The right of asylum has already been of concern for humanity for hundreds of years. That is because, virtually since the dawn of civilization, people have left their home to seek asylum for religious, political, ethnic, cultural or other reasons. They have been pursued or chased away and seek refuge in a safe place.
Already in 1300 BC Pharaoh Ramses II granted asylum to the outcast king of the Hittites, Urhi-Teshub in Egypt. God instructed Moses in the Old Testament to choose six cities as places of refuge so that refugees, foreigners and visitors had somewhere to go. Asylum had a political as well as a humanitarian aspect from the beginning. Flight and asylum have always played important roles among many denominations: Jesus fled to Egypt with his parents and the Prophet Mohammed and his followers were granted asylum in Medina when he had to escape opponents of Islam.
In the end of the Early Modern Age more than 250,000 Huguenots had to leave France and find another place to live, because they were expelled in the course of the French Revolution in 1789. From this point forward the number of political refugees increased radically. The two World Wars were particularly dreadful for political and religious refugees.
The League of Nations was forged in 1920. It was the foundation for the belief that it was the responsibility of the international fold to protect refugees and find solutions for their problems. The Norwegian Fridtjof Nansen was awarded the Nobel Peace Prize as the first Commissioner for Refugees of the League of Nations in 1922. Among other things, he ensured that more than 450,000 prisoners of war were able to return home after the First World War.
So what is asylum law, the Aliens Act or the Immigration Act? Which rights do applicants for asylum have in Germany? How is the asylum procedure executed and who decides based on which criteria, whether somebody receives a residence permit or not? You will find all answers and much more about this legal field in the following guide.
What is asylum law?
The asylum law – also known as refugee law – has developed into a controversial topic over the course of current events. As a result of wars in the Middle East thousands of people leave their home country and seek refuge – a place of safety.
The countries of the world have actually sworn after World War II, that such terrors should never recur. United Nations Organization (UN) was formed as the successor organization of the League of Nations after World War II.
UN fights for the respect for human rights and their fundamental freedoms – regardless of the ethnicity or the religion a person has. The next generation should be protected from the scourge of war. Among other things the Universal Declaration of Human Rights says in article 14:
Everyone has the right to seek and to enjoy in other countries asylum from persecution.
In turn, asylum law is the legal field of asylum in Germany. It includes norms which are temporarily associated with asylum. This comprehends in particular:
- acceptance of persecutees
Violations of human rights are probably the most common cause that people have to flee. The Geneva Convention on Refugees from 1951 describes in article 1, which people are to be acknowledged as refugees. Any person who
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The foundation for asylum law is the constitution – the Grundgesetz (GG). It has drawn its historic lesson from the Nazi terror regime and states as one of only few constitutions in the world that every political persecutee can be granted asylum in Germany under certain conditions. This right is even legally enforceable. In article 16a of the Grundgesetz the provision can be found that political refugees always enjoy right for asylum.
Here, everyone is considered a refugee who cannot get protection in one’s home country and has to suffer persecution which restricts or endangers one’s life or freedom because of one’s
- membership of a particular social group or
- political opinion
The German constitution does have exceptions concerning asylum, though. Hence, someone does not enjoy right for asylum, if he or she enters Germany from another EU-country or from a third country categorized as safe. Such a country is decided by the German Federal Parliament – the Bundestag – and the Federal Council of Germany – the Bundesrat.
Nevertheless, the asylum law of the Grundgesetz in Germany is fundamentally different to the laws of other countries. Thus, the Grundgesetz is rather neutral and excludes – just like the Geneva Convention – people from the right of asylum who have committed war crimes, crimes against humanity or other non-political most serious crimes. Actions of this sort violate the very foundations and aims of the UN.
According to the Grundgesetz, a foreigner is not persecuted in a country if the current legal situation, the application of law and the government do not seem to result in inhumane punishment and humiliation. An applicant for asylum needs to provide evidence that this is the case.
German courts consider the goal setting of persecution important for proving political persecution. This goal setting has to be political and is usually conducted with the help of state resources.
Forms of migration
There are basically three to four different forms of migrants. Here, the form depends on the reason for migration.
