Asylum law (Germany)

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Demand-oriented initial reception facility in Freiburg-Haslach in September 2015

The right of asylum for politically persecuted people is a fundamental right anchored in the Basic Law in Germany .

In a broader sense, the right of asylum also includes recognition as a refugee according to the Geneva Refugee Convention and the establishment of destination state-related prohibitions of deportation for persons entitled to subsidiary protection , which is usually also checked by the Federal Office for Migration and Refugees in the asylum procedure and without any further application . The success rates of asylum applications made with regard to these forms of protection are subject to greater fluctuations.

The right of asylum, which was initially granted without restrictions , was revised and restricted in major points in 1993 and 2015.

history

Asylum before the establishment of the German Reich

Romanian asylum seekers in the GDR in the former NVA barracks in Berlin-Kaulsdorf , 1990
Asylum seekers in accommodation in Gauting , 1993

In the 19th century there was no documented right to political asylum in Germany. On the contrary, the princes of the German states had a great interest in having refugee activists from other German states extradited against the monarchy, for democracy, freedom of opinion and freedom of the press or a republican constitution. The extradition of political criminals was agreed between the states of the German Confederation as early as 1834, while a corresponding agreement for ordinary crimes was not made until 1854. Extradition treaties for political crimes were also concluded with other states (e.g. Russia) in the 1880s.

In Western Europe, on the other hand, an extradition ban on political offenses became standard as early as the 19th century (first in Belgium in 1833). After the failed German revolution of 1848/1849 , some activists sought protection in countries in Western Europe, with a focus on Switzerland, since the German states extradited these people from 1834 onwards.

Asylum law in the Weimar Republic

Only in 1929 was the German Extradition Act established a clear legal basis that prohibited extradition of criminal offenses under defined political circumstances. At the same time, the decision was transferred from the police authorities to the ordinary courts. However, this was not associated with any entitlement to admission in Germany and no protection against deportation elsewhere. A general protection of political refugees from expulsion or rejection at the border and thus a positive individual right to asylum was provided by the Prussian Aliens Police Ordinance of 1932 shortly before the National Socialists came to power.

Right of asylum after the Second World War

The stream of refugees from the fascist and communist dictatorships before and during the Second World War meant that a right to asylum was to be created in the post-war period, which was first enshrined in the United Nations Declaration of Human Rights in 1948 . In Germany, the political right of asylum was enshrined in 1949 in the Basic Law for the Federal Republic of Germany and in the constitution of the GDR .

In the first draft of the article, which guarantees the right of asylum in the Basic Law, this should only apply to Germans who are persecuted abroad for “standing up for freedom, democracy, social justice or world peace”, since the editorial committee has a right of asylum for all political refugees in the world as “too extensive” because, according to him, it “possibly includes the obligation to take in, care, etc.” and therefore cannot be financed for the Federal Republic of Germany. The current formulation, which guarantees the right of asylum in the Basic Law to all political refugees in the world, was finally enforced by the legal scholars and politicians Carlo Schmid ( SPD ) and Hermann von Mangoldt ( CDU ). In the GDR constitution of 1968 , the right of asylum was converted into an optional provision and was therefore no longer an individual right, but an act of grace by the state. In 1951, the Geneva Refugee Convention was passed at a UN conference , to which 145 countries have now joined.

New regulation of the asylum law 1993

After a sharp increase in asylum seekers in the late 1980s and early 1990s and after a heated public debate in 1993, the basic right of asylum granted without restrictions was removed from Article 16 (2) sentence 2 of the Basic Law and transferred to Article 16a (1) of the Basic Law . The restrictions agreed in the asylum compromise have been incorporated into the following four paragraphs :

  • Foreigners who enter via a state of the European Union or another safe third country cannot invoke the right of asylum (Article 16a, Paragraph 2 of the Basic Law).
  • In the case of certain countries of origin (so-called safe countries of origin ) it can be assumed that there is no political persecution there as long as the asylum seeker does not rebut this presumption (Article 16a, Paragraph 3 of the Basic Law).
  • Legal protection was restricted (Article 16a, Paragraph 4, Basic Law).

Ultimately, the German fundamental right to asylum can be restricted or excluded by the fact that another state is responsible for granting protection to the asylum seeker within the framework of European agreements on jurisdiction and the asylum seeker is referred there without his asylum application being examined.

The right to asylum according to Art. 16a GG is therefore rarely recognized. The recognition rate was below 2% every year between 2009 and mid-2018.

Reform efforts from 2015

In 2015, the Federal Government dealt with the legal implementation of Directives 2013/32 / EU and 2013/33 / EU . The coalition agreed on a revised draft law in this regard in September 2015. The regulations contained therein to tighten the asylum rules and classify other Balkan states as safe countries of origin should come into force on November 1, 2015.

On November 1, 2015, the law to improve the accommodation, care and care of foreign children and adolescents came into force, which regulates, among other things, the distribution of refugee minors.

EU member states are obliged to implement European directives into national law within the set deadlines. In September 2015, the EU Commission initiated a total of 40 EU infringement proceedings against 19 member states for breaches of common asylum standards. Two infringement proceedings are pending against Germany due to the lack of implementation of guidelines for structuring the asylum procedure and the reception conditions (as of September 2015). In this context, the EU Commission initiated the following preliminary proceedings:

  • In August 2015, she complained that, in the first seven months of 2015, Germany had accepted 218,000 asylum applications, but only entered 156,000 new data records into the EU's central registration system.
  • In September 2015 she asked the federal government to comment that in 2014 only 34,000 of the 128,000 people without a residence permit in Germany were asked to leave the country .

