U.S. Committee for Refugees World Refugee Survey 2001 - Germany

At the end of 2000, Germany hosted some 180,000 refugees and asylum seekers in need of protection. These included 43,791 asylum seekers awaiting first-instance decisions on their asylum applications, 13,043 granted either asylum, protection against refoulement, or temporary protection, about 23,000 Bosnian refugees for whom no durable solutions had been found, and about 100,000 Yugoslavs from Kosovo, most of whom were without legal status and are under orders to leave Germany by the spring of 2001.

Some 78,600 asylum seekers filed first-time asylum applications during 2000, 17.4 percent fewer than in 1999. In addition, 39,084 persons who had sought asylum prior to 2000 were permitted, after a denial or receipt of another status, to resubmit an asylum application. The 117,648 asylum applications filed in 2000 represent a significant decrease from the 438,191 claims filed in 1992, the year before a historic asylum reform entered into force.

During 2000, the largest number of asylum seekers (both first-time applicants and claimants resubmitting applications) came from the Federal Republic of Yugoslavia (28,046), Turkey (14,355), and Iraq (12,023). Large numbers also came from Afghanistan (11,136), Iran (5,797), Syria (3,069), the Russian Federation (3,001), Vietnam (2,770), and Bosnia and Hercegovina (2,625).

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 74,883 applicants during 2000, granting political asylum to 3,128 persons, a 4.2 percent approval rate. Applicants from Turkey (15.4 percent), Iran (10.1 percent), and Ethiopia (7.8 percent) received the highest recognition rates.

An additional 8,318 persons, or 11.1 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, but has no definitive proof, of arriving in Germany via a safe third country. When it has been impossible to remove such persons to a safe third country, applicants have 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 on Article 16a of the Constitution, which confers asylum.

During 2000, the Bundesamt also granted temporary protection (Section 53 of the Aliens Act) to 1,597 applicants.

Germany admitted 95,615 ethnic Germans (Aussiedler) from Eastern Europe and the former Soviet Union during 2000, a 8.9 percent decrease from the 104,916 admitted in 1999. Ethnic Germans arriving in Germany automatically have the right to German citizenship, although under new regulations announced in December, a German language test will be required for Aussiedler and their accompanying family members in 2001.

Germany denied asylum and other statuses to 61,840 persons in 2000. Of these, 29.8 percent were denied as "manifestly unfounded," up from 28.1 percent in 1999. The Bundesamt administratively closed the cases of 30,619 applicants during the year.

Asylum Procedure

In 1993, Germany revised its Constitution and its 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.

Germany amended Section 19 of its Aliens Act in 2000, allowing, under certain conditions, an independent right to stay in Germany for spouses whose partners hold a permanent residence permit. In effect, the amendment will enable battered foreign women who have lived in Germany for two years to obtain their own residence permits after leaving their husbands. In October 2000, new regulations took effect requiring gender-specific forms of human rights violations, such as female genital mutilation, to be taken into account when interpreting Section 53 of the Aliens Act, which regulates deportation suspensions based on human rights criteria.

In July, Germany set up a commission to examine the country's national immigration and refugee policy. The commission, which is expected to issue a report in mid-2001, was criticized by some immigrant groups for failing to include any foreigners on its 21-member panel of experts.

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 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 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 through which countries they traveled. 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 cases in which its implementation has led to chain deportations, some resulting in refoulement.

The U.S. Committee for Refugees, the UN High Commissioner for Refugees (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 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 2000, 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 to be admitted to the country and to the normal procedure. In 2000, 1,089 asylum seekers requested asylum at German airports. Authorities approved eight applications, denied 407 others as manifestly unfounded, and admitted some 683 claimants to the normal procedure.

Detention conditions at Germany's Frankfurt am Main Airport, which the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment criticized in a May 1999 report for lacking adequate medical care, may have contributed to the death of an Algerian asylum seeker on May 6. On February 24, after five months in detention at the airport – a period in excess of the official 19-day limit for airport detention – the asylum seeker suffered a nervous breakdown at the airport holding facility and was transferred to a hospital. She was subsequently moved to a pre-deportation facility for several months. On May 6, two days after being returned to the transit area holding facility at Frankfurt am Main, she committed suicide. During the past three years, at least 18 asylum seekers have reportedly attempted suicide while detained at Frankfurt Airport.

Agents of Persecution

In August, a Federal Constitutional Court ruling challenged Germany's narrow interpretation of its asylum law and the UN Refugee Convention, which, according to Germany, protects only people fleeing persecution at the hands of the state. In the decision, the judges found that a lower court had employed too limited a definition of "political persecution" in a ruling involving seven Afghans who had worked for the former communist-led government in Kabul and fled Afghanistan under fear of persecution by the anti-communist mujahedin. In the past, the position of the German government has been that "political persecution" can occur only at the hands of a recognized state authority. In this case, the Federal Constitutional Court ruled that the mujahedin or the Taliban are capable of inflicting political persecution in areas of the country they effectively control. However, the court reaffirmed that political persecution cannot take place in a country that has collapsed into anarchy or in which the government has dissolved.

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 is prevalent. Because in the past Germany has not recognized Afghanistan's ruling Taliban as a government and because Somalia does not have a central government, the German position has held that there can be no persecution within the UN 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, finding them not to be Convention refugees because the Algerian authorities had neither tolerated nor encouraged the persecution.

The cases of the seven Afghan asylum seekers were referred back to the Federal Administrative Court, and the Bundesamt suspended decisions on all asylum cases involving nonstate persecution until the Federal Administrative Court reissued its ruling.

