LITERATURE
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LITERATURE
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Hubert Heinhold translated by Birgitt Wagner and Dominik Zimmermann von Loeper
Literaturverlag - E-Mail First of all, I have to explain to the non-jurist the meaning
of this heading. In legal usage of language, "material law" delimits "formal
law". The latter contains most of all procedural rules, i.e. provisions that lay
down the way a legal result is to be obtained, and how one is to proceed. The
jurist speaks of material law when speaking of the substantive form of law, when
asking the question of what the law lays down as regards content. In criminal law, for example, material law states which action
is threatened with which punishment: murder, for example, results in a life
sentence. Material civil law defines the term "property", how one acquires it
and how it is lost again. Asylum law is about protection under the Asylum Act
and about what kind of protection there is under which circumstances. The respective formal law, on the other hand, is about the way
the result is achieved. The Criminal Procedure Act determines, for instance,
which pieces of evidence may be used and which not. Among other things, it is
laid down in the Civil Procedure Act who may appear before which court and in
which way the claim is to be advanced. The Asylum Procedure Act contains
provisions concerning e.g. how persecution is to be examined by whom and how
these decisions can be brought before a court in order to be reviewed.
The procedure will be dealt with later on. First of all, and in
this chapter, material law will be dealt with, i.e. the way in which a person
who has been persecuted is protected by the legal provisions valid in Germany.
That is what this chapter is about. |
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I have experienced the fact that it is enormously helpful to take a look back. If somebody asked me today why I have to speak many languages and use several currencies on the short way from London via Amsterdam, Brussels, Munich, Prague to Warsaw, although for him one language and one currency were sufficient on the much longer distance between New York and Los Angeles, an account of European variety would make his head shake even more because it is so different from American unity. A historic look back at the settlement of the USA and the coming into existence of the "United States of America" would probably make the present state understandable.
When explaining one field of law, it seems similarly important to me that the development of law is sketched at least in its essential traits. Otherwise one is shaking one's head and does not understand why for instance the very same misdeed may and must be examined from different standpoints by two different authorities, e.g. by the Federal Office for the Recognition of Foreign Refugees, asking the question of whether there has been political prosecution, and by the aliens authority, asking the question of whether this treatment had violated human rights. Common sense would be content with the conclusion that a person is worthy of protection and that he or she cannot return to his or her country of origin. Since this book is not about common sense, but about legal ways of obtaining protection in Germany, I have to go back a long way. The word "asylum" is derived from Greek and roughly means shelter. Sometimes it is still used in this meaning, for example when talking about a "lunatic asylum". The institution of granting protection itself dates back much further than to the times of Ancient Greece. The Old Testament also knew it as a treaty between the Egyptian Pharaoh Ramses II and the Hittite King Hatuschil II. Of course these instruments had nothing to do with asylum law as we know it today. They were religious commands, deeply rooted customs and traditions, partly they were international treaties; however, there was no individual right of asylum. By granting protection, religious commands were complied with, old traditions were respected, individual rights of sovereignty were emphasized or aims of national law were pursued. The individual human being was nothing but an object of international relations, no different from a plot of land. Only with the Enlightenment, and paralleling the development of the modern state did the point of view change. The state's own citizens were no longer considered to be serfs, and thus objects: "We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain, unalienable rights; that among these are Life, Liberty, and the Pursuit of Happiness" (Declaration of Independence of the United States of America, 4th July 1776). This made them sovereign, i.e. representatives of the authority of the state. Therefore it was only a question of time for the individual to be granted rights not only with respect to his own state, but also as regards a foreign state. This is the logical reason why, after asylum law was incorporated into the Universal Declaration of Human Rights of 10 Dec 1948, the Geneva Convention on Refugees was signed on 28 July 1951; next the office of the United Nations High Commissioner for Refugees was created, and asylum law was incorporated into individual constitutions. There are also many common law regulations in many states. Not only had Germany safeguarded the constitutional right of asylum in its Art. 16 II GG (German Constitution) as an individual constitutional right, until it was changed on 1 July 1993, it had also created it without restrictions. "Either we grant a right of asylum - a right that is, as far as I know, very old in terms of legal history - or we abolish it". This was the majority opinion of the fathers and mothers of the German Constitution, according to the words of Herr Wagner, SPD (Social Democrat) Member of Parliament (44th sitting of the second reading in the main committee of the Parliamentary Council of 19 Jan 1949). The incorporation of the constitutional right of asylum was a conscious reaction by the Constitutional Assembly to the persecutions during the Third Reich. Several persons who were members of parliament after WW II had been politically persecuted themselves, and had experienced themselves the lack of protection and rights of a refugee. The development in other states parallels that of Germany; the right of asylum established there as an individual right to be granted asylum, even if it is not laid down in the constitution in most countries. Even if the individual right of asylum has not yet become part of international law or of international customary law, the overall development is taking this direction - an unavoidable step in view of the present-day understanding of a state and of the fact that the streams of refugees are increasing, not decreasing. 2) Development of Protection of Human Rights Human rights developed both parallel to and influencing each other. Having witnessed the human rights violations of World War II, the United Nations Charter confirmed on 26 June 1945 its members' faith in the fundamental human rights of the human being and set itself the goal to "promote and encourage respect of human rights and fundamental freedoms for all, without distinction as to race, sex, language, or religion". On 12 Dec 1948, the UN General Assembly adopted the "Universal Declaration of Human Rights", which stated the substance of all guarantees of human rights without having any binding effect in terms of international law. It declared clearly, however, that the protection of human beings is the purpose and objective of the system of international law, too. Since then, human rights have been anchored in numerous UN resolutions, conventions, official declarations, treaties under international law as well as the constitutions of individual states; therefore it is indubitable that at least the hard core of the rights and guarantees laid down in the Universal Declaration of Human Rights have become binding as part of the customary international law. The International Covenant on Civil and Political Rights of 12 Dec 1966, which was ratified by the Federal Republic of Germany on 17 Dec 1973, constitutes a great step towards the international guaranteeing of human rights. The pact guarantees a number of fundamental human rights and obliges the countries that have signed it to present reports in regular intervals on the measures they have taken in order to promote the realization of recognized rights. This pact was signed by more than 70 states, thus recasting a large part of the human rights laid down in the Universal Declaration of Human Rights into binding agreements under international law. On 7 March 1966, the International Convention on the Elimination of all Forms of Racial Discrimination was concluded, which was ratified by the Federal Republic of Germany on 16 May 1969. The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 Dec 1984 obliges the participating states to take effective measures in order to prevent torture or other inhuman treatment. Germany ratified it on 1 Oct 1990. Also to be mentioned is the Convention on the Rights of the Child of 20 Nov 1989, which was ratified by the Federal Republic of Germany, even if a reservation clause was added when the ratification document was deposited on 10 July 1992. These are only the most important United Nations covenants on human rights. The regulations agreed upon on a Council of Europe level are more important for the protection of human rights in Germany. Here the central norm is the European Convention for the Protection of Human Rights and Fundamental Freedoms of 11 Nov 1950 (ECHR), which was ratified by the Federal Republic of Germany on 5 Dec 1952, and came into force on 3 Sept 1953. The ECHR is of such great importance because it has created an effective instrument for the realisation of individual human rights in the form of an individual appeal before the European Court of Human Rights in Strasbourg, which is granted in its Art. 25. Only by this measure and by the decisions of the Strasbourg Court, which have to be taken into account when interpreting the national Constitution, was a real "hard law" created, thus helping to realise the idea of individual human rights obtainable by legal action at least on the level of the 36 participating countries. In addition to this central norm there are other regulations, like the European Social Charter of 18 Oct 1961, or the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 28 Jan 1981 on the level of the Council of Europe, or the Council's Guideline on Equal Treatment of Men and Women of 9 Feb 1976 on a European Community level. All these regulations confirm human rights without having comparable weight. 3) Incorporation into National Law Part of these provisions are applied directly, part of them are relevant as principles or guidelines for the interpretation of German law. Some of the regulations have even been incorporated into German laws, in particular into § 53 AuslG (Aliens Act). § 53 AuslG explicitly refers to the European Convention on Human Rights and makes it part of the Aliens Act, independent of the fact that the EMRK is valid in Germany by act of law anyway.
As asylum law is not identical with human rights and as it did not develop simultaneously with the development of human rights, the present-day situation is that the protection of persecuted persons is not only the aim of refugee law, but to a great extent and increasingly also that of provisions on the protection of human rights. Of course, this complicates the matter. A double examination takes place, as will be explained later on. And yet there is also an advantage in this double-track system: even after curtailing protection under national asylum law, international protection of human rights remains in order to cushion the effect; even the most narrow interpretation of the law cannot evade the minimum standards of human rights protection.
In the following chapters, I will first present asylum law in the broader sense, and then the protection of human rights. II) Protection under the Asylum Act 1) Legal Basis and Development 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. § 51 I AuslG 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. There is criticism in legal texts that this requirement is not fulfilled; they say that the Convention does not demand persecution "by the state" but starts out from an idea of subjective persecution.
Placing these two rules of law on an equal footing makes it easier to apply the law in practice, and worsens the refugee's status: he is not granted a permanent residence authorization (Aufenthaltserlaubnis), as required in Art. 16 a GG, but only a residence title for exceptional purposes (Aufenthaltsbefugnis).
§ 32 a AuslG, which was introduced within the framework of the asylum compromise, includes a special admission regulation for refugees of war and civil war. It was put into practice for the first time in 1999 when taking in quota refugees from Kosovo.
The Act on Measures in Aid of Refugees Admitted under Humanitarian Relief Programmes, the so-called law on quota refugees, is also part of refugee legislation in its broader sense. It regulates the legal situation of aliens who have been granted more than temporary admittance for humanitarian reasons by the Federal Republic of Germany in the course of humanitarian relief programmes, either because they have been granted residence authorization prior to entry in the form of a visa, or because of an acceptance declaration by the Federal Ministry of the Interior. 2) Art. 16 a GG - Fundamental Right of Asylum Art. 16 a GG still states: "Politically persecuted persons enjoy protection under the Asylum Act" and thus makes clear that the fundamental right of asylum has been created as a subjective public right of acceptance and protection, even if it is restricted by the sections that follow. This means that it is a claim the individual person is entitled to (i.e. not only the general public); the individual may take court action in order to obtain it.
a) Concept of Political Persecution The fundamental right of asylum is based on "the conviction, determined by respect for the inviolability of human dignity, that no state has the right to endanger or to violate life and limb or the personal freedom of the individual for reasons which are only based on his political conviction, his basic decision in terms of religion, or characteristics he cannot alter and which determine his being different (characteristics relevant in terms of asylum); asylum law as laid down in the Constitution has been decisively determined by this legal conviction". Accordingly, the "requirements for and the extent of political asylum are ... essentially determined by the inviolability of human dignity, which, being the top-most constitutional principle, has decisively influenced the anchoring of a far-reaching entitlement to asylum in the German Constitution in accordance with the historical development of the right of asylum"; this is the Federal Constitutional Court's wording, as expressed e.g. in BVerfGE 80, 315 ff, BVerfGE 76, 143 ff of 10 July 1989. This approach based on human rights is decisive for the interpretation of the term "political persecution".
In this context, the adjective "political" does not refer to a "clearly limited, practical field of politics, but rather to a quality that may be assumed under certain circumstances at any time by all fields irrespective of the matter". Therefore the means resorted to by the authority in power become the decisive criterion for the determination of a political quality or, in the Federal Constitutional Court's wording: political persecution is a "violation of objects subject to legal protection, which has been purposefully inflicted on the individual following on from characteristics relevant in terms of asylum", and which because of their intensity exclude the individual from the general peaceful order of the state " (BVerfG of 1 July 1987, BVerfGE 76, 143, and of 10 July 1989 op.cit.). Persecution thus described has to follow on from the affiliation with a race, religion, nationality, or a particular social group, or a political opinion. Persecution because of sexual orientation or sex, because of objection to military service and desertion are borderline cases. According to court rulings, persecution relevant in terms of asylum is to be assumed only in those cases where measures against the person concerned have been taken not only for reasons of public order, of moral or military policy, but which are to affect the individual to a more than average extent because of the very fact that he or she is different.
b) Political Persecution is State Persecution Another essential principle is: in principle, persecution has to originate from the state. "Political Persecution is ... in principle persecution by the state." Decisions by Administrative Courts have placed on an equal footing to the government "such government-like organisations which have ousted the respective administration, or to which it has given way, so that these organisations have replaced it." Persecution measures by third persons are considered political persecution as defined in the Asylum Act only in exceptional cases. This is the case if these persons have to be considered "part of the organs of the respective state. ... Here what is decisive is whether the state gives protection to the person concerned with all the means that are in principle at its disposal. ... The attribution is considered to be founded if the state is either not willing to give protection, or if it does not consider it possible to use the means that are in principle at its disposal against acts of persecution committed by certain third persons in a definite case." (Wording by the Federal Constitutional Court, decision of 10 July 1989 op.cit.) The state's responsibility relevant in terms of asylum ends, however, if the affording of protection exceeds its power.
Thus, protection under the Asylum Act requires persecution by the government, or by groups which are endowed with powers similar to those of a government (= quasi-governmental persecution), or the attribution of individual acts of persecution because of the state authorities' refusal to afford protection despite their ability in principle to give protection.
1. If a system of government no longer exists neither does political persecution. "The power to protect includes the power to persecute", for if "the prerequisite for persecution originating from the state or attributable to the state is its actual territorial power, in the sense of effective sovereign superiority, the possibility of political persecution does not exist when, in a situation of open civil war, the government has in fact only the role of a combatant party in a civil war in a disputed region but in which it no longer exists as the general effective power of law and order" (BVerfG of 10 July 1989 op.cit.). In practice, the refusal to afford protection under the Asylum Act, in cases where central governmental power has been dissolved, originates from these principles. At the moment this applies to refugees from Afghanistan, for instance.
2. The Federal Constitutional Court has essentially modified these principles: "The matter has to be judged differently if the governmental forces' warfare is conducted in a way that aims at the physical extermination of persons who are or are regarded as part of the other party, and who are determined according to characteristics relevant in terms of asylum, although these persons are no longer able or willing to put up resistance, or are no longer or never have been combatants. This applies even more so if the governmental forces' actions turn into the deliberate physical extermination of the rebellious part of the population as a whole, or if they aim at the destruction of these persons' ethnic, cultural, or religious identity." This means that political persecution can take place under the precondition that the organs of the remaining state act as described above, even if law and order have broken down in the absence of any central power, with the government acting as a combatant party in civil war. The prevailing legal opinion interprets these exceptions very restrictively. In practice, protection under the Asylum Act is granted only if government forces aim at the opposing group's extermination, with this group being determined according to "characteristics relevant in terms of asylum" (e.g. an ethnic group, a religious group or similar); this group has to be no longer able or willing to resist, or to be no longer or to never have been a combatant party, or government actions have to aim at deliberate physical extermination or destruction of the group's identity. Such situations do exist, but only rarely. More often, however, one further requirement, which was laid down in the Federal Constitutional Court's decision of general principle of 10 July 1989, is not fulfilled. It states: "The measures of the government turned combatant party in civil war in this area are therefore not to be considered political persecution in the sense of the Asylum Act, where and if they are of typically military character and aimed at the re-conquest of an area over which the government de facto has lost control to the enemy forces thus being fought, although the area (still) remains part of the state territory de jure. In such a situation, fighting against the enemy in the civil war by government forces does in general not appear to be political persecution." Thus the Federal Constitutional Court considers actions of the "government which has turned into a combatant party in a civil war" irrelevant in terms of asylum only "where and if they are of typically military character" and additionally "aimed at the re-conquest of an area". Other weighty acts of persecution, however, can quite well be regarded as political persecution in a civil war situation. The Federal Constitutional Court expresses this clearly when summarizing that political persecution in civil war also exists if "the actions of governmental security forces ... exceed measures of fighting the enemy of civil war for the sake of re-establishing a state peaceful order". This means in practice that the organs of the remaining state can also persecute individually, for instance by imprisoning a political opponent, who does not belong to the enemy side in the civil war, or by persecuting a person for individual religious or racial reasons. Sex-specific persecution, or the killing of former communist functionaries in Afghanistan, are neither of "typically military character", nor are they aimed at "the re-conquest of an area"; therefore the criteria defining exceptions established by the Federal Constitutional Court are not fulfilled. The Federal Office and court rulings ignore these subtleties, though. The simple equation is drawn up that political persecution does not exist in regions of civil war. This way of looking at things, however, is not correct.
c) Relevance of Measures in Terms of Asylum Not every encroachment thus described fulfils the criteria required by political persecution. It is necessary that the individual's "objects to which legal protection is granted" have been violated as a consequence of characteristics relevant in terms of asylum, and which, because of their intensity, exclude the individual from the general peaceful order of the state. The purpose to be fulfilled by measures is not fulfilled, for example, where a person has to suffer as his fate disadvantages resulting from the general situation, like hunger or natural disasters. The specific aim of persecution is to be determined from its substantive character as regards its recognizable aim and not from the subjective intention of the persecutor.
