Germany

General information

It took the Germans some time to recognise the fact that their country had become a true country of immigration. Many migrants came from Turkey following the war, but no policy of integration was formulated as these were considered to be « guest » workers (Gastarbeiter), presumed to return home after a period of time, but of whom the majority remained, their families joining them later on. In the 1990s, the idea that Germany was a country of immigration gained ground [1] . It is estimated that 6.7 million foreigners live in Germany, representing 8.2% of the total population [2] . Germany is a federal state comprised of 16 federal states (Bundesländer). The area of immigration and refugees is the responsibility of the relevant Bundesländer. Thus it is sometimes difficult to obtain a global view of the legislation and practices in force, despite the existence of national laws applying to all federal states.

Legislation on immigration

Immigration policy in Germany has changed significantly in recent years. The most recent legislative change was the amendment of the Law on immigration (Zuwanderungsgesetz), which took effect in January 2005 and which represents a total revision of German law on immigration [3] . The Parliament (Bundestag) recently passed a new amendment which came into force on August 28th 2007, with the aim of transposing European directives into national law [4] .

Asylum

In 2009, 27 649 people claimed asylum in Germany, a slightly higher figure than the previous year, but a low number compared to the 10 preceding years. Germany is one of the countries in Europe which receives the highest number of asylum claims and it seems, according to the statistics, to be prompter than France in its decision-making [5] . One third of claims are « Dublin cases » in which the authorities attempt to return the person to another European country through which they entered Europe or in which they claimed asylum [6] . The majority of asylum seekers come from Iraq, Afghanistan (Germany has seen a massive increase in claims from Afghans), Turkey, Kosovo and Iran [7].

Asylum seekers may make a claim with the German authorities in charge of immigration (the Ausländerbehörde) who are under the control of the Interior Ministry. These authorities are responsible for the practical execution of immigration law in all administrative districts of Germany. The claim is then transferred to the Ministry for Migration and Refugees (BAMF) which is the authority in charge of asylum. Once they have made their claim, asylum seekers are sent to a reception centre chosen by a computer allocation system called EASY. Twenty such centres exist in Germany. When the asylum claim has been recorded by the authorities, the asylum seeker is granted a temporary residence permit for the time it takes to examine their case. After 3 months in these centres, they are transferred to a town in the same region, and housed in another centre or, at best, in an appartment. In certain cases, asylum seekers remain in the same centre for longer, according to the legislation in force in the particular Bundesland [8] . The BAMF receives the claim, decides whether or not to consider it (one third of claims are not considered as they are viewed as Dublin II cases). Then, asylum seekers are summoned for an oral interview, after which the BAMF makes the decision whether or not to grant asylum. If the BAMF refuses their claim, the asylum seeker may make an appeal to the Administrative Court (Verwaltungsgericht) with the assistance of a lawyer. It is quite difficult and complicated to obtain legal aid from the State for this process. People must pay the money in advance and may only be reimbursed if they win their case. Thus, the poorest have great difficulty in accessing the justice system.
Decisions : in 2009 the BAMF took decisions on 28,816 asylum claims. 1.6% of asylum seekers were granted status as political refugees under Article 16a of the Fundamental Law [9] . 26.6% received « tolerated » status (Aussetzung der Abschiebung, also known as Duldung) which is a very precarious status [10] . This means that they are obliged to leave German territory but that they may not be removed by the state under international law or for humanitarian reasons. The authorities may grant this status for a period of between one day and six months. The Duldung is an instrument of control for the authorities which obliges those holding this status to remain in their current administrative region (Residential obligation, see below). Finally, under Art. 60 Abs. 2/3/5/7 of the same Law, 5.6% of asylum seekers are granted a ban on their expulsion (Abschiebungsverbot) for several reasons explicitly laid out in the text of the Law : risk of torture, punishment, loss of liberty, etc. Article 60 Abs. 5 refers directly to European conventions on the protection of human rights. According to the organisation Pro Asyl, the three statuses outlined above represent the total protection rate, which stood in 2009 at 33.8%, a decrease of 4% from 2008 levels (37.7%). However, the notion of total protection is questionable when the fact that the Duldung status does not protect asylum seekers from expulsion once the State has overcome the obstacles which prevented their deportation (permission from country of return, for example) is taken into account.

Work permits : asylum seekers are not permitted to work in Germany for the first year. Following this period, such permission depends upon their status. The majority of those holding the « tolerated » status (Duldung) are forbidden from working. In certain cases, it is possible to work in positions which are held neither by European citizens, nor by immigrants holding a higher level of residence permit.

