European Council on Refugees and Exiles - Country Report Germany GERMANY

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1 1 Arrivals GERMANY 1 Total number of applications for asylum lodged, with monthly breakdown and percentage variation between years Table 1: Month Variation +/-(%) January February March April May June July August Sept October November December TOTAL Source: Federal Office for Migration and Refugees (BAMF) Comments With 35,607 people applying for asylum in Germany, the number of asylum applications decreased again in 2004, with a decrease of 14,956 applications or 29.6 percent compared to 2003 (50,563). 2 Breakdown according to the country of origin/nationality of applicant, with percentage variation Table 2: Country Variation +/-(%) Turkey Serbia and Montenegro Russian Federation Vietnam Iran Azerbaijan Iraq China Nigeria India Source: BAMF 3 Persons arriving under family reunification procedure 65,935 persons in 2004 (2003: 76,077). Source: Federal Foreign Office

2 These figures include family members of migrants in Germany and family members of German citizens. Data indicating refugee arrivals is not available. 4 Refugees arriving as part of a resettlement programme Germany has no agreement with UNHCR regarding the reception of quota refugees. In a so-called coalition agreement the government stated in 2002, that Germany is willing to offer UNHCR a quota of 500 refugees each year. Four years after this agreement not a single refugee has been resettled in Germany within the framework of a UNHCR resettlement programme. 5 Unaccompanied minors (only children under 16) 801 in 2004 (2003: 977). Table 3: Source: BAMF Country of Origin 2004 Vietnam 153 Turkey 55 Ethiopia 53 Serbia and Montenegro 51 Afghanistan 33 Russian Federation 32 Eritrea 29 DRC 29 Nigeria 23 Syria 22 TOTAL Recognition Rates 6 The statuses accorded at first instance and appeal stages as an absolute number and percentage of overall decisions Table 4: Statuses First instance Appeal First instance Appeal Number % Number % Number % Number % No status awarded 63, , Recognition Art 1, (a), German Constitutional Law Convention status 1, , Section 51(1), Aliens Law Subsidiary status 1, Section 53, Aliens Law Formal decisions 26, , Total 93, , Source: BAMF Comments

3 Please note that figures referring to recognitions under Article 16(a) of the German Constitution include cases of family asylum and not only individual cases. Only asylum seekers who enter the country by air or sea can apply for this status. Figures for appeal stages are not available. Formal decisions this means that the Federal Office did not have to deal with the content of the asylum application as the procedure was terminated for other reasons. The most prominent of these being i) people who did not turn up to interview or absconded at a later date ii) another country is responsible for processing the asylum claim according to Dublin II iii) people withdrew their application to return home or to a third country or receive status for another reason (e.g marriage). 7 Refugee recognition rates (1951 Convention: as an absolute number and as a percentage of total decisions) according to country of origin, at first instance and appeal stages Table 5: First instance First instance Country of origin Number % Number % Turkey 1110 ( ) ( ) 7.3 Serbia and Montenegro 15 (15+0) (4+1) 0.1 Russian Federation 363 (65+298) (38+512) 15.1 Vietnam 4 (1+3) (1+3) 0.2 Iran 346 ( ) ( ) 8.8 Azerbaijan 22 (4+18) (25+19) 2.6 Iraq 541 (48+393) (29+11) 1.0 China 68 (20+48) (17+43) 3.8 Nigeria 0 (0+0) (0+0) 0.0 India 2 (1+1) (0+3) 0.2 Total 3,136 ( ) 3.3 2,067 ( ) 3.3 Source: BAMF Comments Figures include recognition rates under Article 16(a) of the German Constitution and under Section 51 (1) Aliens Act. Figures for appeal stages are not available. 8 Subsidiary and other status granted (as an absolute number and as a percentage of total decisions) according to country of origin, at first instance and appeal stages Table 6: Country of origin First instance First instance Number % Number % Turkey Serbia and Montenegro Russian Federation Vietnam Iran Azerbaijan Iraq China Nigeria India Total 1, Source: BAMF

4 Comments Figures refer to decisions under Section 53 Aliens Act. Figures for appeal stages are not available. 3 Returns, Removals, Detention and Dismissed Claims Deportations of rejected asylum seekers (by air) 2003: 23, : (This figure includes deportations of other aliens). Table 7: Serbia and Montenegro Turkey Bulgaria Vietnam Romania Ukraine 998 Russian Federation 782 Georgia 575 Algeria 531 Bosnia-Herzegovina 463 Others TOTAL 21,970 Source: German Federal Parliament, Stenographic Report, 162nd meeting Comments Please note that figures refer to deportation of all non-nationals and not only asylum seekers whose applications have been rejected. Separate figures are not available. In 2004, 21,970 deportations were carried out by plane. This was announced by the Federal Government (BT-Drs. 15/2564). Most of the deportations were to the former Yugoslavia, followed by Turkey (3,666) and Bulgaria (1,208). In 2003 the number of deportations was 23,944 with 26,286 in the year Details of assisted return programmes, and numbers of those returned Approx. 10,000 (2003: approx. 11,700). Table 8: Destination country (2004) Number Serbia and Montenegro (incl. Kosovo) Kosovo Turkey 920 Iraq 808 Russia 548 Bulgaria 461 Iran 399 Vietnam 378 Bosnia-Herzegovina 308 Armenia 225 Slovakia 203 Azerbaijan This figure includes deportations of other aliens.

