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1.6.2015

Refugee Law: the International Framework

Worldwide, refugee numbers are on the rise. This trend is reflected in rising numbers of asylum applications in Germany - a development that challenges the national asylum system and corresponding politics. However, the sovereignty of states with regard to asylum policies is limited by international regulations on refugee protection.

November 2014, Heidelberg: Stateless asylum-seeker with a German ID. (© picture-alliance/dpa)


In theory, the migration of international migrants, e.g. labor migrants, is assumed to be based on a voluntary decision, while refugees are forced to leave their place of residence or country of origin due to armed conflicts or persecution. Empirically, these categories of voluntary and involuntary migrants cannot always be clearly distinguished, because the decision to migrate is generally not based on one single reason but on a combination of motives. From the point of view of states, however, it does seem necessary to distinguish between "normal" migrants and people in need of protection. But the international community does not recognize every type of involuntary migration – e.g. that caused by poverty or climate change – as relevant in terms of humanitarian protection. Generally, states have the right to decide who may enter their territory and under what terms. However, the sovereignty of states is limited by international refugee law.[1] This law was developed as a reaction to the experience of the two world wars in the 20th century, which produced millions of international refugees. On 10 December 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. Article 14 states that "Everybody has the right to seek and to enjoy in other countries asylum from persecution." The right to seek asylum does not mean, however, that the claimant is automatically granted refugee status. Two years later, on 14 December 1950, the UN General Assembly established the Office of the United Nations High Commissioner for Refugees (UNHCR), which was to be responsible for international refugees from then on. According to its mandate, UNHCR is in charge of coordinating international action to protect refugees, ensuring that refugees' human rights are respected and that their right to claim asylum is not violated.

International refugee law, which has been subject to a constant process of development since the Second World War, is essentially based on the Geneva Convention relating to the Status of Refugees, which was signed on 28 July 1951 and entered into force in 1954.[2] Important elements of the Convention are the definition of the term "refugee" and the principle of non-refoulement, which prohibits returning a person to a country where (s)he has reason to fear persecution (Geneva Convention, Article 33). In Europe, this right is derived from Article 3 of the European Convention on Human Rights (ECHR, in force since 3 September 1953): "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." According to Article 1a(2) of the Geneva Refugee Convention, the term refugee shall apply to any person who holds "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." At first, this definition only applied to refugees in Europe and to events before 1 January 1951. The additional Protocol of New York, signed in 1967, removed this temporal and geographical restriction from the Convention, which thereby gained universal validity. To date, 140 states have signed the Convention and the Protocol, including the Federal Republic of Germany and all other EU Member States. To this day, the provisions of the Geneva Refugee Convention continue to have an effect. Refugee law is still based on the obligation of asylum applicants to prove their individual persecution. Over the course of time, however, the interpretation of the Geneva Refugee Convention has undergone changes. Its scope has been enlarged, and now includes persecution by non-state actors and also gender-specific persecution. Alongside these international agreements, there are more and more European legal provisions in the field of asylum policy (see the section on "Refuge and Asylum as a Europeanized Policy Area"). Additionally, many states have their own national regulations and forms of protection: in Germany, for example, Article 16a of the German Constitution (Grundgesetz) guarantees the right to asylum for the victims of political persecution.

Forms of Humanitarian Protection



Asylum Procedure

There are four main forms of humanitarian protection.[3] They are not mutually exclusive, but complement each other. In Germany, the best-known form of humanitarian protection is the asylum procedure. As a territorial principle, it requires, however, that the person in need of protection has left his or her country of origin and has travelled to Germany unassisted, because an asylum application can only be lodged on German territory and not, for example, in the German embassy in the asylum seeker's country of origin. To be able to claim asylum thus generally requires financial resources. Furthermore, the journey to Germany may be a risky matter due to illegal border crossings or the need to cross the Mediterranean Sea. Thus, only a very small share of people in need of protection worldwide actually make it to Germany or other European countries (see info box "People in need of protection - the global dimension"). Most refugees remain in their region of origin, in a neighboring country for instance. Once in Germany, an asylum application can, in principle, be filed at any public authority. It is, however, the regional branch office of the Federal Office for Migration and Refugees which is officially and formally responsible for handling asylum claims, so other public authorities will pass the application on to the branch office. After the application for asylum has been filed, the Federal Office conducts an individualized procedure to examine whether the applicant has the right to be granted any form of protection: recognition of asylum in accordance with Article 16a of the German Constitution, refugee status in accordance with the Geneva Refugee Convention, subsidiary protection, or a deportation ban[4]. The length of stay permitted, and other legal rights such as family reunification, depend on the form of protection granted. The widest scope of rights applies to persons entitled to asylum or refugee status in accordance with the Geneva Convention. They are granted a three-year residence permit, whereas people granted other forms of humanitarian protection generally receive a residence permit valid for only one year. In the past few years, there has been an alignment of the rights of people granted subsidiary protection. A protection status can be revoked or withdrawn if the causes of flight no longer exist, e.g. if an armed conflict in the refugee's country of origin has ended.[5] Asylum seekers who have not been granted any form of protection are legally obliged to leave Germany. However, in many cases this does not happen, for various reasons: either repatriation is not possible (e.g. because the person in question does not possess valid identity documents), or there are no means of transport, or authorities cannot track the rejected asylum applicant.