Detention

The type of accommodation/reception centre varies from one region to another, since each region, or even district, is responsible for the accommodation or detention of asylum seekers and other migrants. The Bundeslander are increasingly choosing to move away from a decentralised and individualised system of accommodation, and towards the installation of larger shared centres performing multiple functions (reception, accommodation, detention, preparation for deportation) and bringing together migrants with varying administrative statuses (asylum seekers, irregular migrants, those awaiting deportation) [11]

Closed centres : detention centres for migrants awaiting deportation and failed asylum seekers may form part of prisons (such as Hamburg) or they may be establishments dedicated solely to the detention of those to be deported. Inside these centres, detention conditions vary but similar characteristics may be found in all of them : lack of contact with the outside world, isolation, lack of legal support. The length of detention varies from several days to 18 months (the legal maximum established by German and European legislation). Normally, it is not possible to keep a migrant in detention for more than 3 months if their expulsion is executory during this time period. Following 6 months of detention, an extension is only possible if the detainee is clearly acting against his deportation and the risk that he may disappear is evident. In practice, the vast majority of people are detained for less than 6 months.

Access to detention centres for non-state actors varies according to the centre. These are primarily religious groups who are represented in the centres by priests, pastors or imams who serve as conscientious objectors. The law does not provide any guarantee of access for non-state, independent organisations. Access to legal assistance is limited as detainees are not automatically assigned a lawyer if they do not have the means to hire one themselves. In certain centres such as Hamburg, detainees may request legal assistance, but service is sporadic and managed by the authorities. German legislation on detention and expulsion states that financial responsibility for both lies with the detainee [12]. Thus, the authorities may seize a detainee’s money in order to cover the costs of detention and deportation. If the person is unable to pay, they are subject to a ban on re-entering Germany for several years.

Transit zone  : Frankfurt/Main is the only airport which has a reception department within the airport itself, a holding area used while it is considered whether or not to grant entry clearance. According to local observers, this area bears a greater resemblance to a detention centre than a reception centre. In other airports, migrants are taken to the offices of the immigration authorities for questioning (these are often only a short distance from the airport itself). In several airports (Frankfurt/Main, Hamburg and Düsseldorf) forums for the observation of expulsions have been put in place where people monitor the conditions in which migrants are deported.

Open centres

These are the reception centres for asylum seekers. Some are very large (holding up to 600 people) while others are smaller and more individualised [13]. Many of these centres have very poor reception conditions, both on the material level and with regards to legal support and social care. A recurrent feature of these centres is their geographical isolation which leads to significant social isolation for asylum seekers. In some cases, the CADA is also used as a centre for failed asylum seekers.

Residenzpflicht – Residential obligation

Characteristic of German legislation : asylum seekers are obliged to remain in the administrative region in which their centre or accommodation is located, under penalty of fines and legal measures. This measure is contrary to the provisions made by the European Directive on the Reception of Asylum Seekers [14] .

Vulnerable persons

Minors aged under 16 years old are sent directly to reception centres for minors where they are placed with a guardian. They then prepare their asylum claim following a procedure in which they must explain their reasons for seeking asylum, whether they still have parents and their prospects in Germany. The situation of those aged 16-17 remains unclear as many are considered to be adults and do not qualify for any specific protection. It should be emphasised that the treatment of minors is dependant upon the Bundesland in which they make their asylum claim. From the age of 16, an asylum claim may be made without the presence of a guardian. Many (not only those aged 16-17 but also younger children) are « aged » by the authorities so that they may be treated as adults and sent to mainstream reception centres. This arises from the refusal to translate birth certificates on the way to the hospital for age determination based on a brief observation, X-ray, genital observation, etc. As far as detention is concerned, it is estimated that 377 unaccompanied minors were detained between 2005 and 2007. The problem has been highlighted by a report commissioned by the European Parliament in 2007 : for vulnerable persons, there is a real lack of adequate care and protection [15].

