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Germany: Proposed Tightening of Asylum Rules

(Feb. 8, 2016) On February 3, 2016, 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.)