U.S. Committee for Refugees World Refugee Survey 1999 - Germany

At the end of 1998, Germany hosted some 198,000 refugees and asylum seekers in need of protection, according to the German government and UNHCR. These included 45,532 asylum seekers awaiting first-instance decisions on their asylum applications, 13,857 granted either asylum, protection against refoulement, or temporary protection, about 100,000 Bosnian refugees for whom no durable solutions had been found, and 39,319 Yugoslav nationals, mostly from Kosovo, denied asylum but who USCR considered to be in need of protection.

Some 98,644 asylum seekers filed first-time asylum applications during 1998, a five percent decrease from the 104,351 individuals who filed first-time claims in 1997. In addition, however, 44,785 persons who had sought asylum prior to 1998 and, after a denial or receipt of another status, were permitted to resubmit an asylum application. Although still substantial in comparison to Germany's Western European neighbors, the 143,429 asylum seekers who filed claims in Germany in 1998 represent a significant decrease from the 438,191 persons who sought asylum there in 1992, the year before a historic asylum reform entered into force.

During 1998, the largest number of asylum seekers (both first-time applicants and claimants resubmitting applications) came from the Federal Republic of Yugoslavia (54,379), Turkey (20,286), and Iraq (7,598). Large numbers also came from Vietnam (4,005), Afghanistan (4,005), Iran (3,697), Sri Lanka (2,886), Georgia (2,552), and Syria (2,399).

The German Federal Office for the Recognition of Foreign Refugees (Bundesamt), the body responsible for deciding asylum claims, issued merits decisions on the cases of 141,398 applicants during 1998, granting political asylum to 5,883 persons, a 4 percent approval rate, down from 7 percent the previous year. Applicants from Iran (13.6 percent), Turkey (11.9), and Iraq (9 percent) received the highest recognition rates.

Another 5,437 persons, or 3.8 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. As in previous years, most applicants granted protection under section 51 during 1998 were from Iraq; when protection against refoulement under section 51 of the aliens act is added to the number of persons granted asylum, the recognition rate for Iraqi nationals climbs to 39 percent. This nevertheless represents a substantial drop from the 82 percent approval rate (asylum and protection against refoulement) that Iraqis enjoyed in 1997.

In the past several years, the Bundesamt increasingly has refused asylum interviews to applicants it strongly suspects, but has no definitive proof, of arriving in Germany via a safe third country. If it was impossible to remove such persons to a safe third country, applicants 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 1998, the Bundesamt also granted temporary protection (section 53 of the aliens act) to 2,537 applicants.

During 1998, Germany also admitted some 103,000 ethnic Germans from Eastern Europe and the former Soviet Union, some 31,300 fewer than in 1997. Ethnic Germans arriving in Germany automatically have the right to German citizenship.

Germany denied asylum and other status to 130,078 persons in 1998. Of these, 18.5 percent were denied as "manifestly unfounded," down from 27 percent in 1997. The Bundesamt rejected the cases of 1,443 individuals as inadmissible for a status determination on safe third country grounds (the Bundesamt was able to document their travel routes and remove them to safe third countries).

On July 10, Germany's upper house of parliament passed legislation to exclude certain categories of rejected asylum seekers from receiving social welfare payments. The new law cut off payments to persons determined to be applying for asylum merely to receive social benefits and rejected asylum seekers who do not cooperate with efforts to deport them. Nevertheless, these groups remained eligible to receive food, accommodation, and urgent medical care.

The October 1998 German elections, which replaced Helmut Kohl's Christian Democrat-led government with a new governing coalition consisting of the Social Democratic and Greens parties (the first change of government since 1982), had produced no tangible changes in Germany's asylum policy at year's end.

Asylum Procedure

In 1993, Germany revised its constitution, asylum, and aliens laws to incorporate "safe third country" and "safe country of origin" amendments and an accelerated procedure for asylum seekers 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. Germany adopted the measures to respond to the record numbers of asylum seekers arriving in Germany and to a concurrent sharp rise in xenophobic violence. Although refugee advocates subsequently challenged the reform measures in German courts, the Federal Constitutional Court ultimately upheld the most critical aspects of the 1993 measures in a May 14, 1996 ruling.

Safe Third Country

Of the asylum reform provisions the German Federal Constitutional Court reviewed, the safe third country law was the most sweeping and controversial. According to the 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 arriving overland ineligible for asylum. German border guards routinely refuse entry to asylum seekers who present their claims directly at German land borders. If they lack visas, the guards turn them back to the bordering country. Unlike the 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 claims 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 several cases in which its implementation has led to chain deportations, some resulting in refoulement.