1. An intervention relevant in terms of asylum occurs when an act of persecution is objectively able to violate a person's unalienable "personal characteristics" (especially the objects of legal protection such as life and limb, personal freedom, freedom of religion, freedom of conscience or other characteristics given to each individual by birth) in such a way that the person's difference in nature is judged as being inferior, not worthy of life, harmful or dangerous. The viewpoint of the government responsible is irrelevant.
2. The act of persecution relevant in terms of asylum has to be of an intensity which establishes not only mere disturbance but persecution marginalizing the person concerned. The basic idea of the right of asylum is to grant residence and protection to those who are in a hopeless situation. The level of when disturbance has turned into persecution cannot be determined in an abstract manner. On the one hand, mere discrimination, harassment and irritation are not sufficient; permanent psychological pressure, forced re-education, forced labour, or a forced marriage, or even purposeful legal prosecution of an individual because of personal characteristics relevant in terms of asylum, on the other hand, can constitute persecution measures marginalizing the person concerned. In the end what is decisive is whether the refugee is "in a situation which offers him or her no way out" (BVerfG of 26 November 1986, BVerfG 74, 51 ff.).
d) Causality between Persecution and Flight There is another criterion: the right of asylum in principle requires causality between persecution and flight. It is granted to those who have fled from persecution already suffered or impending "in order to give protection to him or her in an extremely precarious or hopeless situation. The right of asylum as laid down in the Constitution "aims from its start at granting shelter and protection to persons fleeing from political persecution" (wording of the Federal Constitutional Court, ruling of 26 November 1986 op.cit.). A person who has left the country of origin without acute pressure of persecution can in principle not be recognized as entitled to asylum, even if this person will be persecuted in case of return. Causality is also missing when a different government has taken over power in the meantime, even if the person who had been politically persecuted before will also be persecuted by the new rulers: he is now threatened by a different, new political persecution. Even if he had to return to a state of anarchy by that time, he would be refused asylum.
This is not to be regarded as valid, however, if the change of political regime in the country of origin is to be regarded as an "objective fact of the case arisen after the flight", i.e. that the persecution situation has arisen without the refugee having a (new) hand in the matter. In such a case it would seem unreasonable to send the refugee back to the persecuting country, and to subsequently encumber him with the risk of whether or not he is able to flee from persecution and whether he can effect the flight which up to then had not taken place and can therefore be recognised as an asylum-seeker.
"Subjective facts of the case arisen after the flight", i.e. facts that have been created by the refugee on his own initiative after leaving his country of origin (so-called "reasons created by the asylum-seeker after flight"), will lead to an asylum recognition only in exceptional cases. This will be the case when a person's activities "are in line with firm convictions which he manifestly expressed while he was still in the country of origin".
e) Affectedness of the Individual by Persecution The criteria for political persecution require that the person requesting asylum is individually affected by it. The refugee has to fear political persecution for his person.
1. Persecution, however, can be directed against a group of people who share common characteristics like race or religion. In these cases of group persecution it can be assumed that persecution is aimed at every member of the group. The assumption of the existence of group persecution requires a "quantitative density" of persecution, i.e. that a great number of interventions have taken place, so that an acute danger for each member of the group can be assumed without further investigation.
2. There is a fluid transition between the different manifestations of political persecution, whose extremes are the individual being directly affected by acts of persecution specifically aimed at him, on the one hand, and, on the other, there is persecution aimed at a group of people as such. The present danger of persecution for a member of a group can be derived from the fates of other group members, even if reference cases do not yet justify the assumption of group persecution: if comparable persecution has occurred a number of times in the past, and if the members of the group have to live as a minority in a general climate of moral, religious, or social contempt - a climate that actually favours acts of persecution, if not justifying them in the view of the persecutors - or if they are generally subject to oppression and harassment even if the extent of these actions is not yet great enough to justify the assumption of political group persecution (so-called "occasion-oriented individual persecution").
Both are theoretically convincing constructs, which have little practical relevance because of the restrictive interpretation by court rulings.
3. Often another reason for political persecution is being part of the same family. The Federal Administrative Court therefore established the principle of the regular assumption of political persecution of wives whose husbands are politically persecuted. If cases have been established where the persecuting country has taken reprisals against wives in connection with the political persecution of their husbands, an "assumption following the idea of protection of Art. 16 II 2 GG becomes valid. It is to be assumed that the wife of a politically persecuted person, whose entitlement to asylum is to be decided on in concrete terms, is threatened by the same fate with relevant probability. As a standard, it therefore does not have to be examined more closely whether the established cases stem from the persecuting country's general practice, or whether their circumstances allow the drawing of concrete conclusions with special regard to the persecution danger the person referring to them as reference cases is faced with" (BVerwG of 2 July 1985, EZAR 204 No 2). Later this regular assumption was extended to minor children of persons entitled to asylum.
In § 26 AsylVfG, the so-called family asylum (Familienasyl), it has by now been laid down in common law that spouses and children are to be recognized as entitled to asylum if the requirements stated are fulfilled (see chapter 2, family asylum). The assessment of the persecution danger the persons favoured in the way have to face is not therefore a standard procedure. Despite this legal regulation, the principles of a regular assumption of political persecution of close family members established by the Federal Administrative Court still can be applied (if family asylum does not intervene as a matter of priority) - and pursuant to § 51 I AuslG as well, by the way - because these are regulations concerning the burden of proof.
A distinction must be made between this construction and the persecution of all members of a family because of one member (Sippenhaft). There is no special rule for these cases. It has to be established in the individual case whether being part of the family or kinship group concerned causes an individual danger of persecution for the person concerned. "Persecution of all members of a family because of one member" and the principle of "regular assumption" are different legal constructs (regarding persecution of spouses and minor children); however, they are often confused in practice, even by judges.
f) Persecution Prognosis Only those who are in danger in case of return are granted protection under the Asylum Act. Therefore a persecution prognosis has to be made; it has to establish the probability of persecution in the future, when hypothetically assuming that the asylum seeker will return to the country of origin. Due to the many uncertainties, it requires a suitable working out of the actual basic material, appropriate to the matter and methodologically faultless; the factual investigation has to be sufficient in terms of reliability and scope. This demands that all available sources of information are used to their full extent, and that the result is presented in a way that allows verification of which conclusion in future circumstances has been drawn from which past or present occurrence. Only by such transparency will it be possible for the procedural parties and the court to examine the result of the evaluation of evidence expressed in the prognosis. And only a comprehensible evaluation of evidence verifiable in this way will do justice to the constitutional precept that the decision-making of authorities and courts has to be non-arbitrary, rational and plausible.
The asylum applicant is subject to the burden of setting forth the facts, but not to the burden of proof, as he is, typically for the matter, lacking evidence regarding occurrences in the foreign country and individual facts, e.g. the reason of persecution. The asylum seeker satisfies this burden of setting forth the facts by presenting a conclusive, exact, and complete factual argument. When an assessment in summary is made of the facts examined in the prognosis as well as a sensible evaluation of all the circumstances of his case, the existence of subjective reasons for the refugee's serious fear of political persecution alone is not enough. What is decisive is that there are sufficient objective grounds establishing the fact that the refugee cannot be expected to stay in the country of origin or to return there.
The court has to form full certainty of conviction of the individual factual argument and the objectively impending danger of political persecution. Certainty beyond any doubt whatsoever is not necessary; when weighing and evaluating all established circumstances and their importance, the circumstances indicating persecution have to be predominant and of greater weight. This means that the danger must not only be purely abstract, theoretical, and hypothetically possible, but that the BAFI officer or judge are convinced of a concrete, real danger existing for the refugee. The existence of such a danger has to be investigated using the refugee's statement and general information. Here the BAFI and the court must not be satisfied with taking note of striking facts; the facts of the matter have to be investigated. The principle of investigation as laid down in § 86 VwGO is of special, constitutional importance in asylum cases. The court is officially obliged to carry out every possible investigation of the facts of the matter, except for when the limits of possibility and reasonableness are reached. Only few judges comply with this obligation.
1. The humanitarian character of the asylum law requires a reduction in the burden of proof for someone who has already experienced political persecution. The reduced probability standard is of benefit for him; he can only be refused protection under the Asylum Act if a recurrence of persecution measures in case of return can be ruled out with sufficient probability. Thus the refugee has to be sufficiently safe in the country of origin from the danger of being persecuted once again. When a refugee has already suffered political persecution, thus being "pre-persecuted", it does not matter if this persecution would still be lasting at the time of the hypothetical return; the decisive point rather is if a recurrence of the persecution measures can be ruled out with sufficient probability. This interpretation of the law takes into account the - psychological - effects of persecution already suffered, and bears in mind that persecution is frequently repeated in the same or a similar way, something that is even typical for pogroms. According to court rulings, persons who have not yet suffered persecution, but who have left the country because of imminent political persecution, are also considered to be pre-persecuted. This is the case if, when looking on the case in a qualified way, the circumstances indicating persecution are of greater weight and therefore outweigh the facts speaking against this.
2. Where the refugee had not been subject to political persecution or is not in imminent danger - thus not being "pre-persecuted" - the regular probability standard becomes valid. In this case there has to be considerable probability for political persecution after a return to the country of origin. Therefore the requirements are more extensive.
3. Pursuant to Art. 16 a III GG together with § 29 a AsylVfG, it is assumed that a person from a safe country of origin has not been politically persecuted there. Safe countries of origin are such countries where it is apparently guaranteed, because of the legal situation, the application of the law and the general political situation, that neither political persecution, nor inhuman or degrading treatment or punishment take place there. As defined in § 29 a II AsylVfG, these are presently: Bulgaria, Ghana, Poland, Romania, Senegal, the Slovak Republic, the Czech Republic and Hungary.
An origin from one of these countries does not lead to the refugee being excluded from the right of asylum, but puts forward a mere "assumption rule" which is refutable. Should this refutation not be successful, the asylum application is to be rejected as manifestly unfounded (§ 29 a I AsylVfG). Impediments to deportation are to be examined pursuant to § 53 AuslG, however.
g) Flight Alternative Within the Country Political persecution requires that there is no flight alternative within the country (inländische Fluchtalternative). If the asylum seeker is not persecuted in all parts of the country, he or she can be referred to persecution-free parts of the country of origin under certain circumstances. This is the case if the refugee would have been safe from political persecution in another part of the country, and if he would not have been threatened by other disadvantages and dangers equally intensive and serious as a restriction of the "objects under legal protection" relevant in terms of asylum. Only the objective seriousness of these dangers is relevant; they do not have to assume characteristics relevant under the Asylum Act, nor do they have to originate from the state. Furthermore it is necessary that this existential threat to objects under legal protection does not exist in the region of origin. Therefore a flight alternative within the country exists even if the person affected lived on a subsistence level in the persecution-free part of the country, provided that the refugee would be threatened in the same, existential way as in the persecution region. When assessing whether the refugee affected by regional persecution could secure living on the economic subsistence level, the individual, concrete circumstances, e.g. inadequate training, are not relevant; rather a generalizing way of looking at the situation is called for. Looking at the situation from the individual's point of view, however, is called for when dealing with the circumstances that have caused persecution.
When examining a flight alternative within the country, a double prognosis is to be made. Firstly, a retrospective prognosis has to establish whether persecution had only been regional at the time of the flight, and whether the person only regionally persecuted would have been sufficiently safe from political persecution in other parts of the country. Regionally pre-persecuted persons benefit from the reduced probability standard already in terms of assessing past probabilities. The reduced probability standard, though, only applies to the question of political persecution in the potentially safe part of the country; it does not apply to the question whether the refugee would be threatened by other existential dangers at the place of the flight alternative. Such dangers have to be established in accordance with the regular probability standard. A distinction has to be made between the prognosis of the future, which always has to be made, and the retrospective prognosis. The retrospective prognosis can lead to an assumption of country-wide persecution; the only regionally pre-persecuted person could then benefit as well from the reduced probability standard for pre-persecuted persons when it comes to the prognosis of the future. If the prognosis comes to the conclusion that there is a flight alternative within the country, recognition pursuant to Art. 16 a GG is not possible. h) External Flight Alternative Protection under the Asylum Act is also not possible if there is an external flight alternative.
1. Since the Constitution was amended, it is now prescribed by Art. 16 a II GG together with § 26 a AsylVfG that a person who has entered from a safe third country will not be granted protection under the Asylum Act. He or she will not be recognized as entitled to asylum. In its decision of 14 May 1996, the Federal Constitutional Court declared the "Third Country Rule" (Drittstaatenregelung) to be constitutional; it says that the constituent and legislative body is entitled to establish that refugees are safe from persecution in a certain third country. This concept of "normative ascertaining" additionally includes dangers pursuant to § 51 I AuslG and § 53 AuslG, as the third country is expected, as a standard, to comply with the ban on refoulement?? as laid down in the Geneva Convention on Refugees, as well as the protection of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). As a standard, an examination of the requirement of § 51 AuslG and § 53 AuslG is therefore not necessary, if the third state rule applies.
Exceptionally, there can be impediments to deportation pursuant to §§ 51 I and 53 AuslG. This may be the case especially where
In these categories of cases - and others are possible, e.g. cases with a concrete danger of chain deportations, i.e. deportations from one country to the other until the refugee is deported again to the country of origin - it can be achieved with the means of temporary legal relief (in exceptional cases and under strict requirement) that impediments to deportation are assessed, and that deportation is suspended. Otherwise, and as the standard case, temporary relief pursuant to Art. 16 a II 3 GG is explicitly ruled out.
As defined in Art.16 a II GG, safe third countries are all member countries of the European Union and furthermore other states where compliance with the Convention on the Legal Status of Refugees (Geneva Convention on Refugees) and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is guaranteed. These are determined by common law, § 26 a II AsylVfG. Presently, they include Finland, Norway, Austria, Poland, Sweden, Switzerland and the Czech Republic. This means that all of Germany's neighbouring countries are safe third countries. Therefore the constitutional status of a person entitled to asylum can only be obtained by those who have entered Germany by air or sea.
The Third Country Rule does not apply where the alien was in possession of a residence authorization for the Federal Republic of Germany at the time of his or her entering the safe third country (§ 26 a I No 1 AsylVfG), or where Germany is responsible for conducting an asylum procedure on account of an international agreement with the safe third country (§ 26 a I No 2 AsylVfG), or where the alien has not been rejected or deported on account of an order pursuant to § 18 IV No 2 AsylVfG. Most of all the Dublin Convention on Asylum can be considered to be an international agreement in terms of § 26 a I No 2 AsylVfG. There it is laid down that the first country to be entered by the asylum seeker, or the country that granted a visa, is principally responsible for conducting the asylum procedure. If a family member of the asylum seeker has already received the status of a refugee in terms of the Geneva Convention on Refugees in one EU member country, however, this country will be responsible for examining the asylum request of the family member (Art. 4 DA). As a result, all this means that the Third Country Rule does not apply where the refugee was in possession of a German visa, or where the Dublin Convention on Asylum is applicable and where a family member has already received the status of a refugee in terms of the Geneva Convention on Refugees.
The Third Country Rule applies as well where it is uncertain via which third country the refugee has entered. It is sufficient to establish that the refugee has come by land. Nearly all court rulings assume that the full burden of proof for entry by air is with the refugee. Even if this interpretation of the law has been criticized with good arguments, no success will be achieved with this argument. If possible, full evidence should be furnished. Here attention is to be paid to the fact that full evidence can also be furnished by formal examination of the refugee as a "party". Such a formal party examination differs in principle from the usual hearing of the asylum seeker, the objective of which is the obtaining of information. During a formal party examination he is subject to the full duty to tell the truth; should he lie during this formal statement, he can be punished. A refugee who has no other means of evidence therefore should offer his own "party examination" as an evidence of his entering by air.
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Where the asylum application has not been filed at the airport, or where it is disputed whether the refugee had been on Federal territory before or not, the refugee has to furnish full proof of his or her entering by air (or sea), according to the prevailing legal opinion. Should this proof fail, he or she will not be granted asylum as defined in Art. 16 a GG.
2. Whereas the Third Country Rule only requires that entry was effected via such a third country (thus declaring the mere contact with the territory sufficient in order to make the Third Country Rule applicable), the principle of safety from persecution elsewhere leading to the ruling out of recognition (§ 27 AsylVfG) requires more. The mere contact with the territory is not sufficient.