Readmission agreements

Germany has signed bilateral agreements with more than 30 European and non-European countries. The Federal Republic has signed agreements with numerous countries in the east and south-east of Europe such as Albania (2003), Armenia (2008), Romania (1992 and 1999), Serbia and Montenegro (2003), Macedonia (2004), Slovakia (2003) and finally a very controversial agreement, that with Kosovo (March 2010), allowing Germany to easily return countless Roms, of whom many had sought asylum. Agreements have also been signed with Asian and African countries : Algeria (2006), Hong-Kong (2001), Morocco (1998), South Korea (2005), Vietnam (1995) and finally Syria (2009) [16]

The agreements signed in the last few years (such as those with Syria and Kosovo) contain a clause allowing Germany not only to return nationals of the countries concerned, but also nationals of third countries and stateless persons, as is also the case in the agreements which the European Union has signed with third countries.

Externalisation and border control

Germany participates actively in the activities of FRONTEX, sending a large number of border guards to destinations all over Europe. These guards are present in the activities of the European agency at sea and land borders, and also assist in the organisation of collective expulsions. The following information may be read on the website of the Interior Ministry : « In the future, Germany will actively participate in the development of Frontex and will continue to support the agency in its planned common operations by placing resources and experts from the federal police at its disposition  » [17] Germany contributed more than 40 border guards to the RABIT units deployed by Frontex at the border between Greece and Turkey. Besides sending personnel, Germany has also made helicopters available. Frontex has been organising collective expulsions from European airports since 2004. More than 7 such flights have departed from Hamburg airport to African destinations, including Togo, Ghana, Nigeria, Guinea and Cameroon.

Mobilisation for migrant rights

In Germany, various groups are active in the defence of migrant rights and in the condemnation of national and European migration policies. These range from religious organisations to anarchist groups, via different political circles of influence. Anti-racist and anti-fascist groups have been particularly active in this area. The level of mobilisation varies according to the issues prevailing in each Bundesland. In the eastern regions (primarily, but not solely), neo-Nazi groups have organised and represent a real danger for migrants living in these places. Some of their representatives even hold seats on local councils. Anti-fascist and anti-racist groups attempt to make their voices heard louder.

At the federal level, numerous networks work on a wide range of issues relating to the rights of migrants and refugees. The Refugee Council (Flüchtlingsräte) is represented in each region and works in conjunction with the national organisation Pro Asyl. The councils aim to foster positive public opinion and provide information on matters of migrant rights, migration and asylum. Some branches dedicate themselves more to advocacy by attempting to establish regular contact with local political influences, while others devote their time to providing legal assistance to migrants and refugees. The councils meet several times a year to exchange practices and agree a common position, as well as to launch national campaigns with the support of Pro Asyl.

With regard to detention, we also find very different actors involved, ranging from religious groups (with some pastors visiting detainees several times a week) to political groups who gather in front of the bars of the centres to protest. Once a year, organisations keen to organise politically against detention meet to discuss and maintain regular contact.

Finally, German groups are involved in European and international networks, such as the network born of the No Border movement named Welcome to Europe (w2eu), or the newly-created Africa-Europe-Interact (AEI) network which organised a caravan from Bamako to Dakar to mark the World Social Forum in Dakar. In December 2010 a national conference took place in Frankfurt aiming to unite all those concerned and wishing to mobilise around issues of migrant rights. More than 300 people attended workshops and activities and displayed their desire for a deeper level of national cooperation.

Another national conference will take place in winter 2011. The Frankfurt conference has led to, amongst other events, a day of national mobilisation to protest against the multiplication of camps and the poor living conditions of refugees, as well as the racist laws in place in Germany. Under the slogan « ABOLISH discriminatory laws against refugees ! », numerous events were organised in several German cities on March 22nd 2010 [18] .

Reports / Bibliography

Report of the Jesuit Refugee Service-Europe, Becoming vulnerable in detention, June 2010. See chapter on Germany, p. 186.

STEPS Report ordered by the European Parliament on “Conditions of third party nationals detained in centres (detention camps, open centres, as well as transit zones), with particular emphasis on the services and resources available to people with specific needs in the 25 member states of the European Union”, December 2007. For the situation in Germany, see p. 56.

Pro Asyl, Daten und Fakten zur Abschiebungshaft in Deutschland – Eine aktuelle Übersicht (August 2010). Facts and figures on detention in Germany – (August 2010)

Refugee Councils of Germany and Pro Asyl, Swept aside : on the accommodation of refugees in Germany, 2011.

Refugee Councils of Germany and Pro Asyl, Map of the camps, 2011 http://www.proasyl.de/de/themen/lagerkarte/

Marine de Haas- March 2011

Translated by Eleanor Staniforth - 2011

Enclosed a longer country profile on Germany (In French)


Documents

Germany-profile-L-FR

(PDF – 212.1 ko)