Asylum

Definition and significance of asylum

In a legal context, asylum refers to the protection granted by states to individuals who are persecuted in their home country for political, religious, or other reasons stipulated by international or national laws, or who risk suffering serious harm. The right to asylum is a fundamental human right and is governed by various international, supranational, and national legal norms.

Historical development of asylum law

The granting of asylum has a long historical tradition, with evidence found as early as in ancient Greece and Roman law. In modern statehood, the right to asylum was significantly shaped by the 1951 Geneva Refugee Convention, the 1967 Protocol, and key human rights agreements. Its development was influenced by major historical events such as refugee movements after wars or as a result of political upheavals.

International asylum law

Geneva Refugee Convention and 1967 Protocol

Die Geneva Refugee Convention (GRC) of 1951 is the fundamental international legal framework for refugee protection. It defines who is considered a refugee and sets out basic rights and obligations. According to the Convention, a refugee is a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside their country of origin and is unable or unwilling to avail themselves of the protection of that country.

The 1967 Protocol removed the original limitation of the Convention’s applicability to Europe and to events occurring before 1951, so that it now applies worldwide.

Principle of non-refoulement

Central to this is the so-called non-refoulement principle (Art. 33 GRC), which prohibits the return of refugees to countries where they face persecution. This principle is binding under international law and is supplemented by international human rights treaties, such as the European Convention on Human Rights (ECHR).

European legal regulations on asylum

Common European Asylum System

Within the European Union, the Common European Asylum System (CEAS) regulates standards for access to protection, asylum procedures, and the status of those seeking protection. Key legal instruments include:

• Die Qualification Directive (2011/95/EU), which harmonizes the recognition of international protection beneficiaries and the associated rights and obligations,
• Die Asylum Procedures Directive (2013/32/EU), which sets minimum standards for asylum procedures,
• Die Reception Conditions Directive (2013/33/EU), which regulates the conditions of stay for asylum applicants,
• Die Dublin III Regulation (604/2013), which determines which Member State is responsible for examining an asylum application.

Different forms of protection: asylum, refugee protection, and subsidiary protection

European law distinguishes between the refugee status under the Geneva Refugee Convention, subsidiary protection in cases of serious threats such as armed conflicts, as well as national forms of protection. This differentiated legal situation is implemented in national asylum laws.

German asylum law

Constitutional basis

Das Basic Law for the Federal Republic of Germany guarantees a fundamental right to asylum for politically persecuted persons in Article 16a, paragraph 1. However, this individual right is subject to numerous limitations, in particular through the concept of safe third countries and safe countries of origin (Art. 16a paragraphs 2 and 3 GG).

Statutory provisions

Das Asylum Act (AsylG) and the Residence Act (AufenthG) regulate the procedure for recognition as an asylum beneficiary or refugee and the rights and obligations during the asylum proceedings. They serve as the national instruments for implementing European and international legal provisions.

Requirements for recognition

German law distinguishes between the following protection forms:

• Asylum entitlement (within the meaning of Art. 16a GG): Protection from political persecution by state actors.
• Refugee protection (§ 3 AsylG): Implementation of the Geneva Refugee Convention criteria.
• Subsidiary protection (§ 4 AsylG): Protection from serious harm (e.g., torture, death penalty, risk of war).
• National ban on deportation (§ 60 paragraphs 5 and 7 AufenthG): In cases of danger to life, limb, or freedom.

Asylum procedure

The procedure for granting asylum is structured in several stages:

1. Filing the application: Applicants for asylum submit an application to the Federal Office for Migration and Refugees (BAMF).
2. Examination of responsibility: Under the Dublin III Regulation, it is determined whether Germany is responsible for examining the application.
3. Substantive examination: If Germany is responsible, the reasons for fleeing and personal circumstances are examined.
4. Decision: The BAMF decides on recognition, subsidiary protection, or rejection.
5. Legal remedies: In case of rejection, judicial review is possible.

Legal consequences of recognition

Recognition as a beneficiary of protection gives rise to different residence permits, access to integration measures and the labor market, as well as possibilities for family reunification. Recognition also has an effect on deportation bans.

Comparison with other forms of protection

Asylum versus international protection law

While the individual right to asylum takes national peculiarities into account, international refugee protection also covers threats posed by non-state actors and is determined by international and European regulations. Furthermore, some states provide humanitarian residence permits for hardship cases outside of regular asylum law.

Protection from deportation and tolerated stay

If an asylum application is denied, deportation bans may apply. In some cases, this leads to a tolerated stay (§ 60a AufenthG), a temporary residence permit without a perspective of stay as a protection status.

End of asylum status (revocation, withdrawal, and expiration)

A granted protection status may be revoked or withdrawn if the relevant conditions no longer apply, e.g., if the grounds for fleeing cease, in the case of serious criminal offenses, or fraud. Responsibility and proceedings are legally regulated (including § 73 AsylG).

International challenges and current developments

National and international asylum policy is the subject of intense legal and political debate, especially against the backdrop of increased migration movements. Key challenges include handling high numbers of applications, fair access to protection procedures, and upholding human rights standards.

Sources (Selection):

• Geneva Refugee Convention of July 28, 1951 and the 1967 Protocol
• Basic Law for the Federal Republic of Germany (Art. 16a GG)
• Asylum Act (AsylG); Residence Act (AufenthG)
• Directives and regulations of the European Union (Dublin III, Qualification Directive, Asylum Procedures Directive, Reception Conditions Directive)

Note: This article reflects the current legal situation and does not constitute legal advice.