Redefinition of the right to stay and the termination of residence

The law on the redefinition of the right to stay and the termination of residence of July 27, 2015 came into force on August 1, 2015, with the exception of the deportation regulations, which came into force on January 1, 2016. This amendment law introduces, among other things, opportunities to stay for well-integrated young people and adolescents ( Section 25a of the Residence Act) and for long-term tolerated persons ( Section 25b of the Residence Act), provides for a one-year tolerance period during their training ( Section 60a of the Residence Act) and grants those entitled to subsidiary protection a right to family reunification ( Section 29 Residence Act). On the other hand, it enables faster deportations: it tightens the requirements for issuing a residence permit (Section 5 of the Residence Act), introduces custody to leave the country for the first time ( Section 62b of the Residence Act), expands custody pending deportation ( Section 2, Subsection 14 of the Residence Act), and allows detention for the purpose deportation according to Dublin III ( Section 2 subs. 15 AufenthG), stipulates entry and residence bans for rejected asylum seekers from safe countries of origin ( Section 11 subs. 7 AufenthG) and allows data carriers to be read from foreigners for the purpose of establishing identity ( Section 48 subs. 3 Residence Act).

When the Integration Act came into force on August 6, 2016, the training tolerance was extended to the " 3 + 2 rule ", a tolerance for the duration of the training and possibly for two subsequent years.

Changes in the asylum law 2015 (Asylum Package I)

In view of the refugee crisis , the federal cabinet passed a legislative package on September 29, 2015 with significant changes in the asylum law. These changes affect:

  • the distribution of finances between the federal and state governments
  • The nature of the services (in the initial reception centers , cash payments are largely replaced by benefits in kind )
  • the practice of deportations
  • the distribution of refugees
  • the regulations on accommodation (refugees from the Western Balkans are to stay in initial reception centers for up to six months in the future, building planning law will be temporarily relaxed, federal and state governments are creating 150,000 initial reception places)
  • Reducing the administrative burden of healthcare for refugees
  • Integration measures ( integration courses ) and faster access to the (loan) labor market
  • the classification of Albania, Kosovo and Montenegro as further safe countries of origin .

The changes in asylum law mainly came into force on October 24, 2015 through the Asylum Procedure Acceleration Act.

In addition, according to information from the FAZ, there were plans to create the legal basis for applying the airport procedure to the German external borders by setting up transit zones .

Changes to the asylum law 2016 (Asylum Package II)

An Asylum Package II has been under discussion since 2015 , which was originally supposed to come into force on January 1, 2016, but was delayed.

At the beginning of January 2016, following a closed session of the members of the Bundestag, SPD parliamentary group leader Thomas Oppermann stated that the issues relating to Asylum Package II had now been fundamentally resolved and called for a further package of measures for integration. After the government coalition had planned the entry into force of Asylum Package II in accordance with the EU Reception Directive 2013/33 for the end of 2015 / beginning of 2016 , only the legal changes to the Data Exchange Improvement Act mainly came into force on February 5, 2016.

On February 3, 2016, the Federal Cabinet decided to initiate the following measures as part of Asylum Package II :

  • 5 special reception centers are being created nationwide, where groups of asylum seekers with little chance of success are to go through fast-track procedures. These are asylum seekers who are unwilling to cooperate, who have provided false information about their identity or who willfully destroy documents. Also included are people from countries that have been defined as "safe" as well as refugees with re-entry bans or follow-up applications. In such centers, these people are restricted in their freedom of movement , because they are not allowed to leave the district of the immigration authority responsible for them. If they leave the district anyway, their benefits will be canceled and the asylum procedure will be suspended.
  • The reunification of family members of refugees who only have subsidiary protection is suspended for two years. An exception applies to refugee members who are still in refugee camps in Turkey, Jordan and Lebanon. These should primarily be brought to Germany with contingents , but such contingents must be agreed at the level of the European Union.
  • Morocco, Algeria and Tunisia are classified as "safe countries of origin" so that asylum seekers can be sent back to their homeland more quickly.
  • Asylum seekers who are doing an apprenticeship get a secure residence status for the time being . It guarantees that they will complete their training and then work for two years.
  • Refugees have to contribute 10 euros per month to the costs of their integration courses.
  • In order to guarantee protection against sexual abuse, employees in refugee facilities must show an extended certificate of good conduct .
  • The deportation of refugees with health problems is made easier, as only particularly serious illnesses should protect against deportation. A particularly serious illness must be documented according to stricter certification requirements than before. If these certificates are not submitted on time, they should no longer be considered.

On November 5, 2015, the coalition partners agreed on a catalog of measures, in particular the introduction of an accelerated procedure based on the airport procedure, bundled in “special reception facilities” (BAE) “for asylum seekers from safe countries of origin, with re-entry bans, with follow-up applications or without Willingness to cooperate ”included. The rules for this procedure were then incorporated into the draft law on the introduction of accelerated asylum procedures . This law introduced, among other things, § 30a AsylG, which regulates the accelerated procedure.

On February 5, 2016, several SPD MPs announced that they would refuse to approve the draft law. The reason is the tightening of family reunification in the case of subsidiary protection, which, contrary to what was originally agreed, should now also extend to unaccompanied minors. Vice Chancellor Gabriel followed this view. Representatives of the CDU and CSU, however, insisted on the regulation agreed in the cabinet. On February 8, a representative of the SPD-led Federal Family Ministry (Minister: Manuela Schwesig ) took responsibility for the disagreements for her house. The tightening was noted, but its scope was misjudged. Interior Minister de Maizière (CDU) and Justice Minister Maas (SPD) announced that they would discuss further steps. Of the estimated total of between 35,000 and 40,000 unaccompanied minors who fled to Germany in 2015, only 105 were only granted subsidiary protection. On February 11, coalition representatives agreed to introduce the law into the Bundestag unchanged, but to enable individual humanitarian decisions in practice.

