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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Germany: Proposed Tightening of Asylum Rules

(Feb. 8, 2016) On February 3, 2015, the German government agreed on a set of stricter asylum measures (“Asylum Package II”). The Asylum Package II would accelerate the asylum application process; suspend family reunification for refugees with subsidiary protection status for a period of two years; decrease asylees’ monthly cash benefits; facilitate deportation; establish a new Federal Police unit to help procure replacement documents; improve the safety of refugee minors; and designate Algeria, Morocco, and Tunisia as safe countries of origin. (Kabinett beschliesst Asylpaket II. Schnellere Verfahren, weniger Familiennachzug [Cabinet Agrees on Asylum Package II. Faster Procedures, Less Family Reunification], German Federal Government website (Feb. 3, 2016).)  The measure will now be debated by the Bundestag.

According to the monthly statistics of the Federal Office for Migration and Refugees, Germany received 52,103 asylum applications in January 2016, representing an increase of 108.1% compared to January 2015. Most of the applicants in January 2016 came from Syria (27,306), Iraq (6,636), and Afghanistan (4,949). The applications of Syrians were approved in 99.1% of the cases, whereas the success rates for Iraqis and Afghans were 88% and 47.2%, respectively. Of the total number of January 2016 applications, 64% were approved. (Bundesamt für Migration und Flüchtlinge [BAMF] [Federal Office for Migration and Refugees], Asylgeschäftsstatistik für den Monat Januar 2016 [Asylum Statistic for the Month of January 2016], at 2, BAMF website (Jan. 2016).)

Acceleration of the Asylum Application Process

Asylum applications from refugees with limited prospects of receiving asylum status, who fall into categories listed in the law, would be processed within a week under the proposed Package II. If a refugee decides to appeal the decision, the appeals proceedings would be concluded within two weeks. During the time of the accelerated procedure, the asylum seeker would have to live in a special reception center and would only receive benefits if he or she stayed at that particular facility. (Kabinett beschliesst Asylpaket II , supra.) The Asylum Procedures Directive of the European Union explicitly provides for such an accelerated examination procedure. (Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection (Recast), 2013 O.J. (L 180) 60, art. 31 ¶ 8, EUR-LEX.)

Suspension of Family Reunification for Refugees with Subsidiary Protection Status

Refugees who were granted subsidiary protection status, but not accepted as asylees, will not be able to bring their families to join them for a period of two years. (Kabinett beschliesst Asylpaket II , supra). Subsidiary protection is codified in section 4, paragraph 1, of the Asylum Act and is awarded to applicants who can prove that they are threatened with serious harm in their country of origin. “Serious harm” is defined as the “imposition or application of capital punishment, torture or inhuman or degrading punishment or treatment, or a serious individual threat to the life or integrity of a civilian as a result of indiscriminate violence in an international or internal armed conflict.” (Asylum Procedure Act (Sept. 2, 2008, current to Dec. 23, 2014), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1798, as amended, § 4, ¶ 1, GERMAN LAWS ONLINE (unofficial English translation; note: the translation does not reflect the title change from “Asylum Procedure Act” to “Asylum Act” (Asylgesetz).) Applicants subject to subsidiary protection are initially granted a residence permit for one year, which can be extended for two additional years, as opposed to the three-year residence permits for asylees. (Residence Act [Aufenthaltsgesetz [AufenthG]] (Feb. 25, 2008, current to Sept. 2013), BGBl. I at 162, as amended, § 26, ¶ 1, sentence 3, GERMAN LAWS ONLINE (unofficial English translation).)

Adjustment of Monthly Benefits

The Asylum Package II calls for a reduction by ten euros of the monthly cash benefits for a refugee’s personal use prescribed in the Asylum Seekers Benefits Act. A single recipient living in a reception facility would therefore receive €133 (about US$146) instead of €143. (Kabinett beschliesst Asylpaket II, supra; Asylbewerberleistungsgesetz (AsylbLG) [Asylum Seeker Benefits Act] (Aug. 5, 1997), BGBl. I at 2022, § 3, ¶ 1, GERMAN LAWS ONLINE .)

Facilitation of Deportation

Currently, refugees are able to prevent deportation by claiming they face medical problems and there is insufficient health care in their country of origin. According to the proposed rules, only serious or life-threatening diseases that could worsen because of the deportation will be taken into account. The seriousness of the disease would have to be demonstrated by a medical certificate from an accredited medical practitioner. The fact that the available medical care is not comparable to that found in Germany would not be a sufficient reason in itself to prevent the deportation. (Kabinett beschliesst Asylpaket II, supra.)

