Procedures of the asylum system in 1997 and whether persons from Afghanistan were able to use it; whether persons from Afghanistan were granted temporary residence permits in 1997 and whether these were subject to renewal [DEU32968.E]

For information on Germany's asylum procedures please see the attached section from the Inter-Governmental Consultations (IGC) Report on Asylum Procedures (Sept. 1997).

With regard to the procedures for persons from Afghanistan, a representative of the Federal Office for the Recognition of Foreign Refugees stated that:

In 1997 there were no special provisions for asylum-seekers from Afghanistan. They followed the normal process for claiming refugee status like other asylum-seekers. I cannot rule out that some of the German states ("Bundeslaender") decreed a 6-month-deportation stop for claimants from this country in that year (this is something we could not find out). If there had been a deportation stop in one or several of the German states, the Federal Ministry of the Interior did not agree to a renewal (something the law requires after 6 months) (7 Oct. 1999).

The German Federal Office for the Recognition of Refugees (BAFI) provided the following report with respect to asylum procedures in Germany as of September 1998:

II. Legal Basis
1. Date of accession to the 1951 Convention and the 1967 Protocol and other relevant international instruments:

1951 Geneva Convention: 01 September 1953

1967 Protocol: 05 November 1969

European Convention on Human Rights: 07 August 1952

2. National laws/decrees determining refugee status

Article 16a of the Constitution (Basic Law)

Aliens Act 1991, last amended: 29 October 1997

Asylum Procedure Act 1982, last amended: 29 October 1997

3. Other relevant legislation and jurisprudence

Jurisdiction of the Federal Constitutional Court

Jurisdiction of the Federal Administrative Court

III. Procedures
A. Competent Authorities
The Federal Office for the Recognition of Foreign Refugees (BAFI) examines asylum applications in first instance.
Administrative courts have jurisdiction in asylum applications on appeal.
The Federal Commissioner for Asylum Matters, a representative of the public interest, may appeal the decision of the BAFI.
B. Admissibility procedures at seaports, airports, and land borders.
Border authorities are entitled to refuse admission to the territory, if

- an alien arrives from a safe third country

- it is obvious that the alien was already safe from persecution in a third country

- if the alien poses a threat to the general public because of a non-appealable conviction for a significant crime entailing a prison term of no less than three years

Specific regulations apply for asylum applications at airports. Airport applications are processed prior to the admission to the territory, if the applicant

- originates from a safe country of origin

- is unable to produce a valid passport

C. First Instance Decision
D. 1. Normal Procedure
1.1 Access to the procedure
Access to the procedure is not restricted, provided that the alien is admitted to the territory. There is no pre-screening procedure in a sense of checking whether the application is accepted for consideration. All applications are subject to a thorough review. In cases where the principle of safe third country is applied and the applicant is returned to the safe third country, the review is confined to the question of the travel route.
1.2 Interview
Asylum applications have, as a matter of principle, a right to be heard in person - generally with the assistance of an interpreter. The interviewing officers are members of the BAFI staff. They are trained in the of [sic] asylum procedure law and specialise in specific countries of origin. A number of officers have undergone training on how to deal with unaccompanied minors and traumatised persons, in particular women.
It is only possible to forego the personal interview, if

- the facts of the case are satisfactorily clarified and the prerequisites for recognition of asylum are met,

- the asylum seeker states that he/she has entered the country from a safe third country, or

- the person applying for asylum does not show up for the interview and fails to give an adequate excuse

1.3 Decision
In most cases, the officer interviewing the asylum applicant also decides on the merits of the case. In doing so, he/she is not bound by instructions.
The decision

- is issued in writing and in German

- includes the underlying reasons

- includes instructions on the applicant's legal remedies

- is served on the applicant or an authorised receiving agent

Possible types of decision are

- granting of asylum status within the meaning of Article 16a of the Constitution.

- granting of refugee status within the meaning of Para. 51 Section 1 Aliens Act. (Although incorporating the Geneva Convention into the German law, Para. 51 is construed as an "impediment to deportation").

- Refusing asylum/refugee status and determining that obstacles to deportation in line with Para. 53 Aliens Act.

- Refusing asylum/refugee status and determining that obstacles to deportation do not exist. In that case a deportation warning is issued and a time limit set for voluntary departure.

