U.S. Committee for Refugees World Refugee Survey 1997 - Germany

Some 116,367 asylum seekers arrived in Germany and filed applications during 1996, a 9 percent decrease from the 127,937 new arrivals who filed claims the previous year. Added to this figure, however, were an additional 32,826 persons who had sought asylum prior to 1996 and, following either a denial or receipt of another status, were permitted to resubmit an asylum application. Although still substantial in comparison to its Western European neighbors, the number of asylum seekers Germany hosted during 1996 represents a significant decrease from the 438,191 persons who filed claims there in 1992, the year before an historic asylum reform entered into force. During 1996, the largest number of asylum seekers came from Turkey (23,814) and the present Yugoslavia (18,085). Substantial numbers of asylum seekers during the year also came from Iraq (10,842), Afghanistan (5,663), Sri Lanka (4,982), Iran (4,809), Armenia (3,510), and Zaire (2,971). The German Federal Office for the Recognition of Foreign Refugees (Bundesamt), the responsible body for deciding asylum claims, decided the cases of 194,451 applicants during 1996, a slight reduction from the 200,188 claims it decided the previous year. Of the cases decided in 1996, 14,389 persons were granted political asylum based on Article 16a of the Constitution, an approval rate of 7.4 percent, down from 9 percent the previous year. The highest recognition rates for asylum were conferred upon applicants from Iraq (31.6 percent), Iran (26.9 percent), and Turkey (12.8 percent). An additional 9,611 persons, or 5 percent of the applicants whose cases were decided, were deemed to be ineligible for asylum under article 16a of the Constitution on safe third country grounds but were nevertheless accorded protection against refoulement under section 51 of the Aliens Act. Recipients of protection against refoulement are recognized as refugees within the meaning of the 1951 Refugee Convention, but their status in Germany is less secure and the benefits they receive less generous than persons granted asylum under article 16a. As in 1995, the majority of applicants granted protection under section 51 during 1996 were from Iraq; when protection against refoulement under section 51 of the Aliens Act is added to persons granted asylum under Article 16a, the recognition rate for Iraqi nationals climbs to 92.6 percent. The increase in the percentage of persons granted protection against refoulement (2.7 percent of the caseload received this status the previous year) and the decrease in the recognition rate of persons granted asylum under article 16a are directly related to a November 7, 1995 ruling by Germany's Federal Administrative Court on the safe third country law. According to the decision, persons who clearly arrived in Germany by way of land, and hence must have traveled through a safe third country (see the section on the safe third country law below), are not eligible for asylum under Article 16a irrespective of whether the authorities are able to determine their travel route. Increasingly in 1996, the Bundesamt used the Court ruling as grounds for denying an asylum determination based on Article 16a for applicants it strongly suspects, but for whom it has no definitive proof, of having arrived in Germany via a safe third country. If it was impossible to remove such persons to a safe third country, applicants received a status determination under section 51 of the Aliens Act. In the appeals process during 1996, German administrative courts almost exclusively made status determinations based on section 51 rather than Article 16a of the Constitution. A total of 126,652 persons (65.1 percent) were denied asylum and other status during 1996. Of this figure, the claims of 19.4 percent were denied as manifestly unfounded. In addition, the cases of some 43,799 applicants (22.5 percent) were closed by the Bundesamt. At year's end, the cases of 48,136 persons remained pending a decision, down from a backlog of 82,642 cases that remained undecided at the end of 1995. Two main issues dominated the agenda with respect to asylum in Germany during 1996. First was the Federal Constitutional Court's long-awaited ruling on May 14 that upheld as constitutional the three main provisions of the landmark asylum legislation adopted in July 1993. Second, with the implementation of the Dayton Peace Accords in Bosnia underway during 1996, debate over the timing and methodology for carrying out the repatriation of the 320,000 to 350,000 Bosnian refugees residing in Germany (about half of all the Bosnian refugees in Western Europe) grew increasingly contentious as the year progressed. In October 1996, the first forced returns of certain Bosnian refugees began. Asylum Procedure On May 14, 1996, the German Federal Constitutional Court upheld as constitutional the "safe third country" and "safe country of origin" laws and the accelerated procedure for asylum seekers arriving at German airports. Designed to restrict access to the asylum procedure, these three provisions form the basis of Germany's new asylum law that was enacted on July 1, 1993. The measures