5 TOTAL Approx. 10,000 Source: International Organization for Migration (IOM) 16 Number of asylum seekers sent back to the Member State responsible for examining the asylum application under the Dublin II Regulation Table 9: Requests addressed to Germany by other Dublin II States From Requests addressed to Germany by other Dublin II states Requests refused by the Federal Office for Migration and Refugees (BAMF) Requests accepted by the Federal Office for Migration and Refugees Transfers to Germany Austria Belgium Czech Republic Spain Finland France Greece Hungary Ireland Iceland Italy Luxembourg Netherlands Norway Poland Portugal Sweden Slovenia Slovakia Great Britain Total 7,463 1,517 6,009 2,681 Table 10: Requests presented by Germany to other Dublin II States To Requests presented Requests refused by by Germany to the Dublin II other Dublin II member state states Requests accepted by the Dublin II member state Austria Belgium Cyprus 1 Czech Republic Estonia 2 2 Spain Finland France Greece Hungary Ireland 4 2 Transfers to the Dublin II member state

6 Iceland 2 1 Italy Lithuania Luxembourg Netherlands Norway Poland Portugal Sweden Slovenia Slovakia Great Britain Total 6,536 1,068 5,110 2,765 Source: BAMF 4 Specific Refugee Groups 17 Developments regarding refugee groups of particular concern Growing Numbers of Revocation Procedures While, in 1998, there were 577 refugees who had their refugee status withdrawn/revoked, in 2003 there were more than 8,000. In 2004, this figure almost doubled. Almost 15,000 refugees had their refugee status revoked. If revocations of subsidiary status according to Section 53 of the Aliens Act (Ausländergesetz, before 31 st December 2004) are added to that, the number amounts to almost 17,000. So far, refugees from Serbia and Montenegro, the majority of whom were Kosovan, represent the largest group with more than 7,000 revocations. About as many refugees (almost 7,000) from Iraq had their refugee status revoked. Applications for citizenship or visa applications in connection with family reunification cases regularly lead to inquiries to the Federal Office (BAMF) on whether the original reasons for recognition of asylum still hold. In recent years this has led to numerous withdrawals of refugee status, particularly from Afghan and Iraqi refugees. Deportations to Kosovo An "agreed note" was published by PRO ASYL, entitled "abgestimmte Niederschrift über Gespräche zur Rückführung von Minderheiten in das Kosovo am 25. und 26. April in Berlin" (agreed notes about talks in Berlin on the 25 th and 26 th of April, concerning the deportation of minorities to the Kosovo). It details the start of a deportation policy of minorities, which has been heavily criticized by PRO ASYL. This will initially affect members of the Ashkali minority and the so-called Kosovo-Egyptians. UNMIK (United Nations Interim Administration Mission in Kosovo) claims that these minorities would, at the moment, not be in fundamental need of protection. However, PRO ASYL questions this. A decree (Ausführungserlaß) of 3 rd May 2005 by the Ministry of the Interior and Sport of Lower Saxony (niedersächsischen Ministeriums für Inneres und Sport) rejoices at the "beginning of the repatriation process of members of the Roma group". For the moment the decree only affects criminal offenders of this group, but the intention to expand this group of people has already been declared. The question of passing on relevant information concerning the state of health of those persons intended for repatriation remains controversial. The following lines give an insight into the manner in which Germany has negotiated with UNMIK: "Germany has made it clear in an unambiguous way to UNMIK what an immense workload the many incoming enquiries from UNMIK are creating for German authorities, especially so close to flight departure dates. This administrative expenditure would be a great nuisance PRO ASYL argues this means that, even if the rejections by UNMIK amount to a relatively small number, German authorities are considering it unreasonable to answer questions that can decide between life and death of a human being. From Germany s point of view this practice would only be an additional service in order to make the preparations for repatriation easier for

