Concept and Fundamentals of Asylum Law
Das Asylum Law is a fundamental protective right for individuals who are persecuted in their country of origin due to political, religious, ethnic, or social affiliation, or membership in a particular social group. It is extensively regulated by national and international law and represents an important component of the international human rights protection system. Asylum law defines the requirements, procedures, and legal consequences for granting protection from persecution.
Historical Development of Asylum Law
Origin and Historical Beginnings
Even in ancient and medieval times, there existed a rudimentary form of asylum law, for instance in temples or churches, which temporarily provided shelter to those seeking protection from their pursuers. In its modern understanding, however, asylum law only developed after the experience of totalitarian persecution systems in the 20th century.
Postwar Period and International Asylum Law
After the Second World War, the right to asylum was enshrined in international legal instruments as a reaction to Nazi persecution. The principal foundation is the 1951 Geneva Refugee Convention and its 1967 Protocol. Additional provisions can be found in the Universal Declaration of Human Rights of 1948 (Article 14).
International Legal Foundations
Geneva Refugee Convention and Additional Protocol
Die Geneva Refugee Convention (Convention Relating to the Status of Refugees, 1951) defines the term “refugee” and regulates the rights of refugees as well as the obligations of the contracting states. Particularly noteworthy is the non-refoulement principle (Art. 33 GRC), which prohibits the expulsion of refugees to countries where they face persecution.
European and Supranational Law
European Convention on Human Rights (ECHR)
Article 3 ECHR provides for a prohibition of torture as well as inhuman or degrading treatment or punishment. This prohibition leads to a de facto ban on deportation if the individual is at risk of such treatment upon return.
Legal Acts of the European Union
Within the framework of the Common European Asylum System (CEAS) various EU directives and regulations (e.g., Qualification Directive, Asylum Procedures Directive, and Dublin Regulation) coordinate asylum law and procedures in the EU Member States.
National Asylum Law (Using Germany as an Example)
Constitutional Framework
Article 16a of the Basic Law guarantees the right of asylum to those politically persecuted. This scope of protection is specified by ordinary legislation and shaped by numerous restrictions, especially through the concept of the ‘safe third country’ and ‘safe country of origin’.
Statutory Configuration
Das Asylum Act (AsylG) regulates the procedure for granting asylum, from filing the application to the decision. Additionally, the Residence Act (AufenthG) and the Asylum Seekers Benefits Act (AsylbLG) play important roles.
Requirements for the Granting of Asylum
Definition of Refugee Status
Refugee status is primarily determined in accordance with the provisions of the Geneva Refugee Convention. A person is considered a refugee if they are outside their country of origin and, due to a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group, or political opinion, cannot return to that country.
Forms of Protection
Asylum within the Meaning of the Basic Law
The fundamental right to asylum is only granted in cases of political persecution by a state of origin and is subject to numerous restrictions. Anyone entering from an EU Member State or a safe third country is, as a rule, excluded from the right to asylum pursuant to Art. 16a GG.
Refugee Protection under the Geneva Convention
If refugee status is recognized, this entails rights of residence and various social as well as economic rights. Deportation is, with exceptions, impermissible.
Subsidiary Protection
Persons who do not fully qualify as refugees within the meaning of the Geneva Convention but who are at risk of serious harm in their country of origin (e.g., death penalty, torture, significant individual threat due to armed conflicts) are granted subsidiary protection status.
National Deportation Ban
Independently of the protection forms mentioned above, there exists a national ban on deportation if there is a substantial and concrete disadvantage, such as a significant health risk, that would result from deportation.
Asylum Procedure
Course of the Asylum Procedure
The asylum procedure generally begins with submitting an asylum application to the nationally responsible authority (in Germany, the Federal Office for Migration and Refugees). It includes a hearing, decision, options for legal remedies, and, if necessary, judicial review.
Dublin Procedure
In the European context, the Dublin III Regulationgoverns which Member State is responsible for conducting the asylum procedure (usually the one through which the applicant first entered).
Legal Remedies and Judicial Protection
Negative decisions can be reviewed by appealing to the competent administrative courts. Judicial review ensures compliance with national, European, and international minimum standards.
Rights and Obligations of Asylum Seekers
Asylum seekers and recognized beneficiaries of protection enjoy, alongside protection from persecution, various rights—such as accommodation, healthcare, and access to integration measures. At the same time, there are obligations, such as cooperation in establishing identity or reporting requirements.
Restrictions and Special Provisions
Safe Third Countries and Countries of Origin
Applications from individuals originating from countries or third states considered safe are processed in an accelerated procedure and are subject to special restrictions. This is intended to prevent abuse of the asylum system.
Revocation and Withdrawal
Recognition of protection status may be revoked or withdrawn under certain circumstances, for example if the risk of persecution ceases to exist or false information has been provided.
Significance and Challenges of Asylum Law
Asylum law is a central basic right and an indispensable part of the international protection system for persecuted persons. Societal, political, and economic challenges—such as those resulting from migration movements or the safeguarding of national interests—require continuous development and balancing of asylum regulations.