were adopted as a direct response to the record numbers of asylum seekers arriving in Germany and a concurrent sharp rise in xenophobic violence during the preceding two years. In addition to the three provisions examined by the Court, the 1993 asylum reform package called for the negotiation of readmission agreements with Germany's neighbors and other refugee/migrant producing countries, and provided for enhanced border checks and patrols. Safe Third Country Of the asylum reform provisions reviewed by the German Federal Constitutional Court, the safe third country law is the most sweeping and controversial. According to the law, claimants who traveled though a safe third country are ineligible for asylum in Germany on the grounds that they could – or should – have filed their claims in the first safe country of asylum. Germany lists safe third countries by law. Such states have signed and are deemed to implement the 1951 UN Refugee and European Human Rights Conventions. All member states of the European Union (EU) plus the Czech Republic, Norway, Poland, and Switzerland are on the list. With all states sharing its border listed as safe, Germany considers virtually all asylum seekers arriving overland to be ineligible for asylum. Asylum seekers who present their claims directly at German land borders are routinely refused entry by German border guards and, in the absence of a visa to enter, are turned back to the country they traveled through to reach Germany. 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 overwhelming majority of asylum seekers instead have filed applications after entering Germany and generally have had far greater success at being admitted to the procedure. Like border applicants, persons applying "inland" also have fallen within the meaning of the safe third country rule, but the authorities in most cases have lacked the definitive 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 have destroyed their travel documents and claimed they cannot remember which countries they traveled through. If their removal to a safe third country is impossible to carry out, claimants are admitted to the procedure where their claims are reviewed on their merits. Critics Testify, Court Rules In oral testimony presented to the Federal Constitutional Court in November and December 1995, critics of the safe third country law pointed to several cases in which its implementation had led to "chain deportations," some resulting in refoulement. An expert on refugee law testified during the hearings that for Germany to remain in conformity with international law, asylum seekers, at a bare minimum, should have the chance to rebut the presumption that the third countries to which they are to be returned would in fact be safe for them as individuals when returned there. No other country in Europe, except Finland, has such a rigid procedure, the expert charged. Discounting these criticisms, the Court ruling accepted the German government's position that the legislature had taken sufficient stock of the nonrefoulement principle (that a refugee should not be returned to a place where his or her life would be threatened) when drawing up the list of safe third countries, thereby eliminating the need for an individual right of appeal for asylum seekers Germany turns back. Although the Court interpreted the Refugee Convention as protecting refugees against both direct and indirect refoulement, it took the position that safe third countries need not admit asylum seekers returned from Germany to their own asylum procedures. They may deport them to fourth states. Only if safe third countries choose to return asylum seekers to their country of origin or to other countries where refoulement is a serious risk are they obliged under international law to entertain a hearing on the merits. The Court took the position that these requirements are generally observed in designated safe third countries, and argued that Germany therefore is not in violation of its own commitments under the 1951 Refugee and European Human Rights Conventions. Refugee and human rights advocates criticized the Court's decision as a serious setback to refugee protection in Europe. UNHCR, the European Council on Refugees and Exiles, Amnesty International, and other humanitarian organizations have long advocated for the adoption of procedural safeguards to ensure that persons denied entry to Germany on safe third country grounds will in fact be admitted to the asylum procedure when returned to the countries they transited. No such safeguards currently exist under the safe third country rule as implemented in Germany. Safe Country of Origin The Federal Constitutional Court likewise upheld the safe country of origin provision. According to the law, persons arriving from "safe" countries, recognized to be free of persecution, enter an accelerated procedure in which they are given the chance to rebut the presumption that the country's label as "persecution-free" does not apply to them as individuals. Germany's list of safe countries of origin included Bulgaria, the Czech Republic, Ghana, Hungary, Poland, Romania, Senegal, and the Slovak Republic. The legal challenge had specifically