Safety from persecution in terms of § 27 AsylVfG demands that the politically persecuted person had already been safe from political persecution in another third state. This requires in the first place that the third state does not politically persecute the refugee as well, and additionally that the refugee is granted sufficient safety from further persecution by his country of origin in the third country, in particular that he is neither expelled or deported there, nor in danger of being deported to an unsafe fourth country. Protection must be granted as long as the danger of persecution is lasting in the country of origin. In case of revocation, practical withdrawal, or cessation for other reasons, - but not in case of voluntary abandonment - the need of protection applies again. Safety from persecution in another country not only requires protection from direct or indirect deportation to the persecuting country, but also that the politically persecuted person is given support in surmounting the circumstances that have arisen for him as a result of his having to leave his country of origin because of political persecution, e.g. homelessness, impoverishment, hunger or illness. Neither the granting of a formal legal status is required, nor an integration opportunity in the third country, nor a permanent residence permit in order to make integration possible. It is rather intended that support also might mean helping the refugee to reach yet another, final country of asylum. The required support is lacking where the politically persecuted person simply does not have the basic means of living, measured on the third country's standard of living; this is the case in particular where the refugee is helplessly exposed to death by starvation or illness, or where he has no other perspective but to vegetate on just about subsistence level. As he finds himself in serious difficulties because of political persecution, he has to be protected from conditions such as the ones mentioned above.
Safety from persecution elsewhere only exists, however, if the flight has come to and end as seen from the outside, i.e. if his residence "has taken on a stationary character". This factor can objectively be ascertained and not necessarily requires the third country to take an active part. It does not exist in cases where the refugee has not taken any steps in order to settle down, or find work, and where he is waiting in hiding until he obtains a forged passport, a visa and a ticket for moving on.
Pursuant to § 27 III AsylVfG, however, the law presumes that the flight has been terminated if the refugee has resided for more than three months in the third country. This presumption, which not only includes achieving protection from persecution but also termination of the flight, is refutable; the refugee has to refer to the fact that he had been unable, or that it had been unreasonable within the period of three months, to take a decision or to travel on at an earlier point in time, and he has to provide prima facie evidence. If a refugee has applied for a visa at the German embassy shortly after arriving in the first country of his flight, e.g., this is clear evidence of the fact that he does not wish to terminate his flight in the third country and objectively has not terminated it.
In § 27 II AsylVfG there is another refutable "presumption rule". If the alien holds a travel document issued by a safe third country or by another third state pursuant to the Geneva Convention on Refugees, he is to be deemed to have been safe from political persecution in this state. If after the flight, during a stay in Germany, new (objective) reasons for flight arise, after the refugee has voluntarily abandoned safety from persecution in a third country, an entitlement to asylum thus arising cannot be denied with reference to previous safety from persecution.
i) Subsumption of the Individual Facts of the Case For people who have already occupied themselves with asylum law, several of the phrases chosen by me will have a familiar ring. This is so because they can be found in many decisions by administrative courts, which consist of text modules to a great extent. In most cases the judges recapitulate the principles relevant under the Asylum Act in line with decisions taken by the Federal Constitutional Court, in order to then classify on this basis the individual statement as irrelevant in terms of asylum. By systematically describing the principles of asylum law in the way they were developed in court decisions, I tried to establish the usual scheme of criteria according to which an asylum application is assessed. With the help of this systematic description, it might be possible to eliminate weak points beforehand, so that the necessary fact can be established more precisely. As the principles of asylum law are of very general nature, however, such a coordination often does not help much. Certainly it has been noticeable that quite often the wording of these principles gives an ambiguous impression. The individual requirements can be interpreted in favour of or adversely for the refugee, depending on the case. For decades - e.g. during the Cold War - the Federal Office and the courts recognized every refugee from the East Bloc as entitled to asylum, even if the person concerned had put up with the deplorable state of affairs in real communism for decades as a conformist, not as a persecuted citizen, and then decided to "vote with his feet" by fleeing to a Western Country. On the other hand, current oppression mechanisms like repeated house raids, threats and short-term detentions at police stations in Turkey are played down by today's court decisions in the overwhelming majority of cases as measures irrelevant in terms of asylum, affecting both Kurds and oppositional Turks. In such cases it is on the one hand necessary to make clear how the individual was affected by describing in concrete terms the repression already suffered, and on the other hand not to accept these (hollow) theorems without criticism. You've got to fight for your rights in order to change things! Pursuant to § 26 AsylVfG, the spouse and the unmarried under-age children of a person recognized without any right of appeal as entitled to asylum are entitled to family asylum, i.e. they are granted legal status as persons entitled to asylum under the circumstances mentioned there. When concerning the spouse, the requirements are that the marriage already existed in the persecuting country, and that the spouse filed an asylum application before or at the same time as the person entitled to asylum or immediately after entry, and that there is no reason to repeal or withdraw the recognition of the person entitled to asylum. These requirements apply in the same way to the children of a person entitled to asylum, who have to be minors and unmarried at the time of their filing an asylum application. According to the Federal Administrative Court's decisions, they too have to file their asylum application immediately, i.e. as a standard rule within two weeks of being born. Only for those children of a person entitled to asylum who were born in Germany after the parent's asylum recognition, the asylum application is to be filed within a period of one year after birth. Since the amendment of the Asylum Procedure Act, which came into force on 1 November 1997, and where it is laid down that the person mainly entitled to asylum has to be recognized without right of appeal, the Federal Administrative Court's requirement that the child has to file an asylum application within two weeks has become absurd. Where the child has no reasons of his own to file an asylum application, as is often the case, this interpretation of the law demands the filing of a "manifestly unfounded" asylum application, only in order to comply with the criterion of an immediate filing. According to this legal opinion, a follow-up asylum application has to be filed later on. In my opinion this is an unnecessary waste of resources. An appropriate interpretation of § 26 AsylVfG might just as well come to the conclusion that the immediate filing of the asylum application only has to be effected as soon as all requirements for family asylum are given, which, since 1 November 1997, also include the fact that the main entitled person's recognition is without a right of appeal. On the basis of the prevailing opinion - and certainly the greatest part of court decisions - an application for family asylum still has to be filed within two weeks, even if it is binding to reject it, only for the reason that a later follow-up application will be successful.
As mentioned before, family asylum also requires that the recognition of the so-called "person mainly entitled to asylum" is without right of appeal. This leads to the paradox that in cases where a court orders the Federal Office to recognize e.g. the father of the family, but denies the reasons for asylum of the wife and the children (which should happen only rarely if the court applies the Federal Administrative Court's principles of regular assumption), the wife's and the children's action has to be dismissed. After the recognition of the head of the family has become not subject to appeal, the wife and the children may (and should!) file a follow-up application within a period of three months. The 3-month time-limit does not begin with the court recognition order acquiring legal force, but with the notification of recognition being served to the head of the family. The requirement that the recognition of the person mainly entitled to asylum has to be uncontestable was added and came into force only on 1 November 1997. As a result, the Federal Office may grant a whole family's asylum application uniformly only where it assumes an individual persecution of all family members. If only one member of the family is regarded as being persecuted, the others either have to be rejected (because at least one requirement for family asylum, incontestability, is lacking), thus provoking an action, or their procedures have to be separated and left aside until the head of the family's application has been decided on. In this way the procedures will be delayed, and an action to compel the performance of the act may be provoked. Thus the amendment of the law leads to an increase in the Federal Office's workload and to follow-up applications; mockers claim that the law's real reason had been to stop a staff reduction at the Federal Office, which would have become necessary because of the decreasing number of asylum seekers. According to the Federal Administrative Court's decisions, recognition of a person as entitled to family asylum is also impossible where the family member has entered from a safe third country as defined in § 26 a AsylVfG, except for cases of entry with a visa or where other exceptions apply (especially Art. 4 DA and Art. 35 SDA). I think that this interpretation of the law is not very convincing as it thwarts the law's objective (uniform status of a family). Here as well the principle of protection against refugees is more important than an appropriate interpretation of the legal norm.
Although the formal filing of an asylum application is one of the requirements of family asylum (thus artificially forcing up the number of asylum seekers), the family members' request for asylum is not examined as regards content if the requirements are fulfilled. Where they do not exist, an independent danger of persecution for close family members is to be examined, taking into account court decisions on the principle of regular assumption.
This generally applies to spouses and children of convention refugees as defined in § 51 I AuslG. Court rulings refuse to apply accordingly § 26 AsylVfG to cases of § 51 AuslG. It is argued that legislation deliberately provided family asylum only for persons entitled to asylum, refraining from deciding on a similar regulation for other refugees. I doubt this. Legislators probably had in mind Art. 16 GG (old version), which was not yet amended at that time, when introducing family asylum, and simply forgot the (at that time) rare cases of § 51 I AuslG. Therefore there is a regulation gap; an analogous approach to the two regulations would be possible as the idea behind the introduction of family asylum, the creation of uniform legal status for all family members, is applicable to § 51 AuslG as well. Still the Federal Administrative Court's settled decisions explicitly rejects this. It is stated that the interests of the close family members of a person entitled to protection from deportation are "satisfied by the legal position pursuant to § 31 AuslG together with § 70 AsylVfG, which they are entitled to in terms of residence status, and which comes close to a legal claim because of Art. 6 I GG (BVerwG of 5 July 1994, InfAuslR 95, 24). This is not in line with international standards and the demands of the United Nation's High Commissioner for Refugees.
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If one is not sure about this question, it is best to ask the advice of a competent lawyer!
4) § 51 AuslG - The Legal Status of a Refugee as Defined in the Geneva Convention on Refugees Pursuant to § 51 I AuslG, an alien may not be deported to a country where his life or his freedom are threatened because of his affiliation with a race or a particular social group, his nationality, or his political opinion. The provision formalizes the protection from deportation for politically persecuted persons, and is to be interpreted and applied in a way that it corresponds with the refugee concept of Art. I A No 2 of the Geneva Convention on Refugees(GCR). The requirements coincide with those for the legal claim to recognition as a person entitled to asylum in so far as the persecution action, the objects of legal protection, and the persecution's political character are concerned. The main difference to the constitutional right of asylum is that Art. 16 a GG requires a causal connection between persecution and flight as well as the lack of protection from persecution elsewhere, whereas the impediment to deportation of § 51 I AuslG is valid also where irrelevant (subjective) facts that arose after the flight are concerned, or where the refugee entered via a safe third country to which he cannot be deported.
According to the Federal Administrative Court's decisions, it is also required that persecution is state persecution or can be assigned to the state. Where the government has no effective territorial power, in a situation of open civil war, or in a situation of anarchy, § 51 AuslG is not applicable. In spite of vehement criticism by legal experts and the accusation that Germany goes its own way in this matter, the Federal Administrative Court has stuck to its interpretation of the law and even restricted the definition of quasi-governmental persecution.
a) Persons Entitled to Asylum and Refugees Recognized Outside Germany The requirements of § 51 I AuslG are fulfilled by persons entitled to asylum and other aliens who enjoy the legal status of a foreign refugee in Germany, or who are recognized as refugees outside the federal territory (§ 51 II No 2 AuslG).
In all other cases where the alien refers to political persecution, the Federal Office for the Recognition of Foreign Refugees ascertains in an asylum procedure pursuant to the provisions of the Asylum Procedure Act whether the requirements of § 51 I AuslG are fulfilled (§ 51 II AuslG). § 13 II AsylVfG corresponds with this; it states that with an asylum application, the alien applies both for the determination as to whether the requirements of § 51 I AuslG are met, and, unless the alien expressly objects, for recognition as a person entitled to asylum.
b) Exclusion for Serious Reasons However, § 51 I AuslG is not applied when, for serious reasons, the alien has to be regarded as endangering the Federal Republic of Germany's security, or where he poses a threat to the general public, because he has been punished without right of appeal with imprisonment of at least three years on account of a crime or a particularly serious criminal offence (§ 51 III AuslG). As deportation, which is permitted by this, practically equals the elimination of protection under the Asylum Act, a restrictive interpretation is called for, so that the provisions still can be regarded as constitutional. Deportation is admissible only as a means of last resort, if the tolerance limit of the state's granting of asylum would be otherwise exceeded. Only exceptionally serious dangers can justify subordinating the protection of human rights included in the prohibition of deportation to the matter of a state's security. The concept used of the "security of the Federal Republic of Germany" refers to both the state's internal and external security. It protects the existence and the continuance of the state and its institutions, which also have the status of being protected by the Constitution, and are not subordinate to the claim to protection from persecution of a person entitled to asylum. Thus criminal offences as defined in §§ 80 following of the Criminal Code (StGB), i.e. treason and other crimes against the security of the state, will be relevant in many cases, but other, similarly directed criminal offences of comparable weight are not excluded either. The assumption of serious reasons for the Federal Republic of Germany's security or of a threat to the general public further requires that they are of so great a weight that it is necessary to treat as of subordinate importance protection under the Asylum Act. Therefore the standards for assuming serious reasons have to be even stricter when applying § 51 III AuslG than for § 48 I AuslG. It is necessary that it can be determined with an especially great probability at the decisive time that also in the future the alien is going to perpetrate offences of the weight described and directed against the internal or external order of the Federal Republic of Germany. This requires the examination of whether punishment of the offences the perpetrator is accused of will have the effect, in line with its objective of special prevention, that in the future the alien probably will not commit any criminal offences of the kind presupposed by the law.
Pursuant to § 51 IV AuslG, a request for departure and a notification announcing deportation may be issued even if the requirements of § 51 I AuslG are met; however, the countries the alien may not be deported to are to be named. This provision is, not only to legal laymen, one of the incomprehensible regulations of the Aliens Act. Actually it simply expresses the fundamental distrust of the law against all foreigners, even against those who have been granted the legal asylum status of § 51 I AuslG, and who therefore possess a legal claim to a residence title for exceptional purposes (Aufenthaltsbefugnis). They as well are to be requested to depart and "made ready for deportation", so to speak as a "reserve measure", even if it is clear that this threat is not to be carried out, at least in the foreseeable future.
c) Legal Consequence: Residence Title for Exceptional Purposes Where impediments to deportation as defined in § 51 I AuslG have been incontestably determined, and where the alien's deportation is impossible for legal or factual reasons not just for a temporary period, the alien has a legal claim to the granting of a residence title for exceptional purposes (Aufenthaltsbefugnis, § 70 I AsylVfG). These requirements will be met as a standard. Only in cases where a definite third country is willing to accept the refugee can it be assumed that deportation is impossible just for a temporary period. If there is no definite third state willing to accept the refugee (and this is usually going to be the case), a residence title for exceptional purposes is to be granted, which is prolonged every two years (§ 34 I AuslG). At the same time a travel document is to be issued pursuant to Art. 28 of the Geneva Convention on Refugees.
This does not apply if the person concerned was expelled for serious reasons of public security and order before the non-appealable decision on his status pursuant to § 51 III AuslG was taken (§ 69 II AsylVfG). If he is expelled later, the residence title for exceptional purposes expires by act of law (§ 44 No 1 together with § 48 I No 5 AuslG). In this case there is a legal claim to a statutory temporary suspension of deportation (Duldung) pursuant to § 55 II AuslG (unless, as an exception, deportation is admissible pursuant to § 58 IV AuslG).
The non-appealable determination of impediments to deportation pursuant to § 51 I AuslG also includes, pursuant to § 3 AsylVfG, the verdict that the alien is a refugee within the meaning of the Geneva Convention on Refugees. Therefore he or she also has a legal claim to the privileges derived from this status, such as the claim to the issuing of a travel document for refugees or to welfare benefits as defined in VO-EWG No 14088/71 (e.g. child allowance and benefits during the child's first three years while not working).. After he has filed an asylum application, the refugee enjoys temporary protection from deportation pursuant to § 52 AuslG, unless the requirements of § 51 III AuslG are met. III) Provisions for the Protection of Human Rights The protection system of asylum law described so far is intended to offer protection from political persecution. The protection provisions are not directed at the country of origin, but at the country of residence or transit. Refugee law obliges them to comply with minimum standards in the treatment of refugees. Protection of human rights, on the other hand, is aimed at the country of origin. It defines the minimum standard every person can claim from the state, i.e. the individual's natural and inalienable rights as well as fundamental freedoms which he or she is entitled to not because they are granted by the state, but by virtue of being a human being, and which therefore are, other than civil rights, independent of nationality. The idea of human rights is relatively young. It takes its beginning with the American Declaration of Independence of 12 June 1776 ("Bill of Rights"), finds its outstanding expression in the French Revolution's "Declaration of Human and Civil Rights" of 26 August 1789, and has been from then on introduced into all modern national constitutions. Initially human rights did not play a role as being individual rights, however. A state's policy was aimed at pursuing its national interests by balancing the different states' interests through trade, friendship or settlement agreements, and took the individual into consideration at best only indirectly. A violation of a state's own citizen by another state was relevant as a violation of an international treaty, but not as a violation of human rights.
It was only after the experience of human rights violations in World War II that the change from international right between states to an institutionalisation of the protection of human rights succeeded.
