Memorandum for the Protection of Refugees

Amnesty International, German Section


Working group on Immigration and Asylum Law in the German Lawyers' Union

Caritas Germany

German trade union confederation (DGB), federal board, migration desk

German parity (?) welfare association

German Red Cross

Diaconal Agency (Diakonisches Werk) of the Evangelical Church in Germany

New Judges Association

PRO ASYL, German association for refugees


Political refugees need protection

Having received protection from her Nazi persecutors in the United States, Hannah Arendt poignantly describes the connection between human rights and the condition of a refugee:


"The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective. (...) We became aware of the existence of a right to have rights (...) and a right to belong to some kind of organized community only when millions of people emerged who had lost and could not regain their rights because of the new global political situation. (...) We really have started to live in One World. Only with a completely organized humanity could the loss of home and political status become identical with expulsion from humanity altogether."[1]


Without the protection against persecution granted by the international community politically persecuted individuals would remain outlawed; the law would lack a suitable response to the deprivation of that most basic of all human rights, namely the right to have rights in a legal system. The dignity of law is manifested in political asylum. The legal order cannot accept people being made rightless. Because the reconciliation of reality with laws in the refugee's country of origin is not possible due to the threat of political persecution, the international community assumes this responsibility through granting protection from persecution.


Modern refugee law was created through Russian nationals being stripped of their citizenship on a grand scale in connection with the Russian revolution. Their being cast out their home country in this way vividly demonstrates the grounds legitimising refugee law. The world has not become a more peaceful place since then. The exclusion of those who are different or of different opinions, i.e. casting them out of their national community, is therefore rightly the central criterion for granting protection from persecution in the case law of Germany's federal constitutional court[2] and of the federal administrative court[3]. Politically persecuted individuals need protection still today; they are not beggars but are entitled to protection under international law.


The international community consists of states. They act on behalf of the international community. Accordingly, states grant refugees the protection required by international law. So far, however, the states have omitted to set up a proper multilateral system of protection from persecution, laying down a procedure regulating which state should grant the refugee protection on behalf of the international community. That is why there is largely a system of negative conflicts of competence, i.e. very frequently the state asked for protection claims not to be competent to grant protection because the refugee has travelled through another state.


The reason for this system is that international law, while prohibiting the forcible return of refugees to their country of origin, does not determine the state responsible for receiving them. Hence states endeavour to keep refugees out of their own territory through returning them to other countries, albeit not deporting them to their states of persecution. Negative conflicts of competence substitute for legally regulated procedures, prolonging the lack of rights of the refugee called forth by the expulsion. There is hereby a considerable risk that the refugee in orbit will end up back in the state of persecution, without any of the states asked for protection ever having seriously examined his or her claim of persecution. The absence of a cooperative inter-state system of granting protection is thereby a serious omission. The international community hereby negates the principle it formulated itself "to assure refugees the widest possible exercise of these fundamental rights and freedoms" (Preamble of the Convention relating to the Status of Refugees of 1951, hereafter called Geneva Convention).


The attempt by the European Communities to create a regulated system of state responsibility in refugee law through multilateral agreements is basically suited to sorting out the confusion of negative conflicts of competence within the European Union, replacing them by a legally regulated procedure. This system needs improvement, however, and must be devised such as to guarantee a right to the examination of the request for asylum inside EU territory; further, the criteria of who is responsible for what must be revised in order to avoid families being torn apart.



The constitutional right to asylum: the national response to international obligations


National asylum and refugee law is part of international refugee law. This also applies to the constitutional right to asylum of the Federal Republic of Germany. International law and thereby also refugee law is created through national legal acts; it is national legal systems that elaborate international refugee law. In this way the original idea of the basic right to asylum in Article 16(2)2 of the Basic Law, to grant protection to politically persecuted persons by creating an absolute right to be received was an attempt to develop international law, deriving from the specific experiences of injustice suffered under the national socialist regime.


At the UN conference on territorial asylum law in 1977 Germany and a number of other states attempted to entrench the right to asylum in international law. The attempt failed. The states were not willing to commit themselves this extent, nor are they now. They have, however, recognised the principle of non-refoulement. This stipulates that a state must not expel a refugee seeking protection from persecution in one state to another state in which his/her life or freedom would be threatened (cf. Article 33(1) Geneva Convention).


While international law does not oblige the states to receive refugees it does commit them not to send a refugee back to the country of persecution. If there is no guarantee that a certain other state will accept the refugee or examine his/her claim in an effective, fair procedure, granting protection from deportation to a state of persecution, a state may not refer a refugee to the protection of this state. Rather it must first admit him/her in order to determine refugee status, and grant protection for the duration of the persecution if the person seeking protection is a refugee. International law defines a refugee as a person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion" (Article 1A(2) Geneva Convention) is unable to return to his/her home country.