Replacement Documents

Given that refugees without documents cannot be deported and in order to facilitate the deportation of such refugees, the government decided to establish a new unit that will help these individuals procure replacement documents. The unit would be part of the Federal Police and would work closely with the German states. (Id.)

Safety of Refugee Minors

The Asylum Package II contains rules that would improve the protection and safety of refugee minors housed in reception centers and in community housing. Every person who works at such a facility would have to provide the employer with a detailed police record. (Id.)

Safe Countries of Origin

Under the new package, Algeria, Morocco, and Tunisia would be designated safe countries of origin and added to the list contained in Appendix II of section 29a of the Asylum Act. (Id.) The designation as a safe country of origin allows the accelerated processing of applications from asylum seekers from these countries, because there is a rebuttable presumption that the application is manifestly without merit. (Asylum Act, § 29a ¶ 1.) In cases where an applicant is from one of these countries, he or she has only one week to leave Germany (id. § 36, ¶ 1), instead of the usual 30 days, when an application is rejected. (Id. § 38, ¶ 1.)

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Israel: Foreign-Trained Dentists Immigrating to Israel May Be Exempt from Licensing Exams

(Feb. 8, 2016) On January 25, 2016, the Knesset (Israel’s parliament) passed legislation authorizing the Minister of Health to determine conditions for either fully or partially exempting new immigrants from testing requirements otherwise applicable to persons seeking a license to practice dentistry in Israel. (Dentists Ordinance Amendment (No. 6) Law, 5776-2016 (Amendment Law), Knesset website (in Hebrew) (scroll down to appropriate link); Dentists Ordinance (New Version), 5739-1979, 3 Laws of the State of Israel (LSI) (New Version) 101 (1981, as amended).)

Standard Licensing Requirements for Dentists

Under section 6(c) of the Dentists Ordinance, one of the conditions for obtaining a license to practice dentistry in Israel is to pass an exam set by the General Manager of the Ministry of Health (GMMH), in consultation with the Science Committee of the Dental Medicine Association in Israel (DMAI). (Dentists Ordinance § 6(c).)

In accordance with Regulation 4 of the Dentists (Licensing Exam) Regulations 5752-1992, as amended, a dentistry license exam includes two parts: a written substantive test and a practical exam that includes making a diagnosis, preparing a treatment plan, and performing “manual tasks.” The topics covered in the exams are listed in the appendix of the Regulations.  (Dentists (Licensing Exam) Regulations 5752-1992, Kovetz Hatakanot [SubsidiaryLegislation] 5752 No. 5459 p. 1342 (in Hebrew).)

Both the written and the practical parts of the exam are held in the Hebrew language or, to the extent possible, in a language of the examinees, based on authorization by the examining committee. This committee is appointed by the GMMH for implementation of the Regulations. (Id. §§ 6, 8-9.)

Changes to Exam Requirement

The Amendment Law authorizes the Minister of Health to issue regulations to either fully or partially exempt applicants from having to pass the dentistry licensing exams. Applicants who may enjoy this exemption must be licensed and have practiced dentistry in a foreign country in a lawful status and at a “proper professional level” for a period of at least five years.  (Amendment Law § 2.)

According to the explanatory notes for the draft bill of the Amendment Law, the Amendment Law was proposed “… in view of the expected immigration wave among practicing dentists and to assist these new immigrants to integrate and practice the profession also in Israel.” (Dentists Ordinance Amendment (No. 6) Draft Bill, 5776-2015, Government Bill 991, Knesset website (click link for Issue No. 991).) A similar exemption, according to the explanatory notes, exists in section 4(A1) of the Physicians Ordinance.  (Physicians Ordinance (New Version), 5737-1976, 3 LSI (New Version) 80 (1981, as amended).)

Reactions to the New Law

The Amendment Law was opposed by Israeli dentists, who expressed concern that it would lower the level of dentistry in Israel and harm Israeli patients. According to Dr. Itsik Chen, DMAI Chairman, “the Amendment Law is not fair to dentistry students in Israel who take the licensing exams or to the patients.”  Chen reportedly said that the DMAI would insist that the Ministry of Health consult the Association on ways to implement the Amendment Law “to ensure that a dentist who receives an exemption would indeed deserve it.” (Eti Gal, Approved: An Exemption from Exam for Dentists Who Studied Abroad, YNET (Jan. 25, 2016) (in Hebrew).)