questioned including Ghana on the list. The Court said that Ghana could remain on the list, giving great deference to the parliament to designate countries as safe. Subsequently, however, the German parliament removed Ghana from the list. Senegal, which had been removed from the list at the same time as Ghana, was reinstated as a safe country on November 1. The Court decision considerably strengthens the hand of the Bundesamt to deny applicants from designated safe countries of origin. Prior to the Court decision, if an applicant orally rebutted the presumption that his or her country of origin was safe, claiming that he or she, as an individual, was subject to persecution, the applicant would be permitted to enter the normal procedure. However, the Court ruled that an applicant must demonstrate "serious doubt" that the presumption of his or her country being persecution-free does not apply to him or her as an individual. The Airport Procedure Although the Court upheld the accelerated airport procedure, it introduced several small changes. The law stipulates that asylum seekers arriving at German airports without sufficient travel documentation or from safe countries of origin are to be held at the airport, where their cases are decided in an accelerated procedure. Oral hearings with a representative of the Bundesamt are to take place within 48 hours of the asylum seeker's arrival. Before the Court ruling, applicants whose cases were rejected as "manifestly unfounded" within 48 hours of their arrival had three days to appeal the decision. The Court ruled to extend the period for preparing an appeal to seven days, saying that three days was an insufficient time to ensure proper legal protection. The Court decision left unchanged the two-week period an administrative court has to decide an appeal. The Court also ordered that the government is obligated to ensure that legal advice is available to applicants in the airport procedure should they request it. The Court also ruled that final appeals to the Federal Constitutional Court will not guarantee suspension of deportation pending the Court's decision. In practice, relatively few asylum seekers have been subject to the airport procedure since it was implemented. If either the Bundesamt or the administrative court is unable to make a decision within its proscribed limits, the applicant is to be admitted to the country and to the normal procedure. Of the 4,307 persons who applied for asylum at German airports during 1996, the cases of only 491 persons (11 percent) were decided under the airport procedure and denied as manifestly unfounded. Readmission Agreements The German government has entered into a series of bilateral and multilateral readmission agreements with its neighbors and other countries in order to implement the safe third country rule and carry out the return of other rejected asylum seekers, illegal immigrants, and, as of November 1996, Bosnian refugees whose temporary protected status expired. To date, Germany has signed bilateral agreements with Poland (March 1991), Romania (September 1992), Croatia (April 1994), Bulgaria (September 1994), the Czech Republic (November 1994), Vietnam (July 1995), present Yugoslavia (October 1996), and Bosnia (November 1996). At earlier dates, Germany also concluded various readmission agreements with Western European countries. But the Schengen Agreement, which entered into force on March 26, 1995, has superseded bilateral agreements signed with Schengen member states. Arrangements for the readmission of asylum seekers for the entire European Union will take effect when the Dublin Convention enters into force. In its May 14, 1996 ruling, the Federal Constitutional Court endorsed the Schengen Agreement and Dublin Convention, asserting that the German asylum reform along with these agreements laid the groundwork for a European-wide approach to refugee protection with emphasis on the concept of international burden sharing. A main provision of the Schengen Agreement is to establish a mechanism for determining responsibility for deciding asylum claims among its member states. Germany, Belgium, France, Luxembourg, the Netherlands, Portugal, and Spain began implementing the agreement in March 1995. The Schengen Agreement's ability to function depends on one state having concrete proof that another member state is in fact responsible for readmitting an asylum seeker and examining his or her request. Such proof is often lacking; the Bundesamt agreed to accept only 26 percent of the asylum seekers for whom other Schengen member states requested Germany to take responsibility between March 26 and August 31, 1995. Another discernable trend with the Schengen Agreement's implementation has been an increase in the number of arrests of unauthorized entrants in German border areas adjacent to Poland, Austria, and the Czech Republic. The number of arrests along Germany's borders with Poland and the Czech Republic climbed from about 4,000 in 1995 to some 7,000 in 1996. In order to eliminate border controls between Schengen member states, the member states have agreed to tighten border controls on the external frontiers of the treaty area. On