The basic right to asylum of present Article 16a Basic Law is part of international refugee law and needs to be spelled out in terms of these principles. The federal constitutional court and the federal administrative court have already situated the original constitutional right to asylum in this context. Both courts have stressed that the right to asylum "in the core area" grants protection from the state of persecution.[4] Hence refugees could also be referred to another state under the previous Article 16(2) Basic Law ("Persons persecuted on political grounds shall enjoy the right of asylum") as long as protection was recognisably granted and was so organised as to "guarantee the refugee adequate safety from further persecution through the state of origin and from being sent back there or to another unsafe state."[5] Since the essence of international refugee law is to protect the refugee from the state of persecution (see Article 33 Geneva Convention) there is a joint legal obligation to build on when it comes to spelling out Germany's constitutional right to asylum.


Constitutional law and international law grant politically persecuted individuals protection from their states of persecution. The necessary protection must be effective and observe the prohibition of chain refoulement. A referral to a third state is only allowed if the refugee is accepted there or if refugee status is examined in an effective, fair procedure based on the rule of law, with protection being granted from deportation to the state of persecution. Only under these conditions does international law allow a referral of a refugee to a third state.


The prohibition of chain refoulement means that the required protection has to be specific, i.e. not based on generalised assumptions of granting protection in other states. Rather, through legally regulated procedures it must be clearly stated, and checked in the specific individual case, whether the refugee on arrival in the other state will actually obtain access to a fair procedure based on the rule of law. If this is not guaranteed the forcible transfer to another state is not allowed under international law. Instead, the refugee has a right to an examination in Germany of his/her assertions of persecution, in a fair hearing based on the rule of law. The concept of safe third state of Article 16a(2) Basic Law does not envisage a multilateral system of competencies, but regulates the deportation of asylum-seekers to states outside such a system, prohibiting an examination of safety in these states on a case-to-case basis.[6] This is therefore hard to reconcile with international law, even considering the new jurisdiction of the European Court of Human Rights[7].



International protection:

a right, not grace and favour


It is claimed that the Geneva Convention does not establish a "right to asylum" but merely "right in asylum". This means that the states can use their political discretion to decide whether they grant refugees protection or not. Only the refugees to whom they grant admission, it is claimed, need to be granted the rights laid down in the Geneva Convention. This objection misrepresents the progress already achieved in international refugee law. It gives the public the impression that international refugee law only contains obligations on states, but no standards protecting the individual. If that were so, granting protection for refugees would be merely by grace and favour since, unlike the international human rights covenants, international refugee law has no international supervisory body.


However, international law does not abandon the refugees to the caprices of legally uncommitted states. The legal purpose of refugee protection is the effective guarantee of protection from persecution through the competent contracting state in a legally regulated procedure. Whoever is competent admits the refugee and examines his/her request for protection in a fair procedure based on the rule of law. This corresponds to international practice and is an effective guarantee of protection against refoulement. Germany cannot get out of these legal preconditions either. The debate about the "right to asylum" and "right in asylum" is therefore a false problem.


Germany is obliged by international treaty law and international customary law not in any manner whatsoever to send the refugees seeking protection from persecution back to a state in which their "life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion" (Article 33(1) Geneva Convention). This includes not forcibly sending refugees to another state in which there is the danger of further expulsion (prohibition on successive deportation).


These international obligations of Germany also have individual protective character according to the 'transposition teaching' developed in the jurisdiction of the federal administrative court. It states that the transposition of an international treaty means the immediate national application of those treaty provisions that are sufficiently defined in wording, purpose and substance to have a similar legal effect to national legislation, so that they require no further elaboration.[8] There is therefore no special application order needed to enact international standards for the protection of human rights at the national level.


Article 33 of the Geneva Convention fulfils the preconditions of this teaching. Refugees can therefore appeal directly to its prohibition of refoulement. Due to the transposition effect of the Geneva Convention they have a subjective right to protection from deportation to the state of persecution and protection from deportation to a state in which there is a danger of further expulsion. Even by denouncing the Convention Germany could not escape its existing international law obligations. It is generally recognised by now that the prohibition of refoulement has established itself as a general rule of international law, immediately creating rights and duties on German territory. The federal constitutional court has stated on this topic that human rights – and hereby also the provisions of refugee law – directly give rise to subjective rights of the individual at the level of international law and thereby, according to Article 25 sentence 2 Basic Law, on German territory.[9]


The protection for refugees that has formed at the international level contrasts with its reduction at the national level to a mere act of grace and favour. The transposition effect of the Geneva Convention is the direct basis for a subjective claim to the granting of protection according to its Article 33. Even replacing the guarantee of the right to asylum by an institutional guarantee cannot cancel out the international law obligations of Germany with their subjective legal effects as shown above.