Human rights have been introduced into national constitutions, and into the German Constitution as well. In its Article 1, the apodictic declaration of belief in the inviolability of human worth and dignity is laid down as being the Constitution's top-most objective, the basic principle of the constitution. Human worth and dignity is the most important object of legal protection within the Constitution's order. In addition to that, Art. 1 II GG contains a "promise to the international community" when declaring that inviolable and unalienable human rights form the basis of any human community, of peace and of justice in the world. This promise was declared binding for legislative, executive and judicial powers by Art. 1 III GG as directly valid law.
As the following catalogue of fundamental rights includes all human rights, everything is all right on a domestic level (as far as the law is concerned).
The undisputed substance of human rights include:
This catalogue of rights is a description of the civilized world's common sense. A state is obliged to treat people this way, no matter if they are "citizens", or "aliens", or even only "asylum applicants". Human rights are also valid in Germany. To a great extent they are the content of the German constitutional order, and in part they have been transposed into German common law, like e.g. into the provisions of §§ 51 and 53 AuslG. All German acts are always to be interpreted in a such a way that they are in line with human rights.
There is therefore ideally as little scope for a direct application of international treaties and agreements, as for a direct application of the Constitution. However, in exceptional cases where no law exists, or where the prevailing interpretation of the law collides with higher-ranking constitutional rights or human rights, these legal norms can be applied directly.
Although the addressee of human rights in principle is the country of origin, human rights protection also has far-reaching effects for a refugee's country of transit or residence. According to rulings of both the Federal Constitutional Court and the European Court of Human Rights, the participating countries - and that means Germany as well - are prevented from participating indirectly, by deporting, rejecting, or expelling an alien, in a treatment violating human rights. When deporting a person who would become a victim of inhuman treatment in the country of destination, the country of transit or residence itself commits a violation of human rights. Not only the government torturing the refugee, but also the government turning him into the hands of his torturers violates human rights!
In the German legal system, this protection from deportation is to be guaranteed mainly by the provisions of § 53 AuslG.
a) § 53 AuslG - Impediments to Deportation Relating to Foreign Countries § 53 AuslG prohibits the deportation of an alien if he is threatened in the country of destination by torture (§ 53 I), death penalty (§53 II), treatment violating human rights (§53 III), or a definite significant danger to life, limb or freedom (§ 53 IV 1). As a standard criterion, assessment is mainly focused on persecution measures not relevant for the asylum procedure. All the same this provision also intervenes in cases where actions were relevant in terms of asylum, but where protection under the Asylum Act was denied: the denial of protection under the Asylum Act does not automatically mean that legal objects protected by § 53 AuslG could not be in danger of being impaired. The facts of the matter rather have to be assessed again applying the criteria of § 53 AuslG - something which is often denied in practice.
The decision pursuant to § 53 AuslG is in principle a decision under the Aliens Act. Before enforcing deportation, the aliens authority in principle has to examine whether there are impediments to deportation preventing its enforcement, and in this case then has to grant a statutory temporary suspension of deportation (§ 55 II AuslG). Where an asylum application has been filed, however, the Federal Office for the Recognition of Foreign Refugees alone is competent for assessment and decision, as is clarified by § 24 II AsylVfG. The decision is binding for the aliens authority (§ 42 I AsylVfG). If it wants to differ from that decision - for instance, because the old decision now seems dubious because of new developments in the country of origin - a resumption of proceedings or a withdrawal procedure are to be carried out with the Federal Office for the Recognition of Foreign Refugees. If (and as long as) a decision concerning the carrying out of a follow-up procedure has not been taken, the aliens authority has the right and duty to assess itself the existence of impediments to deportation: it is always to be taken into account that the constitutional rights have an indirect effect on the interpretation and application of § 53 AuslG. Human worth and dignity being the topmost principle of our legal order, this principle would not be complied with if German authorities participated in a treatment violating a refugee's human rights by forcedly handing him or her over to another country.
1. Pursuant to § 53 AuslG, an alien may not be deported to a state where he is in concrete danger of being tortured. According to the definition of Art. 1 of the UN Convention on Torture (Convention Against Torture And Other Cruel, Inhuman or Degrading Treatment or Punishment, BGBl. II 1990), torture is understood as any action by which great physical or psychological pain or suffering is deliberately inflicted upon a person, e.g. in order to obtain a statement or confession by the tortured person or a third person, to punish this person for a deed factually or allegedly committed by this or a third person, or to intimidate, or to coerce the tortured person or a third person, or for any other reason based on whatever kind of discrimination. Therefore the state is (directly or indirectly) the torturing subject. Where these requirements are fulfilled, a binding impediment to deportation is given.
The binding impediment to deportation of § 53 I AuslG is given even if every citizen of the country of origin is threatened by torture. The argument that a state is so undemocratic that it tortures all its citizens, which is used for rejecting asylum applications to an inflationary extent, is irrelevant at least for the application of § 53 I AuslG. The precondition is, however, that the impending torture is not only an abstract danger, but a definite one in the individual case (even if this has been concluded from general experience). Thus it has to be explained that the refugee probably is going to suffer inhuman treatment, like others before him; these reference cases have to be named in detail. It is insufficient, e.g., to state that all Kurds who are part of the opposition in Turkey are threatened with torture and imprisonment. It is more advisable to present the fate of e.g. the refugee's family, village or religious community, and thus to demonstrate concretely that the refugee was only able to escape similar torture by fleeing. As far as possible, documents should be presented.
2. § 53 II AuslG prohibits deportation to a state where the alien is wanted because of a criminal offence and where there is danger of death penalty. In these cases the provisions concerning extradition are applied accordingly. The latter means that the principle of speciality is applied (see § 11 IRG): if the country of destination guarantees that death penalty will not be imposed or that it will not be executed, § 53 II AuslG is not an obstacle to extradition, provided no other impediments to deportation prevent this.
§ 53 II AuslG does not require concrete danger, as can be drawn from its wording: § 53 II AuslG does not mention concrete danger of death penalty, it refers to danger of death penalty. Reference to the provisions concerning extradition also supports this interpretation. According to the extradition provisions, an extradition may be enforced only if the country of origin has declared in a binding manner that the death penalty will not be imposed. As long as such a binding declaration is not available, § 53 II AuslG prohibits both deportation and extradition.
3. Pursuant to § 53 IV AuslG together with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 4 November 1950, the danger of treatment violating human rights prevents deportation. Pursuant to Art. 3 ECHR, a deportation is inadmissible if the refugee has to face torture, or some other cruel, inhuman, or degrading treatment or punishment in the country of destination. The concept of an inhuman or degrading measure as defined in Art. 3 ECHR has meanwhile been clarified to a satisfactory extent by the consistent practice of the European Court for Human Rights and the Commission; it describes an attack of relevant significance on the dignity and physical integrity of a person. These criteria have been adopted by German court rulings as well. A fundamental difference, however, lies in the fact that the Federal Administrative Court requires one more criterion in order to apply Art. 3 ECHR: the planned, intentional acting of the country of origin or of a third country, directed against an individual person. It says that only maltreatment originating from the state, or for which it is responsible, can constitute an inhuman or degrading treatment as defined in Art. 3 ECHR. The decisions of the European Court for Human Rights, on the other hand, do not stress this factor. They do not focus on the country of destination, where the human rights violation will take place later, but on the acting country, i.e. the extraditing or deporting state. The latter acts in an inhuman way by ordering the enforcement of the alien's deportation. This attitude becomes clear beyond doubt in the European Court for Human Rights' decision of 2 May 1997, in which an AIDS illness was considered to be an impediment to deportation as defined in Art. 3 ECHR. The Federal Administrative Court goes its own way on this matter, which is unacceptable and shows its prevailing statist fixation.
Art. 8 ECHR in particular is one more impediment to deportation pursuant to § 53 IV AuslG. As Art. 8 ECHR is not intended to grant protection more far-reaching than Art. 6 GG, and as its field of application is to be the same as that of Art. 6 GG, there is no necessity to fall back upon Art. 8 I ECHR if Art. 6 GG is applied accordingly. Being an impediment to deportation directly anchored in the German Constitution, Art. 6 GG enjoys priority. Nevertheless, it is in practice always advisable for a lawyer to file a reprimand for violation of § 53 IV AuslG together with Art. 8 ECHR. According to German case law, both these reprimands are of little practical relevance: it differentiates between so-called "impediments to deportation relating to the country of destination", and so-called "impediments to deportation relating to Germany". Those relating to the country of destination are measures that will take place only in the persecuting country, those relating to Germany are measures that will have an effect already in Germany. According to this dubious division, the separation of a family effected by deporting the mother is a measure relating to Germany: it is argued that the alleged infringement of the protection of marriage and family is manifested in the separation, and therefore has an effect already in Germany. Such cases of impediments to deportation relating to Germany are not governed by § 53 IV AuslG, they say, and therefore the Federal Office is not competent; only the aliens authority has to take into consideration such impediments to deportation relating to Germany pursuant to § 55 II AuslG. According to this prevailing opinion, in the case of separating a family, a violation of § 53 AuslG is only involved if the deported family member could not manage on his or her own in the country of destination, and would therefore be treated in a way violating human rights. This could for instance be the case when deporting a young child: the danger - e.g. death for lack of care - would have its effect in the country of destination and not already in Germany.
In my opinion this division is artificial and dubious. The facts are overlapping. Moreover, § 55 II AuslG grants less protection than § 53 AuslG, as it only becomes valid in case of an enforcement measure - i.e. deportation - and therefore usually only in proceedings for temporary relief. It makes an essential difference whether the existence of alleged impediments to deportation is assessed in a proper procedure - as is the case with impediments to deportation relating to the country of destination - or whether the state may order a deportation, leaving the person concerned with nothing but the possibility of filing an injunction as a means of last resort in the final stage - the state enforcement measure. In the course of this injunction procedure, the existence of impediments to deportation relating to Germany is examined incidentally. However, this is exactly the result of the artificial division between impediments to deportation relating to the country of destination and impediments to deportation relating to Germany. The difference in control standards and means of legal protection can be justified neither factually, nor with the legal positions that can be derived from Art. 6 GG and Art. 8 ECHR.
4. The protection gap created by the narrow interpretation of § 53 IV AuslG together with Art. 3 ECHR is partly closed by § 53 VI 1 AuslG: an alien's deportation need not be resorted to, if this person has to face a significant real danger to life, limb or freedom in the country of destination. Other than § 53 IV AuslG, it is a discretionary provision. Because of Art. 1 and 2 GG, real discretion does not exist, though. The affirmative answer to the existence of a significant physical danger to life, limb or freedom leads to the deportation being inadmissible as a standard criterion. As long as the existence of impediments to deportation pursuant to § 53 VI 1 AuslG is established, there is no discretionary scope for the aliens authority in practice: a statutory temporary suspension of deportation (Duldung) has to be granted in order not to cause a violation of human rights.
In this case, the danger does not have to originate from the state or from a government-like organization.
If it is the case that not only an individual person is in danger, but if the danger is a general one, § 53 VI 2 AuslG is to be taken into consideration; it refers to a general regulation by the top authorities of the Länder (§ 54 AuslG). There is a tendency in court rulings to make excessive use of this provision. Some judges admit the existence of a significant specific danger, but nevertheless deny protection from deportation with the argument that it has to be granted by a general regulation by the Länder authorities pursuant to § 54 AuslG. They do not take into account that in most cases a regulation ordering a stop to deportations factually does not exist. As an individual person does not have a legal claim to the passing of a general regulation on deportation, they deny effective legal protection as a result. I consider such a practice in making decisions erroneous and unlawful. It is more so that in such a case either protection from deportation pursuant to § 53 VI 1 AuslG is to be granted - against the narrow interpretation of the Federal Administrative Court - or that it is necessary to revert to the Constitution or to international law: both the German Constitution and the ECHR prohibit allowing the deportation of a person in full knowledge that he or she is threatened by treatment violating human rights in the country of destination. The fact the conference of the Länder's ministers of the interior has not come up with a general regulation for such cases does not permit a violation of individual human rights, and does not supersede constitutional rights, as all too many judges seem to believe. In such a case, the ECHR has to be applied directly in addition to Art. 1 I and 2 I GG, or Art. 3 of the UN Convention Against Torture of 1984, or Art. 7 of the UN Covenant on Civil and Political Rights of 1966. If these provisions were not taken into account when interpreting national law, it is possible to have recourse to both the European Court for Human Rights and the UN committees against torture and on human rights after the exhaustion of all legal remedies.
As has already been criticized, legal decisions differentiate between "danger relating to the country of destination" and "danger relating to Germany" when applying § 53 AuslG. It is argued that § 53 AuslG is relevant only for impediments to deportation relating to the country of destination. If a person is endangered because e.g. it will not be possible to treat a serious illness in the country of origin, § 53 VI 1 AuslG is relevant. On the other hand, an impediment to deportation is said to be relating to Germany if an alien is in danger of committing suicide, or if he refers to protection of the family pursuant to Art. 6 GG and Art. 8 ECHR prohibiting his separation from close members of the family living in Germany; therefore these impediments to deportation have to be taken into account as defined in § 55 II AuslG. This is important insofar as the Federal Office has to take into consideration impediments to deportation relating to the country of destination (with the result that possibly a resumption of proceedings has to be pursued), whereas impediments to deportation relating to Germany have to be asserted with the aliens authority. Although I believe that this differentiation is dubious, and although I disapprove of it, the difficulty of drawing up the line also opens up room to manoeuvre. According to the prevailing legal opinion, the unavailability of necessary medical treatment is an impediment to deportation relating to the country of destination, and thus to be examined by the Federal Office. The availability of better treatment with a higher rate of success, on the other hand, is an impediment to deportation relating to Germany and therefore to be taken into account by the aliens authority. If, for instance, the Federal Office denies the existence of an impediment to deportation because there are certain means of medical treatment in the country of origin, the aliens authority nevertheless can come to a positive conclusion pursuant to § 55 II AuslG, as certain promising means of medical treatment are available only in Germany. This example does not alter my general criticism; it only shows that the efforts to deny by way of legal tricks the protection that is called for also have their drawbacks, which sometimes can be used to the refugee's advantage.
5. Where an impediment to deportation pursuant to § 53 VI 1 AuslG has been established, it makes deportation inadmissible for a period of three months as a legal consequence (§ 41 I AsylVfG). After that it is the aliens authority's task to decide whether the suspension of deportation is to continue; the Federal Office's decision has binding character (§ 42 AsylVfG). Because the objects of legal protection are so high-ranking, "the aliens authority has no discretionary scope in order to decide against the alien" as a result. Where the aliens authority assumes that the situation has changed, it has to initiate a withdrawal procedure with the Federal Office (§ 72 AsylVfG). As a statutory temporary suspension of deportation (Duldung) is only a temporary measure, it is not the proper residence title if the impediment to deportation will probably continue to be relevant for a longer period of time. In such a case, a residence title for exceptional purposes (Aufenthaltsbefugnis) pursuant to § 30 AuslG is to be granted.
The same is true for an impediment to deportation pursuant to § 53 I or IV AuslG. Here also a statutory temporary suspension of deportation leads to a residence title for exceptional purposes (Aufenthaltsbefugnis) in the end.
b) Impediments to Deportation Relating to Germany According to the Federal Administrative Court's decisions, protection from deportation pursuant to § 53 AuslG is only applicable to so-called impediments to deportation relating to the country of destination. Impediments to deportation relating to Germany, on the other hand, are to be taken into consideration with § 55 II AuslG, thus leading to the granting of a statutory temporary suspension of deportation (Duldung). Drawing the line between these two concepts is difficult in individual cases. Standing case law considers on the one hand the unavailability of adequate medical treatment for an illness in the country of origin to be an impediment to deportation relating to the country of destination; the impending separation of a family (thus violating Art. 6 GG and Art. 8 ECHR), on the other hand, is considered an impediment to deportation relating to Germany. One might just as well argue the other way round by for example referring to the availability of medical treatment in Germany (= relating to Germany), or to the impending emotional neglect of a small child because of the family's separation (= relating to the country of destination). After all, the danger of an unaccompanied minor vegetating at subsistence level as a street urchin in case of deportation is acknowledged as being an impediment to deportation relating to the country of destination.
One need not be afraid of the difficulties in distinguishing between the two concepts, they rather open up scope for argumentation. The main stress can be put in one direction when dealing with the Federal Office, which is competent for deciding on impediments to deportation relating to the country of destination; when dealing with the aliens authority, which is responsible for carrying out the deportation, other aspects can be presented, if necessary, in order to be granted a statutory temporary suspension of deportation (Duldung) pursuant to § 55 II AuslG.