7 UNMIK. UNMIK, however, still stands firm on this question. UNMIK assured the German delegation that it would continue to keep the German deportation practice secret. No "flight lists, flight dates or other hints will be given to persons intended for repatriation, their lawyers and lobbyists or third parties, respectively." 5 Legal and Procedural Developments 18 New legislation passed The Immigration Act was adopted on July 9 th 2004 and came into force on January 1 st The new legislation includes significant developments in the right to receive residence for humanitarian reasons. In this area, the Act is partly based on the Council Directive on minimum standards for the qualification of third country nationals and stateless persons as refugees, adopted by the Council of the European Union on 30 th April Non-state and gender-related persecutions are explicitly recognized as grounds for granting refugee status. If legal obstacles to deportation exist (e.g. threat of torture in the country of origin), the affected person shall receive a residence permit. Since the Immigration Act took effect, any violation of the obligation to register (Meldepflicht) has been followed by far-reaching legal consequences. If an asylum seeker communicates a request for asylum to an authority, which is not competent to examine asylum claims such as the police or the Federal Border Police he/she will be referred to the nearest reception centre. It is possible that this centre will refer the would-be applicant to another responsible facility. If the asylum seeker does not comply with the demand to register with the competent reception facility they will not be able to enter the asylum procedure. In the event that he/she makes another asylum claim at a later date this application will be regarded as a follow-up application, i.e. the person concerned is treated as if a first application had been unsuccessful. In this case an asylum procedure is only carried out if the situation or legal position has changed for the individual concerned since the moment when the asylum application could have been made as required, or if new evidence has come to light. Under new regulations all refugees receive a temporary residence permit for three years. This permit is reviewed after three years to assess whether there are reasons to withdraw asylum or refugee status (Art. 73 sect. 2a of the Asylum Procedures Act/Asylverfahrensgesetz). 19 Changes in refugee determination procedure, appeal or deportation procedures The Federal Office for Migration and Refugees (Federal Office) was formerly called the Federal Office for the Recognition of Foreign Refugees until the corresponding provisions of the Immigration Act entered into force and holds chief responsibility for decisions under the Asylum and Aliens Law during the asylum procedure. The Federal Office is a federal authority that reports to the Federal Ministry of the Interior. 20 Important case-law relating to the qualification for refugee status and other forms of protection General Issues BVerfG, 14 th October 2004, 2 BvR 1481/04 Judicature of the European Court of Human Rights The Federal Constitutional Court decided (in a case unrelated to refugee law) that national authorities and courts had to take into consideration decisions of the European Court of Human Rights, but that they were not strictly bound to adhere to such decisions. Many human rights organisations are concerned that this ruling seems to indicate a lack of commitment to the European Convention on Human Rights. BVerfG, 23 rd July 2004, 2 BvR 1056/04 Revocation of asylum or refugee status According to German law asylum or refugee status must be withdrawn once the conditions in the country of origin have improved. The majority of administrative courts including the Federal

8 Administrative Court were of the opinion that it did not injure the personal rights of a refugee provided that the status was not withdrawn without notice. The VG Stuttgart (7 th January 2003, 5 K 11226/00) dissented but the Federal Constitutional Court upheld the opinion of the majority of the administrative courts. BVerwG, 20 th January 2004, 1 C 9.0, ASYLMAGAZIN5/2004, p. 26 Religious persecution The Federal Administrative Court confirmed its opinion that persecution on religious grounds could not lead to asylum or refugee status, if it was possible to evade persecution by practising religious duties in secret. Asylum or refugee status could only be granted if it was not possible to carry out religious rites amongst one's family or one's immediate neighbourhood. This opinion sometimes referred to as the theory of the religious level of subsistence was shared by the Federal Constitutional Court as far as the definition of political asylum was concerned. However, it is not in accord with Council Directive 2004/83/EC ( qualification directive ). Up until now the Federal Administrative Court has had no opportunity to update its opinion in the light of the qualification directive, but several courts are of the opinion that the qualification directive has no effect on German law before its transposition into national law or before the end of the transposition period on 10 th October 2006 (VGH Baden-Württemberg, 20 th April 2005, A 8 S 264/05; OVG Saxony, 4 th May 2005, A 2 B 524/04; Bayerischer VGH 7 th April 2005, 14 B ). BVerwG, 17 th March 2004, 1 C 1.03 Travel documents for refugees In March the Federal Administrative Court brought to an end a discussion concerning travel documents for refugees under the 1951 Convention. Bavarian authorities particularly had refused to issue travel documents in cases where a refugee's identity or nationality had not been proven. The Federal Administrative Court ruled that a refugee was obliged to make reasonable efforts to prove his/her identity and nationality. If these efforts did not lead to a satisfactory result the alien s office had to issue the travel document, and should add a note stating that the identity or nationality was not proven. If on the other hand the refugee refused to make such reasonable efforts, the aliens office could refuse to issue the travel document altogether. BVerwG, 7 th December 2004, 1 C 14.04, ASYLMAGAZIN 5/2005, p. 27 Deportation to a member state of the European Convention on Human Rights The Federal Administrative Court decided that in principle Art. 3 of the European Convention on Human Rights could prohibit a deportation even if the target country was party to the Convention. However, the deportation could take place if the affected person was in a position to take reasonable steps against the violation of his/her human rights in his/her country of origin, including an appeal to the European Court on Human Rights. Hence Art. 3 of the ECHR prohibited the deportation only if national and international legal protection were not deemed to be effective. The Federal Administrative court hereby confirmed a decision of the High Administrative Court of Nordrhein-Westfalen (26 th May 2004, ASYLMAGAZIN 10/2004, p. 30). The claimant in this case was Metin Kaplan, leader of a fundamentalist Islamic organisation and known as the Caliph of Cologne. Chechen Refugees Judicature concerning Chechen refugees was not uniform. Several issues were disputed. Some courts argued that there was a general risk of persecution by the Russian forces and their Chechen allies for ethnic Chechens in Chechnya itself. This applied to all Chechens regardless of whether they had already been victims of persecution or not (e.g. OVG Bremen, 23 rd March 2005, 2 A 116/03.A). Other courts did not regard the situation in Chechnya as constituting a general risk of persecution. These courts asked for individual circumstances that would substantiate a risk of persecution for the asylum seeker concerned (e.g. VG Karlsruhe, 10 th March 2004, A 11 K 10417/02; VG Schleswig-Holstein, 21 st June 2004, 4 A 135/02). The majority of courts left this question open, arguing that at least in other parts of the Russian Federation Chechens were not generally persecuted, so there was an internal flight alternative (e.g. OVG Schleswig-Holstein, 7 th October 2004, 1 LA 79/04; VG Arnsberg, 17 th March 2004, 1 K 3266/01; VG Oldenburg, 17 th May 2004, 1 A 2944/01). However, the internal flight alternative was not approved by some courts (e.g. VG Lüneburg, 26 th February, 2 A 94/01; VG Karlsruhe, 10 th March 2004, A 11 K 10417/02; VG Kassel, 2 nd June 2004, 2 E 1598/02.A; VG Düsseldorf, 16 th December 2004, 25 K 3188/03.A). Debates in this context focused on whether

