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Suggestions for Curbing Abuse of the Asylum Law (April 10, 1989)

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Suggestions for ameliorating the situation usually boil down to accelerating asylum proceedings at the Federal Office and in the administrative courts. This cannot happen without a considerable increase in personnel. The fact that rejected asylum seekers aren’t consistently deported is also criticized time and again. There are increasing demands to attach the basic right to asylum to a reservation of statutory powers or to abolish it entirely and introduce in its place only a so-called institutional guarantee that would no longer permit legal review. The move toward legal conformity within the EU also promises an improvement [of the situation], though nothing is being said about how this can be accomplished. One should not overlook the fact that the two-thirds majority required in the Bundestag and the Bundesrat to amend [the law] on the basic right to asylum is not achievable within the foreseeable future.

The public is kept unaware of the fact that asylum abuse occurs for reasons that do not necessarily emanate from this basic right itself. Here, much could be achieved through simple legislation – that is, without a constitutional amendment. This is already apparent from the recent history of asylum procedures. In a ruling from February 25, 1981, the Federal Constitutional Court pointed to a way to replace quantity with quality in an asylum proceeding, something that would help those who are genuinely persecuted. In response to a constitutional complaint, the court declared: “Because it is consistent with the humanitarian aims of the right to asylum to give an applicant for asylum clarity on his entitlement to asylum as quickly as possible, it is in principle compatible with Article 16, Paragraph 2, of the Basic Law, with regard to certain types of applications with no hope for success, to legally transfer the competence to review and make a decision to the Aliens Registration Office and to authorize this office to issue directives to end the stay of the asylum seeker as soon as such a petition is rejected.”

The Bundestag did not take this route with the Asylum Procedures Act, although the Bundesrat called for it. And legislators never returned to this option again. Consequently, today there is a “one-way street” to the Federal Office for the Recognition of Foreign Refugees for all “asylum petitions,” even those that are filed illegitimately. This leads to the familiar problems associated with the temporary right of residence.

A petition for asylum has become a magic phrase, since only the Federal Office is allowed to judge and appraise the facts upon which it is based. The magic word “asylum” opens the barrier at the border, even if the foreigner does not grasp the significance of his or her request. The application is to be passed on to the Aliens Registration Office. The already limited ability of the Aliens Registration Office to review whether this is indeed a genuine petition for asylum has little effect in practice, since there is overlap between an “unsubstantiated petition” and an “inconclusive” one. The option of not passing on applications that represent obvious cases of abuse is not unequivocally prohibited under current law. Even the general expression of a wish to seek protection from political persecution is regarded as an application for asylum.

Abuse of asylum law can only be curbed if access to asylum proceedings is made more difficult. A way must be found to legally distinguish between legitimate [beachtliche] asylum applications and illegitimate [unbeachtliche] ones, even as early as the initial filing of the petition. If it is illegitimate, it should fall under the exclusive jurisdiction of the Aliens Registration Offices. An application for asylum should be considered illegitimate when it is obvious that asylum cannot be granted under any circumstance. An application for asylum is obviously inconclusive when the foreigner’s assertions are deemed true but still do not meet the requirements for asylum. An obviously unfounded application is conclusive, but in this case the asylum-relevant claim of the foreigner is obviously not true; the claimed political persecution in the [applicant’s] country of origin is obviously not to be expected.

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