Germany/Vietnam: Update to ZZZ36149.E of 15 December 2000 regarding the terms of the agreement between Germany and Vietnam respecting the return to Vietnam of failed asylum claimants; whether the Vietnamese government has given any guarantees with respect to the treatment of returnees upon return

Please find attached electronically the translation from German of the 1995 Agreement Between the Government of the Federal Republic of Germany and the Government of the Socialist Republic of Vietnam on the Readmission of Vietnamese Citizens (Readmission Agreement) (21 July 1995). According to Article 1 of the agreement:

2. Repatriation shall not be dependent on the consent of these persons, and persons whose repatriation would be involuntary shall likewise be taken back.

3. Both Parties undertake to effect the repatriation of persons referred to in paragraphs 1. and 2. in an orderly manner with due regard for the safety and human dignity of these persons.

According to a 29 June 1999 VNA report, the agreement signed in Hanoi on 28 June 1999 was "a cooperation agreement in the framework of the Vietnam-Germany programme to assist Vietnamese people returning from Germany within the next two years" and was signed by representatives of the "Vietnamese Ministry of Labour, War Invalids and Social Affairs (MoLISA) and the German development assistance organziation Deutsche Entwicklungsdienst (DED)."

In further information, according to a 22 February 1995 AFP report Germany and Vietnam were continuing discussions on a repatriation agreement involving 40,000 Vietnamese living illegally in Germany, but differences between the two governments had to be worked out on a "German aid package to Vietnam for 1995 – that is targeted to ease the repatriation of the Vietnamese when they return home." The article describes the Vietnamese for whom the agreement was intended as "economic migrants unable to obtain refugee status in Germany and laborers imported into former East Germany before the collapse of communism, who stayed after reunification in 1990" (ibid.).

In an article about returning refugees from Germany to Bosnia, a 1 October 1996 Sueddeutsche Zeitung mentioned difficulties in returning "refugees" to Vietnam. A 22 July 1999 AFP article reported that discussions were going on between Germany and Vietnam concerning the repatriation of "thousands of Vietnamese now living illegally in Germany." A German foreign ministry representative was quoted as saying: "The application of the [1995] agreement on returning refugees is still not what it should be." Under the agreement 40,000 Vietnamese were to be returned from Germany before 2000, but by the end of 1996 only 3,500 had been returned (ibid.).

No mention of whether the Vietnamese government gave any guarantees with respect to the treatment of returnees upon return could be found in the sources consulted by the Research Directorate.

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

References

Agence France Presse (AFP) [Paris, in English]. 22 July 1998. "Germany: German Envoy Discusses Repatriating Vietnamese Refugees." (FBIS-WEU-98-203 22 July 1998/WNC)

_____. 22 February 1995 [Hong Kong, in English]. "'Failure' in Repatriation Talks With Germany." (FBIS-EAS-95-035 22 Feb. 1995/WNC)

Agreement Between the Government of the Federal Republic of Germany and the Government of the Socialist Republic of Vietnam on the Readmission of Vietnamese Citizens (Readmission Agreement). 21 July 1995. Berlin. Translation from German to English by the Translation Bureau, Multilingual Translation Directorate, Public Works and Government Services Canada.

Sueddeutsche Zeitung [Munich, in German]. 1 October 1996. "Germany: Article Views Policies on B-H Refugees' Return." (FBIS-WEU-96-192 1 Oct. 1996\WNC)

VNA [Hanoi, in English]. 29 June 1999. "Vietnam, Germany Sign Agreement Supporting Returnees." (BBC Summary/NEXIS)

Additional Sources Consulted

IRB databases

REFWORLD

World News Connection (WNC)

One non-documentary source contacted did not provide information on the requested subject.

Electronic Attachment

No. 27 – Publication Date: Bonn, 16 September 1995

The Government of the Federal Republic of Germany

and

the Government of the Socialist Republic of Vietnam

anxious to preserve and further develop their good bilateral relations,

desiring to implement the Joint Declaration of 6 January 1995 on the improvement and strengthening of relations between Germany and Vietnam, and

intending to establish coordinated rules on repatriation and readmission for the competent authorities on the basis of current national legislation and existing international obligations with respect to Vietnamese citizens who are not in possession of a valid residence authorization under the Aliens Act of the Federal Republic of Germany,

have agreed as follows:

1. The Government of Vietnam undertakes to take back Vietnamese citizens who have no valid residence authorization for the Federal Republic of Germany, in accordance with the provisions of this Agreement.

2. Repatriation shall not be dependent on the consent of these persons, and persons whose repatriation would be involuntary shall likewise be taken back.

3. Both Parties undertake to effect the repatriation of persons referred to in paragraphs 1. and 2. in an orderly manner with due regard for the safety and human dignity of these persons.

The Vietnamese authorities shall accept back Vietnamese citizens temporarily resident on the territory of the Federal Republic of Germany without a valid residence authorization and whose repatriation is sought by German authorities.

The Parties agree to repatriate as rapidly as possible persons charged with or convicted of a criminal offence, especially in the case of serious offences.