As the Federal Office does not decide on the existence of impediments to deportation relating to Germany, a request for departure and a notification announcing deportation are issued in such a case, which will be accepted by the court even if it is of the opinion that impediments to deportation relating to Germany do exist. The Federal Office does not have to take these into consideration after all, but only the aliens authority. The Federal Office's decision therefore is formally correct. To be on the safe side, some well-meaning judges include into their ruling dismissing the action a statement that although the notification announcing deportation within one month is lawful, the deportation will "self-evidently" not be enforced and substantiate this with reference to the priority of constitutional rights, e.g. Art. 6 GG. Although I as a lawyer do appreciate the systematic structure of the law and the formalized act of decision-making (because in this way the influence of individual preferences, prejudices and the exertions of influence are restricted), such an argumentation is inappropriate, in my opinion, even perverted, to be quite honest. After all, not only the persons concerned as individuals cannot be split up - nor can the law. If it is a judge's conviction that a concrete person standing before him must not be deported, because the protection of marriage and family pursuant to Art. 6 GG stands in the way of this measure, he must not declare a notification announcing deportation as being lawful. And this only because, in a twisted interpretation of the law, the regulation of common law makes a difference between the Federal Office's and the alien authority's competence in examination, thus placing before the judge only one half for examination, e.g. the Federal Office's decision. After all, this half contains the decisive threat of deportation and therefore in principle permits it. If a judge is of the opinion that a notification announcing deportation is formally correct, because the one institution, the Federal Office, has limited competence of examination only, but that the announced deportation has to be unlawful in effect as the second half of the examination, which another institution, the aliens authority, is competent for, can only lead to one conclusion, then the notification announcing deportation has to be annulled with reference to effective legal protection and a uniformity of the law. A judge who only includes in his decision that in his opinion a deportation is inadmissible - a fact that constitutes no obligation - and who nevertheless permits it in principle, is nothing but a person dodging responsibility. If he is convicted that there is only a formal legitimisation for a deportation in this case (because of the Federal Office's limited competence of examination), and that on the other hand the substantive examination still to be carried out will come to a result favourable for the refugee, the judge has to assume his responsibility and annul the formally correct notification announcing deportation because of a violation of higher-ranking law. Additional clauses stating that the court "self-evidently assumes" that deportation will not be enforced, or not alone, or only together with the father, the mother etc. (as can be found in many rulings of judges who personally nice in human terms), are nothing but proof of a bad conscience for lacking the courage to stand up for their convictions, or because they lack confidence in their own powers of persuasion. IV) Other Provisions Offering Protection Quota refugees are persons who have been granted permanent residence in the Federal Republic of Germany within the framework of humanitarian relief programmes. Legal Basis is the Act on Measures in Aid of Refugees Admitted under Humanitarian Relief Programmes (HumHAG), also called Act on Quota Refugees. The best known example are the Vietnamese boat people, but individuals who were granted a permanent residence permit before entering the country, or who were taken in because of a declaration of acceptance by the Federal Ministry of the Interior (BMI) can also be termed quota refugees. Pursuant to § 1 HumHAG, quota refugees enjoy the legal status of a refugee as defined in the Geneva Convention on Refugees. Pursuant to § 2 HumHAG they are given an official certificate, which has a constitutive effect.
Quota refugees are granted a permanent residence permit without an asylum procedure being necessary; an asylum procedure is even denied to them (§ 1 II No 2 AsylVfG); this is appropriate as the legal status of quota refugees is very close to that of a person entitled to asylum. The status as a quota refugee as well does not guarantee permanent protection. Pursuant to § 2 a HumHAG, the legal status as a quota refugee expires under similar circumstances as an entitlement to asylum. Additionally, the legal status can be withdrawn pursuant to § 2 b HumHAG.
Lately, the Act on Quota Refugees was applied to Jews admitted from the former Soviet Union. To be more precise, this is disputed because, as is said, the "refugee fate" necessary for the application of the Act on Quota Refugees does not exist, and because the Federal government and the Länder wish to apply it analogously for political reasons only. Be that as it may, they can claim all rights laid down in HumHAG, even if the application only is analogous, and in particular they can insist on the issuing of a passport according to the Geneva Convention on Refugees - a right that was denied by some Länder in the past. An action in order to obtain these rights can and should be filed. 2) Regulation on the Admission of Refugees of War or Civil War (§ 32 a AuslG) § 32 a AuslG contains a special regulation for refugees of war and civil war. If the Federal government and the Länder reach an agreement that aliens from regions of war or civil war are temporarily to be granted protection in the Federal Republic of Germany, the top-level authorities of the Länder are to order that "for temporary admittance a residence title for exceptional purposes be granted and prolonged" for the person concerned (§ 32 a I 1 AuslG). The requirement for this is a regulation by mutual agreement of all Länder and of the Federal Ministry of the Interior. This regulation has to state the essential arrangements of admittance, especially which group of persons is to be admitted under which circumstances, and if or how these persons are to be distributed among the Länder. The regulation on civil war was applied for the first time during the Kosovo war in 1999 - up until then it had fallen through because the Federal government and the Länder could not come to an agreement, especially for financial reasons. Admittance takes place, as is laid down in the law, by "directive", which also can provide for the residence title for exceptional purposes (Aufenthaltsbefugnis) being granted only if the refugee withdraws an asylum application filed before the issuing of the directive, or if he declares that he is not threatened by political persecution as defined in § 51 I AuslG (i.e. no persecution relevant in terms of asylum). If the directive does not provide for this - as was the case with refugees from Kosovo - an asylum application may well be filed, with the consequence of § 32 a II AsylVfG though: the person concerned is not granted a residence title for exceptional purposes! The legal provision therefore forces the persons concerned to make a clear choice: either they accept the legal status of a refugee of civil war of § 32 a AuslG, or they file an asylum application. It is not possible to have both! The law makes an exception only in those cases where the "directive" pursuant to § 32 a AuslG provides for such persons being included in the regulation on civil war who have resided in Germany since before that time, and who have filed an asylum application. In these cases § 32 a I AsylVfG provides for the suspension of the asylum procedure (i.e. it is not carried out further); in § 80 a I AsylVfG the same is laid down regarding court procedures. Thus the ongoing asylum procedure of these persons is interrupted and will be continued after the expiry of the legal status of a refugee of civil war. However, this is only true if the refugee informs the Federal Office or the court, of his own accord and within a period of one month, of the fact that he intends to continue the asylum procedure (§ 32 a II AsylVfG and § 80 a II AsylVfG). If this deadline has passed, the asylum application or the action are considered to be withdrawn, and the procedure is discontinued. This was not a problem with the Kosovo refugees in 1999, up to now the only case where the regulation on refugees of civil war was applied. Only newly arrived persons were included in this category; refugees who were already resident in Germany were not granted the legal status of refugees of civil war.
Let us come back to normal cases: the refugee has to decide whether he wishes to file an asylum application, or whether he accepts the offered legal status as a refugee of civil war. General advice is not possible here, the advantages and disadvantages rather have to be considered in every individual case. The following has to be kept in mind, though: The status of a refugee of civil war brings with it quickly an advantage for the persons concerned, and relative, if temporary, safety; they are granted a residence title for exceptional purposes (Aufenthaltsbefugnis), and with it in most cases the opportunity of taking up a job and settling down after a relatively short while. The disadvantage of the regulation on refugees of civil war is that the persons concerned are granted relatively weak protection only, which is terminated as a rule together with the status of civil war. This happens by "cancellation of the directive", and has the consequence that a new residence title for exceptional purposes is (usually) not prolonged, and that a residence title for exceptional purposes which has already been granted even may be withdrawn (§ 32 a IIX AuslG). The alien has to leave the federal territory within a time-limit of four weeks after expiry of the residence title for exceptional purposes (§ 32 a IX 1 AuslG). The obligation to depart is immediately enforceable, objections and actions have no suspensive effect (§ 32 a IIX and IX AuslG). This is also true where the person concerned has applied for a prolongation of the residence title for exceptional purposes, or for a different residence authorization. The "assumption effect" of § 69 AuslG probably is to be ruled out in this way. Although the refugee may of course refer to individual impediments to deportation in this case as well, which are to be assessed even if the status of civil war has been annulled, there is only the expedite court procedure remaining for this examination. Should he lose this summary procedure - and unfortunately 'summary' often means superficial assessment - he has to leave the country within a few weeks.
If the refugee files an asylum application, on the other hand, a regular asylum procedure will be carried out. This means that he has to put up with the disadvantages of an asylum procedure: he will become part of the distribution procedure and perhaps be allocated to another "land", for a period of three months he will be prohibited from working (if he is not subject to a general prohibition of work by the Federal Ministry of Employment, as the so-called Blüm-decree provides for), and he will be subject to all other restrictions of the Asylum Procedure Act. Additionally, it has to be feared that the asylum application will not be worked on either because of a formal directive (as in the case of the Kosova refugees) or for practical reasons; it might not be dealt with until the status of civil war is annulled. With reference to § 77 AsylVfG (according to which the decisive point in time is the time of the last oral proceedings), the decision will after that probably be a negative one because there is no danger any more, a fact that becomes already clear from the cancellation of the status of civil war. In other words: with a certain degree of probability, the asylum seeker will not be recognized despite the existence of good reasons, but for the time during which the refugees of civil war enjoy the advantage of a residence title for exceptional purposes, he will remain in the status of an asylum applicant and then be rejected. On the other hand, there is a chance (which might offset the disadvantages) of being granted better and more permanent protection by means of a recognition of the asylum application, or by being granted protection as a refugee pursuant to § 51 I AuslG; additionally, there is a certain gain in time and greater predictability, as the asylum procedure probably will be carried out only after the expiry of the status of civil war in most cases. Whereas the refugees of civil war have to depart rather quickly, as described above, asylum seekers still have before them the procedure with its existing means of legal protection. However, it can be decided only for the individual case whether this is a real advantage. The chance that the refugee will be recognized is very small: only persons who will have to be regarded as pre-persecuted, and who therefore enjoy the 'reduced probability standard', might be granted the status of a refugee, if at all. This follows from the fact that the decision on the asylum application probably will be taken only after the situation in the country of origin has calmed, thus causing the directive of the status of civil war to be cancelled.
a) Form of the Status of a Refugee of Civil War pursuant to § 32 a AuslG § 32 a AuslG contains several provisions on the form of the status of a refugee of civil war. Pursuant to paragraph VI, the holding of gainful employment must not be ruled out by imposing conditions; the job centre may however carry out an "examination of demand" and then refuse to grant a work permit. Pursuant to § 32 a VII AuslG, a surrogate document of identity is to be issued for a refugee who is not in possession of a valid passport or surrogate passport (§ 39 AuslG). Family members also may be granted a residence title for exceptional purposes, but only if the requirements of paragraphs I and II are met. In other words: they themselves either have to be refugees of civil war as defined in the directive, or the directive has to explicitly provide for the admittance of family members (even if they are not refugees of civil war as defined in the directive); an asylum application may not be filed or has to be withdrawn.
b) Status of a Refugee of Civil War or Asylum? The assessment of the regulation on refugees of civil war is ambivalent. On the one hand it is positive that the refugees are granted a residence title quite simply and in a non bureaucratic manner; on the other hand, the unavoidable result in many cases, i.e. the impossibility of filing an asylum application, has an unpleasant taste to it. Shortened legal protection for refugees of civil war in case the status of a refugee of civil war has expired would be acceptable, if it could be assumed that there are no politically persecuted persons among the refugees of civil war. The practical implementation, in particular the fact that the asylum application will not be dealt with during the time of validity of the status of civil war, together with the restrictions of the asylum procedure and the provision of § 77 AsylVfG, forces a politically persecuted person also to accept the favour of a residence title for exceptional purposes (Aufenthaltsbefugnis) as a refugee of civil war, although the price to be paid - the relinquishment of effective legal protection - is far too high.
The implementation of the status of a refugee of civil war is exemplary for the unacceptable nature of German asylum law, which promises much but keeps little of its promises. Although e.g. the 1999 refugees from Kosovo were the archetype of refugees persecuted as a group for political reasons, as official political statements declared, they did not stand a chance with the Federal Office and most of the courts, because no decisions were taken as long as persecution persisted. They had to accept the charitable status of refugees of civil war; once again, the "asylum cheque" proved not to be backed by any funds! After the war had ended, however, it was the very judges who had claimed before that they could not hazard a prognosis because of the situation's instability who were the first to ask why requesting protection from persecution was still desired. Persons who have been accepted in Germany pursuant to § 33 AuslG are also refugees in the broadest sense. According to this provision, the Federal Minister of the Interior can accept an alien in Germany for the purpose of granting residence, if this is required for reasons of international law or for humanitarian reasons, or for the political interests of the Federal Republic of Germany. As the last phrase makes clear, this is an exceptional provision rarely applied. Its major objective is to enable the federal government to grant entry into Federal territory to individual persons (not only, but also, for political reasons). There must be no claim to acceptance or even only to a decision free of discretionary errors. Even if I believe the latter to be dubious, it is not worth disputing because it will not be possible to force a positive decision from the courts within a reasonable period of time.
§ 33 AuslG usually only becomes important if a refugee, as an exception, has been granted acceptance. The main task will be to clarify the given status: an acceptance pursuant to § 33 AuslG, the joining together of a family, or admittance as a quota refugee. This can only be clarified by inspecting the files; here the declaration of intention by the Federal Ministry of the Interior or the aliens authority respectively are decisive. In the individual case an examination is worthwhile: persons accepted pursuant to § 33 AuslG will be granted permanent residence only after eight years (§ 35 AuslG), whereas those who were granted the right to join a family member already entitled to a residence permit will acquire a status of permanent residence as soon as five years later. Quota refugees are entitled to a permanent residence permit from the beginning.
Recently there were some cases where the aliens authority deported refugees too quickly and unlawfully. The same aliens authorities tried to prevent the refugees from returning in order to terminate their procedures by denying a visa (for a residence title for exceptional purposes). In such cases, the federal government can - if it wants to - help by giving a declaration of acceptance.
Finally, the cases of an Altfallregelung or a regulation on hardship cases, which were sometimes granted in the past, are not provided for by any law. The status of the persons concerned is determined by the respective provisions in the decision or the relevant decrees by the "Länder"; the legal basis is probably § 32 AuslG.
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D Decision by the Federal Office for the Recognition of Foreign Refugees There is a maximum of three decisions the Federal Office has to take.
It has to decide whether the refugee is recognized as a person entitled to asylum, it has to establish whether the requirements of § 51 I AuslG are fulfilled, and whether there are impediments to deportation pursuant to § 53 AuslG in case the asylum application was rejected. I) Discontinuation of the Procedure The procedure is to be discontinued in the first place if the asylum seeker has withdrawn his asylum application (§ 32 AsylVfG). At the same time, the Federal Office still has to decide on the existence of an impediment to deportation pursuant to § 53 AuslG. 1) Assumption of Withdrawal pursuant to § 33 I AsylVfG The provision of § 33 I AsylVfG is more important. It states that an asylum application will be deemed to have been withdrawn if the refugee has failed to pursue it for more than one month despite a request by the Federal Office, and if he has been informed in the Federal Office's request of the legal consequences. The information is given as on formal grounds; if the asylum applicant does not contact the Federal Office, the asylum application is regarded as withdrawn, and the procedure is discontinued. In the past, the Federal Office closed many a thousand asylum procedures without substantive assessment with the help of this provision. If, after a re-distribution had taken place, an asylum seeker did not inform the Federal Office of his new address within a certain period of time, a request to pursue the procedure was served to the old (and incorrect, as was known) address as a matter of routine. After the deadline of one month had passed, a notice of discontinuation was issued, which was then served to the refugee - and this time to the correct address in most cases. Often the local aliens authority was already waiting at the door trying to enforce deportation. Even if one criticizes this way of proceeding as an abuse of procedure by the Federal Office, it nevertheless is a fact that the administrative procedure is closed in this way without a hearing having taken place. Now the refugee can only try to enforce his legal claim before a court, if at all. As standing case law considers a discontinuation pursuant to § 33 I AsylVfG to be lawful only if there are objective grounds for assuming that the procedure is not pursued any more, the chances of success are not so bad after all. In the meantime the Federal Office has been forced by a decision of the Federal Constitutional Court to refrain from this unlawful practice. Today a proper instruction is usually given. Discontinuations pursuant to § 33 I AsylVfG have become an exception.
If the procedure has been discontinued pursuant to § 33 I AsylVfG, an action and an urgency motion have to be filed with the competent administrative court within a period of one week, as § 75 AsylVfG provides for an action having suspensive effect only in cases pursuant to § 38 I and § 73 AsylVfG. ® sample form 7
There is no standing case law concerning which applications have to be filed by the person concerned. Up to now I have supported the legal opinion that an isolated action for rescission has to be filed, i.e. the court has to annul the Federal Office's notification, thus obliging the Federal Office to continue the procedure; in most cases this means that a hearing has to take place. After the Federal Administrative Court's decision on the similar matter of follow-up applications, stating that the court has to take a decision on the whole case, i.e. the court itself has to examine whether the refugee is entitled to asylum, the opposite view might be strengthened, however. However, I still believe that my earlier interpretation is correct: otherwise the refugee would lose the opportunity of asserting his request for asylum before the Federal Office; in this way he would be deprived of one instance, i.e. the whole administrative procedure. In case of a follow-up procedure, on the other hand, an administrative procedure has already been carried out, so that the argument for speeding up procedures and of avoiding double recourse to the administrative court is of greater weight. In my opinion the protection of refugees has priority, a view also held by the Federal Administrative Court (BVerwG in NVwZ 1996, 80 ff). The additional applications to be found in the sample form take into account the other legal opinions.
