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Legislative Restrictions on the Right to Asylum (July 1, 1993)

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The major changes in the Asylum Procedure Act are also reflected in the new wording of the Basic Law (Article 16a). This article begins with the previous phrasing (“Persons persecuted on political grounds shall enjoy the right of asylum”). The exceptions follow thereafter. The right to asylum cannot be invoked by anyone who enters the country from an EU member state or “from another third state in which the application of the Convention Relating to the Status of Refugees and of the Convention for the Protection of Human Rights and Fundamental Freedoms is assured.” These “safe third countries,” according to another reference inserted into the Basic Law, are determined by law. They are Finland, Norway, Sweden, Poland, the Czech Republic, Austria, and Switzerland. Residence-terminating measures against asylum seekers who enter Germany through these countries can be enforced “without regard to any legal challenge that many have been instituted against them [i.e., the measures].” This is based on the opinion that such asylum seekers no longer require German aid because they could have found protection from persecution elsewhere. An agreement to provide assistance has been concluded with Poland to offset the additional burdens faced by that country.

Article 16a (3) states further: “By a law requiring the consent of the Bundesrat, states may be specified in which, on the basis of their laws, enforcement practices, and general political conditions, it can be safely concluded that neither political persecution nor inhuman or degrading punishment or treatment exists.” These “safe countries of origin” are Poland, Hungary, the Czech Republic, the Slovak Republic, Romania, Bulgaria, Gambia, Ghana, and Senegal. Asylum seekers from these countries can still opt for an accelerated hearing, during which they can argue that, contrary to presumption, they have been persecuted on political grounds. The “implementation of measures to terminate an applicant’s stay” may be set aside in these and in other plainly unfounded cases “only when serious doubt as to the legality of the measures exists.”

The leadership of the CDU/CSU and [of] the SPD also viewed the actual developments in immigration and the accompanying debate on asylum policies as a strain on the domestic-policy climate. They feel that democracy is at risk. A statement uttered by Herbert Wehner in the SPD executive committee in 1982 has been frequently quoted in recent weeks. Wehner, then chairman of the SPD caucus, said that the democratic parties would be swept away if the problem could not be resolved. The rise of the [right-wing extremist] Republikaner party and acts of violence against foreigners were viewed by the parties as omens of a kind of development they wanted to prevent. The debates on asylum policies, which came in waves, did not benefit any of the parties – not the CDU/CSU, which blamed the SPD for the immigration figures, and not the SPD, which regarded the CDU/CSU’s request for an amendment to the Basic Law as proof of its xenophobia. That kind of debate has now ended. The largely mutual agreement on the asylum-policy package law has moved this area of alien policy [Ausländerpolitik] out of the partisan political fight.

Source: Günter Bannas, “Democracy at Risk” [“Der Demokratie drohte Gefahr”], Frankfurter Allgemeine Zeitung, July 1, 1993.

Translation: Allison Brown

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