The right of asylum is - its ancient roots notwithstanding - a recent right. Only this century has brought about an individual right of protection, which is not surprising bearing in mind the experiences of two world wars; this right has been anchored on a European level in the Convention Relating to the Status of Refugees (Geneva Convention on Refugees, GCR), and in Art. 16 II 2 of the German Constitution (GG). The short and unambiguous phrasing of Art. 16 II 2 GG (old version), stating that "politically persecuted persons enjoy protection under the Asylum Act", was to take into account the experiences of racial and political persecution through Nazi Germany. Therefore the right of asylum was deliberately created as an individual fundamental right not subject to any restriction. Increasing immigration pressure towards Germany, caused by the north-south gap, a non-existing migration policy and the breakdown of the Eastern Bloc led to ever increasing numbers of asylum seekers and finally to the so-called "asylum compromise" of 1993, i.e. a modification of the German Constitution and of the Asylum Procedure Act. The former Art. 16 II GG became Art. 16 a GG, whose section I has exactly the same wording as the former Art. 16 II GG. Its section II, however, excludes persons from so-called "safe third countries" from protection under the Asylum Act. In section III, procedural provisions are laid down regarding persons from a so-called "persecution-free country of origin", whereas the immediate enforcement of measures terminating residence in cases where section III applies, or other "manifestly unfounded" cases, is laid down in the provisions of section IV. Section V of Art. 16 a GG contains an opening clause relating to international law.

No more than an "almost empty shell" has remained of the original "generosity", as expressed by Dr. Carlo Schmidt, SPD Member of Parliament, during the 18th sitting of the main committee of the Parliamentary Council on 4 December 1948: "The granting of asylum protection is always a question of generosity, and if one wants to be generous, one has to risk being mistaken about one person".

In practice, the fundamental right of asylum of Art. 16 a GG is of little relevance for decisions, as only those who enter the country by air or sea still can claim this fundamental right. The official figures hide this fact, because the statistics of asylum recognitions record cases of family asylum pursuant to § 26 AsylVfG as well, although these are cases of protection under common law.

§ 60 I AufenthG is therefore of far greater importance in practice. It has been modelled on Art. 1 A of the Geneva Convention on Refugees and is to be interpreted, according to rulings of the Federal Administrative Court, in a way that it corresponds to the definition of a refugee of Art. I A No 2 GCR.