When stating the reasons for the application it has to be explained why the obligation to co-operate was not violated, and that the procedure was pursued. The decisive facts (i.e. having informed the Federal Office of the new address) have to proved by presenting prima facie evidence, e.g. an affidavit or a copy of the letter to the Federal Office. Additionally it is advisable to go briefly into the material grounds for requesting asylum. They should be presented at least in rough outline, and it should explicitly be mentioned that the refugee will prepared any time to give a detailed statement of the reasons for requesting asylum if the court believes it necessary. 2) Assumption of Withdrawal pursuant to § 33 II AsylVfG Pursuant to § 33 II AsylVfG, an asylum application is regarded as withdrawn if the refugee has visited his country of origin during the asylum procedure. The legislator assumes that this has documented the non-existence of persecution, and that there is therefore no legitimate interest to take legal action for a decision any more. If the asylum seeker denies that he has travelled to the country of origin, he has to fight the discontinuation. If necessary, evidence is then to be taken in the course of the legal action. Either the discontinuation of the procedure because of the re-admittance assumed by the law will be affirmed, or the court will issue a substantive decision (either an "obligation judgement" for recognition of the asylum application, or for granting of protection from deportation, or a dismissal of action). ® sample form 7 II) Material Decisions by the Federal Office Regarding the part of the decision to which the Asylum Act applies, the Federal Office is independent. The individual officer in charge is not bound by instructions, but only has to answer his own conscience. However, there are of course numerous possibilities of influencing those who persist in differing from the prevailing opinion; these possibilities are said to range from a discussion with the superior to collective bullying by colleagues, from the obligation to present an intended positive decision to giving the person concerned responsibility for different countries of origin. The Federal Office may give instructions on decisions concerning § 53 AuslG, which in turn directly can be influenced by the Federal Minister of the Interior. Such instructions exist e.g. for refugees of civil war: they are only to be granted a legal status pursuant to § 53 VI AuslG.
As a counterbalance, the office of the Federal Commissioner for Asylum Matters (Bundesbeauftragter für Asylangelegenheiten) was created. He may bring an action against decisions of the Federal Office in order to guarantee the consistency of decisions, and he may take part in the asylum procedure. From the regulation's intention, his right of action would have to be restricted to the asylum procedure; however, the Federal Administrative Court has decided differently. The Federal Minister of the Interior (represented by the Federal Commissioner) may now file an action against himself, if today he no longer likes his decision taken yesterday (the decision concerning § 53 AuslG is bound by instructions). The absurdity of all this becomes obvious when transferring the events to a different field of law. A Landkreis (an administrative district) authority would be entitled to file an action against its own building permit, the school authority or the driving licence authority against its own exam results etc. The reasons for an action being admissible in this case are obscure: why is the simpler way not taken of cancelling the (in any case still appealable) decision, as general administrative law provides for? This probably can only be explained with the Federal Administrative Court's closeness to the government in asylum matters.
The Federal Office has the following options:
According to the prevailing legal opinion, the Federal Commissioner may also bring an action against the positive decision on § 53 AuslG.
Usually the refugee should and will attack all negative decisions of the Federal Office, since the costs are not too great as the refugee does not have to pay court fees in the asylum procedure. Only where an entitlement to asylum is ruled out according to standing case law, e.g. where the refugee only refers to so-called subjective reasons that arose after the flight, or where entry by land is undisputed, the action should be restricted to the fulfilment of the requirements of § 51 I AuslG and § 53 AuslG. Before restricting an action, it is advisable to consult a lawyer. If in doubt, all negative decisions of the Federal Office should be attacked. If no appeal is filed against the Federal Office's decision, it is "in force by continuation". The Federal Office has to serve a "notification of force by continuation " (Bestandskraftmitteilung). If only part of the decision has come into force by continuation (e.g. on § 53 AuslG), a "notification of partial force by continuation" (Teilbestandskraftmitteilung) is to be issued. III) Different Forms of Negative Decisions by the Federal Office The Federal Office has several options when denying the recognition of asylum. The asylum application can be
1) Irrelevant Asylum Applications Pursuant to § 29 I AsylVfG, an asylum application is irrelevant if it is manifest that the alien was already safe from political persecution in another third state, i.e. not a safe third country pursuant to § 26 a AsylVfG. Safety from persecution elsewhere as defined in § 27 AsylVfG has to be manifest, the asylum application has to appear clearly hopeless. There must not be reasonable doubt concerning safety from persecution elsewhere. Additionally, a second requirement has to be fulfilled: the possibility of sending the refugee back either to the safe third country, or to another third country granting safety from persecution. The asylum application may be judged as being irrelevant only if safety from persecution in this third country is manifest, and if help for overcoming existential straits that arose because of the flight is available.
Pursuant to § 29 III AsylVfG, an asylum application is also irrelevant if, on account of an international agreement, another contracting state, which is a safe third country as defined in § 26 a AsylVfG, is responsible for carrying out an asylum procedure or takes over this responsibility. Such an international agreement is in particular the Dublin Agreement of 15 June 1990 (BGBl. II 1994, page 792), which came into force on 1 September 1997. It replaced the Schengen Agreement on Enforcement of 19 June 1990 (BGBl. II 1993, page 1010), which previously had been relevant as an international agreement, and which contained roughly the same provisions.
The Dublin Agreement (DA) is, just like the previous Schengen treaties, an international treaty which was concluded in order to promote the harmonization of European refugee law and an equal sharing of burdens. These national interests are at the centre of attention, and not the refugee's. For this reason the Dublin Agreement does not contain substantive regulations; in particular it does not define common asylum regulations and not even as much as minimum standards. The main objective was to avoid the possibility of a refugee filing several asylum applications in the different contracting countries, at the same time or one after the other. Main emphasis was therefore put on regulations concerning responsibility and acceptance obligations. The states' consensus is "One chance only".
Contracting states of the Dublin Agreement are: Belgium, Denmark, Germany, Greece, Spain, Austria, Ireland, Italy, Luxembourg, Portugal, Great Britain, the Netherlands, Sweden and Finland.
Art. 3 I DA contains the obligation for all contracting countries to examine every asylum application filed by an alien at the border or on the territory of the contracting country. It is disputed whether this provision establishes a subjective claim of the refugee to the carrying out of an asylum procedure, or whether it is only an obligation valid between the contracting states. For German law this dispute is irrelevant anyway insofar as a refugee can refer to the constitutional right of asylum (§ 26 a I No 3 AsylVfG), if another DA state denies its being responsible and refuses to carry out an asylum procedure. Pursuant to Art. 3 II DA, an individual contracting state's responsibility is examined in the order of Art. 4 to 8 DA.
Pursuant to Art. 3 IV DA, though, every contracting party has the right to carry out an asylum procedure with the refugee's consent if another contracting state is responsible under the terms of the agreement. The contracting state originally responsible cannot object to the exercise of this right.
Art. 9 DA finally enables a member country, which is not actually responsible, to examine an asylum application for humanitarian, in particular family or cultural reasons, on the request of another member country and with the refugee's consent. Pursuant to Art. 3 III DA, the substantive examination is carried out according to the national provisions and the international obligations, most of all the Geneva Convention on Refugees and the European Convention on Human Rights.
In Art. 10 to 13 DA the conditions are laid down in detail under which a member country is obliged to admit an asylum seeker who has filed an asylum application in another contracting state. The member country where an asylum application was filed can request another state within an exclusion period of six months to take over the asylum applicant (Art. 11 I DA). If the 6-month deadline has passed, the first member country remains responsible. Pursuant to Art. 13 I a DA, the request has to contain adequate information in the sense of clues or pieces of circumstantial evidence enabling the authorities of the requested contracting state to establish the responsibility of that state. The requested state is to reply to the request within a period of eight days, and is obliged, if re-admittance was accepted, to re-admit the refugee as soon as possible and within a period of one month after acceptance of the request (Art. 13 I b DA). The requested member country has to decide on the request for re-admittance of the asylum seeker within a period of three months at the most (Art. 11 IV DA). If it has not answered after this deadline has passed, this is regarded as the equivalent of an acceptance of the request pursuant to Art. 11 IV DA! In case of an acceptance, the requesting state, on the other hand, has to transfer the refugee within a period of one month at the most, or within a period of one month after an appeal possibly filed by the refugee against the transfer decision has been terminated, if this appeal has suspensive effect (Art. 11 V DA).
These regulations on responsibility are complemented by an extensive exchange of information and data pursuant to Art. 14 and 15 DA.
If another state is responsible under the Dublin Agreement, or if it takes over responsibility, the asylum application is irrelevant as well pursuant to § 29 III AsylVfG. If, in the opposite case, the Federal Republic of Germany is responsible for dealing with the request for asylum because of an international agreement, the asylum application is relevant, and § 29 III 1 AsylVfG is not applicable.
Reference to the right of asylum is not ruled out because of § 26 a I 3 No 2 AsylVfG. It is rather the case that the politically persecuted person who has entered via a safe third country, and for whose request for asylum the Federal Republic of Germany is responsible because of an international agreement, is granted a right of asylum under common law.
If an application is irrelevant pursuant to § 29 I or III AsylVfG, however, the Federal Office notifies the refugee of the fact that he will be deported to the safe third country, or the other contracting state (§ 35 AsylVfG). The time-limit set to the refugee in order to leave the country is one week (§ 36 AsylVfG). The decision is enforceable immediately, an action has no suspensive effect. If the refugee does not want to leave the country after expiry of the 1-week deadline, he has to file an application pursuant to § 80 V VwGO in addition to bringing an action, i.e. he has to apply for a suspensive effect of the action being established. ® sample form 8
As regards content, such an application should first of all include a statement why safety from persecution elsewhere did not exist, or that, and why, deportation to another country is not possible, or that, and why, Germany is responsible. Additional statements concerning the refugee's fate of flight itself should be made as well. 2) Manifestly Unfounded Asylum Applications Pursuant to § 30 I AsylVfG, an asylum application is manifestly unfounded if the prerequisites for a recognition as a person entitled to asylum and the prerequisites pursuant to § 51 I AuslG are obviously not met. If only the application aiming at recognition as a person entitled to asylum, but not the application for § 51 I AuslG is manifestly unfounded, the application may not be rejected as manifestly unfounded as a whole, but has to be decided on as unfounded only. If this happens nonetheless, or if the Federal Office misjudges the criteria of obviousness with regards to § 51 I AuslG, an urgency motion has to be sustained only for that reason. The criteria of a rejection as manifestly unfounded are fulfilled if, after having fully explored the facts of the matter at the point in time decisive for the Federal Office's decision, there cannot be reasonable doubt of the correctness of the established facts, and if one cannot help denying a claim to asylum with regard to the such facts (according to standing case law and legal teaching). This formula developed by court decisions thus puts up high barriers. In the end the decision always has to depend on the individual case. Pursuant to § 30 II AsylVfG, an asylum application is manifestly unfounded especially if it is obvious from the circumstances of the individual case that the alien remains on Federal territory only for economic reasons or in order to evade a general emergency situation or an armed conflict. The provision's wording, stating that the circumstances of the individual case are decisive, makes clear that it is of more demonstrative character, and that it hardly has practical consequences.
The categories of cases pursuant to § 30 III AsylVfG are different. If these requirements are met, a binding rule exists that an unfounded asylum application is to be rejected as manifestly unfounded. Thus the law demands double examination in these cases. The first step is to examine whether the asylum application as a whole will prove to be unfounded - with regard to the constitutional claim to asylum as well as to § 51 I AuslG. Only if this requirement is met, i.e. if it has been established that the applicant is not a politically persecuted person, do the violations of obligations named in the following numbers justify the qualified rejection of the asylum application, and therefore the consequence that the refugee loses his temporary right to stay until the time the decision becomes valid.
As regards the combinations of individual cases and the prerequisites, please consult the legal text and relevant commentaries. I would only like to stress here that a "manifestly unfounded" decision is not justified simply because a provision appears to be relevant from its wording. It is more so that the examples only assume validity if a serious, and with regard to the request for asylum also causal, violation of obligations is given. This is clearly stressed in the individual examples of the regulation, as for instance § 30 III No 1 AsylVfG states that the statements produced by the refugee are unsubstantiated "in major aspects", or as § 30 III No 5 AsylVfG requires "gross" violation of the obligations to co-operate. The categories of cases of paragraph III assume that the right of asylum has been claimed improperly. If this is not correct for the individual case, e.g. where the authorities have been deceived about the refugee's identity or where forged papers were presented for reasons relevant to the asylum procedure (in order to be able to flee from the country of origin, for instance), or where the violation of the obligation did not become causal, a "manifestly unfounded" decision may not be issued.
Pursuant to § 30 IV AsylVfG, an asylum application is to be turned down as manifestly unfounded where the requirements of § 51 III AuslG apply. Pursuant to this provision, protection under the Asylum Act is not granted where the person concerned poses a threat to the security of the Federal Republic of Germany for serious reasons, or where he is considered a danger because he has been sentenced by final judgement to imprisonment of at least three years for a crime or a particularly serious criminal offence. § 51 III AuslG is to be interpreted in a restrictive way in order to be acceptable as constitutional. Deportation of a politically persecuted person to the persecuting country can only be taken into consideration as a means of last resort. Therefore the fact alone that the factual requirements of § 51 III AuslG are met does not justify the permission of a deportation to the persecuting country; it must be clear from concrete circumstances that there is a danger of repetition. It has to be examined in particular whether a danger of repetition can be ruled out because of the sentencing alone, or whether a favourable prognosis for the refugee's further development is given for other reasons. The regulation of § 30 IV AsylVfG is legally dubious. It not only infringes the system of the asylum law, as it mixes up in an inappropriate way the establishing of political persecution (which is the subject of an asylum procedure) and the question whether deportation is permitted despite the existence of political persecution (the subject of § 51 III AuslG). Moreover legal protection is shortened, because essential parts of the court examination have to take place in an expedited procedure.
This criticism notwithstanding, I would like to stress in order to clarify the matter that the existence of a prohibition of deportation pursuant to Art. 3 ECHR always must be taken into account, even when the decision based on obviousness continues to exist in such a case, and where deportation pursuant to § 51 III AuslG is considered to be permitted. If the requirements of Art. 3 ECHR are met, even a felon must not be deported. Human rights are valid for him as well.
Pursuant to § 30 V AsylVfG, finally, an application filed with the Federal Office is to be rejected as being manifestly unfounded if, due to its content, it does not constitute an asylum application. This regulation is of little practical importance. If in doubt, every request for protection is to be interpreted as being an asylum application.