9 Chechen IDPs were allowed to register at the local authorities in other parts of Russia and on whether there was a chance to safeguard their existence there. Furthermore, it was disputed whether the danger for Chechen IDPs of falling victim to arbitrary police violence did amount to persecution. Although the Administrative Court Karlsruhe stated in this context that the exclusion from registration as such was a form of persecution (VG Karlsruhe, 10 th March 2004, A 11 K 12230/03). Several courts were of the opinion that there was not a general risk of persecution for all Chechens, but held that some individuals did face a serious risk and could not be expected to use other parts of the Russian Federation as an Internal Flight Alternative. Examples of such persons individually at risk were members of the secessionist movement and their relatives (VG Lüneburg, 26 th February 2004, 2 A 94/01; VG Düsseldorf, 16 th December 2004, 25 K 3188/03.A) or supporters (VG Karlsruhe, 10 th March 2004, A 11 K 10417/02). Afghanistan There was no agreement as to whether the Afghan central government had sufficiently consolidated its power as to constitute a state power according to the definition of the German asylum jurisprudence. This question was particularly important under German law before the end of 2004, as until then asylum or refugee status was only granted when the agent of persecution was a governmental force. Some courts maintained that the government of Hamid Karzai did fulfil the requirements of Germany s asylum law on an effective government in the Kabul area, at least after the Loya Jirga in June 2002 (e.g. VGH Hessen, 10 th February 2005, 8 UE 216/02.A; VG Frankfurt/Oder, 2 nd March 2004, 7 K 1517/00.A; VG Minden, , 9 K 4856/03.A; VG Wiesbaden, 4 th November 2004, 7 E 2245/03.A(V)). Others emphasized that warlords still held power over large parts of the country (e.g. OVG Schleswig-Holstein, 16 th June 2004, 2 LB 54/03; VG Berlin, 2 nd February 2004, VG 33 X ; VG Dresden, 16 th March 2004, A 7 K 31035/03; VG Neustadt a.d.w, 26 th April 2004, 5 K 1900/03.NW; VG Gelsenkirchen, 11 th November 2004, 5a K 8121/95.A). Frequently courts argued that generally the risk of persecution in Kabul was not serious enough to grant refugee status. Kabul thus was supposed to constitute an internal flight alternative (e.g. VG Düsseldorf, , 6 K 4833/03.A). Former members of the Communist PDPA party, of the secret service KHAD or other representatives of the Communist government were considered to face a sufficient risk of persecution if they had been in a high position within the government or were widely known as representatives of the regime or if they had been involved in serious crimes under Communist rule. However, ordinary members of the Communist party were not assumed to face a sufficient risk of persecution upon return (e.g. VGH Hessen, 11 th November 2004, 8 UE 2759/01.A; VG Stade, 16 th January 2004, 6 A 1519/03; VG Berlin, 2 nd February 2004, VG 33 X ; VG Frankfurt/Oder, 2 nd March 2004, 7 K 1517/00.A; VG Minden, 19 th August 2004, 9 K 5425/03.A; VG Düsseldorf, 15 th July 2004, 6 K 4833/03.A; VG Stuttgart, 21 st January 2005, A 12 K 10986/04.A). Some apostates (former Muslims converting to Christianity) were granted refugee protection due to the risk of non-governmental persecution (e.g. VG Minden, 17 th May 2004, 9 K 5145/03.A; VG Koblenz, 3 rd November 2004, 2 K 2237/04.KO). For the same reason the need for protection for Hindus was accepted by some courts (e.g. VG Frankfurt a.m., 29 th June 2004, 5 E 6407/03.A(V)), although others disagreed (e.g. VG Minden, 21 st June 2004, 9 K 5106/03.A). There were diverging decisions concerning the situation of women returning to Afghanistan. In general, most courts held that women could be reasonably expected to fit into Afghan society again even if they had got used to a western lifestyle (e.g. VG Neustadt a.d.w., 26 th April 2004, 5 K 2591/03.NW; VG Stade, 26 th May 2004, 6 A 160/04). However, courts granted refugee or subsidiary protection in exceptional cases (e.g. VG Minden, 17 th May 2004, 9 K 51445/03.A (single woman); VG Dresden, 1 st February 2005, A 7 K 31131/03 (woman who has been victim of extramarital rape); VG Frankfurt a.m., 19 th February 2005, 5 E 7021/03.A(3) (mother of illegitimate children); VG Wiesbaden, 4 th November 2004, 7 E 2235/03.A(V) (women s rights activist).