- subsequent entry of families: if a family member is already living permanently abroad because of a good job and has a residence permit, spouses and children can often follow
- work migration or educational migration: moving to another country due to a new job, because there are no or low-wage jobs in one’s own country
- forced migration: if there are crimes against humanity, wars or impairments owing to political opinions or religion in the home country, many people flee and seek asylum
- illegal migration: unfortunately, this form of migration takes place with the help of human trafficking or people smuggling; the smugglers are not always considered criminals, though – often they just violate entry requirements, residence regulations and work regulations
European asylum law
The asylum law in the European Union states a kind of fundamental right of asylum for particular groups of people under certain circumstances as well – one’s freedom and life has to be threatened due to violations of human rights in one’s homeland. In this case, the Geneva Convention on Refugees is effective.
Since 2003 a considerable number of legal acts have been issued in the European Union which include basic regulations concerning asylum and the protection of refugees in Europe. At this, the EU stands especially for solidarity within the community.
Meanwhile (2017), the common asylum law in the European Union includes five legal instruments:
- Reception Conditions Directive
- Qualification Directive
- Asylum Procedures Directive
- Dublin III Regulation
- Eurodac Regulation
The European Community aims at creating high protection standards which are supposed to be accomplished by a just and efficient asylum procedure. The treatment of asylum-seekers is supposed to be equal and to prevented misconduct in all member states.
Laws and regulations which are relevant for asylum law
The justification for asylum law can be found in the German constitution, but different laws have been established over time which included further regulations and, thus, sort out legal problems. You can find the laws and regulations which concern asylum law in the following chapters.
Immigration Act and Residence Act
The Immigration Act – the Zuwanderungsgesetz – became effective in 2005. It is part of the Aliens Act – the Ausländergesetz (AuslG). The Residence Act has great relevance within the Immigration Act, because it regulates the following things:
- family reunification
- expulsion and eventual deportation
- rights and duties of political participation
The current Residence Act – the Aufenthaltsgesetz (AufenthG) – states five so-called residence titles. A foreigner needs such a title to be allowed to enter Germany and stay here temporarily or permanently:
- residence permit (temporary): This title is meant for example for self-employed people who generate income and jobs in Germany. Foreigners can also be granted a residence permit for a year if they successfully finished university and are looking for a job.
- The EU Blue Card (up to four years): This residence title is considered for specialised personnel – university or college graduates. The EU Blue Card can also apply for non-citizens of the EU, if they have either a university degree or an employment contract with an annual minimum gross pay of € 46,400 (2016).
- permanent residence permit (permanent): A kind of settlement permit accordingly to a EU directive. This title can be given to foreigners from third countries who can provide a legitimate five-year-stay in a EU member state. Moving to another EU country is allowed.
- settlement permit (permanent): This title is for highly qualified people who come to Germany for a longer period of time. The settlement permit is only given to somebody who has had a residence permit for five years and meets additional requirements. This includes independently making a living for oneself and one’s family. Furthermore, the applicant has to have sufficient knowledge of the German language and no criminal record.
- visa (temporary): The visa requirement applies to all foreigners who are non-citizens of the EU. Needless to say, citizens of the EU do not need a visa. However, no visa is required from visitors, who only stay 90 days within a period of 180 days. Beyond that, one has to apply for a visa.
Eviction order and deportation
An eviction order terminates the residence of foreign citizens in Germany – mostly against their will.
However, an eviction order and the final deportation are not the same things. When a person is about to be evicted, he has not automatically been deported yet. A person applying for asylum usually receives notification in case his residence permit is expiring or his application for asylum has been declined.
The same happens when public security is threatened by the foreigner’s conduct. For that reason a committed crime results in a so-called obligatory expulsion: The criminal has to leave the country.
On the other hand, an eviction order does not automatically lead to a person’s departure of the country. Not everyone departs voluntarily in due time. Only when the expulsion is carried out, the term “deportation” is accurate. This procedure also entails that the foreigner is about to be expelled with the help of police force.
Additionally, there is also a so-called “rejection”. Someone can be rejected at the border of a country if he or she does not meet the regulations for entry.
Under certain circumstances custody to secure deportation then follows. According to § 62 AufenthG this sanction, however, has to be avoided if more benignant means can be sufficiently exerted. Custody to secure deportation is – among other reasons – only conventionally accepted, when
- The foreigner needs to be deported after entering the country illegally.
- The deadline for departure has expired and the person affected has changed his location without report to the Aliens Department.
- The foreigner failed to come to the announced appointment and place of deportation.
Family unification and immigration of spouses
For a family unification to occur the spouse and children underage have to apply for a residence title at the German embassy of their country. After admission to the country a registration of all family members is required at the residents’ registration.
In case the residence title has been granted, family members then also receive authorization for employment.