On February 19, the first reading of the drafts of a law introducing accelerated asylum procedures and a law to expel criminal offenders took place in the German Bundestag . Asylum Package II was passed in the Bundestag on February 25 (see also: Changes to the Residence Act and the Asylum Act that came into force on March 17, 2016 ). The classification of the new safe countries of origin is excluded, as the countries would have to agree. The approval of the Federal Council is not required for the remaining package.

The main point of contention regarding Asylum Package II was whether the stricter rule on family reunification should also apply to Syrian civil war refugees. End of February, the party declared the Greens, they'll be examined by the United Nations, if provided for in the asylum package II suspension of family reunification for unaccompanied minors against children's rights contrary. The restriction on family reunification provided for in Asylum Package II applies to those entitled to subsidiary protection , but not to those who receive the (stronger) refugee status under the Geneva Convention . Up until 2014, when the detailed hearing procedure still applied to Syrians, around 13% of Syrians only received subsidiary protection status. Since the BAMF granted almost 99% of the refugee status according to the Geneva Convention in its positive decisions in 2015, not just subsidiary protection, and the BAMF assured the media that there was no ministerial or political instruction, from now on there was a tendency towards this In February 2016, the media drew the conclusion that the asylum package II would in fact have no effect on family reunification for the large number of refugees. After Asylum Package II came into force, however, Syrians increasingly only received subsidiary protection status, and from January 2017 the majority of asylum applications were decided by Syrians with subsidiary protection.

Since the legislative package can be viewed in parts as unconstitutional for two years due to the suspension of family reunification for persons entitled to subsidiary protection, the Child Protection Association has asked Federal President Joachim Gauck not to sign the law. It was issued on March 11, 2016 without an accompanying publication of a constitutional assessment by the Federal President and announced in the Federal Law Gazette on March 16, 2016 . The exclusion of persons entitled to subsidiary protection from family reunification is sometimes criticized as inadmissible under European law, as Directive 2011/95 / EU (Qualification Directive) grants persons entitled to subsidiary protection as well as refugees a right to family reunification.

As part of Asylum Package II, refugees should contribute 10 euros per month to the costs of their integration courses. The background to this measure was initiatives by representatives of the Merkel III cabinet, such as Finance Minister Wolfgang Schäuble (CDU), according to which refugees should share in the costs of integration services provided by the welfare state. However, the own benefit amount of 10 euros per month was not implemented, but instead implemented through a 10 euro reduction in the standard rates in the Asylum Seekers Benefits Act. The original proposal with a monthly contribution of 10 euros was met with resistance, since it would have burdened the asylum seekers willing to integrate. Refugee Aid has criticized the fact that the reduction in cash amounts in accordance with Section 3 (1) of the Asylum Seekers Benefits Act was not clearly communicated as a reduction. The legislature had made the deletion of certain positions of the socio-cultural subsistence level as “not relevant to needs” due to “lack of solidarity” so that the result in standard requirement level 1 for basic security benefits according to the Asylum Seekers Benefits Act was a reduction of exactly 10 euros. This is interesting insofar as “this amount was discussed for a long time as a personal contribution to the integration course. However, after it had been determined that the standard requirement is only a good 1.50 euros for the corresponding course fees, the idea came about that the goal could be achieved by a general reduction in benefits for everyone (regardless of whether they attend an integration course or not) in the amount of target amount of 10 euros. In the media there is still talk of an 'own contribution', but in reality it is a blanket reduction in benefits for everyone. ”Refugee Aid also criticizes the fact that the proposal reduces the cash amount according to Section 3 (1) Asylum Seekers Benefits Act for everyone by 10 A reduction in euros / month applies regardless of whether such an integration course is available, whether the journey, the course and teaching materials are free, and whether you actually take part in the course.

Data Exchange Improvement Act

On December 15, 2015, the governing coalition presented a draft law to improve registration and data exchange for purposes of residence and asylum law (Data Exchange Improvement Act). The draft was approved on January 15, 2016 as amended by the Interior Committee. The Data Exchange Improvement Act ( Federal Law Gazette I p. 130 ) created the legal framework for the introduction of a new core data system based on the Central Register of Foreigners (AZR), which gives federal, state and municipal authorities access to the centrally stored master data of incoming refugees enables. Multiple identities, as they still occurred in the EASY IT system , are thus prevented. All asylum seekers are issued with a uniform ID - officially known as the “ proof of arrival ” - in which important data is recorded in a uniform manner. The law was passed independently of Asylum Package II and came into force on February 5, 2016.

The Data Exchange Improvement Act changes the following laws:

  • Article 1: Amendment of the AZR Act (AZRG)
  • Article 2: Amendment of the Asylum Act
  • Article 3: Amendment of the Residence Act
  • Article 4: Amendment of the Federal Registration Act
  • Article 5: Amendment of the AZRG implementing regulation
  • Article 6: Amendment of the Second Federal Registration Implementation Ordinance

The Central Register of Foreigners (AZR) was expanded to include the following content in 2016:

  • AKN number
  • Address and responsibilities
  • Asylum application, unauthorized entry / residence
  • personal description
  • Parent-child relationship
  • Decision to distribute
  • Data on work and education
  • linguistic proficiency
  • Health data
  • Integration data

(See also: Refugee crisis in Germany from 2015 → Digitization of the asylum procedure )

Further considerations on changing the fundamental right of asylum

It is controversial whether these changes to the simple law are sufficient to cope with the refugee crisis. Some authors in the legal literature demand a new conception of the basic individual right as a purely objective legal guarantee. Politically persecuted people would then only be granted asylum “in accordance with the law”. This would mean that the right of asylum would be deprived of its form as a fundamental subjective right. It would be possible to convert it into an institutional guarantee or into a state objective . Both legal institutions oblige state organs, but give them a lot of leeway. Above all, the (simple) legislature could set upper limits and quotas and change them flexibly if necessary. Administrative and judicial procedures could be further simplified and shortened, and asylum seekers from safe countries of origin could be completely excluded from the asylum procedure. Such a new conception of the asylum law would only be possible by way of an amendment to the Basic Law and would at the same time require a change in European law.