In terms of procedural law the material claim to protection of politically persecuted persons is ensured by the constitutional guarantee of legal protection (Art. 19(4) Basic Law). It is true that no conditions can be derived from international law comparable to the refoulement prohibition. The federal constitutional court has, however, precisely with respect to asylum law, repeatedly referred to the general rule of international law according to which the state has to grant the individual suitable legal protection.[10] In its view, international law requires judicial legal protection to the extent that the refugee


"must have access to the courts on the basis of generally accessible legal recourse and have his/her petition for legal protection examined and decided by impartial judges; further, that a minimum of procedural justice, in particular an adequate hearing is granted and the procedure is not unduly delayed. As far as legal recourse is allowed it must be available to national residents and foreigners in a fundamentally equal manner."[11]


International law does not stipulate that refugee protection be guaranteed in constitutional law. However, it does call for appropriate legal protection for refugees. In view of this situation in international law, stressed by the federal constitutional court, ways must be sought to implement international obligations as well as possible in Germany, taking account of the European context.


In 1993 the right to asylum as laid down in the Basic Law was placed on a new basis. The federal constitutional court justified this by saying that it was to pave the way for a European system of refugee protection.[12] A pan-European system of refugee protection would be the appropriate expression of common values in Europe. There will continue to be different legal systems, however, and thereby differences in the nature of national procedures. This being so, it is essential that every state effectively guarantees protection from persecution on the basis of its national procedural law.


Germany is not the only state to examine asylum applications in legal procedures. This happens in nearly all European states and in many others besides. Generally the applicant can have a negative decision reviewed by an independent judicial or comparable oversight board. The harmonisation of procedural law in the European Communities can therefore link up with existing, time-honoured traditions in the member states. In Germany the traditional legal protection is guaranteed constitutionally through the basic right that takes pride of place, the guarantee of legal protection established in Article 19(4) Basic Law ("Should any person's right be violated by public authority, recourse to the court shall be open to him.") This is the best safeguard against the deportation and refoulement of politically persecuted persons.



Political programmes supplement the refugee protection of the Geneva Convention but must not avoid formal legal procedures



The predominant argument for the campaign against international protection is that the situation regarding repression in the countries from which the refugees come has allegedly changed since 1951, when the Convention was opened for ratification. It is argued that, due to civil wars and the collapse of the state in those countries, it is no longer possible to distinguish precisely between individual persecution and the general situation of threat. Against this backdrop, the "guarantee of justice" substantiated on purely moral grounds takes on apparent plausibility, although it has actually been reduced to an act of grace and favour.


International protection hinges on individual persecution. Neither the Geneva Convention nor German constitutional law grant protection without a connection to a specific, immediate threat of persecution of the refugee. Even in processes of upheaval and collapse in existing state systems there is victimisation of people who are different or have different ideas. In view of the extremes that develop in such social situations the probability of individual persecution is even increased.


However, during upheavals higher numbers of people flee and so refugees frequently seek protection as a temporary measure. Due to the individual character of the concept of refugee under international law a precise investigation of individual persecution is required before granting protection from it. If the western international community and in particular the European Communities come up with political ideas to deal with the mass movements of refugees, such as the programme of granting temporary protection, this can certainly be a meaningful contribution; provided that this does not lead to a reduction in the protection of individually persecuted refugees required by international law. The applicants who so desire must always be given access to the determination procedure and decisions on pending procedures must not be disallowed. As long as there is an individual, specific threat as defined by the Geneva Convention there is a claim to protection, achieved in a legally regulated procedure. Political reception programmes can take the pressure off the procedures but must not abolish the individual claim to protection or be instrumentalised to legitimise the reduction of individual protective guarantees.


The policy of closing borders that has prevailed in western states since the mid-1980s has substantially hampered access to the system of international protection. The criminalisation related to the refugee's mode of travel has led to an extensive drop in public awareness of the personal hardship undergone by refugees forced to enter the country illegally due to the measures taken to keep them out. The proposed political alternative of setting up reception programmes for specific refugee groups in the context of a state-regulated humanitarian action cannot replace the protection needed for refugees arriving spontaneously. In international practice such attempts have generally remained more or less fruitless. This is clearly shown by the reaction of the Canadian delegate at the refugee conference in Evian in 1938, notable for its failed attempt to allocate threatened Jews from Germany to countries on the basis of admission quotas. When asked how many refugees Canada could take he replied, "None is too many."