A family unification is not permitted, however, if – according to § 27 AufenthG – the marriage has only been contracted for this reason or the spouse has been forced into marriage.
The asylum law in Germany lists all necessary regulations in relation to the procedure of granting the right of asylum (further defined in the correspondent chapter). Before the asylum law received its name on the 24th of October, 2015 it was known as the Asylverfahrensgesetz. In the course of today’s waves of refugees the government had to come to a quick decision: A new asylum law was necessary.
Within the omnibus act, called Asylverfahrensbeschleunigungsgesetz, specific changes, which were supposed to reform the procedure for granting the right of asylum, were made. Among them these alterations can be mentioned:
- the procedure for granting the right of asylum was accelerated
- the list of secure countries of origin was extended
- the retention time in initial reception facilities can now be prolonged up to six months
- asylum seekers with a medical approbation were allowed to treat other foreigners – in case of extreme shortage – and under the supervision of a doctor
- requirements for the construction of facilities were simplified
- a higher flexibility concerning the distribution of refugees among federal states can be noted
- arrangements for easier integration (especially with respect to the job market) were made
German courses for asylum seekers
As one remaining issue among foreigners and German citizens the lack of communication and mutual comprehension can be noted.
With the help of so-called integration courses foreign citizens can acquire knowledge of the German language.
These courses were introduced in 2005 and are now regulated by the “Verordnung über die Durchführung von Integrationskursen für Ausländer und Spätaussiedler” – in short “Integrationskursverordnung”.
Here the asylum law differentiates between someone’s duty and entitlement for taking part in such language courses. They consist of at least 660 lessons, but can be also prolonged up to 960 lessons. Foremost day-to-day phenomena are dealt with: employment, shopping, health, living, education, the media or social interaction.
Asylum Seekers’ Benefit Act
The “Asylum Seekers’ Benefit Act” secures a minimum standard of living for asylum seekers in Germany. The payment of social welfare to asylum seekers is regulated by this act. Yet, it must be noted that these specific funds are limited to accommodation and benefits in kind. Nonetheless, the allowance grants all day-to-day necessities for refugees.
The Asylum Seekers’ Benefit Act likewise regulates retirement pensions as well as certain cash benefits as adjusted by the requirements of the ALG II and social welfare. These, however, are less than the common retirement pension a German citizen is entitled to.
Fields of law relevant to the asylum law
The “asylum law” and the “Aliens Act” are two different pairs of shoes. In the following chapter you can expect to learn more on the Aliens Act which is also known as the “immigration law”. Besides, you find interesting information on different fields of law relevant to the asylum law.
In Germany the Aliens Act determines the rights of foreigners. The term “foreigner” has unfortunately gained a negative connotation recently, even though every person, who is staying in a country different from his own, must be called a foreigner.
The Aliens Act touches on three important fields of law:
- Private law: The regulations of the private international law focus on foreign citizens. In certain cases, however, the country of origin is authoritative, for instance when cases of civil status, legal capacity, marriage law or inheritance law are involved. In civil cases the legislation of the place of trial is binding.
- Social law: Foreigners are obligated to contribute to social insurance, independent of their nationality. In this case, the principle of territoriality is binding.
- Constitutional law: Foreigners are subject to political, professional and social limitations once they have neither received a German citizenship, obtained the status of a refugee or exile, nor are spouse or descendant of a person who has been granted admission to the former territory of the Deutsches Reich (as of 31.12.1937). Thus, foreigners have different and more limited rights than German citizens. Yet, basic rights grant fundamental freedom, except, for instance, the freedom of assembly or professional freedom.
Also: According to § 116 GG all former German citizens, who had lost their citizenship for political, religious and xenophobic reasons between 1933 and 1945, have to be vernacularized upon request. The same goes for their descendants.
All important information concerning foreign rights is implemented in the Aliens Act. More information can be gathered in the relevant chapter (See Immigration Act and Residence Act).
Public international law
The public international law presents a legal system that can be seen as a collection of all legal norms regulating the states’ relationships amongst each other as well as the international organization. This is why sometimes the public international law is simply called international law. In contrast to other fields of law it cannot, however, be enforced by a single authority, but needs the support of other nationalities.
For an international law like this to come into force treaties and agreements are necessary. These treaties – among other things – deal with diplomatic and international affairs, limit acts of war or settle disputes. Examples for civil international laws are:
- UN Charta
- human rights declarations of the United Nations
- agreements of the European Council
Right of residence
The right of residence is not a field of law in the usual sense, but is rather linked up with the residence permit and the exceptional leave to remain and can thus be described as a right of permanent residence or right of staying permanently.