USCR, UNHCR, the European Council on Refugees and Exiles (ECRE), 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 in fact 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 to be free of persecution, enter an accelerated procedure giving them the chance to rebut the presumption that the country's "persecution free" label does not apply to them as individuals. In 1998, 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. According to the May 14, 1996 Federal Constitutional Court ruling, 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.

More than two years after the Federal Constitutional Court's decision on asylum, the German government finally complied with the court's ruling to ensure that applicants in the airport procedure have access to legal advice. The government reportedly set up legal services for asylum seekers at Germany's international airports in the summer of 1998.

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 proscribed limits, the applicant is to be admitted to the country and to the normal procedure. Only 207 asylum seekers requested asylum at German airports in 1998. Authorities denied the applications of 62 asylum seekers arriving at airports as manifestly unfounded.

Agents of Persecution

Germany narrowly interprets asylum under the constitution and the UN Refugee Convention to protect only persons fleeing persecution at the hands of a state. Those fleeing persecution by nonstate agents are denied asylum and protection against refoulement under section 51 of the aliens act. In a November 14, 1998, interview with the German newspaper Tagesspiegel, incoming Interior Minister Otto Schilly ruled out the possibility of a change in Germany's policy on agents of persecution, remarking that immigration would be out of control were Germany to recognize nonstate persecution.

In practice, Germany's restrictive position on agents of persecution has particularly affected large numbers of Algerian and Afghan nationals seeking asylum in Germany. The Bundesamt has routinely denied asylum or protection against refoulement to Algerians claiming persecution by radical Islamic opposition groups in Algeria (see "Algerians" below).

During 1998, German courts held to a Federal Administrative Court ruling issued on November 4, 1997 that denied asylum to Afghan nationals claiming persecution by the Taliban militia. The Taliban controls Kabul, the Afghan capital, and much of the rest of Afghanistan. In January and May, respectively, the High Administrative Court of Hessen and the High Administrative Court Koblenz ruled that there is no statelike authority in Afghanistan capable of perpetrating persecution within the meaning of the UN Refugee Convention or the asylum clause of the German constitution. USCR and UNHCR, among others, strongly criticized the High Administrative Court's November 1997 decision, which served as a precedent for the 1998 rulings.

Internal Flight Alternative

On December 8, 1998, Germany's Federal Administrative Court ruled 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 case involved a Kurdish woman from the Iraqi-controlled city of Mosul who fled through Kurdish-held areas of Iraq and eventually to Germany. The Federal Administrative Court reversed a lower court's decision to grant the woman asylum on the grounds that she risked persecution by Iraqi agents in the semi-autonomous Kurdish zone. Stipulating that the lower court had not sufficiently verified that the asylum seeker in question was not safe from persecution in the Kurdish controlled part of Iraq, the Federal Administrative Court referred her case back to the lower court for further review.

By placing the burden of proof on the applicant to demonstrate that no internal flight alternative existed, the decision appeared to contradict the Federal Constitutional Court's position on the question of internal flight alternative. In an April 22, 1997 decision, the Federal Constitutional Court ruled that the German authorities may not deny asylum to applicants on the grounds that they could have sought protection in another part of their country of origin unless they determine "beyond reasonable doubts" that such an internal flight alternative was available.

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 – as of November 1996 – Bosnian refugees whose temporary protected status expired.

To date, Germany has signed bilateral agreements with the following non-EU countries: Algeria, Bosnia, Bulgaria, Croatia, the Czech Republic, Hungary, Norway, Poland, Romania, Switzerland, Vietnam, and Yugoslavia. Germany also signed a new readmission agreement with Morocco and an updated agreement with Romania in 1998. Germany also concluded various readmission agreements with European Union (EU) countries, which are now used to implement the Dublin Convention. Most of Germany's bilateral readmission agreements do not refer to asylum seekers and refugees but to foreigners in general.

In May, Foreign Minister Klaus Kinkel warned several Asian and African countries – including Ghana, Nigeria, Togo, Sudan, Vietnam, Bangladesh, Sri Lanka, Pakistan, and India – that Germany would consider withdrawing development assistance to those countries if Germany did not receive increased cooperation on the readmission of their undocumented citizens in Germany.

Dublin and Schengen

During 1998, Germany began to phase out implementing the asylum provisions of the Schengen Convention, a multilateral agreement effective in a subset of Western European countries, which established a mechanism for determining the state responsible for deciding an asylum claim. When the Dublin Convention entered into force on September 1, 1997, it superseded the asylum provisions of the Schengen Convention and is effective for the entire European Union. Generally, both conventions stipulate that the member state permitting the asylum seeker entry, or the first country of arrival in the event of illegal entry, is responsible for examining the asylum request. Similar to safe third country applicants, asylum seekers arriving from other member states are considered inadmissible to Germany's asylum procedure and sent back to those countries.