Asylum and refugee status

The Residence Act ( formerly: Aliens Act ) only regulates refugee status . In contrast, neither the Residence Act nor the Asylum Act define the term asylum. Its content and its limits result primarily from the case law of the Federal Constitutional Court on Article 16 a of the Basic Law. Political persecution i. According to Art. 16 a para. 1 GG, if the individual is affected by the state or by measures of third parties that are attributable to the state, in connection with his religion, political convictions or other characteristics that are unavailable to him shape his otherness, deliberately violate the law, the intensity and severity of which violate human dignity, exclude him from the overarching peace system of state unity and place him in a hopeless situation.

Politically persecuted people are more often granted protection under the Geneva Refugee Convention (GRC). Although the GFK has been in force in Germany since December 24, 1953, the legislature did not consider it necessary to grant refugees an appropriate refugee status. He referred refugees to the recognition of asylum. This only changed with the EU Qualification Directive and the related law for the implementation of residence and asylum directives of the European Union . Refugees are formally granted refugee status today ( Section 3 Paragraph 1 in conjunction with Paragraph 4 AsylG), possibly in addition to the right to asylum. Refugee status is now equal to the status of persons entitled to asylum according to Article 16a of the Basic Law in terms of the subsequent effects on residence law. In other respects (e.g. with regard to social benefits, participation in the labor market, issuing travel documents) recognized refugees no longer have any disadvantages compared to those entitled to asylum. Because of the much broader term refugee than the term asylum see → main article refugee status .

Asylum procedure

The Asylum Act determines the official administrative procedure that awards asylum seekers the status of asylum seeker. The asylum seeker receives a residence permit in order to carry out the asylum procedure . The asylum procedure ends with the decision of the Federal Office for Migration and Refugees (BAMF).

Since 2008, the service instructions for the asylum procedure have been divided into a publicly accessible part and a part classified as “Only for official use” (VS-NfD). The asylum procedure is also controlled by guiding principles for the country of origin, which are classified as VS-NfD. According to the 2018 coalition agreement, the administrative and judicial procedures are to be bundled in anchor centers . Asylum seekers should remain in such reception facilities until they have positive prospects of staying or are deported.

Application and obligations of the asylum seeker

Application and application

In order to apply for asylum, refugees must register in person at a reception facility ( Section 22 AsylG ). With the help of the EASY computer system , the country of origin, the number of persons, the gender and the family associations of the asylum seekers or foreigners who have entered the country without a visa are recorded. On this basis, the refugee is informed which initial reception facility is responsible for him. The refugee must then go there and is obliged to appear in person at the responsible branch office of the Federal Office immediately after being admitted to this reception facility or at the date specified by the reception facility in order to submit the asylum application ( Section 23 AsylG).

Asylum applications in Germany are processed by the Federal Office for Migration and Refugees (BAMF) - known as the Federal Office for the Recognition of Foreign Refugees before January 1, 2005 .

Section 13 AsylG defines the asylum application as follows:

(1) An asylum application is submitted if it can be inferred from the will of the foreigner expressed in writing, orally or in any other way that he is seeking protection from political persecution in the federal territory or that he is seeking protection from deportation or other repatriation to a state, in who threatens persecution within the meaning of Section 3 (1) or serious damage within the meaning of Section 4 (1) AsylG.
(2) With each asylum application, recognition as a person entitled to asylum and international protection within the meaning of Section 1 (1) number 2 AsylG is applied for. The foreigner can limit the application for asylum to the granting of international protection. He must be instructed about the consequences of restricting the application. Section 24 (2) AsylG remains unaffected.
(3) A foreigner who does not have the necessary entry documents must apply for asylum at the border ( Section 18 AsylG). In the event of unauthorized entry , he must report immediately to a reception facility ( Section 22 AsylG) or to apply for asylum at the immigration authorities or the police ( Section 19 AsylG).

Section 14 AsylG regulates the application process. After submitting the application, the asylum seeker receives a residence permit ( Section 55 (1) AsylG) to carry out the asylum procedure.

According to Section 16 of the Asylum Act, the identity of the asylum seekermust be securedthrough identification measures . Only people under the age of 14 (children) are exempt from this rule.

Anyone who receives a residence permit is not allowed to work for the first three months. Then he can apply for a work permit - whether he receives it is at the discretion of the office. However, a person with a residence permit or a Duldung can only get “subordinate” access to the labor market.

In the case of (attempted) entry by air and an application for asylum prior to entry, the further procedure may be subject to significantly different rules in accordance with Section 18a AsylG (so-called airport procedure).

According to Section 33 AsylG, an asylum application is considered withdrawn if the foreigner does not pursue the procedure. This is the case, for example, if he goes into hiding (Section 33 (2) AsylG). The application is also considered withdrawn if it leaves the country of origin during the asylum procedure (Section 33 (3) AsylG); If, on the other hand, a recognized refugee leaves for his country of origin, an individual assessment is carried out and, if necessary, a revocation or withdrawal according to Section 73 AsylG may be considered.