10 Revocation of asylum or refugee status was deemed admissible by many courts in accordance with the assumption that most Afghan refugees did not face a sufficient risk of persecution following the end of the Taleban regime (e.g. OVG Schleswig-Holstein, 16 th June 2004, 2 LB 54/03; VG Frankfurt a.m, 27 th February 2004, 5 E 4425/03.A). Only in exceptional cases were the poor living conditions accepted as a reason not to withdraw refugee status (e.g. VG Frankfurt a.m., 24 th January 2005, 9 E 7411/03.A(2) (elderly woman without family support); VG Würzburg, 20 th August 2004, W 7 K (disabled person)). The High Administrative Court of Hessen deviated from the general assumption when concluding that the end of the Taleban regime had brought about a restoration of Mujahideen rule. Therefore the revocation of refugee status of a person who had fled Afghanistan due to fear of persecution by the Mujahideen was inadmissible (VGH Hessen, 10 th February 2005, 8 UE 216/02.A). Some courts were of the opinion that there was a general risk in Afghanistan due to poor living conditions and lack of security which justified subsidiary protection at least for persons who could not rely on support from their families (e.g. VG Wiesbaden, 30 th March 2004, 7 E 572/04. A(V); VG Gelsenkirchen, 11 th November 2004, 5a K 8121/95.A). But in general courts did not see sufficient grounds for subsidiary protection status for all Afghans. Frequently it was assumed that living conditions in Afghanistan were not bad enough to represent a general risk that would justify the awarding of subsidiary protection status. In addition, some courts put forward the argument that there was no need for general subsidiary protection because almost no deportations took place (e.g. Bayer. VGH, 5 th April 2004, 6 ZB ; OVG Rheinland-Pfalz, 23 rd August 2004, 6 A 11121/04.OVG; VGH Hessen, 11 th November 2004, 8 UE 2759/01.A; VG Berlin, 2 nd February 2004, VG 33 X ; VG Dresden, 16 th March 2004, A 7 K 31035/03; VG Neustadt a.d.w, 26 th April 2004, 5 K 2591/03.NW; VG Minden, 26 th April 2004, 9 K 4856/03.A; VG Frankfurt a.m., 13 th July 2004, 5 E 4472/03.A(V); VG Düsseldorf, 15 th July 2004, 6 K 4833/03.A; VG Stuttgart, 21 st January 2005, A 12 K 10986/04.A). Iraq German courts were in agreement that there was no risk of persecution from the Baath regime anymore. This assumption formed the basis for rejections of asylum applications and for revocations of asylum or refugee status (e.g. BVerwG, 25 th August 2004, 1 C 22.03; OVG Rheinland-Pfalz, 9 th February 2004, 8 A 10266/03; OVG Mecklenburg-Vorpommern, 2 nd April 2004, 2 L 269/02; VGH Baden-Württemberg, 26 th April 2004, A 2 S 172/02; OVG Nordrhein-Westfalen, 17 th May 2004, 20 A 1810/02.A; Bayerischer VGH, 1 st June 2004, 23 B ; OVG Niedersachsen, 7 th December 2004, 9 LA 370/04). There was no agreement on whether there was a central government in Iraq that had sufficiently consolidated its rule as to be classified as a state power under German law or not. This question was of particular importance before 1 st January 2005 as asylum or refugee status could only be granted in the event of persecution by state agents. During the first half of 2004 most courts did not see an established governmental force in Iraq (e.g. OVG Sachsen-Anhalt, 22 nd January 2004, 1 L 144/02; OVG NRW, 17 th May 2004, 20 A 1810/02.A). After the interim government took power in Iraq, many courts changed their position on this (e.g. VGH Baden-Württemberg, 16 th September 2004, A 2 S 51/01; VG Magdeburg, 16 th June 2004, 4 A 77/04 MD). Nevertheless, many courts did not decide upon this question finally, as they generally ruled out any risk of persecution both from the Iraqi government and from the allied forces (e.g. OVG Niedersachsen, 7 th December 2004, 9 LA 370/04; VG Braunschweig, 9 th January 2004, 2 A 616/01; VG Aachen, 26 th August 2004, 4 K 1974/02.A). The majority of courts rejected the notion that certain ethnic or religious minorities were at risk of persecution by non-state agents. Hence members of such minorities were usually not granted refugee or subsidiary protection (OVG Sachsen-Anhalt, 22 nd January 2004, 1 L 144/02 (Yezidi); OVG Mecklenburg-Vorpommern, 7 th May 2004, 2 L 336/02 (Christians); OVG Niedersachsen, 24 th November 2004, 9 LA 323/04 (Christians); OVG Rheinland-Pfalz, 24 th January 2005, 10 A 10001/05.OVG (Christians); VG Göttingen, 3 rd February 2004, 2 B 35/04 (Yezidi); VG Düsseldorf, 6 th February 2004, 21 K 2375/01.A (Yezidi and Kurds); VG Ansbach, 18 th February 2004, AN 4 K (Kurds); VG Arnsberg, 28 th May 2004, 13 K 422/03 (Yezidi); VG Stade, 16 th June 2004, 6 A 2321/03 (Yezidi); VG Regensburg, 18 th August 2004, RO 3 K (Christians); VG Aachen, 26 th

