Term and legal definition of refugees
The term “refugees” refers, in a legal context, to persons who are forced to leave their country of origin due to persecution, serious dangers, or general human rights violations. The recognition and protection of refugees are governed by national and international legal norms, particularly shaped by international refugee law, asylum law, and human rights requirements.
International legal foundations
Geneva Refugee Convention
The relevant international law standard is the Geneva Refugee Convention of July 28, 1951 (Refugee Convention) and its 1967 Protocol. According to Article 1 of the Convention, a person is a refugee who
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality… and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”
The 1967 Protocol abolished the previously existing temporal and geographic limitations of the Convention.
Other international legal instruments
In addition to the Refugee Convention, regional treaties exist, e.g., the 1969 Convention of the Organization of African Unity (OAU) as well as the Cartagena Declaration of 1984 for Latin America, which partially broaden the scope of protection for refugees.
Definition under customary international law
The definition of the Refugee Convention is largely reflected in customary international law and thus also applies outside the states that are parties to the Convention.
European legal requirements
Qualification Directive
The relevant European regulation for granting and determining the status of refugees is the Qualification Directive (Directive 2011/95/EU) . The Directive defines the concept of refugee based on the Refugee Convention but expands it with respect to certain groups and national implementation options.
Charter of Fundamental Rights and European Convention on Human Rights (ECHR)
Die Charter of Fundamental Rights of the European Union as well as the European Convention on Human Rights contain provisions for protection against deportation in the event of imminent torture, inhuman or degrading treatment (Art. 4 CFR, Art. 3 ECHR). These rules are of particular importance in procedures and in the protection of refugees and asylum seekers.
German asylum and residence law
Definition under German law
In the national context, the implementation of refugee protection is carried out through the Asylum Act (AsylG), the Residence Act (AufenthG) as well as the Basic Law (GG).
Refugee status (§ 3 AsylG)
A person obtains refugee status in Germany when they meet the requirements under § 3 AsylG. This provision explicitly refers to the Refugee Convention. It requires a threat of persecution due to “race, religion, nationality, political opinion, or membership of a particular social group.”
Distinction from persons entitled to asylum (Art. 16a GG)
In addition to refugee status under the Refugee Convention, the Basic Law contains the fundamental right to asylum (Art. 16a GG). The scope of this fundamental right is narrower compared to refugee protection under the Refugee Convention and is subject to additional requirements (e.g., no entry from a safe third country).
Subsidiary protection
Not every individual seeking protection fulfills the requirements for refugee status. If the individual risk of persecution is not established, subsidiary protection may be granted under § 4 AsylG. This includes protection from serious harm such as the death penalty, torture, or significant danger to life and limb as a result of arbitrary violence in the context of an armed conflict.
Rights and obligations of refugees
Following recognition as a refugee, essential rights and obligations arise from the Residence Act, for example, the right to be granted a residence permit (§ 25 para. 2 sentence 1 alternative 1 AufenthG), access to the labor market, as well as the right to family reunification under certain conditions.
Exclusion grounds and termination of refugee status
Both under the Refugee Convention (Art. 1 F, Art. 33 para. 2 Refugee Convention) and national law, there are grounds for exclusion and revocation, such as the commission of serious crimes or the elimination of protection needs due to changed circumstances in the country of origin.
Procedural law aspects
Asylum procedure
Das Federal Office for Migration and Refugees (BAMF) examines all relevant requirements and differentiates between entitlement to asylum, refugee status, subsidiary protection, and national bans on deportation.
Legal remedies
Appeals (objection, action before the administrative court) are available to the person concerned against negative decisions. During court proceedings, suspensive effects, interim measures, and detailed legal review may become relevant.
Distinction from other forms of protection
Quota refugees, resettlement and humanitarian status
In addition to individual refugee protection, there are forms of group or quota protection (e.g., under § 23 AufenthG). Humanitarian residence permits are also granted in cases of serious illness or severe humanitarian emergencies (§ 22, § 25 paras. 4, 5 AufenthG).
Stateless persons and internally displaced persons
Stateless persons are subject to special protection provisions under the 1954 Convention Relating to the Status of Stateless Persons. Internally displaced persons (IDPs) are generally not covered by the Refugee Convention, as they remain within their country of origin.
Obligations and responsibilities of host states
The contracting states of the Refugee Convention and other relevant treaties are obliged to provide refugees with effective protection, to refrain from deportation into dangerous situations (principle of non-refoulement, Art. 33 Refugee Convention), and to ensure a minimum standard of rights and social participation.
