U.S. Committee for Refugees World Refugee Survey 2000 - Germany

At the end of 1999, Germany hosted more than 285,000 refugees and asylum seekers in need of protection, according to the German government and the UN High Commissioner for Refugees (UNHCR). These included 40,339 asylum seekers awaiting first-instance decisions on their asylum applications, 12,361 granted either asylum, protection against refoulement, or temporary protection, about 53,000 Bosnian refugees for whom no durable solutions had been found, and about 180,000 Kosovo Albanians, most without legal status, who are under orders to leave Germany by the spring of 2000.

Some 95,113 asylum seekers filed first-time asylum applications during 1999, a four percent decrease from 1998. In addition, however, 43,206 persons who had sought asylum prior to 1999 and, after a denial or receipt of another status, were permitted to resubmit an asylum application.

More asylum seekers applied in Germany than in any other Western European country in 1999. However, the 138,319 asylum seekers who filed claims in Germany in 1999 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 1999, the largest number of asylum seekers (both first-time applicants and claimants resubmitting applications) came from the Federal Republic of Yugoslavia (53,780), Turkey (16,231), and Iraq (8,861). Large numbers also came from Afghanistan (4,664), Iran (4,196), Vietnam (3,170), Armenia (3,141), Azerbaijan (2,824), and Syria (2,666).

The German Federal Office for the Recognition of Foreign Refugees (Bundesamt), the body responsible for deciding asylum claims, made decisions on the merits of the cases of 94,592 applicants during 1999, granting political asylum to 4,114 persons, a 4.3 percent approval rate. Applicants from Iran (12.8 percent), Turkey (8.6), and Syria (7.6 percent) received the highest recognition rates.

An additional 6,147 persons, or 6.5 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 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 have almost exclusively made status determinations based on Section 51 rather than the asylum statute, Article 16a of the constitution.

During 1999, the Bundesamt also granted temporary protection (Section 53 of the Aliens Act) to 2,100 applicants.

During 1999, Germany also admitted 104,916 ethnic Germans from Eastern Europe and the former Soviet Union, a slight increase from the 103,080 admitted in 1998. Ethnic Germans arriving in Germany automatically have the right to German citizenship.

Germany denied asylum and other status to 80,231 persons in 1999. Of these, 28.1 percent were denied as "manifestly unfounded," up from 18.5 percent in 1998. The Bundesamt administratively closed the cases of 40,339 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 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 did not amend its asylum laws in 1999.

Safe Third Country

According to German law, claimants who travel through a safe third country are ineligible for asylum in Germany. 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 cases in which its implementation has led to chain deportations, some resulting in refoulement.

The U.S. Committee for Refugees (USCR), UNHCR, the European Council on Refugees and Exiles (ECRE), Amnesty International, and other humanitarian organizations have long advocated that Germany 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 1999, 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. 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. 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. Some 1,209 asylum seekers requested asylum at German airports in 1999. Authorities denied the applications of 527 as manifestly unfounded and admitted 666 claimants to the normal procedure.

Agents of Persecution

Germany narrowly interprets asylum under the constitution and the 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.

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 Germany does not recognize Afghanistan's ruling Taliban as a government and because Somalia does not have a central government, the German position holds that there can be no persecution within the Refugee Convention's meaning, regardless of the danger posed to the applicant. A November 4, 1997 Federal Administrative Court ruling on Afghan asylum seekers claiming persecution by the Taliban solidified the German policy of denying asylum to applicants from countries that Germany does not consider to have a government.

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.

In a September 1999 report entitled Gross Negligence Dressed Up in Legalese, USCR sharply criticized Germany's treatment of Algerian and other asylum seekers fleeing nonstate persecution and called on the German government to end its restrictive policy. "The UN Refugee Convention's purpose is to provide protection against persecution, irrespective of the persecutor's identity," said USCR.

Two months earlier, on July 23, the United Kingdom's Court of Appeal ruled that Germany could not be considered a safe third country for asylum applicants claiming nonstate persecution.

Internal Flight Alternative

A December 8, 1998 ruling by Germany's Federal Administrative Court appeared to reduce significantly the chances for recognition of many Iraqi asylum seekers in 1999. The 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.