1.4 Consequences of the decision
Asylum status within the meaning of Art. 16a of the Constitution entails the right to:

- unlimited residence permit ("unbefristete Aufenthaltserlaubnis")

- unrestricted work permit

- social assistance within the scope of the Federal Social Assistance Act

- integration support (language course, vocational and further training)

- "family asylum" (spouses and children of the refugee are likewise entitled to asylum)

Refugee status within the meaning of Para 51 section 1 Aliens Act entails the right to:

- residence authorisation ("Aufenthaltsbefugnis", intially for a maximum of two years and extendable thereafter)

- work permit, depending on the state of the labour market

- social assistance within the scope of the Federal Social Assistance Act

Determination of obstacles to deportation within the meaning of Para, 53 Aliens Act entails the right to:

- sufferance ("Duldung", not a residence permit, merely a suspension of removal)

- work permit, depending on the state of the labour market

2. Judicial review of the second instance decision
A negative decision by an administrative court may be appealed to the Higher Administrative Court. As a rule, an appeal is only admissible, if the issue is of fundamental importance or if serious procedural irregularities are alleged. If an administrative court rejects a claim as manifestly unfounded, the decision is final and cannot be appealed to the Higher Administrative Court.
Further appeal may be lodged with the Federal Administrative Court (the above requirements apply). The review before the Federal Administrative Court is confined to legal questions.
Having exhausted the above appeal possibilities, the asylum applicant may under some circumstances lodge a constitutional complaint with the Federal Constitutional Court.
E. Estimated duration of procedure, all instances included
There are no official figures regarding the length of proceedings. The estimated average length of procedures is about 22 months.
IV. Determination criteria applied
In Germany the right of asylum is a constitutional right. The relevant provision, Art. 16a of the Constitution (Basic Law) stipulates that a person persecuted on political grounds is to receive asylum. The definition of the term refugee, although not expressly mentioned in the Constitution, follows closely the definition contained in the Geneva Convention. The interpretation of the right of asylum has been strongly influenced and formed by the jurisdiction of the Federal Constitution Court as well as the Federal Administrative Court.
Asylum seekers who have passed through safe third countries on their way to Germany or were already safe in a third country (cf. Art. 33 Geneva Convention) cannot invoke the right of asylum. They may, however, obtain refugee status under Para. 51 I of the Aliens Act provided that they cannot be returned to the third country. Para. 51 I of the Aliens Act incorporates the Geneva Convention into German law and is constructed as a "protection against deportation" on grounds of political persecution.
V. Non-Convention status / categories, i.a. according to ECHR and CAT
A non-convention status in form of sufferance ("Duldung" = suspension of removal) or a residence authorisation ("Aufethaltsbefugnis") is granted if the following prerequisites are met:

- returnee runs the imminent risk of being tortured (Para. 53 I Aliens Act)

- returnee faces death penalty (Para. 53 II Aliens Act)

- returnee faces torture or inhuman treatment (Para. 53 II Aliens Act in conjunction with Art. 3 ECHR)

- returnee's life, health or freedom is endangered (Para. 53 VI Aliens Act)

- regional authorities ("Länder") may suspend deportation for certain groups of aliens or to certain countries. A suspension is possible for up to 6 months, any extension thereafter requires the consent of the Federal Interior Minister (Para. 54 Aliens Act)

- war victims and civil war victims may receive temporary protection outside the asylum procedure (para. 32a Aliens Act)

VI. Integration Measures
As a matter of principle, only aliens with a long-term residence permit are entitled to be integrated. Hence, recognised refugees have access to comprehensive integration measures (cf. Above C 1.4), while asylum seekers are not meant to be included in integration programmes.
VII. Policy of return of rejected cases
Rejected asylum seekers whose removal has not been suspended are required to leave Germany. A number of repatriation programmes, inter alia, REAG and GARP, have been introduced in order to promote and facilitate voluntary returns. The programmes are targeted at rejected asylum seekers without means and provide a support mechanism for prospective returnees. A number of nationalities may avail of special programmes (e.g. civil war refugees from Bosnia, Polish nationals, Romanian, Croatians, Turks, Ethiopians, Eritreans and Vietnamese). All these programmes are state-financed.
VII. [sic] Role of UNHCR in the national status determination procedure
UNHCR

- monitors adherence to the Geneva Convention

- receives copies of asylum decisions of the BAFI

- can request that staff members be present at interviews of the BAFI

UNHCR has no formal role in the status determination procedure.

According to information provided on 7 October 1999, by the Federal Office for the Recognition of Foreign Refugees there have been no alterations, beyond administrative changes, to German asylum laws since 1997. For further information on Germany's asylum procedures please consult the attached pages from the section on Germany in the September 1997 Inter-Governmental Consultations (IGC) Report on Asylum Procedures. For information on temporary protection please consult the attached pages from the section on Germany in the August 1995 IGC Report on Temporary Protection in States in Europe, North America and Australia. For additional information on German asylum law, please also consult DEU30816.E of 13 January 1999, DEU30667.E of 24 November 1998, DEU30335.E of 2 November 1998 and DEU28884.E of 2 March 1998.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

Reference


Federal Office for the Recognition of Foreign Refugees, Germany. 7 October 1999. Correspondence.

Attachments


Inter-Governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia. September 1997. Report on Asylum Procedures: Overview of Policies and Practices in IGC Participating States. Geneva: IGC. pp. 197-211.

Secretariat of the Inter-Government Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia. August 1995. Report on Temporary Protection in States in Europe, North America and Australia. Geneva: IGC, pp. 115-123.