Processing and obligations to cooperate

The asylum application is processed at the Federal Office for Migration and Refugees (BAMF).

The asylum seeker has to cooperate according to § 15 AsylG. In particular, he has to obey the legal and official orders to report to certain authorities or institutions or to appear there in person. This also means that he is obliged to notify the BAMF of any change of address during the ongoing asylum procedure ( Section 10 AsylG), even if he has been officially ordered to move.

The hearing before the BAMF ( § 25 AsylG) is the most important process in the context of the official asylum procedure.

Asylum seekers who arrive at German airports may receive a negative decision within two days during the airport procedure if the application is obviously unfounded or irrelevant .

According to the BAMF, the average processing time per application in the summer of 2015 was 5.4 months, but experts estimated it to be significantly longer, around one year. This is due to the fact that the statistics are embellished, since refugees are only recorded by the BAMF from the moment they apply for asylum, but not when they arrive in the country, but there could be months between the events. Furthermore, the BAMF is processing easy-to-decide cases quickly and at the same time has pushed a wave of around 254,000 unprocessed applications in front of it.

Further obligations

In Germany, the residence obligation applies to asylum seekers and tolerated persons . You must therefore stay in the area specified by the competent authority for a specified period of time.

In addition to the right of asylum, the asylum seeker, like other persons, also has general obligations within the framework of the applicable legal system . In order to facilitate the integration of asylum seekers, legal education lessons for refugees have been held in the federal states of Bavaria and Rhineland-Palatinate since January 2016 , with lessons on the German legal system and the rule of law .

Irrelevant or obviously unfounded applications

Irrelevant requests

Section 29 of the Asylum Act lays down conditions in which an asylum application is considered irrelevant because the asylum seeker can be returned to a third country where he is safe from political persecution.

Obviously unfounded requests

Countries of origin of asylum seekers in Germany in 2015 (total protection rate in brackets)

Section 29a AsylG specifies how to deal with an asylum seeker from a safe country of origin : his application must berejectedas obviously unfounded , unless he can prove that, contrary to the general situation in the country of origin, he is at risk of political persecution.

The § 30 of the Asylum Act sets out further conditions under which an application manifestly unfounded , and § 36 of the Asylum Act governs these cases the subsequent procedure.

An application that has been rejected as obviously unfounded, if the rejection was made in accordance with Section 30 (3) numbers 1 to 6 AsylG, has a blocking effect insofar as, according to Section 10 (3) sentence 2 AufenthG, no residence permit can be issued before departure . There is an exception if the failed asylum seeker has a bound entitlement to a residence permit , i. H. without leeway of the administration, is entitled, as z. This is often the case, for example, in cases of family reunification with Germans in accordance with Section 28 (1) of the Residence Act (“is […] to be granted”).

The German lawyers' association demanded the deletion of Section 10 (3) sentence 2 of the Residence Act without replacement, as its blocking effect led to chain toleration despite existing integration services, contradicted European and international law requirements and represented an unjustified disadvantage compared to expelled foreigners.

Incorrect or incomplete information

Incorrect or incomplete information in the asylum application can have significant consequences for the asylum seeker under Section 30 (3) No. 2 AsylG and the resulting inaccuracies. This applies in particular to incorrect identity data, which complicates the respective procedures or makes them impossible before the actual circumstances are clarified in the case of further notarizations, for example in the case of a marriage, the birth of their own child or the intended naturalization. If the incorrect information is deliberately used outside of the asylum application, a criminal liability according to § 95 Abs. 2 Nr. 2 AufenthG can be considered.

If a foreigner clarifies the facts retrospectively after a successful asylum procedure, the asylum application based on false or incomplete information is usually checked for possible revocation by the Federal Office for Migration and Refugees. At the same time, the immigration authorities may make further decisions and, within the scope of their discretion , may disregard deceptions that are long in the past in terms of residence law and even relevant in terms of residence law; however, the examination can lead to expulsion . In some federal states, incorrect or incomplete information cannot be taken into account by the hardship commission .

Incidentally, incorrect or incomplete information on questions relevant to the decision can lead to the withdrawal, termination or non-renewal of refugee status , also under European secondary law (Article 14 of the Qualification Directive ) .

In January 2019, within the framework of complaints by the federal states' ministers of justice against the federal government, it became known that repeated false statements by asylum seekers would not be punished. A change in practice has so far been rejected by the Federal Ministry of Justice . Misuse of documents alone is punishable.

Legal liability

If the asylum seeker arrives without a possibly required visa, the first thing that applies is that according to the principle laid down in Article 31 of the Geneva Refugee Convention (GRC), he may not be punished for this, provided that he reports to the authorities immediately. According to the current legal opinion, the following also applies: "Evidently abusive behavior [...] is by no means already present when an application for refugee protection is obviously unfounded, but requires targeted abusive action."

However, incorrect or incomplete information within an asylum procedure is not directly punishable, in contrast to the widespread representation, even if it was given intentionally. In particular, the Residence Act does not apply during the ongoing initial asylum procedure, so that a criminal liability according to Section 95 (1) No. 5 and (2) No. 2 AufenthG is out of the question. The legislature has also deliberately waived a similar penal norm in the Asylum Act . A criminal liability of the asylum seeker in connection with the application could come into question according to § 267 StGB by presenting a forged or falsified passport or according to § 271 StGB by creating false personal data in residence permits . However, the mere indication of false facts when submitting an application in the asylum procedure does not in itself constitute a criminal offense, so that a fine for an administrative offense under Section 111 OWiG can be considered. Only through the (further) use of incorrect information in other procedures, in particular after the asylum procedure has been completed in the further immigration law procedure at the immigration authorities, the above-mentioned criminal offenses of the Residence Act are usually fulfilled.