11 August 2004, 4 K 1660/02.A (Christians, Yezidi and Sabeans); VG Minden, 25 th January 2005, 1 K 332/04.A (Christians and Yezidi); VG Aachen, 24 th February 2005, 4 K 2284/02.A (Turkomans); VG Aachen, 24 th February 2005, 4 K 2416/02.A (Arabs in Kirkuk); VG Dresden, 1 st March 2005, A 2 K 30653/04 (Christians)). Only a few courts did see sufficient grounds for the assumption of persecution by non-state agents and accordingly for the awarding of refugee status or subsidiary protection (e.g. VG Regensburg, 17 th January 2005, RN 3 K (Mandeans, Sabeans and Christians)). In general subsidiary protection status was not granted due to an alleged risk from terrorist or criminal activities or from poor living conditions brought about by insufficient provision of food, shelter, medical care etc. The courts argued that the situation was not bad enough to justify the need for subsidiary protection except in exceptional cases (e.g. OVG Mecklenburg-Vorpommern, 7 th May 2004, 2 L 336/02; OVG Rheinland-Pfalz, 6 th December 2004, 8 A 11245/04.OVG; OVG Niedersachsen, 7 th December 2004, 9 LA 370/04) and it was held that there was no need for general subsidiary protection as long as no deportations to Iraq took place (OVG Sachsen Anhalt, 22 nd January 2004, 1 L 89/02; OVG Nordrhein-Westfalen, 17 th May 2004, 20 A 1810/02.A; Bayerischer VGH, 1 st July 2004, 23 B ; VGH Baden-Württemberg, 16 th September 2004, A 2 S 51/01; OVG Sachsen, 6 th December 2004, A 4 B 799/04).However, subsidiary protection was granted to some people for individual reasons, e.g. persons suffering from serious illnesses or disabilities (VG Ansbach, 18 th February 2004, AN 4 K (blindness); VG Magdeburg, 15 th February 2005 (asthma bronchiale); VG Düsseldorf, 6 th April 2005, 16 K 1378/03.A (several illnesses such as diabetes mellitus, hypertension and stroke), unaccompanied minors (VG Minden, 6 th June 2004, 1 K 2358/02.A) or single women who could not rely on support from their families (VG Bayreuth, 6 th June 2004, B 6 K ). Kosovo Courts were in agreement that there was no sufficient risk of persecution for ethnic Albanians anymore. It was therefore considered admissible to revoke an asylum claim or refugee status of ethnic Albanians (e.g. OVG Saarland, 21 st September 2004, 1 R 15/04; VG Düsseldorf, 25 th February 2004, 7 K 2389/01.A; VG Frankfurt a.m., 27 th May 2004, 1 E 495/04.A(V); VG Ansbach, 29 th June 2004, 19 K ; VG Braunschweig, 17 th February 2005, 6 A 524/04). In exceptional cases courts decided that the revocation of refugee status of ethnic Albanians was inadmissible due to reasons inherent in individual cases. In this respect, serious mental conditions resulting from former persecution were considered (e.g. VG Göttingen, 27 th April 2004, 3 A 519/03; VG Braunschweig, 12 th November 2004, 6 A 58/04; VG Saarland, 24 th November 2004, 10 K 442/02.A). Most of the courts did not see sufficient grounds for the assumption of a general risk of nongovernmental persecution of ethnic minorities like Roma, Ashkali or Egyptians. Therefore refugee status or subsidiary protection was usually not granted to members of ethnic minorities (OVG Nordrhein-Westfalen, 28 th July 2004, 13 A 2870/04.A; OVG Niedersachsen, 3 rd August 2004, 13 LA 353/04; OVG Saarland, 30 th March 2005, 1 Q 11/05; VG Braunschweig, 19 th March 2004, 6 A 66/03; VG Greifswald, 4 th May 2005, 9 A 4030/03.As; VG Göttingen, 25 th June 2004, 3 A 3452/02; VG Schleswig, 6 th December 2004, 7 B 166/04; VG Oldenburg, 12 th January 2005, 12 A 2519/02; VG Karlsruhe, 14 th March 2005, A 2 K 10264/03; VG Oldenburg, 28 th April 2005, 12 A 3364/02). Only the Administrative Court Stuttgart concluded that ethnic minorities were entitled to refugee status following the changes in German legislation, which now explicitly refer to persecution, by non-state agents as a reason for refugee protection. The court argued that neither the international administration nor local security forces in Kosovo were able to efficiently protect ethnic minorities from attacks such as the ones that took place in March 2004 (VG Stuttgart, 17 th January 2005, A 10 nk 10587/04). Many cases brought to court centred on the problem of availability of adequate treatment of mental illness in Kosovo. Many refugees living in Germany are suffering from Posttraumatic Stress Disorder or similar conditions. The majority of courts held that serious mental illness could not be treated adequately. This opinion was based on the assumption that in general only drug treatment was available for mental illness while hardly any socio-therapeutic or psychotherapeutic treatment took place in Kosovo. Furthermore, inhabitants of Kosovo were not supposed to have access to medical treatment in Serbia and Montenegro, as they would usually not be in a position to cross the border or to register there (e.g. VG Düsseldorf, 8 th January 2004, 1 K 8094/03.A; VG Minden, 9 th January 2004, 7