Literature and Further Sources
- Geneva Refugee Convention (1951)
- Universal Declaration of Human Rights (1948)
- Asylum Act (Germany)
- Dublin III Regulation (EU)
- AufenthG, AsylbLG (Germany)
- Federal Office for Migration and Refugees (Germany) – www.bamf.de
This article provides a comprehensive overview of the numerous legal aspects of asylum law at international and national levels, presenting structures and fundamental principles in a clear and accessible manner.
Frequently Asked Questions
What is meant by the course of an asylum procedure in Germany?
The asylum procedure in Germany is a due process regulated by law, designed to assess the individual protection needs of asylum seekers. It begins with the formal application for asylum at the Federal Office for Migration and Refugees (BAMF). Prior to this, there is an official registration and the so-called hearing, during which the individual must give a detailed account of their reasons for fleeing and their circumstances. The BAMF subsequently checks whether, under the Dublin III Regulation, another EU Member State is responsible. If Germany is responsible, the BAMF decides on the application according to the provisions of the Residence Act and the Asylum Act. The procedure includes an individual examination of all arguments presented as well as the current situation in the country of origin, often taking into account country and legal expert reports. The procedure ends either with recognition of a protection status (asylum, refugee protection, subsidiary protection, deportation ban) or with rejection of the application. Rejection notices can be challenged before the competent administrative court within certain deadlines. Throughout the procedure, procedural rights and obligations exist, for example regarding cooperation and hearings.
What legal remedies are available in the asylum procedure?
In the asylum procedure, various legal remedies are available to affected persons in the event of a negative decision, in particular an action before the administrative court pursuant to § 74 of the Asylum Act (AsylG). The deadline for filing such an action is generally two weeks after receipt of the notice, or only one week in the case of ‘manifestly inadmissible decisions.’ In certain cases, filing an action has suspensive effect, meaning that deportation is not permitted during the proceedings unless the court lifts the suspension. Depending on the case, it is possible to apply for leave to appeal to the Higher Administrative Court against decisions of the administrative court. Further remedies, such as complaints, relate to specific procedural issues, such as in the context of urgent applications. Asylum seekers also have the right to counseling and representation by a lawyer.
What types of protection are distinguished in asylum law?
German asylum law essentially distinguishes four types of protection. First, entitlement to asylum under Art. 16a of the Basic Law, which is granted restrictively and under strict conditions. Second, refugee protection under § 3 of the Asylum Act in conjunction with the Geneva Refugee Convention, which is granted to persons persecuted due to race, religion, nationality, political opinion, or membership in a particular social group. Third, subsidiary protection under § 4 of the Asylum Act, available to persons at risk of serious harm in their country of origin, such as the death penalty, torture, or violence from war. Fourth, there is the national deportation ban under § 60 (5) and (7) of the Residence Act, which applies when a person faces concrete, significant dangers upon return. Each type of protection has different legal consequences and corresponding rights of residence.
What are the most important cooperative obligations of asylum applicants?
Under the German Asylum Act, asylum applicants are required to actively cooperate in establishing the facts. This includes, in particular, the obligation to give truthful information about their identity, origin, route of flight, and reasons for fleeing. Documents such as passports, certificates, or other evidence must be submitted wherever available. Asylum seekers must attend hearings when requested, comply with reporting obligations, and must not conceal information or knowingly provide conflicting details. Violations of these obligations may result in the BAMF rejecting the application as manifestly unfounded or denying evidentiary relief in accordance with § 30 AsylG. The obligation to cooperate continues until the end of the procedure.
When is an asylum application deemed inadmissible or manifestly unfounded?
An asylum application is deemed inadmissible under German law in particular if, under the Dublin III Regulation, another EU state is responsible for conducting the asylum procedure or if an asylum procedure has already been conducted in a third country. An application is considered manifestly unfounded if, in the view of the BAMF, the statements made are clearly not worthy of protection, for example in the case of safe countries of origin (§ 29a AsylG) or obviously fabricated reasons for asylum. The grounds for such a decision must always be stated on a case-by-case basis. An inadmissible or manifestly unfounded application will generally result in rapid rejection with shortened appeal deadlines.
What residence options exist after rejection of the asylum application?
After formal rejection of an asylum application, the persons concerned are, as a rule, obliged to leave the country. In certain cases, however, a temporary suspension of deportation (Duldung) may be granted under § 60a of the Residence Act, for example if deportation is impossible for legal or factual reasons, such as illness, lack of travel documents, or a suspension on deportations. Under certain conditions, there is also the possibility of being granted a residence permit under § 25 of the Residence Act, e.g., for humanitarian reasons, for special integration, or for family reasons. Both tolerations and humanitarian residence permits are generally limited in duration but grant further rights and obligations.
What special provisions apply to minor asylum seekers?
Unaccompanied minor asylum seekers enjoy special protection under both German and international law. A legal guardian is appointed for them to safeguard their interests in the asylum procedure. Hearings are conducted in an age-appropriate manner and involve the guardian or a representative from the youth welfare office. Accommodation and care are provided in accordance with child and youth welfare law. Deportation of minors is permitted only in exceptional circumstances and, as a rule, only if return to safe and appropriate conditions is ensured. These special procedural safeguards are set out in § 42 SGB VIII and the relevant provisions of residence law.