In a decree of the Ministry of the Interior and the Ministry of Justice of North Rhine-Westphalia, the view is expressed that false or incomplete information or the submission of false documents in the official asylum procedure ( see also: Identity determination in asylum law ) is contrary to public interests, since they increase the costs of the municipality and the state and tend to promote xenophobia and the emergence of criminal structures. These actions should be able to lead to expulsion according to § 55 AufenthG. In addition, the version of § 95 AufenthG Paragraph 2 No. 2 , which has been valid since November 1, 2007 , criminalizes the use of incorrect identity data with the aim of obtaining a Duldung . In accordance with Section 95 of the Residence Act , false or incomplete information is subject to imprisonment of up to one year (Section 95, subsection 1) or three years (Section 95, subsection 2). According to § 84 and § 84a AsylG it is also a criminal offense to induce someone to give false information when applying for asylum.

Completion of the procedure and consequences

Positive or negative decision

The asylum seeker may be recognized as a person entitled to asylum or a refugee or receives subsidiary protection. An obstacle to deportation may also be identified. Otherwise, the Federal Office will ask the asylum seeker if he does not have a residence permit for other reasons such as B. has a marriage, to " voluntary departure " and threatens with deportation.

After a negative decision, there are tight deadlines for the asylum seeker to obtain legal advice and to intervene against the decision. Normally, the asylum seeker is given an exit deadline of 30 days in the event of a negative decision; in the case of irrelevant or obviously unfounded applications, the deadline for leaving is only one week. After the deadline, the BAMF will order a deportation . This is to be carried out by the federal states (usually the respective immigration authorities).

In the event of expulsion or deportation, a temporary ban on entry and residence is imposed in accordance with Section 11, Paragraphs 1 and 2 of the Residence Act. In the event of a later re-entry, the costs of a deportation will be charged. According to Section 11 (7) of the Residence Act, the BAMF can also impose an entry and residence ban on rejected asylum seekers from safe countries of origin and persons whose second subsequent asylum application has been rejected, even if the asylum seeker has left voluntarily.

Revocation or withdrawal; permanent residence permit

Up until August 1, 2015, the Federal Office was legally obliged to check, no later than three years after a positive decision became final, whether the requirements for this decision still existed. The existence of grounds for exclusion such as serious crimes punishable by more than three years in prison or crimes against peace were also examined. If the result of the check was a positive decision, the immigration authorities checked the further stay. Under certain circumstances, for example when someone is not integrated in any way or has committed significant criminal offenses, it happened that she ended her further stay. If the protection was not revoked by the Federal Office, the refugee received an unlimited settlement permit from the immigration authorities. In practice, the Federal Office did not revoke the refugees' protection status in around 95 percent of the cases.

Through the law on the redefinition of the right to stay and the termination of residence, which came into force on August 1, 2015, the immigration authority was now able to issue the settlement permit after three years, unless the Federal Office informs in exceptional cases that the requirements for a revocation of protection status (if For example, the risk of persecution was only faked) or its withdrawal (for example if the political situation in the country of origin changes). This should significantly reduce the workload for individual assessments that the Federal Office has to carry out.

The detailed individual examination of asylum applications with a personal hearing decided by the Interior Ministers' Conference in Koblenz on December 3, 2015 came into force again from January 1, 2016 for asylum seekers from Syria, Iraq, Afghanistan and Eritrea for security reasons.

In 2016, the Integration Act tightened the legal regulations on settlement permits to the effect that refugees are now generally only granted a settlement permit after five years, and only if they meet certain integration requirements. With outstanding integration - what u. a. requires that he has a good command of the German language and that his livelihood is largely secure - he can receive the settlement permit after three years ( Section 26 of the Residence Act).

Development of the number of asylum seekers and success rates

Initial applications in the first half of 2016 - 10 strongest countries of origin

Development of the number of asylum seekers

Number of asylum applications received (first and subsequent applications), 1953–2019
year number
2019
  
 165.938
2018
  
 185.853
2017
  
 222,683
2016
  
 745,545
2015
  
 476,649
2014
  
 202.834
2013
  
 127.023
2012
  
 77,651
2011
  
 53,347
2010
  
 48,589
2009
  
 33,033
2008
  
 28,018
2007
  
 30.303
2006
  
 30,100
2005
  
 42,908
2004
  
 50,152
2003
  
 67,848
2002
  
 71,124
2001
  
 91,471
2000
  
 117,648
1999
  
 138,319
1998
  
 143,429
1997
  
 151,700
1996
  
 149.193
1995
  
 166,951
1994
  
 127.210
1993
  
 322,599
1992
  
 438.191
1991
  
 256.112
1990
  
 193.063
1989
  
 121,315
1988
  
 103.076
1987
  
 57,379
1986
  
 99,650
1985
  
 73,832
1984
  
 35,278
1983
  
 19,737
1982
  
 37,423
1981
  
 49.391
1980
  
 107,818
1979
  
 51,493
1978
  
 33,136
1977
  
 16,410
1976
  
 11,123
1975
  
 9,627
1974
  
 9.424
1973
  
 5,595
1972
  
 5,289
1971
  
 5,388
1970
  
 8,645
1969
  
 11,664
1968
  
 5,608
1967
  
 2,992
1966
  
 4,370
1965
  
 4,337
1964
  
 4,542
1963
  
 3,238
1962
  
 2,550
1961
  
 2,722
1960
  
 2,980
1959
  
 2,267
1958
  
 2,785
1957
  
 3.112
1956
  
 16,284
1955
  
 1.926
1954
  
 2.174
1953
  
 1,906
Source: Federal Office for Migration and Refugees

In the Federal Republic of Germany the annual number of asylum seekers was comparatively small in the first decades after the Second World War. Up until 1976 it was a maximum of 16,410 per year.