Vietnamese citizens already under obligation to leave (approx. 40 000 according to German data) shall be repatriated by the end of the year 2000. Repatriation of this category of persons shall commence in 1995, and shall proceed in such a way that by 1998, 20 000 Vietnamese have been taken back in Vietnam. Between 1995 and 1998 the number of returning Vietnamese shall rise progressively as follows:

– 1995: 2 500 persons

– 1996: 5 000 persons

– 1997: 6 000 persons

– 1998: 6 500 persons

The Government of Vietnam shall strive to exceed these annual quotas to the extent of its abilities.

1. Proof of Vietnamese citizenship may be established by the following means:

– valid certificate of citizenship,

– authentic passport (ordinary, diplomatic or duty passport), or

– verbal note from a Vietnamese mission in

Germany.

The Parties shall accept submission of the above documents as establishing proof of Vietnamese citizenship.

2. Presumption of Vietnamese citizenship may be established by authentic documents such as

– identity card,

– laissez-passer with photo,

No. 27 – Publication Date: Bonn, 16 September 1995

– border pass,

– military pass,

– birth certificate,

– seaman's passport, or

– driver's licence.

The Parties shall provisionally accept submission of the above documents as establishing presumption of Vietnamese citizenship.

1. In situations where it has not been possible to establish proof of citizenship or presumption of citizenship, the Vietnamese authorities shall conduct a hearing of the person concerned without delay.

2. If the hearing establishes that the person concerned is a Vietnamese citizen, Vietnam shall readmit that person.

3. For the purpose of establishing Vietnamese citizenship, the following in particular may serve as evidence:

– witness statements,

– information given by the person concerned,

– language spoken by the person.

On the basis of this information, the Vietnamese authorities shall determine whether the person is a Vietnamese citizen and shall communicate their findings to the competent authorities. The missions of the Federal Republic of Germany in Vietnam shall provide assistance to the Vietnamese authorities in conducting their examination.

Persons already returned to Vietnam whose Vietnamese citizenship is not confirmed by the Vietnamese authorities' examination shall immediately and without any particular formalities be readmitted by Germany.

The Parties shall consult whenever they consider it necessary.

The personal data to be transmitted in the course of the implementation of this Agreement shall be indicated in an implementing protocol to this Agreement. Such information shall consist exclusively of

1. identifying information for the person whose repatriation is being requested and, where applicable, for family members (surname, given name, previous surname where applicable, nickname or pseudonym, date and place of birth, previous and current citizenship);

2. passport, other papers serving as substitute passport, and identity card (number, period of validity, date and place of issue, issuing authority, etc.);

3. other information needed to identify the person whose repatriation is contemplated;

4. previous home address of the person concerned in Vietnam, itinerary, date of entry into Germany and reason, and place of residence while in Germany;

5. Residence permits or visas issued by the Parties.

All repatriation costs up to the Vietnamese border, including transit costs through third countries, shall be borne by Germany. The same shall apply in the case of readmission.

The administrative details of the repatriation process shall be set out in an implementing protocol to this Agreement.

No. 27 – Publication Date: Bonn, 16 September 1995

1. This Agreement shall enter into force two months after it has been signed.

2. This Agreement shall remain in force until 31 December 2000 and shall be renewed for one- year terms unless terminated six months prior to the end of such terms.

All disputes concerning the interpretation or application of this Agreement or the Protocol shall be resolved within the framework of consultations.

1. Either Party may suspend or terminate this Agreement for cause after consulting the other Party and upon notification of the other Party.

2. The suspension or termination shall be effective on the first day following receipt of notification by the other Party.

Done in Berlin this 21st day of July 1995 in two copies,

each in the German and Vietnamese languages,

each text being equally authentic.

For the Government of the Federal Republic of Germany

For the Government of the Socialist Republic of Vietnam

Federal Law Gazette, Year 1995, Part II

The Government of the Federal Republic of Germany

and

the Government of the Socialist Republic of Vietnam

basing themselves on Article 11 of the Agreement of 21 July 1995 between the Government of the Federal Republic of Germany and the Government of the Socialist Republic of Vietnam on the Readmission of Vietnamese Citizens ("the Agreement")

have agreed as follows:

1. The competent German authorities shall in seeking the repatriation of Vietnamese citizens make an application for readmission through the Embassy of the Federal Republic of Germany in Vietnam to the Vietnamese Ministry of the Interior (Office of Entry and Exit Control).

2. For this purpose and in cases of voluntary return, the competent German authorities shall direct the Vietnamese citizens being repatriated to complete the questionnaire attached as Annex 1 (Specimen H 03). Each person must complete two copies of the questionnaire. Two passport photos must be affixed to each copy. If the questionnaire has not been completed or fully completed, the information contained in the "Application for a travel document in lieu of passport" (application for a travel document issued by the Border Protection HQ) attached as Annex 2 must be provided as a minimum.