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Australia/Nauru: High Court Rules Offshore Detention of Asylum Seekers Is Lawful

(Feb. 5, 2016) On February 3, 2016, the High Court of Australia, Australia’s highest court, held in a 6-1 decision that the government is legally able to participate in the detention of asylum seekers in the Pacific island country of Nauru; this means that a number of people who were brought to Australia to receive medical treatment can now be sent back to Nauru to have their claims processed. (Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1, Australasian Legal Information Institute database.)

Background

Under Australian law and policy, boats carrying asylum seekers trying to enter Australian territory may be turned back at sea, and people who do arrive without a visa are categorized as “unauthorised maritime arrivals” and transported to “regional processing countries.”  (Migration Act 1958 (Cth), ss 4(5), 5AA, & 198AD, ComLaw website; Operation Sovereign Borders, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION (DIBP) (last visited Feb. 4, 2016).)  Pursuant to agreements signed with Nauru and Papua New Guinea (PNG), regional processing centers have been established on Nauru and Manus Island, PNG.  (Elibritt Karlsen, Australia’s Offshore Processing of Asylum Seekers in Nauru and PNG: A Quick Guide to the Statistics, AUSTRALIAN PARLIAMENTARY LIBRARY (Oct. 12, 2015); Instrument of Designation of the Republic of Nauru as a Regional Processing Country Under Subsection 198AB(1) of the Migration Act 1958 (Sept. 2012), ComLaw website; Instrument of Designation of the Independent State of Papua New Guinea as a Regional Processing Country Under Subsection 198AB(1) of the Migration Act 1958 (Oct. 2012), ComLaw website.)

Asylum seekers processed in the two countries are not able to receive visas to settle in Australia.  (See Illegal Maritime Arrivals,  DIBP (last visited Feb. 4, 2016).)  Instead, if they are found to be refugees, the agreements with Nauru and PNG provide for resettlement in those countries.  A further agreement with Cambodia means that refugees can also be voluntarily resettled in that country.  (Memorandum of Understanding Between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues (Aug. 29, 2012), DEPARTMENT OF FOREIGN AFFAIRS (DFAT); Memorandum of Understanding Between the Government of the Independent State of Papua New Guinea and the Government of Australia, Relating to the Transfer to, and Assessment and Settlement in, Papua New Guinea of Certain Persons, and Related Issues (Aug. 6, 2013), DFAT; Regional Resettlement Arrangement Between Australia and Papua New Guinea (July 19, 2013), DFAT; Memorandum of Understanding Between the Government of Cambodia and the Government of Australia, Relating to the Settlement of Refugees in Cambodia (Sept. 26, 2014), DFAT.)

The goals of Australia’s asylum seeker policies include border security and deterring the actions of smugglers who transport people by boat from transit countries, such as Indonesia and Malaysia, often in unsafe situations that have resulted in numerous deaths at sea.  (Janet Phillips, A Comparison of Coalition and Labor Government Asylum Policies in Australia Since 2001, AUSTRALIAN PARLIAMENTARY LIBRARY (Feb. 28, 2014); Press Release, Peter Dutton MP, Minister – 18 Months of OSB Delivers Stronger Borders (Mar. 18, 2015).)

The conditions at the Nauru and PNG facilities, the impact of detention on children, as well as the policy of sending asylum seekers to third countries for processing, have been criticized by refugee advocates, human rights organizations, and the UNHCR.  (See, e.g., Offshore Processing: Conditions, KALDOR CENTRE FOR INTERNATIONAL REFUGEE LAW (Apr. 7, 2015); Australian Human Rights Commission, Human Rights Issues Raised by the Transfer of Asylum Seekers to Third Countries (2012); Oliver Laughland, UN Refugee Agency Condemns Australia’s Offshore Detention Regime, GUARDIAN (Nov. 26, 2013).)

High Court Decision

The case determined by the High Court was brought by a Bangladeshi woman who had been on a boat that was intercepted by Australian officers in October 2013. She was taken to Christmas Island and then subsequently detained in Nauru until August 2014, when Australian officers brought her to Australia where she later gave birth to her daughter. As she no longer required medical attention, she was liable to be returned to Nauru. (Elizabeth Byrne & Stephanie Anderson, High Court Throws Out Challenge to Nauru Offshore Detention; Malcom Turnbull Vows People Smugglers Will Not Prevail, ABC NEWS (Feb. 3, 2016).) She challenged her removal from Australia, seeking a declaration that the Commonwealth government’s conduct with respect to her detention was unlawful as it was not authorized by any valid law. (Press Release, High Court of Australia, Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1, High Court of Australia website (Feb. 3, 2016).)

