis fell from 9 percent in 1998 to 4 percent in 2001. However, 61 percent of Iraqis were granted protection against refoulement under Section 51 of the Aliens Act during 2001.

In January, the Federal Administrative Court issued a ruling on the cases of several Kurds from Northern Iraq who had been granted protection against refoulement based on the claim that they could not safely return to Northern Iraq via Syria, Turkey, or Iran. The Kurds argued that they lacked valid Iraqi travel documents and could not safely apply for new ones, since the Iraqi consulate in Germany would then learn of their asylum applications. The court ruled that while asylum seekers from a "safe area" may be afforded protection in another country if they cannot safely reach the "safe area," the asylum seekers in question had not adequately proved that it was impossible for them to obtain travel documents through other means. The cases were sent back to the High Administrative Court of Munich for reconsideration.

Other Restrictions

German law requires airlines and other transportation companies to ensure that their passengers carry the necessary travel documents to enter Germany. A 1999 Federal Administrative Court ruling affirmed that airlines do not have the right to transport foreigners to Germany, including would-be asylum seekers, who do not meet German entry requirements. Airlines are therefore responsible for immigration checks on their passengers and can be subjected to carrier sanctions if they transport undocumented asylum seekers to Germany. Air carriers are required not only to pay for the cost of deporting foreigners, but to assume all other public expenses incurred, including the cost of keeping prospective deportees under surveillance when deemed necessary.

Employment and Social Welfare

In late 2000, the federal government lifted an employment ban on asylum seekers, enabling them to work 12 months after entering Germany, provided no German citizen or foreign national with permanent residence status is available to fill the job. War refugees with residence permits can begin work immediately, without a waiting period.

Readmission Agreements

The German government has entered into a series of bilateral and multilateral readmission agreements with its neighbors and other countries to implement the safe-third-country rule and to return other rejected asylum seekers, undocumented aliens, and those whose temporary protected status has expired. To date, Germany has signed bilateral agreements with the following non-EU countries: Algeria, Bosnia, Bulgaria, Croatia, the Czech Republic, Hong Kong, Hungary, Morocco, Norway, Poland, Romania, Switzerland, Vietnam, and Yugoslavia. Germany also concluded various readmission agreements with EU countries that are now used to implement the Dublin Convention (see box, p. 190). Most of Germany's bilateral readmission agreements do not refer to asylum seekers and refugees, but to foreigners in general.

A total of 13,617 persons were readmitted to other countries from Germany during 2001.

Dublin and Schengen

Implementation of the Dublin Convention, an EU agreement that establishes the member state responsible for deciding an asylum claim (based largely on assigning cases to the member state of first arrival), continued to place a disproportionate burden on Germany during 2000. While Germany assumed responsibility for reviewing the cases of 5,437 asylum seekers in 2000 under the Dublin Convention, all other EU member states combined agreed to take responsibility from Germany for 2,641 persons. An August 1998 Federal Constitutional Court ruling holds that family members filing separate asylum applications in Germany and other EU member states are not entitled to reunify in Germany and apply for asylum together.

Since the Schengen Convention (see box, p. 190) became effective in March 1995, Germany also has stepped up surveillance along its borders with Poland and the Czech Republic, both external borders of the Schengen treaty area, and set up a joint patrolling operation with Italy along Italy's southern coast.

Kosovo Refugees

According to the Central Alien Registry, 154,530 Yugoslavs without legal status remained in Germany at the end of 2001. While no precise statistical information was available, between 80,000 and 100,000 were believed to be from Kosovo, and of these, 10,000 to 35,000 were estimated to be members of ethnic minority groups from Kosovo.

Kosovo is considered largely safe for the return of most ethnic Albanians, who form a majority of the population in Kosovo. USCR therefore considers the estimated 45,000 to 90,000 Kosovar Albanians in Germany to be living in "refugee-like" circumstances. However, Serbs, Roma, and other minorities from Kosovo are still generally considered to be at risk of harassment and persecution. Following the exodus of nearly 1 million ethnic Albanians from Kosovo during the 1999 "ethnic cleansing" campaign by Serb soldiers and paramilitaries, many repatriating ethnic Albanians took revenge on Kosovo Serbs and Roma for perceived complicity with the Serb government campaign.

A total of 16,746 Yugoslavs filed asylum applications during the year. Of first-time applicants, about 40 percent came from Kosovo; of these, about 40 percent were ethnic Albanian, 35 percent Roma, 4 percent ethnic Serb, and 21 percent unspecified. Of the 3,869 merits decisions issued, only 23 Yugoslav nationals received asylum, an approval rate of 0.6 percent.

Some 8,224 Kosovars returned voluntarily to Kosovo during 2001, while 4,529 were deported. UNHCR noted that ethnic minorities had been included among some criminal deportees to Kosovo, and that some ethnic Albanians from southern Serbia had been deported to Kosovo.

In May, the interior ministers of the German states decided to grant two-year residence permits to Kosovar asylum seekers and war refugees who fulfilled certain conditions, including six years of uninterrupted stay in Germany, proof of two years' employment, and economic self-sufficiency. The decision may allow an estimated 15,000 to 20,000 Kosovars to remain in Germany on residence permits.

Ethnic minorities were also granted a six-month extension of their tolerated status in May and again in November.

Bosnians

Between 1992 and 1996, Germany gave temporary protection to 320,000 to 350,000 Bosnian refugees, about half of all Bosnians who sought protection in Western European countries during the Bosnian war. While the overwhelming majority of the war refugees have repatriated or been resettled in a third country, an estimated 24,000 Bosnians without durable solutions remained in Germany at the end of 2001, most under temporary protection or deferred-deportation status.

UNHCR reported that 855 Bosnians voluntarily repatriated from Germany during the year, while 595 were forcibly repatriated.

In February, the interior ministers of the German states agreed that Bosnian war refugees would be permitted to apply for a renewable two-year residence permit if they had lived in Germany for at least six years, had been employed for at least two years, and were not reliant on social welfare assistance, among other conditions. An estimated 10,000 to 20,000 Bosnians were expected to benefit from the regulation.

Asylum in Germany is not an option for most Bosnians who feel that they are unable or unwilling to repatriate. A Federal Administrative Court decision issued in August 1996 rules out asylum in Germany for Bosnians who have fled Serb-controlled areas on the grounds that they are safe from persecution in Bosnian government-controlled areas.