If this too is not possible, the application for readmission must contain the following information as provided in the available documents and by the person to be repatriated:

– identifying information for the person being repatriated (given names, family names, date and place of birth and last place of residence on Vietnamese territory; similar information for the person's immediate family in Vietnam, if possible);

– a list of the documents on the basis of which proof or presumption of Vietnamese citizenship has been established; and

– expected date and time of return to Vietnam.

3. The information required under paragraphs 1 and 2 and the corresponding documents shall be handed over to the competent Vietnamese authorities by Germany.

1. A list (List A) of returning Vietnamese shall be transmitted in two copies, in the German and Vietnamese languages, to the Government of Vietnam. Receipt of this list shall be immediately acknowledged. List A shall be transmitted together with the information referred to in Article 1 paragraphs 1 and 2. Each List A shall contain a maximum of 350 names.

2. Upon receipt of the documents referred to in Article 1, the competent Vietnamese authorities shall immediately examine these and shall, on receipt of List A,

– for voluntarily returning Vietnamese citizens and Vietnamese citizens whose citizenship has been proven, within six weeks, and

– for persons in respect of whom a presumption of Vietnamese citizenship has been established, and for all other persons, within three months

provide the competent German authorities with a list of persons whose Vietnamese citizenship has been confirmed by the said examination and who can therefore return to Vietnam (List B).

3. On the basis of List B the German authorities shall draw up a list of persons to be repatriated (List C). The competent Vietnamese authorities shall issue passes (laissez-passer) for these persons to be conveyed to them through the Embassy of the Federal Republic of Germany in Hanoi.

4. Germany shall provide Vietnam with the following information fourteen days prior to the flight: the list of returning persons prepared on the basis of List B (List C), arrival date and flight dates, identifying information for the members of the German-assigned escort (surname and given name, date of birth, passport number, duration of stay in Vietnam).

5. Vietnam shall acknowledge receipt to Germany of the particulars referred to in paragraph 4 above seven days prior to the planned flight.

1. Vietnam shall readmit the returning Vietnamese citizens at the agreed time at the Noi Bai airport in Hanoi.

2. For all readmitted Vietnamese (articles 1 and 2) Vietnam shall hand over the list of persons actually returning (List D).

3. Both Parties shall secure favourable conditions as regards currency and personal effects that returning persons may bring with them.

4. Germany shall strive to provide Vietnam with all available medical records of the persons returning, within the framework of German data protection legislation. Germany agrees that any medical examination contemplated by Vietnam in connection with the readmission of its citizens shall be financed out of counterpart funds made available as a result of undertakings within the framework of development cooperation between the Socialist Republic of Vietnam and the Federal Republic of Germany.

In the event of a readmission to the territory of the Federal Republic of Germany, the procedure to be followed shall be as described in Article 7 of the Agreement. Proof that the person to be readmitted does not possess Vietnamese citizenship shall be furnished in writing.

Implementation of the Agreement will entail communication of personal data. Communication of such data shall be in accordance with the legislation of each Party and with the following provisions:

1. The Party receiving the data may use it only for the specified purpose and only on the conditions prescribed by the originating authority.

2. On request, the receiving Party shall brief the originating authority concerning the use made of the communicated data and concerning the outcome of such use.

3. Personal data may be communicated only to the competent authorities. Onward transmittal to other authorities may take place only with the prior consent of the originating authority.

4. The originating authority shall be obligated to ensure the accuracy of the data to be communicated as well as its necessity and commensurateness with the purpose intended by its communication, and to observe any communication bans pursuant to the Parties' respective domestic legislation. In the event that incorrect data or data that ought not to have been communicated has in fact been communicated, the receiving Party shall immediately be informed of this circumstance. Said Party shall be obligated to rectify or destroy the information in question without delay.

5. The person concerned shall, upon application, be given the personal information on file and be told the intended use to be made of it. No disclosure requirement subsists if the balance of interests is such that the public interest in non-disclosure outweighs the interest of the person concerned in having access to the information. The person's right of access to the personal information shall otherwise be governed by the domestic legislation of the Party on whose territory the information is requested.

6. Where national legislation prescribes specific deletion periods for the originating authority, said authority shall communicate this to the receiving authority, and the personal data that has been communicated shall be destroyed as soon as it ceases to required for the purpose for which it has been communicated.

7. The originating and receiving authorities shall be obligated to record in writing the transmittal and receipt of personal data.

8. The originating and receiving authorities shall be obligated to effectively safeguard the communicated personal information against unauthorized access, unauthorized modification and unauthorized disclosure.

The competent authority in matters relating to this Protocol shall be the Federal Ministry of the Interior in Germany and the Interior Ministry in Vietnam.

1. This Protocol shall enter into force at the same time as the Agreement.

2. Either Party may propose amendments to this Protocol. Following consultation of the other Party, the amendments shall be adopted as stipulated by common accord.

3. In the period during which implementation of the Agreement has been suspended, this Protocol shall not be implemented.

4. This Protocol shall terminate at the same time as the Agreement.

Done in Berlin this 21st day of July 1995 in two copies,

each in the German and Vietnamese languages,

each text being equally authentic.

For the Government of the Federal Republic of Germany

For the Government of the Socialist Republic of Vietnam