In June 2015, after the proceedings in the High Court had been filed by the plaintiff, the Australian Parliament passed amending legislation that included a provision specifically allowing the government to pay for and participate in matters related to the detention of persons held in regional processing countries. The new provision was given retroactive effect to August 18, 2012. (Migration Act 1958 (Cth), s 198AHA, inserted by the Migration Amendment (Regional Processing Arrangements) Act 2015, ComLaw website.)  The Court held that this provision authorized the government’s participation in the plaintiff’s detention and therefore that the plaintiff was not entitled to the declaration she sought.  It stated that the conduct of the government in signing the agreement with Nauru was authorized by section 61 of the Australian Constitution and that its conduct in giving effect to that agreement was authorized by a valid law. (Press Release, High Court of Australia, supra.)  Section 61 of the Constitution relates to the executive power of the Commonwealth government.  (Commonwealth of Australia Constitution Act, s 61, ComLaw website.)

Impact of the Decision

There are currently 267 asylum seekers in Australia who could be moved to Nauru following the High Court’s ruling. This includes more than 30 babies who were born in Australia to asylum seeking mothers.  (Daniel Hurst & Ben Doherty, Turnbull and Dutton Unmoved by Calls to Spare 267 Asylum Seekers from Deportation to Nauru, GUARDIAN (Feb. 3, 2016).)  Prior to the Court issuing its decision, the Minister for Immigration and Border Protection, Peter Dutton, had signaled his intention to send a group of 160 adults, 37 babies, and 54 children back to Nauru.  (Byrne & Anderson, supra.) The Minister stated after the decision that each case would be assessed individually and that he was “not going to send children back into harm’s way.”  (Hurst & Doherty, supra.)

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Thailand: First Inheritance Tax in Decades Comes into Force

(Feb. 5, 2016) On February 1, 2016, an inheritance tax came into effect in Thailand for the first time in 72 years. The purpose of the law is to increase the tax base to generate revenue. The government has announced it expects to reap the equivalent of US$28 to $56 million from the new tax each year, with the ultimate goal of increasing social equality by collecting funds from heirs of the wealthy to “develop the country and upgrade the living of underprivileged people.” (Thailand’s 1st Inheritance Tax in Decades Enters into Effect, KYODO WORLD SERVICE (Feb.1, 2016), Open Source Center online subscription database, Doc. No. JPR2016020157595259.)

The new tax is imposed on inheritances that are over 100 million baht (about US$2.8 million) in value. Lineal descendants and ascendants will have to pay 5% of what they inherit, while other heirs will be assessed 10%. (Id.)

Background

The plan to adopt an inheritance tax was announced in November 2014. At that time, the Prime Minister of Thailand, Prayuth Chanocha, announced a new economic policy, including the introduction of both property and inheritance taxes, when speaking to the National Legislative Assembly. (Don Sornumpol, Inheritance Tax in Thailand (Nov. 12, 2014), SIAM LEGAL.)

The Thai Official Gazette published the Inheritance Tax Act and Gift Tax Regulations on August 5, 2015. The legislation included an exemption from inheritance tax when the beneficiary is a spouse or a charitable organization. The gift tax is imposed on gifts other than those from parents, spouses, or children that are worth more than THB10 million (about US$279,000) in a single year; for gifts from family members, the tax is not imposed unless the value is twice that amount. (Rachel Saw, Thailand: Inheritance and Gift Taxes – Regulations Published, TAX NEWS SERVICE (Aug. 19, 2015), International Bureau Of Fiscal Documentation  online subscription database.)

Reaction to the Law

According to Nonarit Bisonyabut of the Thailand Development Research Institute Foundation, the new law is mainly a symbolic move, as the current military government tries to establish itself as attempting to eliminate inequality in the country. Bisonyabut noted that fewer than 10,000 individuals are likely to feel any impact from the law and stated, “[t]he law will mostly distress (members of) the upper middle-class who does [sic] not have knowledge or financial planners to look after their assets like the billionaire families do.” (Thailand’s 1st Inheritance Tax in Decades Enters into Effect, supra.)

