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2.6.2015 | Von:
Jan Schneider
Marcus Engler

Asylum Law, Refugee Policy and Humanitarian Migration in the Federal Republic of Germany

The 1951 Geneva Convention relating to the Status of Refugees and its additional Protocol of 1967 form the basis of international refugee law. Within this framework, there are several different forms of humanitarian protection that nation-states apply. After the Second World War Germany established a comparatively liberal law regulating the right to asylum. However, reforms such as the "Asylum Compromise" in 1992/1993 have led to a much more restrictive approach ever since.

August 1995: Asylsuchende Sudanesen in ihrer Unterkunft auf dem Frankfurter Flughafen.August 1995: Sudanese asylum-seekers in their accomodation at the Frankfurt airport. (© picture-alliance/dpa)

Parallel to the development of an international legal framework regarding refugee protection, a comparatively liberal law regulating the right to asylum was conceived in West Germany immediately after the Second World War. By adopting this permissive approach to the right to asylum, the Parliamentary Council (Parlamentarischer Rat) wanted to make a deliberate break with the National Socialist past, which had produced millions of deaths, refugees and displaced persons.[1] In 1949, the right to asylum was laid down in the Constitution. Until 1993, Article 16 of the Constitution (Grundgesetz) of the Federal Republic of Germany stated, without any further qualification, "Persons persecuted on political grounds shall have the right of asylum."

Development of Humanitarian Migration to Germany

The war and the immediate post-war period were characterized by large refugee flows in Germany and throughout Europe. Shortly after the war, the German territory hosted nine million displaced persons of 20 different nationalities, survivors of the National Socialist system of labor camps, concentration camps and extermination camps. By 1949, 12.5 million Germans from the eastern territories or the German minority regions in eastern and southeastern Europe had fled or been displaced to the four occupation zones. Between 1949 and the building of the Berlin Wall, 2.7 million people immigrated from the German Democratic Republic (GDR) to the Federal Republic of Germany (FRG).

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Vietnamese boat people

At the end of the 1970s, the admission of the so-called boat people received much public attention. These were people, predominantly from Vietnam, but also from Laos and Cambodia, who had fled their countries of origin under dramatic circumstances. The term “boat people” refers to people who flee from their countries of origin (or transit countries) to other countries by sea, often in boats that are not seaworthy. From 1978 to 1986, the Federal Republic of Germany admitted about 40,000 Vietnamese refugees, most of whom had fled across the South China Sea. Some of them were brought to Germany in airplanes chartered by the German government, others in ships.* The ship "Cap Anamur," which was hired by an association exclusively founded for this purpose, rescued more than 10,000 refugees. These Vietnamese refugees did not have to undergo an asylum procedure, but were granted a special status as so-called "contingent refugees," including permanent residence and work permits. The legal basis was the "Law on Measures for Refugees Admitted in the Context of Humanitarian Relief Actions" (Gesetz über Maßnahmen für im Rahmen humanitärer Hilfsaktionen aufgenommene Flüchtlinge, HumHiG), also called "Law on Contingent Refugees."

*Kleinschmidt (2013).
Until the end of the 1970s, most asylum seekers were political refugees from states of the Eastern bloc, the majority of whom were granted asylum. The number of asylum seekers reached its first peak in the years 1979-1981, when a total of 200,000 asylum applications was filed in the Federal Republic of Germany (see Figure 1). The most prominent causes of flight were the military coup in Turkey and the declaration of martial law in Poland.[2] In the middle of the 1980s, the number of asylum claims rose significantly once again. In this period, many asylum seekers were Tamils from Sri Lanka or Kurds from Turkey, Iran and Iraq. In the 1980s, rising numbers of applications for asylum sparked debates on the alleged abuse of the asylum law by "economic refugees."

Starting towards the end of the 1970s, federal and state governments tried to curb the number of asylum claims and reduce the growing backlog through control measures and laws introducing accelerated procedures. Appealing against negative decisions on asylum was made more difficult, a visa requirement was introduced for some countries of origin, applicants were no longer allowed to work during the first twelve months of an asylum procedure, and social benefits were cut, following the principle of benefits in kind. Further measures aimed at making the Federal Republic of Germany a less attractive destination for asylum seekers were collective accommodation and the introduction of residency restrictions (Residenzpflicht). Despite all this, the number of asylum claims skyrocketed from 1988 onwards, with 103,100 asylum applications filed in that year alone. The recognition rate, however, sank to under 10 percent due to a more restrictive interpretation of existing laws. Yet many rejected asylum seekers remained in the country, and a considerable number of refugees stayed without filing an application for asylum at all, because the international human rights obligations of the Federal Republic of Germany or their lack of identity documents made their deportation impossible (so-called de facto refugees). This discrepancy fuelled political controversy over asylum policy.[3]

Figure 1: Asylum applications in Germany, 1973 - 2014Figure 1: Asylum applications in Germany, 1973 - 2014 (© bpb)

After the opening of the Iron Curtain, the number of asylum claims rose even further and reached its all-time peak in 1992, when 438,200 applications for asylum were filed. At the time, three quarters of all asylum applications registered in the EU were lodged in Germany. At the beginning of the 1990s, a particularly large number of refugees came from Romania and Yugoslavia.

From crumbling Yugoslavia alone, about 350,000 civil war refugees fled to Germany, not least because of existing networks with migrants who had come to Germany as temporary labor migrants (Gastarbeiter) in the 1960s and 1970s. Some of them claimed asylum; the majority, however, received a temporary leave to remain (tolerated stay).[4] The large-scale remigration of ethnic German emigrants, called Aussiedler, further fuelled the increasingly fierce political debate on asylum. The early 1990s saw a rising number of violent racist attacks (e.g. in Solingen, Mölln, Hoyerswerda, Rostock-Lichtenhagen) with numerous casualties, both in the old and the new Länder.

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Jewish "contingent refugees"

A special group of immigrants that has been admitted on humanitarian grounds in Germany since the early 1990s are Jewish "contingent refugees" from the former Soviet Union. Their admission is based on decisions made by the East German parliament (Volkskammer) and Council of Ministers (Ministerrat) shortly before the reunification of Germany, stating that "persecuted Jews are to be granted asylum in the GDR." On 9 January 1991, the Conference of Ministers of the Interior decided that the Law on Contingent Refugees (Kontingentflüchtlingsgesetz) would also apply to this group of immigrants. Admission is granted on a case-by-case basis, without numerical or temporal limitations, and those admitted are granted a status similar to that of persons entitled to asylum. By the end of 2013, around 215,000 Jewish contingent refugees had come to Germany.*

* BAMF (2015b), p.114.

Fußnoten

1.
Münz/Seifert/Ulrich (1997), p. 45; Herbert (2014), pp. 89-90.
2.
Münz/Seifert/Ulrich (1997), p. 46.
3.
Herbert (2003), pp. 264-272; Münch (2014), pp. 78-79.
4.
Bade/Oltmer (2004).
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