U.S. Committee for Refugees World Refugee Survey 1998 - Germany

  At the end of 1997, Germany hosted some 277,000 refugees and asylum seekers in need of protection, according to the German government and UNHCR. These included about 36,000 asylum seekers awaiting first instance decisions on their asylum applications, some 21,000 granted either asylum, protection against refoulement, or temporary protection, and about 220,000 Bosnian refugees for whom no durable solutions had been found. Some 104,351 asylum seekers filed first-time asylum applications during 1997, a 10 percent decrease from the 116,367 individuals who filed first-time claims in 1996. In addition, however, 47,347 persons who had sought asylum prior to 1997 and, after a denial or receipt of another status, were permitted to resubmit an asylum application. Resubmitted applications in 1997 represented a 44 percent increase from applications resubmitted in 1996. Although substantial compared to Germany's Western European neighbors, the 151,698 asylum seekers who filed claims in Germany in 1997 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 1997, the largest number of asylum seekers (both first-time applicants and claimants resubmitting applications) came from the Federal Republic of Yugoslavia (30,962), Turkey (25,937), and Iraq (14,189). Large numbers also came from Afghanistan (6,033), Sri Lanka (5,125), Iran (4,490), Armenia (3,800), and Pakistan (3,774). The German Federal Office for the Recognition of Foreign Refugees (Bundesamt), the body responsible for deciding asylum claims, decided the cases of 120,048 persons during 1997, granting political asylum to 8,443 persons, a 7 percent approval rate. Applicants from Iran (21 percent), Iraq (18 percent) and Turkey (14 percent) received the highest recognition rates. An additional 9,738 persons, or 8 percent of the applicants whose cases were decided on the merits, were deemed to be ineligible for asylum but were nevertheless 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. As in 1995 and 1996, most applicants granted protection under section 51 during 1997 were from Iraq; when protection against refoulement under section 51 of the aliens act is added to persons granted asylum, the recognition rate for Iraqi nationals climbs to 82 percent. The increase in the percentage of persons granted protection against refoulement (2.7 percent of the caseload in 1995 and 5 percent in 1996) and the decrease in persons granted asylum directly relate to a November 7, 1995 ruling on the safe third country law by Germany's Federal Administrative Court. According to the decision, persons who clearly arrived in Germany by 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 whether or not the authorities can determine their travel route. In the past several years, the Bundesamt increasingly has used the court ruling as grounds for refusing an asylum interview for applicants it strongly suspects, but has no definitive proof, of arriving 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 in recent years, German administrative courts almost exclusively have made status determinations based on section 51 rather than the asylum statute, article 16a of the constitution. During 1997, Germany also admitted some 134,400 ethnic Germans from Eastern Europe and the former Soviet Union, bringing to 2.5 million the total number of ethnic Germans resettled in Germany since 1981. Ethnic Germans arriving in Germany automatically have the right to German citizenship. Germany denied asylum and other status to 101,886 persons (85 percent) in 1997. Of these, 27 percent were denied as "manifestly unfounded," up from 19 percent in 1996. In addition, the Bundesamt administratively closed the cases of 50,694 persons during the year. Of this figure, the Bundesamt rejected the cases of 767 individuals as inadmissible for a status determination on safe third country grounds (the Bundesamt was able to document their travel routes and remove them to safe third countries). Asylum Procedure In 1993, Germany revised its constitution, asylum, and aliens laws to incorporate "safe third country" and "safe country of origin" amendments and an accelerated procedure for asylum seekers 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 adopted the measures to respond to the record numbers of asylum seekers arriving in Germany and to a concurrent sharp rise in xenophobic violence. Although refugee advocates subsequently challenged the reform measures in German courts, the Federal Constitutional Court ultimately upheld the most critical aspects of the 1993 measures in a May 14, 1996 ruling. Safe Third Country Of the asylum reform provisions the German Federal Constitutional Court reviewed, the safe third country law was the most sweeping and controversial. According to the law, claimants who travel through a safe third country are ineligible for asylum in Germany because they could‹or should‹have filed their claims in the first safe country of asylum. 