In 1980 the number peaked at 107,818, then fell again, rising to nearly a hundred thousand in the mid-1980s. At this point in time, most of the refugees reached the Federal Republic via the GDR - this asylum dispute between the FRG and the GDR, which was interpreted as an instrumentalization of the refugee flows through the GDR, was only resolved in 1986 when refugees entered the country in November the GDR was put to an end.

In 1988 the number rose again to over a hundred thousand, until in 1992, with over 438,191 asylum applications, the number of applications in Germany reached a provisional high - a figure that was only exceeded in 2015. At that time, most of the applicants came from the former Yugoslavia . From 1993 (the year of the asylum compromise ), however, there was a continuous decline. In 2005, 29,000 asylum applications were submitted. Up until 2007, the number of initial applications continued to decline. The number of applications fell to 19,164, the lowest level since 1977.

However, the number of applications has been increasing again since 2008. In 2014 the highest level since 1993 was reached. The reason for the increase was, among other things, the increase in asylum seekers from Serbia and Macedonia as a result of the abolition of the visa requirement for both countries in December 2009. In the first half of 2013, the number of first-time asylum applications rose by 90 percent compared to the same period in the previous year, main countries of origin the applicants in 2013 were the Russian Federation , followed by Syria and Afghanistan . The main country of origin of the applicants in 2014 was Syria, followed by Eritrea and Serbia . Based on experience in the first half of 2015, the BAMF initially expected around 450,000 asylum seekers; in August 2015, the Federal Ministry of the Interior corrected the number to up to 800,000 asylum seekers. In the first half of 2016, 387,675 initial applications were received by the Federal Office for Migration and Refugees. The three most frequent countries of origin were Syria with 170,581 initial applications, followed by Afghanistan with 60,398 initial applications and Iraq with 56,110 initial applications. For 2016, the Federal Office for Migration and Refugees announced that from a total of 745,545 applications had been received.

In 2017, 222,683 asylum applications were made, in 2018 there were 185,853 and in 2019 165,938.

Success of asylum applications

In 2014, 202,834 asylum applications were submitted in Germany. 128,911 decisions were made. 1.8% of the applications led to recognition under Article 16a of the Basic Law as persons entitled to asylum. A further 24.1% were recognized as refugees under Section 3 (1) AsylG, a further 4% received subsidiary protection under Section 4 (1), and a further 1.6% were declared a ban on deportation. In the broadest sense, 31.5% of the asylum applications ended “successfully” (so-called “ total protection rate ”). 33.4% of the applications were rejected after a substantive examination. After deducting the formal clearances , the calculations by aid organizations result in an adjusted overall protection rate of 48.5%. If successful lawsuits against decisions by authorities are included, more than half of the applicants were recognized as eligible for protection in 2014.

In 2015, 61% of all asylum applications were approved by the BAMF, and the overall protection rate is expected to increase to 71% in 2016.

Embassy asylum

An application for asylum in Germany can only be submitted in person to an authority in Germany or to the German border authority. Asylum applications cannot be submitted at a German embassy. Nevertheless, a German ambassador can offer a guest temporary protection ( diplomatic asylum ).

In contrast to German asylum law, Swiss asylum law has long allowed asylum applications to be submitted to Swiss diplomatic missions abroad; this has not been possible since September 29, 2012; instead, a visa will be granted for humanitarian reasons if in individual cases it can be clearly assumed that the applicant is in direct, serious and specific danger to life and limb. The application must be submitted to a Swiss embassy in your own country of origin: if the person is already in a third country, it is usually assumed that there is no longer any risk.

For Canada , it is possible to apply for admission as a quota refugee or asylum seeker from outside Canada if certain humanitarian criteria are met and other requirements are met - including, for example, financial sponsorship by an organization or a group of five Canadians or residents of Canada. It is also possible to register as a sponsor.

Requests for protection or political asylum in embassies are frequent in history. Associated events can also u. U. take on historical global political importance.

The European Court of Justice (ECJ) ruled in March 2017 that the EU member states are not obliged to issue humanitarian visas in their foreign embassies. Rather, according to the ECJ, the member states are free to issue their entry visas according to national regulations.

With regard to Germany, it is of particular historical significance that in the summer of 1989, after the GDR forbade them to travel to Hungary, thousands of GDR citizens tried to obtain asylum in the West German diplomatic missions in East Berlin, Prague , Warsaw and Budapest and thereby to force their departure from the GDR; Foreign Minister Hans-Dietrich Genscher finally assured them of free departure in September 1989. According to the Federal German view, GDR citizens were already "Germans in the sense of the Basic Law " according to Article 116 of the Basic Law; it was therefore not a legal asylum. See also: Chronicle of the GDR (1981–1990) .