12 K 2830/02.A; VG Oldenburg, 27 th January 2004, 12 A 550/03; VG Greifswald, 4 th May 2004, 9 A 4030/03.As; VG Kassel, 6 th May 2004, 7 E 674/02.A; VG Göttingen, 2 nd July 2004, 3 A 33/03; VG Stuttgart, 5 th July 2004, 11 K 11725/03; VG Hamburg, 7 th July 2004, 15 E 2941/04; VG Gelsenkirchen, 22 nd July 2004, 13a K 4936/03.A; VG Braunschweig, 27 th September 2004, 6 A 161/02; VG Darmstadt, 16 th November 2004, 7 G 76303(2); VG Sigmaringen, 20 th December 2004, A 7 K 10400/04; VG Karlsruhe, 14 th March 2005, A 2 K 10264/03; VG Oldenburg, 14 th March 2005, 12 A 4198/02). Some courts however argued that medical treatment in Kosovo was adequate. In any case, drug treatment would suffice to prevent an aggravation of mental illness. The subsidiary protection status was not designed to offer people a chance to obtain optimal medical treatment, hence protection from a deterioration of an illness was deemed sufficient (e.g. OVG Nordrhein-Westfalen, 16 th December 2004, 13 A 4512/03.A; VG Potsdam, 30 th April 2004, 12 K 3727/99.A; VG Düsseldorf, 12 th July 2004, 7 L 4245/03.A; VG Aachen, 27 th January 2005, 1 K 2045/03.A; VG Koblenz, 17 th February 2004, 6 K 2496/04.KO; VG Arnsberg, 14 th April 2005, 3 K 3175/04.A). Courts put forward different opinions on the question of how much social welfare members of ethnic minorities from Kosovo were entitled to in Germany. According to the legislation in force until December 2004 de facto refugees living in Germany for 36 months could receive higher welfare payments, if a deportation could not take place due to reasons for which they could not reasonably be held responsible. Several courts argued that members of ethnic minorities could not be held responsible in this manner as a Memorandum of Understanding between UNMIK and the German authorities had in effect frozen deportations of ethnic minorities to Kosovo (e.g. VGH Baden-Württemberg, 15 th November 2004, 7 S 1128/02; VG Braunschweig, 18 th May 2004, 3 B 59/04; VG Weimar, 13 th July 2004, 5 E 3084/04.We; VG Oldenburg, 23 rd November 2004, 13 B 3972/04; disagreeing: VG Sigmaringen, 24 th January 2005, 5 K 2193/04). According to the new legislation in force since January 2005, authorities have to check whether de facto refugees have abused the duration of their stay in Germany. Most courts so far have rejected this notion in cases concerning ethnic minorities from Kosovo (e.g. SG Braunschweig, 25 th January 2005, S 20 AY 2/05 ER; SG Hildesheim, 28 th February 2005, S 34 AY 2/03 ER). All decisions mentioned above can be found on in German. Abbreviations of German Courts: BVerfG Bundesverfassungsgericht - Federal Constitutional Court BVerwG Bundesverwaltungsgericht - Federal Administrative Court OVG/VGH Oberverwaltungsgericht/Verwaltungsgerichtshof - High Administrative Court SG Sozialgericht - (Social) Welfare Court VG Verwaltungsgericht - Administrative Court DUBLIN II- Airport procedure in Frankfurt In May 2004 a Zimbabwean asylum seeker M. was in danger of deportation to Tunisia or to his country of origin. Yet, his wife had been granted refugee status in the UK on the basis of the 1951 Refugee Convention. The German administration and the Administrative Court in Frankfurt/Main were trying to bypass the European regulation of competence for asylum procedures (Dublin II) by means of a peculiar cooperation with British institutions. Germany had filed a pro forma request in accordance with the Dublin procedures and made a quick decision without awaiting a response from the British on whether the UK was willing to let M. undergo the asylum procedure there. Article 7 of the Dublin II regulation states: Where the asylum seeker has a family member who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire regardless of whether the family was formed in the country of origin or not. Despite this explicit regulation, M., who was separated from his wife due to diverging dates of their escape from Zimbabwe, was facing deportation. The Administrative Court in Frankfurt/Main considered this to be neither a violation of the Dublin II regulations nor a case of humanitarian hardship. Due to political pressure, he was finally allowed to emigrate to the UK and join his wife.