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 several cases in which its implementation has led to chain deportations, some resulting in refoulement. In 1995, a refugee law expert testifying before the Federal Constitutional Court said that for Germany to comply with international law, asylum seekers, at a bare minimum, should have the chance to rebut the presumption that they would be safe after being returned to the third country. Refugee and human rights advocates criticized the court's decision as a serious setback to refugee protection in Europe. In a July 1997 report, At Fortress Europe's Moat: The Safe Third Country Concept, USCR said that the court's minimalist interpretation of state obligations under the Refugee Convention and excessive faith in the rule of law in designated safe third countries would make it nearly impossible to redress the protection problems of individual refugees in third and fourth countries. "Once and asylum seeker is refused entry or deported, he or she is out of sight and out of mind to the deporting state," USCR said. "Lip service to the nonrefoulement principle and 'general conditions of safety' given by officials in the deporting state will do little to help those in countries farther down the chain because few mechanisms or safeguards now exist to provide accountability for those violations." USCR, UNHCR, the European Council on Refugees and Exiles (ECRE), Amnesty International, and other humanitarian organizations have long advocated for Germany to 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 1997, Germany's list of safe countries of origin included Bulgaria, the Czech Republic, Ghana, Hungary, Poland, Romania, Senegal, and the Slovak Republic. The May 14, 1996 Federal Constitutional Court decision strengthened the Bundesamt's ability to deny applicants from designated safe countries of origin. Prior to the court decision, applicants who orally rebutted the presumption that their country of origin was safe, claiming that they personally would be subject to persecution, were permitted to enter the normal procedure. However, the court ruled that applicants must demonstrate "serious doubt" that the presumption that their country is persecution-free does not apply to them personally. 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. According to the May 14, 1996 Federal Constitutional Court ruling, 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. The government must ensure that applicants in the airport procedure have access to legal advice. 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 since it was implemented. If either the Bundesamt or the administrative court cannot make a decision within its proscribed limits, the applicant is to be admitted to the country and to the normal procedure. The Bundesamt denied the cases of 576 persons as manifestly unfounded in the airport procedure in 1997. Agents of Persecution Germany narrowly interprets asylum under the constitution and the UN Refugee Convention to protect only persons fleeing persecution at the hands of a state. Those fleeing persecution by non state agents are denied asylum and protection against refoulement under section 51 of the aliens act. In practice, Germany's restrictive position on agents of persecution has particularly affected large numbers of Algerian and Afghan nationals seeking asylum in Germany. The Bundesamt has routinely denied asylum or protection against refoulement to Algerians claiming persecution by radical Islamic opposition groups in Algeria (see "Algerians" below). A Federal Administrative Court ruling issued on November 4, 1997 ended a recent trend in lower German courts to grant asylum to Afghan nationals claiming persecution by the Taliban militia, which controls Kabul, the Afghan capital, and much of the rest of Afghanistan. Unlike the lower courts, which recognized the Taliban as a de facto government, the Federal Administrative Court ruled that there is no state-like authority in Afghanistan capable of perpetrating persecution within the meaning of the UN Refugee Convention or the asylum clause of the German constitution. In a December 10, 1997 letter to Germany's interior minister, who was expected to use the court ruling to appeal the cases of Afghans granted asylum by lower courts, USCR outlined the troubling implications of the court decision. "We believe that debates over the Taliban's sovereignty, or lack thereof, misses the fundamental point," said USCR. "Government or not, a movement such as the Taliban has the unhindered ability and willingness to persecute based on race, religion, nationality, social group, and political opinion in the areas under its control." Notwithstanding Germany's interpretation of the Refugee Convention concerning agents of persecution, USCR said, "It should be acknowledged‹as have numerous lower courts‹that the Taliban control most of the country and, by all appearances, function as a government." UNHCR, which recognizes persecution by non-state agents, also criticized the German court decision. Internal Flight Alternative On April 22, 1997, the German Federal Constitutional Court ruled that German authorities may not deny asylum to applicants on the grounds that they could have sought protection in another part of their country of origin unless they determine "beyond reasonable doubts" that such an internal flight alternative was available. The ruling struck down a lower administrative court decision to deny asylum to an ethnic Kurd from southeastern Turkey on the grounds that he would be safe from persecution in western Turkey. The ruling potentially removes one barrier to asylum for large numbers of ethnic Kurds from Turkey whose cases are under consideration in Germany's asylum procedure. Readmission Agreements The German government has entered into a series of bilateral and multilateral readmission agreements with its neighbors and other countries to implement the safe third country rule and to return other rejected asylum seekers, undocumented aliens and, as of November 1996, Bosnian refugees whose temporary protected status