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Germany: UNHCR welcomes proposed new immigration law

Briefing notes

Germany: UNHCR welcomes proposed new immigration law

9 November 2001

Earlier this week, the German government announced that it intends to introduce a new immigration law which will stipulate that people who are subject to persecution by so-called non-state agents of persecution should be considered as refugees within the framework of the 1951 refugee Convention. UNHCR warmly welcomes the proposed change, which would bring an end to one of the most damaging anomalies in legislative practise in Europe. Non-state agents of persecution means groups or organizations that are not controlled by a country's government. Thus, refugees coming from countries that have no functioning government, or whose government does not control the whole territory, were unable to receive refugee status, even if they could prove persecution beyond all reasonable doubt. Even someone who had visibly suffered extreme torture, or who had been raped, would not be recognized as a refugee in the few countries that have excluded victims of non-state agent of persecution from refugee status - if the torturer was not working for an official government. Thus, in recent years refugees fleeing persecution in countries such as Liberia, Somalia, Angola or from Taliban-held Afghanistan were routinely excluded from refugee status under the 1951 Convention. The proposed change to the law would bring Germany into line with virtually all other states that have signed the 1951 Convention.

The idea that victims of non-state agent of persecution could be excluded from receiving refugee status crept into the legislative practise of a few European countries over the years. By the mid-1990s, there were six countries that had a similar provision in their laws - Germany, France, Italy, Norway, Sweden, and Switzerland. Sweden and Norway changed their laws in the late 1990s to get rid of this distinction, and the practice of excluding victims of non-state agents has in practise been considerably diluted in France and Italy. Switzerland has stated publicly that it is considering a change. However, the practise is still on the statute books in both Switzerland and Germany. UNHCR's position - and that of virtually all states outside of Europe - has always been that, under the 1951 Convention, the key factor in a refugee claim is the risk of persecution, not the identity of the persecutor.