International refugee protection is based on the notion of international solidarity and the just distribution of the burdens associated with taking in refugees. In view of the general fear of these burdens, however, all attempts to create a just, fair system of receiving refugees have so far failed. Consequently, the system of international protection depends not on voluntary contributions from states in regard to admissions but on an individual claim to protection from persecution. Collective admission programmes may relieve the burden on the states and can therefore be a good contribution to solving the refugee problem, again provided that they are not instrumentalised to legitimise the reduction of individual protective guarantees.



Fleeing and immigrating are two different things

Light should be shed on the relationship between immigration and protection from persecution. Politically persecuted people need international protection; they are not beggars but are entitled to protection by international law. The calls for a restriction of the system of protection against persecution being raised by public figures are not new. As shown by the history of refugee law since 1920 this system developed in spite of the many forms of state and social resistance. Its erosion is pre-programmed if it is dependent on political will alone and is not also rooted in public awareness.


The specific political and social preconditions for immigration have no equivalent in the granting of protection against persecution. The immigration debate is primarily geared to the respective necessities of a host society, albeit not solely. By contrast, refugee policy centres on the granting of protection for persons persecuted on grounds of race, religion, ethnicity and political conviction. An undifferentiated linking of both questions promotes populist currents hostile to human rights and thereby undermines the social awareness necessary for refugee protection.


The protection for refugees required by international law cannot be limited by quotas. This is incompatible with Article 33 of the Geneva Convention. The immigration debate makes it clear, however, that there is an urgent need for more debate on the legitimacy of political asylum and the system of protection from persecution. International protection is an integral component of general human rights protection. Human rights are clearly defined, legally actionable claims, guaranteeing the individual a right to life in human dignity. That applies to all people, independently of where they happen to be. So protecting refugees is a direct way of safeguarding universal human rights.


The debate has to come back to the reasons why the people become refugees. It should overcome the fixation on a person's travel route which has arisen through the exclusive concentration on law enforcement factors linked with measures to keep refugees out. This would be a way of refreshing and updating people's awareness of the continuing need to protect refugees. In view of the institutionalised distrust shown towards asylum seekers and the consequent exaggerated standards of the burden of proof, decisions taken by the authorities in the asylum process may often lack credibility, so that official recognition statistics do not form a plausible, rational basis for discussing the reasons why people flee.



Parameters for a system of refugee protection

I.               Principles of international law


1.    Every state is obliged under international treaty law or international customary law not to send a refugee seeking protection from persecution in any manner whatsoever  back to a state "where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion" (Article 33 Geneva Convention).


2.    Only when it is guaranteed that a specific other state will accept the refugee or grant access to an effective, fair procedure based on the rule of law for the examination of refugee status and protection from deportation to the state of persecution may German authorities refer the refugee to the protection of this state.


3.    This minimum international standard shall form the starting point for framing European and national asylum and refugee law.


II.              International law and the German constitution


1.    The German constitution seeks to effectively implement the protection of politically persecuted individuals offered by international law through a basic right (Article 16a(1) Basic Law). This right should not be rendered less than absolute by the introduction of an institutional guarantee.


2.    Accordingly, the constitution guarantees that refugees shall not be returned to the state of persecution by any official measures and that they shall only be taken to another state if they are accepted there or their refugee status is examined in an effective, fair procedure based on the rule of law, and they are protected from deportation to the state of persecution. A possibility of rebutting the presumption of safety must therefore be inserted into the concept of safe third state.


3.    The key point of the imminent procedural harmonisation of asylum law under Article 63(1)(d) of the Amsterdam Treaty is the national guarantee of an independent examination of decisions containing rejections of refugee status under refugee law on the basis of the respective national law on administrative procedures.


4.    Accordingly, the basic right to asylum of the constitution and the constitutional guarantee of legal protection (Article 19(4) Basic Law) have the function of guaranteeing that the requests for asylum to be dealt with by Germany are examined in an effective, fair procedure based on the rule of law. This is no obstacle to a European harmonisation of procedural law.


III.            Guarantee of protection under procedural law


1.    Every asylum-seeker whose request for asylum is to be examined by the Federal Republic of Germany has a legal right to have his/her request for protection subjected to impartial and benevolent examination by the competent authority and to have a negative administrative decision examined by an administrative court in keeping with the general rules of administrative procedure.


2.    International law and constitutional law call for a fair procedure based on the rule of law – even in cases where there is clearly no chance of success – while allowing for the streamlining of the administrative and review procedures in accordance with international minimum standards.