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Info box

What is "subsidiary protection"?

Third-country nationals "may be entitled to subsidiary protection if they cannot be protected either through recognition of refugee status or through the right to asylum. Such individuals are recognized as being entitled to subsidiary protection if they have submitted plausible reasons to presume that they are at risk of serious injury (Article 15 of the EU Qualification Directive 2011/95/EU) in their country of origin.

Serious injury is considered to be:
  • the imposition or enforcement of the death penalty,
  • torture or inhuman or degrading treatment or punishment, or
  • a substantial concrete danger to the life and limb of a civilian within an international or domestic armed conflict."*
    * www.bamf.de/EN/Migration/AsylFluechtlinge/Subsidiaer/subsidiaer.html?nn=1451242
  • Contingent Refugees

    In the event of a major refugee crisis (e.g. former Yugoslavia in the 1990s or Syria since 2011), people in need of protection may also be collectively evacuated from their region of origin or may be individually granted a visa to secure legal entry to Germany. In this case it is usually a fixed number (contingent) of refugees that is admitted. There is no individual assessment of the need for protection, but there are checks as to whether the person in question really belongs to the group of people that is to be granted protection, and whether there are any exclusion criteria such as a person's involvement in war crimes. Protection is granted on a temporary basis only.

    Resettlement

    A third form of protection is resettlement. In the framework of these programs, particularly vulnerable refugees who have already fled their country of origin and have sought refuge in another country, but can neither permanently settle in that country, nor foreseeable ever return to their country of origin, may be resettled in a third country. Resettlement measures are coordinated by UNHCR. In 2015, only about 127,000 resettlement places were offered worldwide, while 958,000 people needed to be resettled, according to UNHCR.[6] Generally, admission in the framework of resettlement programs is permanent. Both temporary admission programs and resettlement offer the advantage of safe entry into the host country. They also provide a chance of protection for vulnerable groups of refugees who do not possess the necessary financial resources to travel to a European country on their own in order to claim asylum there. Furthermore, these programs provide relief to the main refugee hosting countries in particular conflict regions, which do not have the capacity to adequately cope with large refugee flows.

    Regional Programs of Protection

    A fourth form of protection is protection programs financed by Western industrial states in the immediate vicinity of the centers of conflict, that is, in the neighboring states where most refugees seek protection. Accommodation close to the refugees' country of origin has the advantage that it is less costly, and therefore support can be offered to a larger number of refugees. Additionally, people who have fled their countries of origin can return there faster when the conflict that caused their flight has ended.

    Refugees referred to as “internally displaced persons” have to be distinguished from international refugees. They have not fled their country of origin, but have been forced to leave their place of residence and seek refuge in another part of the country. The degree of protection that the international community can offer them – e.g. food and medical supplies – depends on the security situation in the particular country. In practice, the forms of protection outlined above may address refugees from the same country of origin. The case of Syrian refugees is a good example: Of a population of about 21 million before the outbreak of the war in early 2011, about half had fled their place of residence or even the country by the end of May 2015. About 7.6 million were internally displaced, and four million had sought refuge in neighboring countries. Only a little over 250,000 Syrians had filed an application for asylum in the EU, most of them in Germany and Sweden. Another 50,000 were granted protection through (temporary or permanent) humanitarian admission programs.[7]

    This text is part of the policy brief German Asylum Policy and EU Refugee Protection: The Prospects of the Common European Asylum System (CEAS).
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    Autoren: Jan Schneider, Marcus Engler für bpb.de
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    Fußnoten

    1.
    Kluth (2014), pp. 2-3.
    2.
    Hatton (2012).
    3.
    This list makes no claim to be exhaustive. In addition, there are other forms of humanitarian protection, e.g. deportation bans for people being forced to leave the country.
    4.
    For an overview of different forms of protection and the rights they imply, see Parusel (2010).
    5.
    In accordance with German law, appeals have to be processed at the latest three years after the decision on granting asylum has been made at final instance (Article 73 Paragraph 2a of the Asylum Procedure Act/AsylverfG).
    6.
    UNHCR (2014d), p. 9.
    7.
    Own calculation based on Eurostat data; www.resettlement.eu/news/crisis-syria (accessed: 2 February 2015).

    Jan Schneider, Marcus Engler

    Jan Schneider

    Dr. Jan Schneider heads the research unit of the Expert Council of German Foundations on Integration and Migration, and is a Research Fellow of the Hamburgisches WeltWirtschaftsInstitut (Hamburg Institute of International Economics, HWWI).
    Email: jan.schneider@info-migration.de


    Marcus Engler

    Marcus Engler is a social scientist and senior researcher at the research unit of the Expert Council of German Foundations on Integration and Migration. His research focuses on refuge and asylum issues. He is a long-standing member of the editorial staff of the newsletter "Migration und Bevölkerung." Email: engler@network-migration.org


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