Following the Federal Administrative Court's ruling, the asylum approval rate for Iraqi applicants in 1999 fell to 4.9 percent from 9 percent the previous year. The approval rate for Iraqi nationals has dropped steadily since 1995, when 45.2 percent were granted asylum.

Other Restrictions

On September 7, the Federal Administrative Court upheld a German law requiring airlines and other transportation companies to ensure that their passengers have the necessary travel documents to enter Germany. The two airlines that had challenged the carrier sanctions law, Air France and Air India, argued that it was unreasonable for the German government to require airlines to be responsible for immigration checks and that these checks violate an asylum seeker's constitutionally protected right to apply for asylum. The court rejected these arguments, ruling that airlines only have the right to transport foreigners to Germany, including would-be asylum seekers, who meet German entry requirements.

In another carrier sanctions case, Hessen's High Administrative Court ruled on August 2 that airlines transporting an undocumented foreigner to Germany must not only pay for the cost of deporting that foreigner, but must also assume all other public expenses incurred, including the cost of keeping the prospective deportee under surveillance when deemed necessary. The case involved three foreigners traveling separately to Germany, including one asylum seeker arriving via South African Airways who attempted suicide after Germany rejected his asylum application. In addition to paying the asylum seeker's hospitalization expenses, the court also found South African Airways responsible for covering the costs of keeping the asylum seeker under surveillance so that he would not abscond.

In a similar case on employer sanctions, the Administrative Court of Koblenz ruled on July 9 that a company that had illegally employed a rejected Yugoslav asylum seeker was responsible for all the costs associated with his deportation.

Deportation

On May 28, coercive methods that German border police used to restrain a rejected Sudanese asylum seeker during deportation resulted in that asylum seeker's death. Forced to wear a full-face motorcycle helmet to prevent him from biting his German border guard escorts, the Sudanese deportee also had his arms and legs bound to his airline seat for the flight. The rejected asylum seeker died shortly after his flight took off when German border guards forcibly held the man's head to his seat.

Following the deportee's death, the German Interior Ministry suspended deportations, pending a review to prevent similar incidents in the future. On June 25, the Interior Ministry amended its deportation procedures and authorized the border police to resume deportations. The Interior Ministry banned the use of full-face helmets during deportation and instructed the border police to ensure that deportees have "unimpaired breathing" when they are being forcibly restrained.

On June 1, Germany's readmission agreement with Algeria became effective, providing for Algerian security officials to accompany rejected Algerian asylum seekers deported from German airports. The agreement is anticipated to facilitate the removal of some 6,000 to 7,000 rejected Algerian asylum seekers in Germany.

Dublin and Schengen

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 (see chart). Implementation of the Dublin Convention also continued to place a disproportionate burden on Germany during 1999. 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.

Temporary Residence Permits for "Old Cases"

In mid-November, Germany's federal and regional interior ministers agreed to issue temporary residence permits to rejected asylum seekers who are unable to repatriate through no fault of their own. Families who arrived in Germany and applied for asylum before July 1, 1993 and single asylum seekers who arrived before 1990 are eligible to receive temporary residence permits provided they are able to demonstrate that they provide for themselves and have not committed any crimes in Germany. As many as 20,000 rejected asylum seekers may benefit from the decision.

Kosovo Albanians

Faced with the exodus of hundreds of thousands of refugees out of Kosovo in March and April, Germany, then holder of the rotating European Union (EU) presidency, proposed in early April that EU countries devise a quota system for the temporary admission of Kosovo Albanian refugees. The United Kingdom, France, Spain, the Netherlands, and Italy opposed the plan, however, leading to its rejection on April 7. Countries opposing the plan argued that the refugees would be better cared for in Albania and Macedonia and that airlifting refugees out of the region would play into Belgrade's hands by appearing to accept as permanent the expulsion of Kosovo's ethnic Albanians.

Reacting to the noncommittal positions of the United Kingdom, France, and other opponents of the German plan, Germany, which initially had pledged to admit some 40,000 refugees from Kosovo, reduced its pledge to 10,000, but soon revised this figure to include an additional 5,000. Ultimately, Germany evacuated 14,554 Kosovo refugees from Macedonian refugee camps through the humanitarian evacuation program (HEP) between April and June, more than any other country.