13 (Auf Grund von politischem Druck wurde dem Asylsuchenden schließlich doch die Weiterreise zu seiner Ehefrau nach UK erlaubt). 21 Development s in the use of the exclusion clauses of the Refugee Convention in the context of the national security debate Past decisions by the Federal Constitutional Court have determined that there are limits to the state's obligation to provide protection, for example if an asylum seeker has been involved in terrorist activity. Also, an asylum seeker is not entitled to asylum if he or she constitutes a threat to national security or has committed serious crimes and thus constitutes a threat to the public interest. In the past, such persons were prohibited from being granted asylum under the Geneva Convention. The Counter- Terrorism Act of 9 January 2002 introduced further grounds for exclusion: No one shall be granted asylum or protection from deportation if there are serious grounds to believe that he or she has committed a crime against humanity or a serious non-political crime outside Germany, or that he or she has acted in violation of the aims and principles of the United Nations. 6 The Social Dimension 23 Changes in the reception system The Reception Directive has not formally been transposed into German legislation. The German government argues that the requirements of the directive are met by the existing laws. It is argued, however, that several regulations from the Reception Directive establish higher standards than German law provides for. This applies especially to the applicant's right to information on the asylum procedure 2, to education (for minors) and to health care. An important point in this argument is that European law asks for individual rights embodied in a Directive to be transposed into the main body of legislation. It is not adequate for them to be transposed through administrative regulations or other secondary instruments. 25 Changes in policy relating to refugee integration On 1st December 2004, the Federal government issued a Directive on the implementation of integration courses, which will become mandatory when the new Migration Act takes effect on 1st January In courses coordinated by the Federal Office for Migration and Refugees (BAMF), approximately 140,000 migrants newly arriving from non-eu countries will take part in a 600-hour German language course and a 30-hour orientation course on law, history and German culture. In 2005, the federal government will allocate 208 million to these courses. The goal of the courses is to reach the language competence level B1 as defined in the Common European Framework of Reference for Languages, which in turn will be a pre-condition for being granted an unlimited settlement permit and being eligible for fast-track naturalisation. If migrants should refuse to participate in the courses, even though local authorities have instructed them to do so, they face the risk of being expelled from the country. Furthermore, for up to 50,000 migrants who have been residents of Germany for some time, the courses could also become mandatory if authorities declare a "special need for integration". This will be the case for the long-term unemployed or legal guardians of minors if the former are not able to speak the German language. The government directive is the result of a contentious debate lasting several weeks between federal interior minister Otto Schily (SPD) and the SPD and Green parliamentary parties. The conflict centred on the contribution of 1 per hour which participants will be obliged to pay. Welfare recipients and some hardship cases are to be exempted from the obligation to pay. However, migrants living in 2 The government seems to have changed its mind on this point, as they have incorporated a provision on this in draft law, expressly referring to the Reception Directive. Due to the general elections this draft has been put on hold.

14 difficult financial circumstances will still have to pay the contribution. MPs of the SPD and Green parliamentary parties have declared that this unequal treatment is "highly questionable from a constitutional point of view". BMI Pressemitteilung // CDU-Homepage // SZ // FR // FAZ // 8 Political Context 31 Government in power during 2004 In 2004 and in the first half of 2005 the Federal government was (unchangedly) a coalition government formed by the Social Democrats (SPD) and the Green Party. The conservative opposition consisting of Christian Democrats (CDU/CSU) and the Liberal Party (FDP) remained in control of the Bundesrat, the second chamber of parliament and representation of the Federal states. For this reason the government had to seek compromises with the opposition on several major pieces of legislation, including the Immigration Act mentioned above. 32 Governmental policy vis-à-vis EU developments The Immigration Act has not yet transposed the majority of EU Directives passed in the area of asylum and refugees. Only parts of the Qualification Directive have been transposed by 60 of the Residence Act, including clarification that victims of non-state or gender-based persecution fall under the scope of protection within the Geneva Convention, etc. A second amendment act (Änderungsgesetz) was planned for Spring 2005, which will allow the different EU Directives to be transposed into national law. As a result of the new elections in autumn 2005 the new act has been postponed. 33 Asylum in the national political agenda Torture debate Public debate continued regarding the circumstances, including terrorism, in which law enforcement officials were permitted to use torture. It arose from a report that in 2002 Wolfgang Daschner, Vice- President of the Frankfurt am Main police, had ordered a subordinate officer to use force against a criminal suspect while investigating the kidnap of an 11-year-old boy. Wolfgang Daschner publicly defended his actions. In June 2004 the Regional Court in Frankfurt ordered Wolfgang Daschner to be tried on a charge of severe intimidation. On 20 December Wolfgang Daschner and a subordinate police officer were convicted of threatening a suspect with torture but the Regional Court found mitigating circumstances in their cases and therefore they were penalized only with a caution. However, the presiding judge stated that torture was a crime, which violates international and constitutional law. Many leading figures were quick to condemn torture, but the debate also gave rise to attempts by some to justify it and to argue that in some cases there should be exceptions from the fundamental prohibition of torture. AI remained concerned about the lack of an active, unequivocal response from senior politicians reaffirming Germany s commitment to upholding its international obligations on the prohibition of torture. (Source: Amnesty International)

15 Biography PRO ASYL