August 22, 1996, the German and Austrian authorities agreed to increase cooperation with respect to border surveillance in order to implement provisions of the Schengen Agreement. Bosnians On October 1, 1996, the German federal government rescinded its ban on the deportation of Bosnians, thereby paving the way for the 16 state (Land) governments to formulate and implement their own individual repatriation plans for the 320,000 to 350,000 Bosnian refugees living in Germany. The German and Bosnian governments also signed a readmission agreement on November 20 to facilitate repatriation. Most Bosnian refugees residing in Germany never entered the asylum procedure but were instead accorded temporary protection (Duldung). Although most Land governments decided to postpone discussion of compulsory repatriation to Bosnia until March or April 1997, two Laender, Bavaria and Baden-Wuerttemberg, began deporting Bosnian refugees soon after the change in federal policy became effective. The governments of Thuringa and Berlin also announced plans to begin the expulsion of certain Bosnians, but it was unclear at the end of 1996 whether they had actually carried out any deportations. Bavaria and Baden-Wuerttemberg had deported fewer than 60 persons by year's end, the overwhelming majority of the deportees leaving from Bavaria. Some of the expulsions preceded the November 20 signing of the German-Bosnian repatriation agreement. Between 25,000 and 35,000 Bosnians were estimated to have repatriated voluntarily from Germany during 1996. An August 6, 1996 decision issued by the Federal Administrative Court rules out asylum in Germany for Bosnians who have fled Serb-controlled areas on the grounds that they are safe from persecution in the area under the control of the Bosnian government. UNHCR criticized the decision, saying it is based on a questionable interpretation of international law. Referring to the two families whose cases the Court reviewed, UNHCR said that they did not have the possibility to receive effective protection to another part of Bosnia USCR Actions A broad spectrum of humanitarian organizations, including USCR, sharply criticized the decision to begin with the compulsory repatriation of Bosnians on October 1. "Forcing the Bosnians to return now," said USCR "could destabilize the fragile peace and subject them to further persecution." In an October 3 letter to Germany's ambassador to the United States, USCR called on the German government to postpone the repatriation of Bosnians. USCR cited a variety of serious concerns the decision to initiate compulsory returns raised in the areas of security, accommodation and support for returnees, as well as the flawed methodology the German repatriation plan uses to identify groups meriting special consideration. "Despite the apparently peaceful outcome of the [Bosnian] September 14 elections," USCR pointed out that "significant barriers to freedom of movement remain.... The strong showing by nationalist candidates who have not renounced ethnic cleansing or partition, the uncertainty surrounding the postponed municipal elections, and continuing reports of incidents of violence and intimidation all serve as further evidence that forced repatriation is premature." In the letter to the German ambassador, USCR also highlighted the fact that "approximately 60 percent of the Bosnian refugees in Germany are Muslims from Serb-held areas that have been ethnically cleansed. If Muslims are returned to these areas, there is little doubt that they would be in danger. Recognizing this, UNHCR currently opposes the return of any refugees to regions dominated by another refugee group." USCR also stressed to the German government the dangers associated with returning refugees to areas in which their ethnicity is in the majority, noting the severe shortage of housing that a new influx of people would further strain. During a site visit to Bosnia in July 1996, USCR found that "even in places which UNHCR has targeted for the return of refugees to their ethnic majority areas, homes are damaged and destroyed, mines are not cleared, and the prospects for employment are grim.... It seems particularly inhumane to return homeless people to their destroyed homes just as winter is approaching, especially when reconstruction is moving as slowly as it is (and will come to a standstill during winter months)," USCR told the German government. Pointing out the situation in Sarajevo where Muslim refugees from other parts of Bosnia have driven away Serb residents and taken over their homes, USCR also warned that newly-returned "refugees in need of housing and still bitter at being forced from their homes may respond by driving people of minority groups out of their homes, thus aggravating the problem of ethnic cleansing." Humanitarian organizations in Germany have reported that the pressure to return home promptly exerted by the authorities in some of the Laender has led to an increasing number psychological disorders among Bosnian refugees. One Bosnian Muslim refugee committed suicide shortly after being told by the Berlin authorities that he would be expelled if he did not voluntarily return to Bosnia by December 14. In a