See also

literature

Web links

Individual evidence

  1. ^ Jochen Oltmer: Migration and Politics in the Weimar Republic . Vandenhoeck & Ruprecht 2005, p. 56 .
  2. ^ Jochen Oltmer: Migration and Politics in the Weimar Republic . Vandenhoeck & Ruprecht 2005, pp. 57 and 62 .
  3. ^ Jochen Oltmer: Migration and Politics in the Weimar Republic . Vandenhoeck & Ruprecht 2005, pp. 57-59; 62 .
  4. ^ Jochen Oltmer: Migration and Politics in the Weimar Republic . Vandenhoeck & Ruprecht 2005, p. 63 f. .
  5. ↑ a b Jochen Bittner : The opposite of gratitude In: Die Zeit , January 2, 2017.
  6. ↑ The Parliamentary Council 1948 - 1949. Files and Protocols, Vol. 7: Drafts for the Basic Law (edited by Michael Hollmann ), Boppard 1995, p. 37.
  7. ↑ Michael Streich: "Politically persecuted people enjoy the right to asylum" In: Die Zeit , February 17, 1989.
  8. ^ Maren Möhring: Mobility and Migration. In: Frank Bösch (ed.): Divided history: East and West Germany 1970–2000. Vandenhoeck & Ruprecht 2015 (p. 369 ff)., Here p. 391 .
  9. ^ Jochen Oltmer: Migration and Politics in the Weimar Republic . Vandenhoeck & Ruprecht 2005, p. 268 ff .
  10. ↑ Chronology of the German asylum law: The history of a restriction . Daily News. February 25, 2016. Retrieved February 25, 2016.
  11. ↑ BAMF: Current figures on asylum , May 2018 edition (PDF), p. 10.
  12. ↑ Situation of unaccompanied minor refugees in Germany . German Bundestag printed matter 18/5564, 18th electoral term, July 15, 2015. The Federal Government's response to the major question from MPs Luise Amtsberg, Beate Walter-Rosenheimer, Dr. Franziska Brantner, another member of parliament and the Bündnis 90 / Die Grünen parliamentary group, printed matter 18/2999. P. 8.
  13. ↑ Agreement on amended bill: Coalition wants to cut money for rejected people. n-tv, September 21, 2015, accessed on September 26, 2015 .
  14. ^ Asylum Act: Deutschland macht ernst zeit.de, October 15, 2015.
  15. ↑ BGBl. I p. 1802
  16. ↑ a b Asylum law: EU Commission initiates infringement proceedings against Germany. EurActiv.de, 23 September 2015, accessed 28 September 2015 .
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  18. ↑ a b c Refugees: EU criticizes the lax treatment of rejected asylum seekers. FAZ, September 27, 2015, accessed on September 27, 2015 .
  19. ↑ Law on the redefinition of the right to stay and the termination of residence of July 27, 2015 (Federal Law Gazette I, p. 1386). (PDF)
  20. ^ Law on the redefinition of the right to stay and the termination of residence - text, amendments and legislative material
  21. ↑ Refugee crisis: Cabinet adopts new asylum law. SPIEGEL Online, September 29, 2015, accessed on September 29, 2015 .
  22. ^ Coalition resolutions on refugees: An overview of the asylum package , Tagesschau. October 15, 2015. Accessed February 25, 2016. 
  23. ↑ www.buzer.de Changes due to the Asylum Procedure Acceleration Act
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  28. ↑ Text, amendments and legislative material of the Data Exchange Improvement Act of February 2, 2016 ( Federal Law Gazette I p. 130 , PDF).
  29. ^ Asylum Package II: Cabinet adopts stricter refugee laws , SPIEGEL Online. 3rd February 2016. 
  30. ↑ a b The coalition compromise in detail: Asylum Package II - that's it , Tagesschau. February 25, 2016. 
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  33. ^ SPD resistance to Asylum Package II: It was not agreed that way. Spiegel Online, February 5, 2016, accessed February 8, 2016.
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  36. ↑ "Germany remains a country with a heart, but also with rules". Federal Ministry of the Interior, February 19, 2016, accessed on February 21, 2016 .
  37. ↑ Refugee policy: Bundestag adopts stricter asylum law , SPIEGEL Online. February 25, 2016. 
  38. ↑ Bundestag passes asylum package II: Large majority for stricter asylum regulations , Tagesschau. February 25, 2016. 
  39. ↑ German Bundestag Printed Matter 18/7538: a draft law on the introduction of accelerated asylum procedures (bill of the CDU / CSU and SPD) . German Bundestag. February 16, 2016. Retrieved February 25, 2016.
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  49. ↑ Claudius Voigt from Project Q - Office for Qualification of Refugee and Migration Counseling of the Non-Profit Association for the Support of Asylum Seekers (GGUA Refugee Aid): AsylbLG: 10 euros reduction from March 17, 2016 . The social ticker eV. March 16, 2016. Retrieved on April 5, 2016: “The reduction results from the deletion of certain positions of the socio-cultural subsistence level as 'not relevant to needs' due to 'lack of solidarity' (explanation of the law here ) within the first 15 months. [...] Overall, the deletion of the items mentioned in standard requirement level 1 results in a reduction of exactly ten euros. This is interesting because this amount was discussed for a long time as a personal contribution to the integration course. However, after it had been determined that the standard requirement is only a good 1.50 euros for the corresponding course fees, the idea came about that the goal could be achieved by a general reduction in benefits for everyone (regardless of whether they attend an integration course or not) in the amount of target amount of 10 euros. In the media there is still talk of an 'own contribution', but in reality it is a blanket reduction in benefits for everyone. "
  50. ↑ Georg Classen: Securing a livelihood according to the Asylum Seekers Benefits Act as a basic right (status 02/11/2016) . Refugee Council Berlin eV. February 11, 2016. Retrieved on April 5, 2016: “As part of Asylum Package II, the Federal Government plans to reduce the cash amount according to § 3 Paragraph 1 AsylbLG for everyone by 10 euros / month - for infants by 6 euros - u. a. because of the possibility of taking part in an integration course with good prospects to stay. This should apply regardless of whether such a course is available, whether the journey, the course and teaching materials are free, and whether you actually take the course. "
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