If the Federal Office decides that an asylum application is manifestly unfounded, the time-limit for leaving the country to be set is one week pursuant to § 36 I AsylVfG. Here the same is true: the decision is immediately enforceable, i.e. an action has no suspensive effect. If the refugee does not want to leave the country after expiry of the 1-week deadline, in this case too he has to file an application pursuant to § 80 V VwGO in addition to bringing an action, i.e. he has to apply for a suspensive effect of the action being established. In this case the deadline is one week (receipt of the application at the court). ® sample form 3
The focus of the argument here must be directed at to establishing that, and why, the request for asylum is not "manifestly" unfounded. It is not so important to establish the refugee's actual persecution, but more to state that there are good arguments for a discussion on whether the person concerned is to be recognized or not. It might be wiser from a tactical point of view not to present the individual statement in detail yet, and thus not to force the judge to have a look at the alleged inconsistencies, and rather demonstrate instead that other courts have come to a decision favourable for the asylum applicant in a similar case (e.g. because they assume group persecution, or because they generally assess the situation in the country of origin more critically). After all, a partial success in the expedited court procedure might have a psychological effect with regard to the judge as well. If he is not forced by the argument to form a pre-judgement on the refugee's credibility already in the expedited court procedure (because he is presented possibilities of how to reach a positive result from general arguments), he can approach the matter open-mindedly in the main proceedings and can form his opinion from personal impression and not only from written statements. It is important to stress that doubts alone about the correctness of the "manifestly unfounded" decision must lead to it being no longer justifiable, and that the Federal Constitutional Court's rulings therefore demand a thorough examination during the main proceedings. A special case of a "manifestly unfounded" decision is laid down in § 29 a AsylVfG: the provision on SAFE COUNTRIES OF ORIGIN. The asylum application of any alien who has entered from one of the states defined as being safe in appendix II AsylVfG (presently Bulgaria, Gambia, Ghana, Poland, Romania, Senegal, Slovak Republic, Czech Republic, Hungary) is to be turned down as being manifestly unfounded pursuant to § 29 a AsylVfG, unless the facts and evidence produced by the alien pose a reason for the presumption that he faces political persecution in his country of origin in spite of the general situation there. In these cases some kind of "reversal of burden of proof" takes place, i.e. the refugee has to prove that the normal assumption of non-persecution stated in the law does not apply to his case. Here as well what matters is to present the exceptional quality of the individual case, and to point out the difference. Often it will be advisable not to focus on the asylum law but on the danger of other treatment violating human rights. For the agitators, this third pillar of the asylum compromise (in addition to the regulation on safe third countries and the airport procedure) has not brought with it any success worth mentioning with regard to the assessment of asylum applications. The number of "manifestly unfounded" decision has not risen, because judges have always had a list of safe countries of origin in their heads. It has only brought with it a loss of legal culture and of sensitivity towards human rights issues. Persecuted minorities in the countries of origin defined as being safe particularly suffer from this. 3) Unfounded Asylum Applications If the Federal Office turns down an asylum application as defined in Art. 16 a GG and § 51 I AuslG only as being unfounded, there is a time-limit for departure of one month pursuant to § 38 I AsylVfG. If action is brought, the time-limit for departure ends one month after the asylum procedure has been terminated without right of appeal. Pursuant to § 74 AsylVfG, action must be brought within two weeks (receipt of the action at the court). ® sample form 9
In addition to these decisions, the introduction of so-called safe third countries by § 26 a AsylVfG has opened up one more variant in decisions. 4) Ordering Deportation to the Third Country pursuant to § 34 a AsylVfG The Federal Office now can order as well deportation to the third country pursuant to § 34 a AsylVfG. § 26 a I AsylVfG states that an alien who has entered from a third country as defined in Art. 16 a II 1 GG may not refer to Art. 16 a I GG, and will not be recognized as a person entitled to asylum. In such cases it is to be established that the refugee cannot refer to the constitutional right of asylum, and his deportation to the third country is to be ordered. A previous notification announcing deportation and the setting of a time-limit are not necessary. This new third-state clause introduced at the occasion of the amendment of Art. 16 GG, which came into force on 1 July 1993, has lost most of its importance in the meantime, as it is not applied in relation to the contracting states of the Dublin Agreement. In such a case, § 29 III AsylVfG has priority. The third-state clause of § 26 a AsylVfg therefore is applied only with regard to the borders with Poland, the Czech Republic, and Switzerland.
According to the Federal Constitutional Court's ruling, the exclusion of protection under the asylum law is to be valid also in cases where the asylum application was restricted to the determination of whether the requirement of § 51 I AuslG, or where it was withdrawn prior to the decision by the Federal Office. It states that the refugee in principle has no claim to a procedure. Impediments to deportation pursuant to §§ 51 and 53 AuslG are not to be taken into consideration in case of entry from a safe third country (BVerfGE 94, 49 ff). Only insofar as the exceptions not included in the concept of "normative ascertainment" exist, an examination of the individual case is to be taken into consideration as an exception. In practice, however, these exceptions do not play a role. The issuing of a deportation order to the third country has to meet the requirement of enforceability. Therefore the Federal Office as a preliminary ascertains whether the third country is prepared to take the refugee back. If this is not the case, or if the third country was not established, the issuing of a deportation order is ruled out, because § 34 a I 1 AsylVfG requires the naming of the safe third country to which the refugee is to be deported. Where the safe third country cannot be named, or where deportation is not enforceable because the third country refuses to take the refugee back, an asylum procedure is to be carried out with all guarantees of procedure; in this case, though, the examination is restricted to the impediments to deportation pursuant to §§ 51 I and 53 AuslG.
An action and a necessary urgency motion pursuant to § 80 V VwGO - within a period of one week - has chances of success only if a qualified argument can be presented stating that the refugee did not enter from the safe third country, or that there is a material danger of the refugee not being safe in the third country, i.e. that he either will be persecuted or treated in violation of human rights in that country, or that he will be deported to a fourth country from there. In such a rarely occurring case, it may be necessary to additionally file an application pursuant to § 123 VwGO, as an application for suspensive effect of the action itself does not lead to the suspensive effect being ordered, and as only an urgency motion pursuant to § 123 VwGO for prohibition of deportation to the third country sufficiently makes clear the urgency and the exceptional character of this application.
If at all possible, do consult a lawyer in such a case! An action always has to be brought. If, as regularly happens, a notification announcing deportation to the safe third country is served, an application pursuant to § 80 V VwGO is to be filed - within a period of one week - ® sample form 8 which should be supplemented as a precaution by an application pursuant to § 123 VwGO for order of prohibition of deportation to the safe third country. In the application it has to be explained that, and why, the refugee fears that he will be deported further from the safe third country. ® sample form 4 As already described, both the individual asylum seeker and the Federal Commissioner for Asylum Matters may bring an action if they are discontented with the decision. The period in which this action must be brought is regularly two weeks; if, however, an application pursuant to § 80 V VwGO must be filed within a period of one week, the action must also be brought within this week (§ 74 I 2. Hs. AsylVfG).This period is valid for both asylum seeker and Federal Commissioner. It starts on the day on which the notice of the decision is formally served. This may be done by personally handing over the notice of the decision to the person affected or his attorney-in-fact. Otherwise, if notice of the decision has been deposited at the post office, the period within the action must be brought starts on the day on which the person concerned is notified that the court decision has been deposited at the post office, i.e. on the day on which the postman delivers this notification. There are special provisions for asylum seekers living in reception centres. Delivery (also of informal communications) is effected by handing over the document to the refugee. If handing over the documents personally was not possible, delivery is regarded as effected on the third day of transmission to the reception centre. These special provisions are only applied if the asylum seeker is at his/her first reception centre and not to normal collective accommodations, not even mutatis mutandis. If the refugee lives in a collective accommodation, delivery must be effected on the basis of normal principles, that is to say, that there must first be an attempt to deliver the notice personally to the person concerned. Delivery per proxy to the supervisor of the accommodation or the caretaker is not an option. Moreover, he cannot accept the documents as a supplementary service pursuant to § 121 ZPO, as he is neither a housemate, nor a member of the family or the landlord. At the most, he may be given the letter of notification concerning handing in for delivery as a mere recipient of mail. Yet it must be stressed once again that, preceding depositing of the letter at the post office, there must have been an attempt to serve the documents upon the person actually affected. If the postman does not bother to ask where the room is and, when there, to ask for the person for whom the notification is intended, service has not been effected. The laws concerning delivery are a complicated matter. The Federal Office and the postal service make mistakes again and again. Always go to a lawyer if the deadline seems to have been missed – especially as then a request of reinstatement (Wiedereinsetzungsgesuch) must be filed, which one also need a lawyer for. For further information read the chapter on "Delivery". The action or the application must be filed with the competent administrative court before expiry of the time limit. If necessary, the documents should be faxed. If the time limit has expired, together with the action or the application pursuant to § 80 V VwGO, an application for reinstatement in the status quo ante must be filed (for the application ® sample form 6). In this application, which has to be at court within 14 days after it has become known that the deadline has been missed, it has to be described that, as well as why, the time limit has expired without this being the fault of the asylum seeker’s or his attorney-in-fact. Mistakes made by the lawyer are regarded as mistakes made by the asylum seeker.
It must be made plausible that neither lawyer nor asylum seeker are to be blamed for missing the time limit. This may be done be by means of an affidavit, e.g. by the accommodation supervisor, a friend, the representative, but also, if necessary, by the asylum seeker himself. If other documents exist, e.g. registration documents which show the new address, they must be provided. These "means of establishing prima facie evidence" may be sent in later. They should, however, already by announced in the application, so that the judge does not decide beforehand. As already mentioned, a lawyer should be consulted at this point at the latest.
The action filed should, of course, not only contain the minimum of necessary information, but also a personal statement about the arguments brought forward in the notice of the Federal Office with, if necessary, a description of the personal fate of the asylum seeker and a list of mistakes made in the hearing records. The grounds in this particular case have to be stated within a period of one week in case of an application pursuant to § 80 V VwGO and within a period of a month from the date of the serving of the decision if an action is brought (§ 74 II AsylVfG). Even if this time limit expires, the court ex officio has to pay attention to what the asylum seeker said in his statement before the Federal Office as well as to facts that are common knowledge (i.e. especially to the situation in the country of origin). Therefore, the time limit for filing a statement of reasons is of practical importance in case of a "manifestly-unfounded" decision (as in this case the court itself has to decide within one week) and if the refugee wishes to add new facts or evidence. Such new facts and evidence must by all means be brought forward or presented if they were already known within the time period for filing a statement of reasons - if need be, without translation. If the time limit has been missed, in most cases this has no detrimental effects in case of a normal action ("unfounded"), because the statement will only be ignored due to being presented too late if the court is of the conviction that by the belated submission the settling of the lawsuit would be delayed. But this can only be the case if the statement is submitted exactly at the date set for the oral court hearing or shortly before. Yet it must be pointed out that there are judges who are very likely to shorten the lawsuit referring to this (or other) formality. Attention must be paid to see that in case of "manifestly-unfounded" decisions all substantial evidence is presented within one week.
The court may also oblige the refugee to state facts or possible evidence on certain goings-on, to submit certificates or other things and may set a time limit within which these things must be presented. Most of the time judges set a time period (of often only one week) for the final statement of claim in conjunction with this time limit. These time limits should by all means be taken seriously. Most of the time something has happened in the course of the proceedings: the refugee might have received pieces of evidence from his home country, he might have found witnesses in Germany or he has engaged in political activities after the flight. If these new facts are not presented within the time limit for the final statement of claim which has now been set, the court does not have to take this belated presentation of facts into account if by doing so the settling of the case would be delayed and if the delay in presenting the facts has not been sufficiently explained. If necessary, the grounds for this explanation must be credibly justified – e.g. by means of an affidavit, a medical certificate or a written declaration of a third person. New facts and evidence, however, can be submitted at all times (§ 47 II 4 AsylVfG). Yet it must be kept in mind that the court is not obliged to reject a belated submission. On the contrary, there is wide scope for the decision of admissibility and a field of tension between the diverse conflicting interests: On the one hand, the time limit serves to speed up the proceedings, on the other, the court is obliged ex officio to take into account basically any relevant submission and to conduct investigations. As the refugee’s new evidence is usually only an addition to what he has said before, i.e. presented in a more precise form, the court’s referring to the cut-off period is not in accordance with the law, since in exercising his duty to investigate the judge, ex officio, could have and would have had to come up with the now allegedly belated evidence anyhow. But you should not rely on this. The refugee should be urged to provide, if possible, all the evidence and documents as fast as possible and to submit them to the court as early as possible! In practice one experiences time and again that refugees and even their lawyers fail to submit evidence in time despite there being a time limit set for handing in a statement of reasons or despite another time limit having been explicitly set, but being able to rely on handing them over in the oral court hearing. Be warned against this strategy. Although the "Offizialmaxime" (a principle according to which only the Staatsanwaltschaft (public prosecutor) may institute criminal proceedings) obliges the court to take, ex officio, apparent facts into account, which, according to the legal perception of many people lending support to refugees, also implies that evidence which has been submitted too late has to be taken into account, some judges back out, hiding behind formalities and regard such evidence as non-existent. In the only remaining appeal, which is the application for admission of appeal, there is hardly any scope for objecting to the fact that the evidence has not been taken into account, because the judgement either does not deal with it at all or hides behind the formality that the evidence was submitted too late without excuse. The only remaining argument, which is the claim that the principle of substantive justice should have priority over procedural justice (not only due to the "Offizialprinzip", but also for constitutional reasons) is rarely accepted by the Higher Administrative Court. This has often negative consequences for the refugee. Therefore, once again, this urgent piece of advice should be heeded: if you can influence the way things are going, so take care that anything that could be relevant comes to the knowledge of the court as soon as possible. Advocates of a "surprise strategy" fail to acknowledge that the judge is in a stronger position simply because in the field of asylum law he is not subject to the control of a higher court.
In principle, the Court has to rule on the action (not, however, on the urgency motion pursuant to § 80 V VwGO, which is usually decided on in written form) on grounds of a court hearing, unless all concerned parties decide to dispense with it. This will only be favourable for the refugee, however, if the court has made apparently positive remarks, i.e. that the chamber has always decided in favour of the refugee because this speeds up the case. Normally, a hearing should not be dispensed with and should actually insisted upon, even if the court suggests that one is not needed. Keeping silent leads to the same result, as it does not represent a waiving of rights. Those who fear to annoy the judge should consider that dispensing with a court hearing will only be detrimental. If the judge wants to reject the application, dispensing with the hearing will not change his mind but only make the rejection easier for him. If, however, the judge is willing to grant asylum, even the annoying additional work will not change his positive assessment of the refugee, because he sees that the refugee is deeply worried. If the court is inclined to pass a negative decision, one should still try to change the judge’s mind in the court hearing. Talking directly to the judge may help to clarify a few points convincingly and thus a change of mind may take place which could not have been achieved by means of a mere submission of facts in written form.
The court may also decide by means of a court notice without a court hearing if the state of affairs seems clear and simple enough. If the refugee is not content with the court notice, he can choose between either an application for the implementation of the hearing or an application for admission of appeal. Depending on whether it is more important to the refugee to speed up the proceedings or to gain time, he will choose the application for admission of appeal or for implementation of the court hearing. The former should, however, only be chosen in exceptional cases, as the rejection rate is extremely high. Only choose the application for admission of appeal if there has been an apparent deviation from the jurisdiction of superior courts or if it is really a fundamental question which has to be decided on. In other cases, the application for implementation of the court hearing should be normally chosen.
Pursuant to § 81 AsylVfG the action is deemed to be withdrawn if the applicant fails to pursue the proceedings for more than a month despite the court having requested him to do so. The proceedings are suspended and the applicant has to bear the expenses. A prerequisite of this happening, however, is the court having formally requested the applicant to pursue the proceedings, pointing out the legal consequences and statutory provisions. A mere request to give reasons for the action, even if a time limit is stated, does not sufficiently fulfil this condition. This provision is meant to enable the judge to give the proceedings more coherence, to see to timely submission and, therefore, preparation or even completion of the taking of evidence before the date set, thus speeding up the proceedings. Requests to pursue the proceedings must serve this cause only and not as chicanery or as a means to get rid of carelessly prepared asylum applicants easily. Unfortunately, experience shows that some judges – often those whose proceedings are the ones that take longest – abuse this provision. By flooding the asylum seeker with requests to pursue his application they aim for a swift and high decision ratio, hoping that the refugee will miss a deadline. If the proceedings have been suspended pursuant to § 81 AsylVfG, an application for continuation of the proceedings must be filed. The court then has to decide whether to suspend the case for good or to continue it. If the refugee pleads that missing the time limit was not his fault (in case of a fictitious withdrawal of the action), he must file an application for the reinstatement in the status quo ante in addition to the application for continuation of the proceedings. Has the applicant actually left Germany as a result of a negative expedite decision, the case must be proceeded with by the court. This usually turns out to be a sham, since the deported asylum seeker is no longer in a position to pursue the proceedings and because the lawyer has lost contact to his client. In some exceptional cases, however, the refugee may contribute arguments and evidence from a third country. If these should prove weighty enough that success in the main case seems possible, the suspensive effect of the action can be re-established by means of an application pursuant to § 80 VII VwGO for alteration of the negative expedite decision, which includes the right of re-entry (which follows as a reverse consequence of the immediate deportation before). If the refugee wins the lawsuit, he has the right of re-entry even if he was staying in a third country in the meantime because the belated safety in the third country does not eliminate the original need of protection and Germany’s original responsibility. II) Application for Re-establishment of Suspensive Effect (§ 80 V VwGO) The application for re-establishment of the suspensive effect usually is decided on in a written procedure before the action. If this application is rejected, this means that the period of time has now started, within which the refugee has to depart, and that he has to leave the Federal Republic even before the action is decided on (and before the court hearing about it). The only remaining option is a constitutional complaint, which, however, has no suspensive effect. Additionally, an application for the issue of a provisional order by the Federal Constitutional Court may be filed. Both options should, however, only be made use of with the help of a lawyer, and the chances of success should be critically considered (see also details about constitutional complaint). The hearing takes place either before the judge sitting alone or the whole chamber, which consists of three professional judges and two lay judges. The hearing before the whole chamber has become very rare. It is only practised if a fundamental decision is to be taken. In all other cases it is the judge sitting alone who decides. In the hearing the refugee’s argumentation is listened to and he is confronted with critical questions of the court. Some courts try to get the refugee entangled in contradictions because rejecting an action with the argument of untrustworthiness is the easiest way. The asylum seeker should therefore prepare for the hearing, re-read everything he has stated so far, have all of it translated and take special care to remember the specific dates. Even if this sounds ridiculous, it is a deplorable fact that some judges deem an asylum seeker untrustworthy because he stated as date for a certain event once 10 March and, years later, 11 March. The personal impression is decisive, in the court hearing just as in the hearing before the BAFl. If the judge is not – which happens often – already prejudiced because of what he sees in the files or due to established case law, it is most important to convince him that the refugee’s statements are true. Contradictions and lack of clarity must not be dropped. They must be presented in a straightforward manner and be clarified and explained as far as possible. Try to create a trusting, open atmosphere that enables the refugee to remove any obscurities and to state his arguments in a decisive and self-confident manner.