December 18 letter to the Ministry of Interior of Berlin, USCR voiced its strong concern over the incident, pointing out to the ministry that the man came from a part of Bosnia under Serb control. "It is highly unlikely that the Serb authorities would have permitted his return," USCR said. "Had they done so, it seems clear that he would have been at risk of serious human rights violations." USCR appealed to the government of Berlin to permit the Bosnian refugees living within its jurisdiction to remain until at least April 1997 and urged it further to proceed only with voluntary repatriation programs. Kosovo Albanians On October 10, 1996, almost six months after reestablishing diplomatic ties, the German and Yugoslav governments signed a readmission agreement in order to facilitate the return of an estimated 135,000 rejected Yugoslav asylum seekers, the overwhelming majority being ethnic Albanians from Kosovo. The repatriation process, which officially began in December, is to take place during the next three years. But it was unclear at year's end whether any Yugoslav nationals had actually been expelled under the agreement. At the agreement's signing in Bonn, the Yugoslav government representative said that deserters from the Yugoslav army would not face prosecution upon return. All of Germany's high administrative courts that have issued rulings on Kosovo Albanians have rejected the notion that they are subject to persecution as a group. Vietnamese Nearly 1,000 Vietnamese nationals without legal status to remain in Germany were forcibly returned to Vietnam during 1996. About 300 Vietnamese reportedly also returned home voluntarily during the year. The repatriation effort, carried out under the auspices of a German-Vietnamese readmission agreement signed in July 1995, fell far short of the 7,500 persons originally planned to have been repatriated by the end of 1996. Under the agreement, as many as 40,000 Vietnamese rejected asylum seekers, illegal entrants, and contract workers invited by the former German Democratic Republic are to be returned to Vietnam by the year 2000. Deportation On December 19, 1996, Germany's upper house of parliament (Bundesrat) voted down an Aliens Bill that contained provisions to facilitate the expulsion of foreigners who commit "serious offenses." The bill, which the lower house of parliament (Bundestag) had passed just five days before, included recognized refugees among those foreigners who could be expelled. For this reason, it had drawn sharp criticism during the year as being incompatible with Germany's obligations under the 1951 Refugee Convention. The failed legislation had been announced as part of the 1996 legislative agenda in late March following several banned demonstrations by Turkish Kurds living in Germany that had taken a violent turn. In September 1996, Pro Asyl, a German refugee advocacy organization, reproached the Federal Ministry of the Interior for stepping up expulsions of rejected Algerian asylum seekers. At that time, German officials reportedly had initialed, but not yet signed, a readmission agreement with their Algerian counterparts. In December, UNHCR's representative to Germany criticized the German policy of not recognizing persons fleeing persecution committed by non-state agents. The policy has meant that Algerians fleeing persecution perpetrated by Islamic extremists in Algeria have no prospects of receiving asylum in Germany. The German government has justified its policy on Algerian asylum seekers by claiming that the Algerian government is capable of protecting its citizens who have been targeted by radical Islamic groups, a position USCR strongly objected to in a May 12, 1995 letter to Federal Interior Minister Kanther. Somali asylum seekers in Germany faced a predicament similar to that of Algerians fleeing non-state persecution during 1996. On May 21, the High Administrative Court of Hessen ruled that Somalis are to be denied refugee status because the effective lack of a state means that the violence Somalis may be subjected to cannot be considered to be originating from a state-like structure. In a June 25, 1996 letter to the German ambassador to the United States, USCR pointed out the troubling implications of the Court's ruling: "Countries such as Somalia, in which governments have effectively ceased to exist, produce great suffering precisely because warring factions have substituted for a single government. Such elements have unhindered ability and willingness to persecute based on race, religion, nationality, social group, and political opinion." Despite its May 21 ruling, the High Administrative Court of Hessen on July 30 ruled to suspend the deportation of Somalis, saying that the lives of rejected Somali asylum seekers could be endangered were they to be sent back. In March 1996, the German authorities began to implement a transit agreement with Pakistan to repatriate rejected Afghan asylum seekers. Pro Asyl and Amnesty International criticized the German authorities for an overzealous approach to arranging the deportations of rejected asylum seekers involving the use of third countries which may leave the persons concerned stranded with no recourse.