3.    .International law and constitutional law protect politically persecuted individuals from the state of persecution. The object of procedural examination can therefore be restricted to the question of the safety in a certain other state or to the question of the competence under international law of another state pursuant to a multilateral treaty.


4.    Even in procedures with limited objects of examination the asylum-seeker's right to remain until the conclusion of the streamlined examination procedure must be guaranteed.


5.    Due to the prevalent climate of institutionalised distrust towards refugees the social, political and legal conditions for granting protection from persecution have dramatically deteriorated. The hurdles for proving credibility today are too high. The international benchmark of refugee protection should be recalled: to give the refugee the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status).


IV.           Refugees requiring protection


1.    The protection from persecution based on the Geneva Convention focuses on applicants who can credibly claim to have suffered persecution as defined by the Convention (individualisation of grounds for persecution).


2.    The erosion of states and the internal conflicts in a number of countries of origin make it necessary that, in Germany too, persecution by non-state actors be finally recognised as grounds for fleeing. The legislator is therefore called upon to accept the general practice of the contracting states to the Geneva Convention. The following second sentence should be inserted into §51(1) of Germany's Aliens Act:


"The threat within the meaning of sentence 1 shall also exist when in the country of origin there is no over-arching state order or state-like power or when the state is incapable of giving protection."


3.    There is an unchanged need of protection for individually persecuted individuals since, as in 1951, patterns and techniques of repression in the countries of origin still target individuals.


V.             Supplementary protection


1.    The international obligations of the Federal Republic of Germany, besides the effective guarantee of protection under refugee law against persecution, further guarantee the protection of the individual from torture and inhumane treatment or punishment  (Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) on the basis of the case law of the European Court of Human Rights.


2.    In addition, Article 3 of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment grants effective protection against expulsion, deportation and extradition when there is a specific danger of torture. The federal government is therefore called upon to make the necessary statement according to Article 22(1) of this Convention so that persons threatened with deportation can take advantage of the appeal procedure of the Convention.


3.    Unaccompanied minors enjoy the protection of the Convention on the Rights of the Child. To guarantee the protection of the Convention the federal government is called upon to withdraw its declared provisos.


VI.           Temporary protection


19. In the event of mass refugee movements the international community needs to intervene swiftly and effectively. Political protection schemes for the temporary reception of people seeking protection from crisis areas can therefore be developed and applied on the basis of EU standards. Such instruments must neither block the access of applicants to asylum procedures nor disallow decisions in pending procedures.

[1] Hannah Arendt, "The Perplexities of the Rights of Man" in The Origins of Totalitarianism, 1951, 293-4

[2] Decision of 10 June 1989 – 2 BvR 502, 1000, 961/86, Collection of Decisions of the Federal Constitutional Court, vol. 80, 315, 333f..

[3] Judgement of 17 May 1983 – BVerwG 9 C 36.83, Collection of Decisions of the Federal Administrative Court, vol. 67, 184, 187.

[4] Federal constitutional court, decision of 25 February 1981 – 1BvR413, 768, 820/80, Collection of Decisions of the Federal Constitutional Court, vol. 56, 216, 236; federal administrative court, judgement of 7 October 1975 -–BVerG 1 C 46.69, Collection of Decisions of the Federal Constitutional Court, vol. 49, 202, 204f.

[5] Federal constitutional court (panel), decision of 20 February 1992 – 2BvR633/91, Alien Law Newsletter 1992, 226, 228.

[6] Politically persecuted individuals entering the country via a "safe", but unidentifiable, third state are protected by §51(1) Alien Law. However, this protection no longer applies when the third state can be identified.

[7] Decision of 7 March 2000/No. 43844/98, Alien Law Newsletter 2000, 321 (323)-T.I. against United Kingdom.

[8] Judgement of 27 September 1988-BVerwG 1 C 52.87, Collection of Decisions of the Federal Constitutional Court, vol. 80, 233, 235.

[9]  Decision of 13 December 1977 – 2BvM 1/76, Collection of Decisions of the Federal Constitutional Court, vol. 46, 342, 362

[10] Decision of 2 May 1984 – 2BvR 1413/83, Collection of Decisions of the Federal Constitutional Court, vol. 67, 43, 63

[11] Decision of 20 April 1982 – 2BvL 26/81, Collection of Decisions of the Federal Constitutional Court, vol. 60, 253, 304

[12] Judgement of 14 May 1996 – 2BvR 1938/93, 2BvR 2315/93, Collection of Decisions of the Federal Constitutional Court, vol. 94, 49, 85ff.