Frequently Asked Questions

What legal requirements must be met to be granted asylum in Germany?

To be granted asylum in Germany, applicants must meet the statutory requirements of asylum law according to the Basic Law (Art. 16a GG) and the Asylum Act (AsylG). First, it is necessary for the person to credibly demonstrate individual persecution in the country of origin. It must be substantiated that persecution is likely for political, religious, ethnic, or specific social reasons. The persecution must be state-related or attributable to the state and must impact the entire territory of the state. Furthermore, the applicant must not have passed through a safe third country, as under the so-called third-country principle, the right to asylum expires in Germany if entry occurred via a safe third country. In addition to the actual asylum grounds under Art. 16a GG, international protection under §§ 3, 4 AsylG (refugee protection under the Geneva Refugee Convention and subsidiary protection) can be granted if there is a danger of serious human rights violations, such as torture or the death penalty.

What legal consequences does recognition as an asylum beneficiary or refugee have?

Recognition as an asylum beneficiary or refugee indeed has far-reaching legal consequences. The person first receives a residence permit under § 25 paragraph 1 or paragraph 2 AufenthG, usually limited to three years. This residence permit allows employment and entitles the holder to social benefits under SGB II or SGB XII if they lack sufficient personal means. At the same time, there is extensive equal treatment with German nationals in many respects, e.g., social law and participation in the integration course. After three years, an application for a permanent settlement permit can be made if further requirements are met. There is also a right to family reunification for certain relatives under §§ 29 ff. AufenthG. The obligation to live in a specific municipality (“residence obligation”) may be waived for recognized refugees, unlike for those with tolerated status.

What legal remedies exist if the asylum application is rejected?

If an asylum application is rejected by the Federal Office for Migration and Refugees (BAMF), various legal remedies are available to the applicant. Within two weeks of receipt of the negative decision, an appeal before the administrative court can be filed (§ 74 para. 1 AsylG). The appeal generally has a suspensive effect, unless the application was rejected as “manifestly unfounded”, in which case, an urgent application under § 80 paragraph 5 VwGO must also be filed within one week. The courts then comprehensively review the legal and factual requirements of asylum protection. As long as the appeal is pending, deportation may generally not be carried out. There is also an option to file a subsequent application if new evidence or altered circumstances can be presented (§ 71 AsylG).

How is the course of an asylum procedure regulated by law?

The course of an asylum procedure is regulated in detail in the Asylum Act (AsylG). After entry and submission of the asylum application, registration and initial reception take place. The BAMF is responsible for examining the application. In an interview, the individual reasons for fleeing are recorded (§ 25 AsylG). The decision to grant or deny a protection status is then issued in writing, accompanied by a detailed explanation. During the procedure, applicants are generally required to live in an assigned accommodation facility (§ 47 AsylG) and may only leave the district with permission. Applicants are entitled to state social benefits under the Asylum Seekers’ Benefits Act during the procedure. At the end of the procedure, the BAMF’s decision is issued, against which a court procedure is possible.

What legal protection against deportation exists during and after the asylum procedure?

During the ongoing asylum procedure, there is by law a ban on deportation (§ 60a AufenthG and § 60 paragraph 7 AufenthG), except in cases of clear criminal offenses or security risks. If the asylum process is decided negatively, the BAMF ex officio examines whether national deportation bans under § 60 paragraphs 5 and 7 AufenthG apply. These may arise particularly due to serious danger to life, limb, or freedom in the country of origin, e.g., in case of concrete individual threats or medical obstacles to deportation. If a deportation ban is recognized, the affected person receives a residence permit under § 25 paragraph 3 AufenthG. Otherwise, if the rejection is enforceable, the obligation to leave and, if disregarded, forced deportation applies. In special humanitarian situations, deportation may be suspended (“toleration” under § 60a AufenthG).

What rights and obligations do asylum applicants have during the asylum procedure?

Asylum applicants have certain rights and obligations during the ongoing procedure. These include the right to accommodation in a reception facility, receipt of basic benefits under the Asylum Seekers’ Benefits Act (AsylbLG), and basic medical care. Access to the labor market is generally denied for the first nine months after applying; after that, employment can be taken up with approval from the immigration authority. A main obligation is cooperation in the procedure, e.g., personal appearances, truthful statements, and presentation of evidence. Prohibitions on leaving the district, residence requirements, and reporting obligations must be observed. Failure to comply with cooperation obligations or legal violations can result in reduced benefits or termination of the procedure.

How does the legal status of a person with subsidiary protection differ from that of an asylum beneficiary?

Beneficiaries of subsidiary protection (§ 4 AsylG, § 25 paragraph 2 sentence 1, 2nd alternative AufenthG) are granted a protection that is below refugee protection but still constitutes independent international protection. This protection is granted when there is a serious risk in the country of origin—such as death, torture, or inhuman treatment—but the criteria for refugee status are not met. The legal status includes an initial one-year residence permit, which may be extended under certain conditions. The main differences are in the right to family reunification, which for beneficiaries of subsidiary protection is only possible on a restricted and humanitarian basis (§ 36a AufenthG), as well as access to integration services. Equal treatment under social law with recognized refugees is partially granted; however, there may be restrictions regarding a permanent residence permit and deportation if the situation in the country of origin improves.