New German immigration law includes advances in refugee protection, says UNHCR

News Stories, 12 July 2004

© ©UNHCR/A.Hollmann
Asylum seekers at a German reception centre. The new immigration law improves protection for those facing non-state and gender-specific persecution.

BERLIN, July 12 (UNHCR) Following four years of intensive political discussions, the German Federal Council (Bundesrat) has passed a new immigration law that could potentially widen the scope of refugee protection.

So-called complementary or subsidiary protection is also strengthened while the uncertainty faced by rejected asylum seekers who cannot go home is reduced.

The immigration law, which was passed last Friday and will come into force on January 1, 2005, focuses on defining immigration, the integration of aliens in Germany and refugee protection. Of particular interest to UNHCR is the core area of refugee protection, which has undergone substantial changes under the new law.

Germany is now in line with the rest of Europe in explicitly recognizing that victims of persecution by entities other than a recognized state apparatus, as well as victims of gender-specific persecution, fall within the protection scope of the 1951 UN Refugee Convention. Close family relatives of those already recognised as Convention refugees (so-called core family) will automatically be granted the same legal status.

Complementary or subsidiary protection (which is given to some people who have protection needs but do not qualify as refugees under the 1951 Convention) has also been strengthened. Those who have been recognised as facing threats of torture or death upon deportation shall in the future be granted a residence permit.

The previous practice of giving temporary "toleration", which has to be periodically renewed, will be limited. According to estimates, over 220,000 people (mostly rejected asylum seekers who cannot go home) are currently merely "tolerated" in Germany. Approximately 150,000 of them have been living for five years or more with short-term toleration permits that have to be extended repeatedly. This shall no longer be possible in the future. A clear decision must be made on whether or not those concerned are to be granted a residence permit.

The immigration law also gives governments of the federal states an opportunity to establish so-called "hardship commissions" in order to take individual circumstances into account.

The Federal Minister of the Interior, Otto Schily, referred to the passage of the immigration law in its entirety as an "historic" development. "There is no going back," he said. "This process is irreversible."

UNHCR's Representative in Germany, Stefan Berglund, emphasised that the adoption of the law is also of particular significance to European and international refugee protection. The fact that Germany finally recognises that victims of non-state and gender-specific persecution fall within the protection scope of the 1951 Convention is "a very welcome development," he said.

UNHCR nevertheless has misgivings about some elements of the new law. In particular, the agency is concerned that under the new law, an asylum seeker's failure to comply with tightened registration obligations could lead to the rejection of his or her asylum request, irrespective of the actual merits of their claim to be recognised as a refugee. There are provisions linked to repeat applications that could lead to the same result.

In addition, the agency believes that the law's treatment of the concept of subsidiary protection, insofar as it relates to people fleeing conflict or generalised violence, is neither totally in line with UNHCR's views, nor with the new EU qualification directive that was agreed by EU member states last March.

"Nevertheless," said Berglund, "despite these reservations which are serious ones overall we have to celebrate the positive elements in the law. The idea that only states can persecute people is one UNHCR has fought against for a long time, and we are delighted that this concept has now been removed, not just in Germany but all over Europe."