Concluding remarks
The definition and status of refugees are subject to complex, multi-layered legal frameworks, ranging from international obligations to European law and down to national procedural and residence law. The applicable rights and obligations are determined by the individually applicable provisions, with humanity and the protective function in the light of human rights always playing a central role.
Frequently asked questions
What legal requirements must refugees meet for recognition as persons entitled to asylum in Germany?
To be recognized as entitled to asylum in Germany, refugees must, according to Article 16a of the Basic Law and on the basis of the Geneva Refugee Convention and the Asylum Act, prove that they are threatened in their country of origin due to political persecution. The prerequisite is initially individual persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Applicants must credibly demonstrate that returning to their home country poses a serious risk to their life, limb, or liberty. Persecution by non-state actors is only recognized if the state, international organizations, or parties controlling the country cannot provide sufficient protection. The asylum application is reviewed as part of an administrative procedure by the Federal Office for Migration and Refugees, including an individual hearing. Persons coming from so-called safe countries of origin or entering via a safe third country are subject to further restrictions under § 29 AsylG.
What rights and obligations do refugees have during the ongoing asylum procedure?
During the ongoing asylum procedure, refugees have the right to protection from deportation (so-called ban on deportation) and are entitled to accommodation in reception centers. They receive basic benefits under the Asylum Seekers Benefits Act, including accommodation, medical care, and a small cash allowance. Freedom of movement may be restricted during the first months to the federal state or area relative to the reception center’s jurisdiction (residence requirement, § 56 AsylG). Refugees are obliged to attend hearings, disclose their identity, and present required documents. They are also, as a rule, not allowed to engage in employment during the initial months unless expressly authorized by the immigration authority or the BAMF.
What happens legally after an asylum application is rejected?
If an asylum application is rejected, the applicant receives a rejection notice with appropriate justification from the Federal Office for Migration and Refugees. Legal remedies can be lodged against the decision within a set deadline, usually via a complaint to the administrative court. The deadline depends on the decision and is generally between one and two weeks (§ 74 AsylG). During court proceedings, provisional legal protection may, in certain cases, be requested, which prevents deportation until a judicial decision is made. If the complaint is dismissed and no further legal remedies are available, the person concerned is obliged to leave Germany. Failure to do so may result in deportation by the immigration authority. Under special circumstances, such as serious health problems, deportation bans (§ 60 AufenthG) may be examined and, if applicable, granted.
How do the various forms of protection for refugees differ?
German law provides three central forms of protection for refugees: entitlement to asylum under Article 16a GG, refugee protection pursuant to § 3 AsylG (in the sense of the Geneva Refugee Convention), and subsidiary protection (§ 4 AsylG). Entitlement to asylum requires political persecution, but it is often restricted by third country provisions. Refugee protection per the Geneva Convention applies in cases of persecution on specific grounds, including by non-state actors. Subsidiary protection is granted if there is a serious risk to life or physical integrity, for example due to war or the death penalty, without individual persecution. In addition, there are national bans on deportation (§ 60 paras. 5 and 7 AufenthG), such as for serious medical reasons.
What legal options are available to rejected asylum seekers for extending their stay?
Rejected asylum seekers may, in certain cases, secure their stay by other legal grounds. For instance, if there are serious personal or humanitarian reasons, a deportation ban may be granted (§ 60 paras. 5 and 7 AufenthG). In addition, so-called ‘Duldung’ (§ 60a AufenthG) represents a temporary suspension of deportation, for example due to inability to travel, school-aged children, or lack of travel documents. Duldung does not constitute a permanent right of residence. In exceptional cases, after several years of residence and significant integration achievements, a humanitarian residence permit (§ 25 AufenthG) can be applied for, such as through provisions on the right to remain. Residence permits for education or employment purposes can also be issued under certain conditions.
What are the effects of being recognized as a refugee on family reunification?
After being recognized as a refugee, recognized persons are entitled to family reunification in accordance with § 29 and §§ 30 et seq. AufenthG. Spouses, unmarried minor children, and, in exceptional cases, parents of minor refugees may reunite if the family unit existed before the flight. The application for family reunification must be submitted within three months of recognition to obtain relief regarding securing livelihood and housing. There are restrictions for persons granted subsidiary protection; reunification is limited to individual cases where special humanitarian reasons exist. All parties must comply with certain passport and visa requirements, and the reunification process is subject to identity verification by German missions abroad.
