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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.

Restriction of the Constitutional Promise of Protection: the "Asylum Compromise"

Against the backdrop of these fierce debates and developments, the Social Democrats (SPD), the Free Democrats (FDP) and the Christian Democratic parties (CDU/CSU) agreed, at the beginning of December 1992, on a radical and restrictive reform of the German asylum law, known as the "asylum compromise" (Asylkompromiss). Since the middle of the 1980s, representatives of the CDU and the CSU had been pushing for restrictions to the broad right of asylum laid down in the German Constitution. But the SPD and FDP had withheld approval, so the two-thirds majority required to amend the Constitution could not be reached. On 6 December 1992 an all-party compromise finally led to the required constitution-amending majority, and a few months later the right of asylum was significantly curbed by decision of the German Bundestag (lower house of parliament). In particular, the introduction of the concepts of "safe third countries" and "safe countries of origin" made it much more difficult to claim asylum in Germany (see info box on safe third countries and safe countries of origin). The asylum compromise also introduced the so-called airport procedure (Flughafenverfahren), an expedited mechanism allowing for asylum claims to be processed in the transit area of airports (Article 18a of the Asylum Procedure Act/AsylVfG). Furthermore, the adoption of the Asylum-Seekers' Benefits Act (Asylbewerberleistungsgesetz) created a separate social security system for asylum seekers, with a significantly lower level of benefits.[5]


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Safe third countries and safe countries of origin

According to German law, safe third countries are states which guarantee humanitarian protection in accordance with the Geneva Refugee Convention and the European Convention on Human Rights. Asylum seekers can be sent back to these countries without their application for asylum being reviewed by German authorities (Article 26a of the Asylum Procedure Act/AsylVfG). Besides the EU Member States, Norway and Switzerland are also currently considered safe third countries. Since Germany is surrounded by safe third countries, people seeking protection have to travel to Germany by air or sea, or cross the land border illegally.

Safe countries of origin are states where there is assumed to be no risk of political persecution, or of inhuman or humiliating punishment or treatment (Article 29a AsylVfG). Safe countries of origin are currently (as of March 2015) all EU Member States as well as Ghana, Senegal, Serbia, Macedonia, and Bosnia and Herzegovina. Asylum applicants from these countries undergo a simplified and accelerated asylum procedure with limited opportunities to appeal. The German Bundestag and Bundesrat (Federal Council, upper house of parliament) may decide which countries are added to, or removed from the list of safe countries of origin.
On 1 July 1993, the restrictions on the right to asylum entered into force. In the second half of 1993, the number of new asylum applications dropped significantly. It remained on an annual level of over 100,000 for some years, then declined continuously as various conflicts in Europe ended, reaching its low point in 2007. These years saw a significant decrease not only in the absolute number of asylum claims filed in Germany, but also in Germany's share of all the asylum applications registered in the EU. In 1992, Germany had processed over 70 percent of all asylum applications filed in the European Community (EC), in 2000 it was just 20 percent.[6] Now, other European states hosted many more asylum seekers than Germany, which was also a repercussion of the German asylum compromise. At the same time, the German government succeeded to incorporate some of the main components of the restrictive German asylum law into European Community law. Thus, ever since the middle of the 1990s, asylum policy increasingly underwent a process of Europeanization.

This text is part of the policy brief German Asylum Policy and EU Refugee Protection: The Prospects of the Common European Asylum System (CEAS)
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Münz/Seifert/Ulrich (1997), p. 45; Herbert (2014), pp. 89-90.
Münz/Seifert/Ulrich (1997), p. 46.
Herbert (2003), pp. 264-272; Münch (2014), pp. 78-79.
Bade/Oltmer (2004).
At the same time, the "asylum compromise" was a "compromise on immigration": as a result of negotiations, for example, the remigration of ethnic German emigrants (Aussiedler) was curtailed and naturalization was made easier (Herbert 2003, pp. 196ff, 318f; Schimany/Luft 2014).
Schimany (2014), p. 51.
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