chapter 2 - Stiftung "Erinnerung, Verantwortung und Zukunft"

Patrice G. Poutrus
The 1953 Asylum Ordinance
Although the Basic Law was enacted in 1949, procedural rules governing the Federal Republic’s asylum law
did not take effect until the Asylum Ordinance of January 1953. The initiative for drawing up binding regulations
on asylum came from the Allied occupation authorities in West Germany, who had given clear signals
to the federal government that it would be required to live up to its obligations under the Basic Law. 6 In July
1950, for example, the Allied High Commission instructed the German federal government to take in all foreign
refugees who requested asylum at the border. 7 At that point, however, the admission of foreign refugees
was at best a secondary priority for the Federal Republic, which was still focused on the needs of German
refugees and expellees. 8 Hoping to forestall the Allied demand for new asylum regulations, the West German
authorities claimed that the 1938 Police Decree on Foreigners, which still remained in effect after the war,
was sufficient to address the right to asylum. In any case, the West German authorities argued that admitting
large numbers of foreign refugees was not feasible because of the difficulties surrounding the influx of German
refugees. 9
Despite its reluctance to divert resources to the issue of asylum, the ratification of the United Nations Convention
Relating to the Status of Refugees (CRSR) in Geneva was a key foreign policy priority for West Germany.
In their negotiations with the Allied High Commission, West German authorities therefore downplayed the
constitutional right to asylum and instead emphasized that any future asylum ordinance would comply with
the CRSR. The West German authorities acknowledged the CRSR would grant the United Nations High Commissioner
for Refugees a voice in the Federal Republic’s refugee and asylum policies. 10 However, West German
officials assumed that doing so would not require the repeal of the Police Decree on Foreigners, which
included no specific provisions on asylum. Instead, the Police Decree on Foreigners granted local authorities
broad discretion in granting residency permits, which had the desirable effect of preserving the primacy of
domestic interests. This primacy is also apparent in the first section of the decree, which stated that foreigners
would only be granted residency if their personality and reason for staying in West Germany “deserved
hospitality.” 11 Under National Socialism, this formulation had justified the exclusion of foreigners on racial
grounds. In the early 1950s, the category of “deserving” foreigners could in theory be used to limit residency to
persons who were deemed acceptable to the Federal Republic’s constitutional order, foreign policy interests,
or demographic policies. In any case, the legal basis for asylum under the 1938 decree was diametrically opposed
to the right as it was formulated under the Basic Law, which emphasized the subjective right to asylum
on the basis of political persecution.
In the early 1950s, a new and more expansive asylum policy still seemed a distant prospect. As a result of the
negotiations with the Allies, however, the new asylum ordinance of 1953 made reference to the CRSR, which
granted refugee status to foreigners who were persecuted for reasons of race, religion, or political opinion.
6 Ulrich Herbert and Karin Hunn, “Beschäftigung, soziale Sicherung und soziale Integration von Ausländern,” in Bundesministerium für Arbeit und
Soziales, Geschichte der Sozialpolitik in Deutschland seit 1945, vol. 3 (Baden-Baden, 2005): 788-790.
7 Allied High Commission from July 14, 1950, “Admission and treatment of non-German refugees in the Federal Republic,” Bundesarchiv Koblenz
(BArch), B 106, No. 47453.
8 Letter from the Federal Ministry of the Interior to the Federal Chancellery, Liaison Office to the Allied High Commission, dated Sep. 21, 1950, regarding
a memorandum to the Allied High Commission of July 14, 1950 concerning the admission and treatment of non-German refugees in the Federal
Republic, BArch, B 106, No. 47453.
9 The Police Decree on Foreigners (Ausländerpolizeiverordnung, or APVO) was passed on Aug. 28, 1938. For a discussion of the West German government’s
attitude toward German refugees, see Klaus J. Bade, Europa in Bewegung: Migration vom späten 18. Jahrhundert bis zur Gegenwart (Munich, 2000): 284-305.
See also the letter from the Liaison Office to the Allied High Commission to the Secretary-General Joseph E. Slater, dated Nov. 10, 1950, BArch, B 106,
No. 47453.
10 DBMdI (BMI), MR Kleberg, annotation to discussion with the refugee department of the AHC at Petersberg on Sep. 27, 1951, BArch, B 106, No. 47453.
11 Berhard Santel and Albrecht Weber, “Zwischen Ausländerpolitik und Einwanderungspolitik. Migrations- und Ausländerrecht in Deutschland,” in Migrationsreport
2000: Fakten, Analysen – Perspektiven, eds. Klaus. Bade and Rainer Münz (Bonn, 2000): 111.
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Stiftung EVZ
HUMAN RIGHTS AND HISTORY: A CHALLENGE FOR EDUCATION