Data on the readmission of asylum seekers under the Dublin and Schengen Conventions suggest that these conventions' method of assigning responsibility for deciding asylum claims (based largely on assigning cases to the member state of first arrival) does not promote equitable burden sharing. While Germany assumed responsibility for reviewing the cases of 9,263 asylum seekers in 1998 under the Dublin Convention, all other EU member states combined agreed to take responsibility from Germany for only 1,682 persons. Other EU countries actually transferred 3,054 asylum seekers to Germany during the year. Germany, in contrast, actually transferred 809 asylum applicants to other EU countries during 1998. Data on the readmission of asylum seekers under the Schengen Convention displayed similar inequities.

A German-Italian disagreement concerning the arrival of several thousand Kurds from Iraq and Turkey on Italian shores in December 1997 and January 1998 placed considerable strain on the Schengen Convention during the early months of 1998. Italy, to the consternation of Germany, responded generously to the Kurds, promising to review the asylum claims of all wishing to apply. German officials feared that many of the Kurds would not stay in Italy but would take advantage of the absence of border controls between Schengen member states and travel to Germany, which already hosts a community of about 500,000 Kurds. In January, German Interior Minister Manfred Kanther told Italy and Greece to get tough on asylum seekers and migrants, demanding that the influx of Kurds be "stamped out." Germany deployed police on its southern border to prevent the anticipated influx of the Kurds and called on Italy and Greece to erect road checkpoints to deter their travel to points farther north.

German authorities arrested about 11,000 persons attempting to enter Germany in a clandestine fashion during 1998, a 32 percent increase from the 8,300 undocumented foreigners apprehended on Germany's borders in 1997. Arrests of smugglers rose similarly. Since the Schengen Convention became effective in March 1995, Germany has stepped up surveillance along its borders with Poland and the Czech Republic, both external borders of the Schengen treaty area.

On August 12, the Federal Constitutional Court ruled that family members filing separate asylum applications in Germany and other Schengen member states are not entitled to reunify in Germany and apply for asylum together. The case involved a Turkish man whose family traveled separately to Germany and applied for asylum there. The man, who had previously applied for asylum in Spain, was deemed inadmissible to the German asylum procedure.

Kosovar Albanians

Despite the descent of Yugoslavia's Kosovo province into civil war in 1998, the German federal government and several of its 16 individual state (Land, pl. Länder) governments remained adamant in their refusal to grant asylum or temporary protection to fleeing Kosovo Albanians. At various points during the summer of 1998, Germany's interior, foreign, and development ministers said that Germany had borne a disproportionate burden in hosting refugees from the former Yugoslavia and could not accept any more refugees. The refugees should instead be hosted in the countries closer to Yugoslavia, the German officials insisted. Bavarian Interior Minister Günther Beckstein proposed that Italy and Albania set up reception centers to receive Kosovar refugees in lieu of Germany and other Western European countries hosting them.

During the year, some 54,379 Yugoslav nationals, mostly from Kosovo, filed first-time asylum applications or resubmitted previously rejected claims in light of the new circumstances in Kosovo. Of the 40,453 Yugoslavs who received a decision on their asylum applications in 1998, the Bundesamt only recognized 1,134, or 2.8 percent, as refugees. Germany reportedly deported more than 1,000 rejected Kosovar asylum seekers during the year. As many as 170,000 rejected Yugoslav asylum seekers remained in Germany at the end of 1998.

Following the outbreak of violence in Kosovo, Lower Saxony and Northrhein-Westfalia announced a temporary ban on the deportation of Kosovo Albanians, only to rescind the ban several days later. Hessen, Saxony-Anhalt, Brandenburg, and Saarland barred Kosovar deportations in March.

However, several German Länder, led by Bavaria, continued to deport rejected Kosovar asylum seekers to both Belgrade and Pristina during most of the year, rejecting repeated UNHCR pleas to suspend deportation for the group. Various German officials asserted that even if Kosovar deportees had legitimate fears for their safety in parts of Kosovo, they could nevertheless find protection in other parts of Yugoslavia. The deportations reportedly cost some Kosovars their lives. On February 28, Serbian authorities reportedly killed a 70-year-old man and a 16-year-old boy deported from Bavaria in December 1997. Belgrade authorities claimed the two were suspected terrorists. On May 28, Serb forces allegedly killed another Kosovo Albanian youth deported from Baden Württemberg.

Eventually, all of the German Länder stopped deporting Kosovars in September, not out of concern for the fates of those slated for expulsion, but because it was no longer possible to carry out the deportations. Under an October 1996 readmission agreement between Bonn and Belgrade, Germany may only use the Yugoslav national airline to forcibly repatriate Yugoslav nationals. Sanctions imposed on Yugoslavia in September, which included a ban on flights of Yugoslavia's national airline, brought the deportations to a halt.