Once a foreigner’s application for asylum has finally been declined, he can receive an exceptional leave to remain if – for some reasons – he cannot be deported. However, which cases prevent an eventual deportation? It might happen that the minister of interior stops all deportations or the passport of the person inflicted is missing. Usually an exceptional leave to remain can only be granted for six months maximum.
If a person has been granted an exceptional leave to remain for more than 18 months – through no fault of his own – he has got the right to claim a residence permit.
German law has to acknowledge European standards, which entails that the citizenship of a person is regulated by the German Constitution (atricle 116) as well as the citizenship law (StAG). The citizenship law regulates also the rules regarding naturalization.
If a foreigner wants to stay in Germany permanently, he might be naturalized under certain circumstances and receives German citizenship.
After his 16th birthday a person can undergo the relevant application. Minors need to be accompanied by their parents. Under the following circumstances applicants are entitled to demand naturalization:
- legal residence in the country for more than eight years
- honor and toleration of the free democratic basic order
- promise to not take part in any conspiracies that harm the country or its citizens
- possession of a residence permit at the time of naturalization
- sufficient knowledge of the German language
- independent security of maintenance without the help of support from ALG II or social welfare
- no criminal record whatsoever
- the naturalization might entail the loss of the old citizenship; however, there are exceptions
What is regulated by the asylum law?
The asylum law regulates all basic processes and rights relevant for asylum seekers. The common issues were already described in the correspondent chapters above; a few are now going to be focused on in closer detail.
The procedure for granting the right of asylum
The Federal Office for Migration handles the applications for asylum and conducts the procedure for granting the right of asylum, which is implemented in the residence act (see above) and the asylum law.
As long as his case is pending, a foreigner applying for asylum in Germany is principally entitled to the right of residence – even before his official acknowledgement as a victim of political persecution.
In the course of the process for granting the right for asylum – sometimes a so-called Erkennungsdienstliche Behandlung – is carried out and aims at the identification of the foreigner. Accordingly, personal data is collected and the name, place of residence, age height and weight, special body features or tattoos are listed. These data, however, is only collected if the person inflicted had entered the country illegally, was caught with fake documents or is about to be deported.
If the authorities recognize a refugee’s right of asylum in the sense of the Genfer Flüchtlingskonvention (Art.16a GG), he receives the right of temporary residence at first. Before granting permanent residence authorities investigate the status and political circumstances of the country of origin.
Third country regulation
A foreigner, who has entered the country via an EU member state or a different, politically secure third country, cannot expect to appeal to the legislation on asylum, because human rights are generally guaranteed in these countries. An application for asylum would be unnecessary.
It is important to note that the asylum law does not entitle refugees to choose their place of residence at will, but it protects them from going back to the country of persecution.
Secure country of origin
A secure third country and a secure country of origin are to be differentiated. The last namend can also be a non-European country, for instance Syria, Namibia, India or Australia. Countries, which guarantee safety from political persecution or unhuman punishment and treatment, can be acknowledged as secure by act of law.
On the basis of a detailed list of criteria countries undergo close examination in order to be called secure countries of origin. Among other criteria the so-called Anerkennungsquote der Asylbewerber is mentioned, as well as:
- the current and general political situation
- the country’s stability
- the acknowledgement of human rights
Therefore an application for asylum could be declined or declared as unsubstantiated if the applicant had come from a country listed as secure. Yet, this decision might be different once the foreigner can offer facts and evidence that he had been politically persecuted in his home country.
Between 1991 and 1993 illegal immigration by air increased. For this reason foreigners then had to undergo the procedure for granting the right of asylum before entering the country, insofar as that very person came from a secure destination.
Under the circumstances described refugees can remain on airport ground.
In fact, applicants for asylum can remain on airport ground – or more specifically in the direct transit area – up to 19 days after their application.
Entry to the country is denied when the airport’s Federal Office dismisses the application as unfounded. However, if the foreigner still desires to enter the country, his application can be submitted to the responsible administration court. If the application fails again, the person is expelled from the country.
In this very case the procedure for granting the right of asylum is part of the regular airport safety procedures, because it takes place directly at the Border Services Agency and the branch office of the Federal Office. Usually the Federal Office now takes two days for deciding on the application or otherwise the asylum seeker is granted entrance.