Germany also received more asylum seekers from Kosovo than any other EU country during 1999. A total of 53,780 Yugoslavs, overwhelmingly Kosovo Albanians, filed asylum applications during the year. However, the German government suspended decision-making on Kosovo Albanian asylum applications between April and October. Of the 23,779 merits decisions made before and after the suspension, only 210 Yugoslav nationals received asylum, an approval rate of 0.9 percent.

In a ruling that appeared to typify Germany's approach toward Kosovo Albanian asylum applications in the latter part of the year, on September 30, the high administrative court in Muenster denied the appeals of several Kosovo Albanian applicants on the grounds that conditions in Kosovo had improved enough to preclude the possibility of persecution.

Germany granted temporary residence permits to HEP evacuees and spontaneously arriving asylum seekers from Kosovo. Rejected asylum seekers from Kosovo received "toleration" permits (Duldung), which prevented their deportation but did not grant them any legal standing in the country.

After traveling to Kosovo in late September, German Interior Minister Otto Schily announced that the situation in Kosovo had stabilized sufficiently for Germany to begin returning refugees to Kosovo, if necessary by force. Thus, German authorities did not renew the temporary residence permits of HEP evacuees or other Kosovo Albanians after Serb forces pulled out of Kosovo, instead granting them Duldung.

USCR called upon the German government to reconsider its plan to begin deportations of Kosovo refugees in the fall of 1999. In an October 26 letter to Interior Minister Schily, USCR urged Germany to heed UNHCR's assessment of the situation in Kosovo – given at the same time as the interior minister's visit – which found that "the situation [in Kosovo] remains violent and insecure, with threats present from both Kosovo Albanians and other ethnic groupsŠ. The situation at present and for the longer term is both unstable and uncertain." On the basis of UNHCR's assessment, USCR said that Germany's decision to revoke temporary protection for Kosovo refugees was premature and urged it to reconsider.

In a November 29 response, the German Interior Ministry argued that the situation in Kosovo had, in fact, stabilized, pointing to the large number of refugees who quickly repatriated after NATO deployed troops to the war-torn Yugoslav province. The Interior Ministry estimated that there were 180,000 Kosovo Albanians in Germany whom authorities required to leave the country.

"Most of these people will undoubtedly return freely," the Interior Ministry said. "However, they will only be willing to return" the ministry continued, "when it is also possible to carry out deportations." The Interior Ministry added that Germany would not deport any Kosovo Albanian with a well-founded fear of persecution.

Subsequently, the German government reported to USCR that it deported one Kosovo Albanian during 1999. An additional 18,199 Kosovo Albanians repatriated voluntarily.

In mid-November, Germany's federal and regional interior ministers decided to allow Kosovo refugees with Duldung to remain in Germany until the spring of 2000 when it would begin deportations to induce others to repatriate.

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 1999.

Although the German government reported that about 50,000 Bosnians left Germany for Bosnia in 1999, UNHCR in Bosnia registered only 23,000 returns from Germany during the year. Since 1996, an estimated 250,000 Bosnians have repatriated from Germany. German authorities also forcibly repatriated 4,330 Bosnians in 1999, raising the total number of forced repatriations to 7,320 since November 1996. Since the end of the Bosnian war, another 40,000 Bosnian nationals have left Germany to resettle in third countries.

According to UNHCR, about 53,000 Bosnians remained in Germany at the end of 1999, mostly Muslims originating from the Republika Srpska, Bosnia's Serb controlled region. Some observers estimated that about 20,000 Bosnians still in Germany suffered severe trauma during the war and therefore should not be forced to repatriate. However, German authorities pressured even individuals in this group to leave the country. In Bavaria, for instance, local officials demanded that refugees claiming to be torture victims prove their claim in order to remain in the country.

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

With most Bosnian refugees having left Germany, the German government disbanded the post of Federal Commissioner for Bosnian Refugees on December 10. The government created the office in 1997 specifically to promote Bosnian repatriation.