Bosnians

During 1998, Germany continued to exert considerable pressure to induce most Bosnian refugees still in Germany to repatriate. An estimated 120,000 Bosnians left Germany in 1998; about 103,000 repatriated and some 17,000 resettled to third countries, primarily the United States. An estimated 100,000 Bosnians remained in Germany at year's end. The German authorities also forcibly repatriated 2,021 Bosnians during the year, bringing the total number of forced repatriations to 2,990 since November 1996. Most Bosnians remaining in Germany at year's end were Muslims originating from the Republika Srpska, Bosnia's Serb-controlled region. 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.

After the German government rescinded federally mandated temporary protection for Bosnians in October 1996, Germany's Länder assumed primary responsibility for formulating and implementing Bosnian repatriation plans. All the German Länder required most remaining Bosnians to leave Germany in 1998. While precise criteria for repatriation varied from Land to Land, generally authorities only renewed the toleration permits (Duldung) of traumatized Bosnians with attestations from a doctor, witnesses appearing before the international war crimes tribunal in the Hague, elderly Bosnians with no relatives in Bosnia, and, in some Länder, deserters from Bosnian Serb forces.

During 1998, Germany subjected Bosnians to tremendous pressure to "voluntarily" repatriate. Most received a notice from the authorities requiring them to leave Germany by a certain date. Those who did not comply with the order to leave risked deportation and permanent exclusion from reentering Germany. Authorities were authorized to arrest Bosnians with expired Duldung permits and detain them for up to six weeks pending a decision on deportation.

Asylum in Germany is not an option for most Bosnians who 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.

Germany continued to receive condemnation for its forcible repatriation of Bosnians in 1998. In August, several high-ranking U.S. government officials criticized Germany's deportation policy, including U.S. Special Ambassador to the former Yugoslavia Robert Gelbard, who warned that Germany's deportation of Bosnians threatened to destabilize the peace in Bosnia. U.S. Secretary of State Madeleine Albright later added that it was "irresponsible to force refugees back to where there is no security, no housing, and no jobs." German officials, including Chancellor Helmut Kohl, vigorously rejected the criticism.

Condemnation for Germany's approach to repatriating Bosnians did not come from the U.S. government alone, however. Hans Koschnick – the former EU Administrator for Mostar, later to become the Federal Commissioner for Bosnian refugees with the new German government after October 1998 – strongly criticized two group deportations of 74 Bosnians from Berlin in July as "grossly inhumane." The groups of deportees reportedly included refugees awaiting status determinations for third county resettlement and others who had agreed to voluntarily repatriate. Berlin authorities reportedly arrested some of the deportees in the middle of the night, handcuffing them to bring them to the airport. In November, the Land of Hessen reportedly deported several war traumatized refugees with medical certificates.

At year's end, there appeared to be some division in the German government regarding Germany's policy on deporting Bosnians. While incoming Interior Minister Otto Schilly, like his predecessor, continued to press for the speedy return of Bosnians, new German Defense Minister Rudolf Sharping warned against the precipitous return of Bosnian refugees, regarding the peace in Bosnia as tenuous.

Algerians

Less than two weeks after Social Democraticgoverned Länder announced a temporary ban on the deportation of Algerians in response to the upsurge in violence in Algeria, the federal minister of the interior and his counterparts in the Länder decided against a nationwide ban on Algerian deportations on February 2, 1998. As a compromise with the Social Democrats, those opposed to a deportation ban agreed to an individual review of the safety of deporting Algerians. However, with no change in methodology for reviewing such cases, authorities only suspended a handful of deportations during the year, NGO representatives remarked.

Of the 2,312 Algerian asylum applicants who received a decision on the merits in 1998, the Bundesamt only recognized 27, or 1.1 percent, as refugees. An estimated two-thirds of Algerian asylum applicants in Germany claimed to fear nonstate persecution or were unable to identify their persecutors. Irrespective of the strength of the persecution claim, Germany does not recognize Algerian, or other, victims of nonstate persecution as refugees within the meaning of the UN Refugee Convention. NGOs also report that German authorities set unreasonably high standards for granting temporary protection to Algerians. In 1998, the Bundesamt granted temporary protection to only 8 Algerians, or 0.3 percent of the total number of Algerians who received a merits decision. In late 1997 and early 1998, UNHCR appealed to European countries not to deport rejected Algerian asylum seekers hastily due to the escalation of violence in Algeria. An estimated 6,500 rejected Algerian asylum seeker remained in Germany in 1998.