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Austria: Newly Proposed Measures on Asylum and Refugees

(Feb. 5, 2016) On January 20, 2016, the Austrian Federation and the Austrian states, as well as the municipalities and cities, came to an understanding on an upper limit of 127,500 refugees that will be allowed to apply for asylum in Austria over the course of the next four years. If implemented into binding legislation, the agreement would decrease the number gradually each year.  Additional measures would include stricter enforcement of entry checks at the borders and stricter repatriation policies for denied asylum applicants.  (Republik Österreich [Republic of Austria], Asylgipfel am 20. Jänner 2016, Gemeinsame Vorgangsweise von Bund, Ländern, Städten und Gemeinden [Asylum Summit on January 20, 2016, Joint Approach of the Federation, States, Cities, and Municipalities], Federal Ministry of Science, Research, and Economics website (Jan. 20, 2016).)

In addition, the Austrian Parliament is debating changes to the current legislative framework on asylum and refugees. The proposed amendment would provide refugees who are granted asylum a time-restricted residence permit of three years, with the option of an unlimited residence permit only after that initial period.  (Regierungsvorlage, Bundesgesetz, mit dem das Asylgesetz 2005, das Fremdenpolizeigesetz 2005 und das BFA-Verfahrensgesetz geändert werden [Government Bill, Federal Act that Amends the Asylum Act 2005, the Aliens Police Act 2005, and the Federal Office for Immigration and Asylum Procedure Act], art. 1 nos. 4 & 5, Austrian Parliament website.) Furthermore, family reunification for refugees awarded subsidiary protection would only be possible after a waiting period of three years, instead of the current one year.  (Id. art. 1 no. 9.)

If the circumstances for which asylum was granted have ceased to exist after the three years, proceedings to withdraw the asylum status will begin. In order to adequately evaluate the situation in the countries of origin, the draft act mandates an annual assessment of the situation in the primary countries from which refugees originate.  (Id. art. 1 no. 5.)  All amendments, if enacted, would have retroactive effect for applications filed after November 15, 2015.  (Id. art. 1 no. 18.)

Background

According to the monthly statistics of the Federal Ministry of the Interior, Austria received 81,127 asylum applications between January and November 2015, with 11,931 in November alone. Most of the applicants in November came from Afghanistan (5,395 first-time applicants), Syria (2,877), and Iraq (1,444).  The number of asylum applications has more than tripled since 2014 – an increase of 240%.  (Bundesministerium für Inneres [Federal Ministry of the Interior], Vorläufige Asylstatistik November 2015 [Preliminary Asylum Statistic November 2015], Federal Ministry of the Interior website (Nov. 2015), at 3 & 6.)

Under current asylum legislation, refugees whose asylum applications are approved receive an unlimited residence permit. (Bundesgesetz über die Gewährung von Asyl [Asylgesetz 2005] [AsylG 2005] [Federal Act Concerning the Granting of Asylum] [Asylum Act 2005] [AsylG 2005]], BUNDESGESETZBLATT [BGBl.] I No. 100/2005, § 2, ¶ 1, no. 15, REICHSINFORMATIONSSYSTEM.) The proposed change is in line with the Qualification Directive of the European Union, which requires residence permits granted to refugees to be valid for at least three years and to be renewable.  (Directive 2011/95/EU of the EU Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted, 2011 O.J. (L 337) 9.) Other EU Member States, such as Germany, have similar restrictions in place. (Residence Act [Aufenthaltsgesetz [AufenthG]] (Feb. 25, 2008, current to Sept. 2013), BGBl. I at 162, as amended, § 26 ¶ 1 sentence 3, GERMAN LAWS ONLINE (unofficial English translation).)

Potential Legal Issues with an Upper Limit

It is unclear whether Austria as a Member State of the EU can unilaterally set an upper limit on the number of asylum applications it accepts. The President of the European Court of Justice, Koen Lenaerts, recently pointed out in an interview that “if an individual is entitled to political asylum, he or she has the right under EU legislation to be acknowledged as a refugee.  This is hard to reconcile with a number or an upper limit.”  (Marion Trimborn, Lenaerts: Asylrecht schwer vereinbar mit Obergrenze [Lenaerts: Asylum Legislation Difficult to Reconcile with an Upper Limit], NEUE OSNABRÜCKER ZEITUNG (Jan. 18, 2016).) The Austrian government has commissioned a legal opinion on the question of whether the proposed agreement would conform to international and European law.  (Press Release, Bundeskanzleramt [Federal Chancellery], Bundeskanzleramt: Rechtsgutachten heute in Auftrag gegeben [Federal Chancellery: Legal Opinion Commissioned Today], Federal Chancellery website (Jan. 25, 2016).)

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