legal and social conditions for asylum seekers and refugees in ...

GERMANY
LEGAL CONDITIONS
The legal basis
– The Geneva Convention of 1951 and the New York Protocol of 1967.
– The German Constitution (“Grundgesetz”), Section 16a(1) of which states that “[p]ersons
persecuted on political grounds enjoy the right of asylum”.
Following the amendment of the Constitution in 1993, the right to seek and be granted asylum in
Germany was seriously restricted, with the existing Section 16-2 being replaced by a more
restrictive Section 16a. Whereas Section 16a(1), as mentioned above, provides for an individual's
right to enjoy asylum in Germany, 16a(2) incorporates the concepts of “safe third country” and
“safe country of origin” into the Constitution. Since all EU Member states and countries
neighbouring Germany were deemed “safe third countries”, the constitutional right of asylum was
no longer applicable to refugees who came to Germany by land. According to Section 16a(3) the
list of “safe countries of origin” must be approved by Parliament.
A Federal Constitutional Court decision dated 14 May 1996 confirmed the 1993 amendment of
the Constitution on all essential points.
– The Asylum Procedure Act (“Asylverfahrengesetz”) of 16 July 1982, as amended by law of 29
October 1997, provides for a detailed regulation on the right of asylum. It refers not to the refugee
definition contained in the Geneva Convention, but to Section 16a of the Constitution.
– The Act Concerning the Entry and Residence of Aliens in the Territory of the Federal Republic
of Germany of 9 July 1990 (“Ausländergesetz” – the Aliens Act) amended in November 1997 and
July 1999. Its Section 51(1) states that an alien may not be removed to a state “in which his life or
freedom is threatened by virtue of his race, religion, nationality, membership of a particular social
group, or political opinion”, in accordance with Article 33(1) of the Geneva Convention.
– The Schengen Agreement and Dublin Convention.
Refugee status
In accordance with Section 13(2) of the Asylum Procedure Act, an alien who submits a claim for
asylum in Germany is deemed to have applied both for recognition as a victim of persecution as
outlined in Section 16a of the Constitution and for protection against deportation to a persecuting
state in accordance with Section 51(1) of the Aliens Act. Only if the applicant specifically declines
to claim recognition as a victim of persecution under Section 16a of the Constitution does the
decision solely address the question of protection against refoulement. Otherwise, both issues
are dealt with together.
Persons granted refugee status under Section 16a of the Constitution (including quota refugees)
receive unlimited residence permits.
Those protected against refoulement under Section 51(1) of the Aliens Act receive temporary
residence permits (“Aufenthaltsbefugnis”) valid for two years and which can be renewed. After
eight years in Germany – i.e. from the time they applied for asylum –, they may be granted an
unlimited residence permit.
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Germany