expired. To date, Germany has signed bilateral agreements with the following non-EU countries: Algeria, Bosnia, Bulgaria, Croatia, the Czech Republic, Hungary, Norway, Poland, Romania, Switzerland, Vietnam, and Yugoslavia. Germany also concluded various readmission agreements with European Union (EU) countries, but the Schengen and Dublin Conventions have superseded these with respect to readmitting asylum seekers. Most of Germany's bilateral readmission agreements do not refer to asylum seekers and refugees but to foreigners in general. Schengen and Dublin For most of 1997, Germany implemented the asylum provisions of the Schengen Convention, a multilateral agreement implemented in a subset of Western European countries, which established a mechanism for determining the state responsible for deciding an asylum claim. When the Dublin Convention entered into force on September 1, however, it superseded the asylum provisions of the Schengen Convention and is effective for the entire European Union. Generally, both conventions stipulate that the member state permitting the asylum seeker entry, or the first country of arrival in the event of illegal entry, is responsible for examining the asylum request. Similar to safe third country applicants, asylum seekers arriving from other member states are considered inadmissible to Germany's asylum procedure and sent back to those countries. Data on the readmission of asylum seekers under the Schengen and Dublin Conventions suggest that these conventions' method of assigning responsibility for deciding asylum claims (based largely on assigning cases to the member state of first arrival), does not promote equitable burden sharing. While Germany assumed responsibility for reviewing the cases of 3,472 asylum seekers in 1997, all other Schengen member states combined agreed to take responsibility from Germany for only 975 persons. Data on the Dublin Convention's implementation display an even sharper contrast. While Germany assumed responsibility for reviewing the cases of 1,131 asylum seekers under the Dublin Convention between September 1 and December 31, all other EU member states combined agreed to take responsibility from Germany for only 66 persons. Since the Schengen Convention provides for the elimination of border controls between its member states, Germany, a leading destination for many asylum seekers in Europe, grew increasingly vocal during the year on the need to strengthen external border controls among Schengen states. In December, German interior minister Manfred Kanther said that more must be done to curb the growing influx of Kurdish asylum seekers from Iraq. "We must see that our partners in the south‹that is, Italy and Greece‹take these [border control] standards very seriously," said Kanther. Bosnians During 1997, Germany escalated its drive to repatriate some 320,000 to 350,000 Bosnian refugees it had provided temporary protection during the war. An estimated 95,000 Bosnians returned to Bosnia from Germany in 1997. The German authorities also forcibly repatriated 929 Bosnians during the year. Up to 80 percent of the Bosnians remaining in Germany at year's end were Muslims originating from the Republika Srpska, Bosnia's Serb-controlled region, according to UNHCR. After the German government rescinded federally mandated temporary protection for Bosnians in October 1996, Germany's 16 individual state (Land, pl. Laender) governments assumed primary responsibility for formulating and implementing Bosnian repatriation plans. While the timetables for repatriation varied from Land to Land, most remained within the broad outlines of a repatriation plan agreed to between German federal and Laender interior ministers shortly after the signing of the Dayton peace agreement. The plan, divided into two stages, focused on family composition as the primary determinant for organizing the Bosnian repatriation effort. First, single adults and adult couples without children were to return to Bosnia (forced returns began in the fall of 1996 in some Laender). Married couples with children, traumatized refugees under medical treatment, and some other groups were to follow in a second phase in the summer of 1997. The original German plan, as well as most versions the Laender implemented, do not take into account UNHCR-designated categories of persons meriting special concern. Asylum in Germany is not an option for most Bosnians who feel that they are unable or are 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. Repatriation Policy Criticized While most acknowledge the heavy burden Germany has borne in hosting about half of all Bosnian refugees who sought protection in Western Europe during the war, a wide range of critics‹including leaders within the German government‹reproached Germany for its handling of Bosnian repatriation during 1997. Repatriation criteria and the use of deportation were the most controversial points. Both issues came to a head during the spring and early summer of 1997 when Germany began deporting some to induce others to "voluntarily" repatriate. A high-profile group deportation of 41 Bosnians from Bavaria and Berlin in late March incited particularly sharp protest. A pregnant woman, heart patients, others in need of medical attention, and refugees who escaped the mass killings in Srebrenica when the "safe haven" collapsed in the summer of 1995 were reportedly among those expelled. Most of the deportees reportedly were Muslims from areas of Bosnia now under Serb control with no accommodations to return to. Police