Germany: draft immigration law before Parliament

Briefing Notes, 1 March 2002

This is a summary of what was said by UNHCR spokesperson Kris Janowski to whom quoted text may be attributed at the press briefing, on 1 March 2002, at the Palais des Nations in Geneva.

As I speak, a draft for a new immigration law is being reviewed by the German Parliament. UNHCR warmly welcomes two aspects of this draft legislation in particular: if the law is passed, for the first time in Germany people who have been persecuted by an entity other than a state can be recognised as refugees under the 1951 Convention. In legal terms, this is known as persecution by a "non-state agent." In addition, the new law will also mean that gender-based persecution will also be acknowledged for the first time as genuine grounds for obtaining asylum.

Germany and France are currently the only countries in the European Union not to recognise persecution by non-state agents for example by entities in failed states (such as the former Taliban regime in Afghanistan), or in states where the recognised government is effectively unable or unwilling to protect some of its citizens from persecution by other forces.

There is nothing in the 1951 Convention to suggest that you can only be recognised as a refugee if persecuted by a state, and UNHCR has always strongly opposed this method of excluding a considerable number of people very clearly in need of international protection. Outside the EU, Switzerland is the only state to still exclude victims of persecution by non-state agents from refugee status. However, last year the Swiss government also indicated that it was considering rectifying this dangerous legal anomaly, whereby people fleeing flagrant persecution in their country of origin could still have their claims dismissed as unfounded, simply because their persecutors were not recognised as being a state.

The recognition that people can also be persecuted because of their gender something which is not explicitly spelled out in the 1951 Convention is also an important development. Until the late 1990s, gender-based persecution was hardly recognised anywhere. However, in recent years there has been a welcome trend towards realising that gender is indeed on occasion the principal reason for persecution.

UNHCR has been concerned about some of the existing anomalies in the refugee definition in some European countries, because the refugee definition is one of the principal subjects currently under discussion in the EU asylum harmonisation process. Under this process, all measures will have to be agreed unanimously by the members of the EU. UNHCR hopes that these two elements of the draft German legislation will thus pass intact through the German parliamentary process. Today's reading in the Bundestag is only the first step. The immigration bill will also have to pass through the Bundesrat the chamber of the Federal States. If both provisions survive intact, it should ease the extremely important process of EU harmonisation of the refugee definition, due to be completed by early 2004.