The hearing must be recorded in the minutes and one copy must be sent to the applicant. This is being ignored in many asylum procedures. Therefore the record-taking service should be explicitly requested. The refugee might need these records in case of filing a motion for admission of appeal. When the judge is dictating the records to a typist or into a dictaphone, one should listen carefully whether everything has been recorded correctly and, if necessary, contradict – with the contradiction, of course, put down in the record. Some judges draft the record in the course of the proceedings so that one only gets to know what has been recorded at a later point in time – usually together with the court decision. If such records are considered faulty, an application that they be corrected may, or, under certain circumstances, must, be filed. After the hearing the court is closed and the judgement is pronounced, either immediately at the end of the hearing or at a later date. In this case, the judge may either fix a certain date for the pronunciation of the judgement or he decides that a judgement will be pronounced, in which case he has another two weeks to consider the judgement. Within this period of time he has to deposit the judgement in written form at the registry and subsequently have it send to the parties concerned.
The court may, just as the Federal Office, reject the action as "manifestly unfounded" or " manifestly irrelevant". If it does so, no form of appeal is possible. At the time of the serving of the judgement, the period within which the asylum applicant has to depart has begun. Only the option of a constitutional complaint remains, in conjunction with an application for a provisional order, if necessary.
If the court has rejected the action simply as unfounded there is the option of filing an application for admission of appeal. The application is to be filed and justified at the original court by a lawyer within two weeks after the serving of the complete court decision. The chances of success are very slim, they are likely to be at around 1% all over the Republic, yet there are no exact statistics. The duration of the proceedings tends to vary a lot, even at one and the same court. It can be between a few weeks or up to several years. The duration might well depend on whether the Higher Administrative Court has already a set way to administer law in these case. If so, some supreme courts tend to be very tolerant with even faulty decisions made by the court of first instance, as "in the end, it doesn’t matter anyhow". This constitutes, especially since the right to appeal in asylum law has become subject to so many restrictions, clearly a degeneration of the judicial system, the reason for which lies not only in the disregard of asylum law but also in a very common legal practice to judge not on a basis of individual cases but much more on general criteria. The standardisation of arguments, something many people complain about bitterly, is being furthered as a result of such practice.
The application for admission of appeal has only chances of success if either a deviation from a judgement of a superior court can be shown, if a question of fundamental importance is to be discussed of if there is an absolute reason for appeal. Pursuant to § 138 VwGO a judgement shall be deemed unlawful if the makeup of the court was not according to the provisions, if a judge was biased, if a participating person was not given a fair hearing in accordance with the law, if a participating person was not represented orderly, if the judgement was based on a hearing which had violated the provisions concerning publicity or if no reasons are given for the decision. For such an application to be filed, which also can be done by the Federal Commissioner, the assistance of a lawyer is required. If the Higher Administrative Court (which in Bavaria, Baden-Württemberg, Hesse, and Saxony is termed the Verwaltungsgerichtshof, everywhere else Oberverwaltungsgericht) grants the application, the next step is the appeal, i.e. a review of the case, in legal terms as well as with regard to the facts of the case, i.e. just the same procedure as before the court of first instance. The Higher Administrative Court may set a date for a hearing and take the evidence. Often, however, it does without the hearing and decides without one because it unanimously considers the appeal justified or unjustified and therefore thinks that the hearing is dispensable. This intention must be announced as part of the legal hearing – and a time limit for further submissions and filing of statements of reasons. This time limit must absolutely be observed, potential statements of reasons must be filed and then, provided that the court still wants to do without a hearing, be taken into account for the judgement
An appeal on questions of law may only be filed if it has been granted by the court of appeal (which rarely is the case) or if it has been granted due to an appeal by the Federal Administrative court. The notice of appeal due to non-admission has to be lodged with the court of appeal by a lawyer within one month from the date of serving the complete judgement and be given reasons for within two months from this date. If the appeal is granted by the Federal Administrative Court in Berlin, the result usually are appellate proceedings. They, however, only deal with legal matters and not with the problems of the refugee’s actual case. Whether an appeal is allowed or not is dealt with as described above. An appeal on questions of law is only granted leave if the matter in question is of fundamental significance, if the ruling deviates from a decision made by the Federal Administrative Court or the Common Senate of the Higher Courts of the Federal Republic and is based on this deviation or if defects in the proceedings can be claimed or if it can be argued that the decision might be based on them. Moreover, an appeal must be allowed if there are absolute reasons for appeal (see above).
If the appeal on questions of law is granted leave by the Federal Administrative Court, the judgement made in the appellate proceedings (on points of fact) is revised with regard to legal questions. The facts established by the court of appeal in points of fact are binding for the court of appeal on questions of law, even if these facts are wrong. In case of serious irregularities the Federal Administrative Court may decide without a hearing and remit the case to the Higher Administrative Court. Otherwise a hearing takes place in which the Federal Administrative Court either comes to a final decision, in other words: grants or denies asylum or protection from deportation, or remits the case to the Higher Administrative Court for further investigation. In this case, new appellate proceedings (on points of fact) take place.
If the Federal Administrative Court passes a judgement itself, the asylum procedure is concluded and no more appeals are possible. This is of course also true if no appeals were granted leave in the first place. The only option against all judgements being res judicata is a constitutional complaint.
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If the ordinary appeals are exhausted, the only option left is filing a constitutional complaint with the Federal Constitutional Court since there is no appeal against expedite decision in the field of asylum law, a constitutional complaint against a negative judgement by the Administrative Court (based on 80 V) is possible. Although the assistance of a lawyer is not prescribed, it is definitely advisable. As the final judgement usually also constitutes the start of the time limit for departure, in practice an application for a provisional order of the Federal Constitutional Court must be filed at the same time. Usually the aliens authority is prepared to suspend the enforcement of the deportation, if at all, only if such an urgency motion has been filed. For the constitutional complaint not to be pointless because the refugee was long since deported, the aliens authority should be contacted in advance. They should be told that a constitutional complaint has been filed, or even sent a copy, and a suspension of the enforcement of the deportation should be requested and if possible arranged. If the aliens authority is not willing to co-operate, this must be mentioned in the application for a provisional order. If necessary, it should be tried to prevent the impending deportation by contacting the Federal Constitutional Court by telephone. The constitutional complaint must be filed within a statutory period of one month (from the date of the serving of the decision being objected to) with the Federal Constitutional Court in Karlsruhe. As deportation is threatened long before this, however, one should not let too much time pass. It should be noted that the constitutional complaint is only admissible if legal recourse has been completely exhausted. This requires not only e.g. the submission of an application for admission of an appeal on points of fact or questions of law but also, under certain circumstances (that is to say, in case of a constitutional complaint in expedite proceedings) the submission of an application pursuant to § 80 VII VwGO (i.e. an application for altering a preceding negative decision pursuant to § 80 V VwGO at the same court). The constitutional complaint is (just as is the application for a provisional order by the Federal Constitutional Court) not a ordinary appeal, but an extraordinary legal remedy. It is only admissible and only has chances of success if there has been an infringement of the constitution and a serious disadvantage threatens as a result. In cases of abuse the Federal Constitutional Court may even impose a fine against the appellant. Simple legal and procedural errors do not justify filing a constitutional complaint. Although the Federal Constitutional Court is well aware that especially in the field of asylum law it is hard to draw the line, as more often than not simple legal irregularities can result in the basic rights of asylum law being violated, namely the right to life, liberty and freedom from bodily harm, one should always examine carefully and critically whether the constitutional complaint has any chances of success. An overkill of constitutional complaints only leads to the devaluation of this out-of-the-ordinary remedy. The Federal Constitutional Court could tire of such complaints, resulting in the aliens authority no longer taking constitutional complaints seriously.
As a matter of fact you get the impression that, since the amendment of the fundamental right to asylum laid down in article 16 GG in its former form, stricter standards are being applied. The Federal Constitutional court is struggling not to be seen as an appellate court and is today more prepared to simply accept procedural errors without intervening. The law governing the activities of the Federal Constitutional Court constitutes the basis of this practice, because a constitutional complaint only passes the three-member committee carrying out the preliminary examinations if the constitutional complaint is of fundamental importance, if the applicant would suffer an extremely severe disadvantage or if the court considers it necessary to grant the complaint in order to guarantee fundamental rights. There is obviously considerable scope for the court to pick out exactly those cases it wants to decide on; scope the court really makes use of. With the decision on the airport procedure of 14 May 1996 the Federal Constitutional Court imposed strict restraints on itself as to the passing of provisional orders. All this leads to the conclusion that too much hope should not be placed in a constitutional complaint - it succeeds only in exceptional cases.
Yet if one is of the opinion that a constitutional complaint is justified all efforts should be made in order to make it succeed. This requires not only informing the court about the whole matter, including the reasons for the decisions (made by the Federal Office and the respective courts), in time, but also working out clearly why this particular case represents not only an infringement of ordinary law (e.g. the Asylum Procedure Act), but specifically of constitutional law.
If the constitutional complaint succeeds, most of the time the preceding judgement is annulled and the case is remitted to the original court for a new judgement. Unfortunately practice shows that many judges are no longer impressed by such an annulment, they simply avoid repeating the error criticised by the Federal Constitutional Court and come to the same judgement as before. In the field of asylum law a lot of judges seem to be growing more and more indifferent. Judges pondering about their personal interpretation of the law because the Federal Constitutional Court annulled one of their judgements have become a rare exception. There are even judges who see a host of successful constitutional complaints against their judgements as an honour, proud of their "efficiency" they refer to the proverb: "Omelettes are not made without breaking eggs."
Often people try to prevent an impending deportation by sending requests and petitions to the mayor, local and state authorities, the Landtag or the minister-president of a Land. Such petitions are successful in only a tiny fraction of cases and only if they are addressed to the Committee on Petitions of a Landtag or the Bundestag. In most cases they do not even help to gain some time.
The abstract and inflexible regulations of the AsylVfg and AuslG can often lead to situations in which a refugee’s hopes and fears are ignored and his or her destiny is paid insufficient attention to. In these cases petitions are a reasonable means. If there is a committee on hardship cases in a land, one should first turn to this committee for help. Applying to this court usually will have greater chances of success, but often this option is ruled in out the regulations of the Länder if a petition or request was filed before. Apart from a possible positive decision, submitting a petition has as a result that the responsible persons or the members of parliament will have to change their attitude from an abstract political way of seeing things to noticing the individual human being. This altered attitude may lead to changes, if only in the long term. Committees on Petition are not bodies of appeal with special powers or in a position to correct the rulings of the judicial branch. Complaining about the judgement is therefore completely inappropriate. Emphasis should be put on the humanitarian aspect and on the special nature of this particular case, thus paving the way for an individual decision by way of a petition. Certainly petitions concerning certain groups of persons are also possible and, at times, sensible. For instance, if a suspension of deportation pursuant to § 54 AuslG is supposed to be cancelled, yet there are still imminent dangers for the group of persons concerned. In this case the "Land" government has to notify the Conference of the Ministers of the Interior of its view. A petition should not be lodged by a lawyer, but by the refugee himself or by persons or groups which are in close contact with him and intend to help. A petition must be thoroughly documented, which is to say that all the facts must be stated and be proved by including the essential documents. The petition should basically accept the judgement passed and direct the attention on the special features of the case which were not taken into account by the court. It is by no means inappropriate that a parliamentary commission should discuss cases of the aims of justice not being served, e.g. cases in which different courts decided differently on comparable cases, i.e. granted asylum and thus confirming that a deportation could constitute a threat to the refugee’s life. Considering German history, the thought of politicians ignoring their responsibility to save human lives by using a formally correct court ruling as a pretext is intolerable.
Since the latest amendment of asylum law, the majority of the Landtage feel no longer responsible and claim a general federal competence because impediments to deportation are examined by the Federal Office after an asylum application has been lodged. This is nothing but an evasion from their own responsibility. According to the consistent practice of the courts every single authority concerned with deportations has to investigate on its own and at all times whether a deportation would entail a threat to the life and liberty of the refugee. If this is the case, the alien authority can not carry out deportations, even if it is merely responsible for the implementation, as it is bound by fundamental rights itself. In such a case, the aliens authority does not only have the right but also the duty to refuse to take part in an act which possibly constitutes an infringement of human rights by enforcing a federal decision. Corresponding to this, in principle also the Committees on Petition of the Länder are responsible. The subject of a petition to the Landtag can be a changed situation in the country of origin as well as impediments to deportation that relate to Germany. In the case of a different situation, a follow-up asylum application will usually be filed which, if there really has been a relevant change, should lead to a temporary suspension of deportation because the Federal Office – or the court in an expedite procedure – confirms that the follow-up application must be taken into account. If this is not the case, which happens very rarely – (although often it can be observed that the Federal Office as well as some courts stick with the earlier, established case law, thus exposing many refugees to the threat of deportation while other courts in other Länder at least confirm the fact that a follow-up asylum application must be taken into account and consider a thorough re-examination to be necessary) - , there is (in the author’s opinion) enough scope for a decision of the Landtag, because enforcing federal decisions is the task of the Länder. The situation is similar if quite some time has passed since a "manifestly-unfounded" decision of the Federal Office or its approval by a court and if in this period of time the situation in the country of origin has deteriorated further. As a result of the fact that in this case the proceedings in the main action are still pending, a new follow-up application cannot be filed. The only thing that can be done is stopping the immediate enforcement of the deportation in proceedings for temporary relief (by filing an application pursuant to § 80 VII VwGO of another application pursuant to § 123 VwGO). A petition in addition to these legal steps is a reasonable measure. The Committee on Petition of a Land parliament is without doubt competent in the case of impediments to deportation relating to Germany. There is no clear demarcation line between impediments to deportation which have their causes abroad and those that relate to Germany. Protection of marriage and family – in this context usually the tearing apart of members of a family – are typically defined as being related to Germany. Also illness or the lack of adequate treatment abroad could constitute a impediment to deportation relating to Germany, although this situation is traditionally defined as relating to foreign countries. This differentiation is dubious: It is hard to comprehend why in case of a severe illness it is argued that the fact that treatment abroad is impossible (= relating to foreign countries) is decisive and not the fact that treatment in Germany is interrupted (=relating to Germany). This argumentation can certainly be questioned, especially if additional, psychological factors require that the person affected stay in the territory of the Federal Republic, e.g. that he / she is cared for by relatives or friends living in Germany. Unaccompanied minors, victims of torture and other traumatised persons or persons that suffered sexual abuse are in a similar position. One can either argue, which is the prevailing practice, that the minor can not get adequate treatment in the country of origin or that the traumatising experiences will well up again in the country of origin (= relating to foreign countries), or one can stress that social integration, care and, as a result, a possible recovery from the strain of the flight and the traumas require a stay in Germany (= relating to Germany). Since a petition is not an appeal, but, in the end, a plea for an act of mercy, one should not occupy oneself too much with the doctrine of asylum law. One should, however, keep it in mind, so that the members of parliament can be reminded with a little hint that they too are called upon to decide and do not have to delegate the responsibility to the Federal Office or the Committee on Petition of the Bundestag.
It is true, however, that the Committee on Petition of the Bundestag is directly responsible in case of a decision made by the Federal Office itself. Especially if procedural errors have been detected, i.e. if the hearing has not been conducted properly or did not take place at all, e.g. because the refugee was not informed for excusable reasons and if there was no judicial review, such an application does make sense. If, however, the decision of the Federal Office has been reviewed as usual, the Committee on Petitions of the Bundestag often hides behind the argument that respect for the independence of the courts prohibits them from changing a court decision.
Generally speaking, one should not place too much hope in petitions. They appease the conscience of benevolent helpers, boost the self-confidence of the members of parliament and hardly are of any use to help the refugees. The reason for this is the fact that petitions do not have any suspensive effects and that the earlier practice to wait for a decision, out of respect for parliament, is no longer usual in most of the Länder. One should, however, resort to petitions (if appropriate) in cases where an apparent lack of justice is obvious or the result is intolerable. Even if this does not help the refugee, petitions can contribute to the members of parliament understanding that errors happen despite a formal hearing and despite the option of judicial review and that at times these errors have intolerable consequences. Even if the petition may be of no use in a particular case it fosters the willingness to find possible loopholes in the next case and the understanding that an amendment of the law is necessary in order to be able to provide efficient help in hardship cases.
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