treatment of the individual deportees did not escape scrutiny. Interviews with the deportees revealed that some, arrested at work and driven directly to the airport, could not collect their personal belongings. German police arrested others from their homes in midnight raids. One woman was deported just four days after her release from the hospital where she had been treated for heart trouble. In a statement calling on the German government to revise its Bosnian repatriation policy, a group of prominent German public figures, including former foreign minister Hans-Dietrich Genscher, charged that the group expulsion overstepped "a boundary correctly drawn by postwar Germany, with its commitment to human rights." In April, Germany's current foreign minister objected to returning Bosnian refugees without ensuring first that they have some form of accommodation to return to in Bosnia. Pointing out the potentially destabilizing consequences of an uncoordinated mass return of refugees to Bosnia, the German defense minister also charged that Laender officials had not adequately considered the situation on the ground in Bosnia. Adding to the chorus of disapproval over Germany's actions, the U.S. government also urged Germany to revise its Bosnian repatriation policy. USCR, UNHCR, and other refugee organizations repeatedly called on the German government to change Germany's repatriation criteria to make place-of-origin the deciding factor. While German federal interior minister Manfred Kanther and the interior ministers of the Laender publicly rejected the criticism, observers detected a modest shift in German policy beginning in the summer of 1997. In a June meeting, the federal and state interior ministers agreed that the German authorities should treat the repatriation of minority refugees from the Republika Srpska with particular sensitivity, but stopped short of calling a halt to their return. While Germany continued to deport Bosnian refugees throughout the rest of 1997, observers reported that the authorities were more careful to screen those they deported for particular vulnerability. The German government also appointed a special commissioner for Bosnian repatriation and reconstruction in July 1997, in part responding to criticism over the lack of coordination in the German effort to repatriate Bosnians. According to the German government, the commissioner is to provide a link between the authorities responsible for Bosnian repatriation in the various German Laender and those working in the areas of refugee reception and reconstruction on the ground in Bosnia. The German ministry of defense also established a special German military unit within SFOR (NATO's Stabilization Force in Bosnia) to investigate conditions for refugee repatriation in Bosnia's various localities. However, these measures did not end criticism of Germany's repatriation efforts. In November, Hans Koschnick, the former EU administrator for the Bosnian town of Mostar, blamed the federal and state interior ministers for "sending people back without asking...what awaits them there," pointing out that peace in the Balkans remained very unstable. Nor did Germany display a willingness to integrate vulnerable Bosnian refugees who are unable to repatriate. In December, Bavaria's interior minister, Gunter Beckstein, commented that vulnerable Bosnians should not remain in Germany but "go to the U.S." During a USCR site visit to Germany in October, a representative of the German special commissioner for Bosnian repatriation responded to criticism, emphasizing that Germany's goal is to have an effective repatriation program that accounts for the interests of the returnees. To accomplish this, Germany has no interest in forcibly returning vulnerable refugees, the representative remarked. During a site visit to Bosnia in September, however, USCR interviewed an elderly Bosnian widow and her disabled son whom Germany had forced to repatriate. Their inability to provide for themselves and lack of support from relatives raised further questions concerning Germany's screening for repatriation. Algerians In September, UNHCR appealed to European countries not to deport rejected Algerian asylum seekers hastily due to the escalation of violence in Algeria. Nevertheless, only three Laender, Hessen, Saxony Anhalt and Schleswig-Holstein, agreed to suspend the deportation of rejected Algerian asylum seekers. When they convened on November 21, the federal minister of the interior and his counterparts in the Laender ruled not to institute a nationwide ban on the deportation of Algerians. Shortly after the meeting, Hessen dropped its suspension of deporting Algerians. Under German law, the individual Laender may bar the deportation of a particular national group for up to six months, after which the Laender require the federal government's consent to renew the ban. Germany took several steps to expedite the removal of rejected Algerian asylum seekers in 1997. After several years of negotiation, the German government concluded a readmission agreement with Algeria in February. In April, Bonn and Algiers signed a protocol that calls for Algerian police to accompany rejected Algerian asylum seekers from Germany back to Algeria. At the end of 1997, about 6,400 rejected Algerian asylum seekers were in Germany. About 3,000 Algerian claimants awaited a decision. Germany routinely denies asylum to Algerians claiming persecution at the hands of Islamic extremists in Algeria based on its restrictive interpretation of agents of persecution.