(In February 2001, after reconsidering the cases, the court ruled that the Taliban could be deemed an agent of persecution because the group controls nearly all of Afghanistan. While the ruling does not signal a change in Germany's official interpretation of the Refugee Convention as applying only to victims of state actors, it indicates a willingness to interpret "state" persecution more broadly.)

Several contradictory rulings involving the Dublin Convention and Germany's treatment of asylum seekers who claim nonstate persecution were issued during the year (see p. 194). On March 7, the European Court of Human Rights rejected the challenge of a Sri Lankan asylum seeker who claimed that he had suffered torture by nonstate agents and argued that he should not be sent from Britain to Germany in accordance with the Dublin Convention. In a separate case, Britain's highest court, the House of Lords, ruled on December 19 that Germany could not be considered a safe third country for asylum applicants claiming nonstate persecution.

Internal Flight Alternative

Asylum approval rates for Iraqi asylum seekers continued to shrink in 2000. 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 has fallen from 9 percent in 1998 to 3.5 percent in 2000. The approval rate has dropped steadily since 1995, when 45.2 percent of Iraqi asylum seekers were granted asylum.

Other Restrictions

German law requires airlines and other transportation companies to ensure that their passengers have 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

On December 6, the federal government lifted an employment ban on asylum seekers, a move that will affect an estimated 75,000 claimants. As of January 1, 2001, asylum seekers will be able 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 will be able to begin work immediately, without a waiting period.

On May 18, the Federal Administrative Court ruled that a provision of Germany's federal law on social welfare runs counter to the 1953 European Convention on Social and Medical Assistance, to which Germany is a signatory. Under the federal law, refugees protected under Article 51 of the Aliens Act, which restricts refugees to residence in a particular Land or municipality, receive their full allowance of social benefits only if they reside in the Land that issued them a residence permit. The court ruled that the European Convention takes precedence over the federal law.

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, 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.

On January 27, Germany and Albania signed a transit agreement that would allow returns of Kosovars to be facilitated through Albania.

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 5,662 asylum seekers in 2000 under the Dublin Convention, all other EU member states combined agreed to take responsibility from Germany for 2,602 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 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 (see p. 198). In October, Germany also set up a joint border patrolling operation with Italy along Italy's southern coast, with Italian border police helping patrol Germany's border with Poland.

Kosovo Refugees

Some 100,000 Kosovars currently remain in Germany, most with a deferred-deportation status (Duldung). A total of 28,046 Yugoslavs filed asylum applications during the year. Of first-time applicants, slightly fewer than half came from Kosovo; about 34 percent were Albanian, 40 percent Roma, 4 percent Serb, and 20 percent other. Of the 12,694 merits decisions issued, only 120 Yugoslav nationals received asylum, an approval rate of 0.9 percent.

Some 58,000 Kosovars returned voluntarily to Kosovo during 2000, while an estimated 6,000 were deported, beginning in March. The deportees included some 50 Kosovars who were members of minority groups (Serb, Roma, or Ashkali). The UNHCR, the UN Mission in Kosovo (UNMIK), and other organizations protested these deportations on the grounds that members of minority groups are not protected from persecution in Kosovo.

In March, UNHCR also sharply criticized Germany for "dumping" criminals on Kosovo as part of the repatriation drive. Several hundred convicted Kosovar criminals, including murderers, were deported over the protests of UNHCR, which asserted that Kosovo lacked adequate law-enforcement and judicial structures to deal with the influx. The UNHCR office in Kosovo also reported that Germany had deported to Kosovo some individuals who were from other parts of Yugoslavia or the former Yugoslavia.

In October, UNMIK called upon Germany and other Kosovar refugee host countries to suspend deportations in the light of the winter weather and the lack of accommodation for deportees arriving in Kosovo. However, following a November meeting of interior ministers of the Laender, only a few states issued regulations halting deportations until spring 2001.

At the same meeting, members of Kosovo minority groups were given extensions on their Duldung status until April 30, 2001, while Kosovars with employment were permitted to stay until July 31. At the same meeting, the interior ministers determined that residency permits would be given to Kosovar couples and families of mixed ethnicity, unaccompanied minor refugees, and witnesses scheduled to testify before the International Criminal Tribunal at the Hague.

In May, the German government announced that it would allow about 360 Yugoslav war deserters and conscientious objectors who fled to Germany in March 1999 to remain in the country under Article 51 of the Aliens Act, affording them temporary residence permits and protection against expulsion.

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. Since the end of the war, Germany has exerted tremendous pressure on Bosnian refugees to "voluntarily" repatriate, a policy it continued in 2000.

UNHCR reported that 5,941 Bosnians voluntarily repatriated from Germany during the year, bringing the total number of Bosnian repatriations to some 255,000 since 1996. German authorities also forcibly repatriated 979 Bosnians during 2000, raising the total number of forced repatriations to 8,299 since November 1996. In 2000, approximately 7,000 Bosnians in Germany were resettled in third countries.

According to UNHCR, about 23,000 Bosnians remained in Germany at the end of 2000. On November 24, the interior ministers of the Laender decided to give temporary residence permits to civil war refugees from Bosnia who suffer from post-traumatic stress disorder, a decision that will affect an estimated 15,000 to 20,000 Bosnians. The remaining Bosnians have a deferred-deportation status (Duldung).

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.

On December 22, the Federal Ministry of the Interior closed down the Advisory Bureau for Bosnian war refugees, set up in 1997 to provide support to persons fleeing the Bosnian conflict.