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

To reduce the number of asylum seekers, the Bundestag revised Article 16 of the Basic Law. The revision ruled out recourse to asylum rights for those who hailed from countries where no evidence of persecution could be found. It did the same for people who had travelled to Germany through EU member states or other “safe states.” At the same time, however, the revision simplified bureaucratic processes for other asylum seekers.

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Democracy at Risk
On the new asylum law that comes into force this July 1st

“The party caucuses agree that immigration to Germany must be limited and controlled, that the abuse of the right to asylum must be prevented, and that the protection of actual victims of political persecution must be guaranteed. At the same time, a conciliatory signal should also be sent because Germany is an open, tolerant country and should remain that way.” The joint paper by the CDU/CSU, SPD, and FDP on asylum policies begins with these words; it was agreed on in early December of last year, after many long nights of negotiating. The package of laws that was passed later on takes effect this Thursday.

The debate on the need for an amendment to the Basic Law had started back in the early 1980s and had gone back and forth for a long time. Growing numbers of asylum seekers – at last count it was several hundred thousand a year – had left local authorities increasingly overwhelmed. Even before the opening of the borders in Eastern Europe, the wording of Article 16 of the Basic Law, “Persons persecuted on political grounds shall enjoy the right of asylum,” had been used by foreigners who were doubtless in need, but who in most cases were not politically persecuted in the true sense of the word. This trend intensified after the collapse of the Warsaw Pact. Since then, more than two-thirds of all asylum seekers have come from Europe. The predominant view in the government coalition, as in the SPD, was that German asylum law should not be allowed to remain a means of internal migration within Europe.

In addition, the conclusion of the Schengen Agreement on the elimination of border controls between Germany, the Benelux countries, and France, and later between Italy, Spain, and Portugal had ramifications with regard to constitutional law. As a “compensatory measure” for eliminating border controls it was agreed that the countries should recognize each others’ asylum policies – policies based on the principles of the Geneva Convention. Still, in view of Germany’s basic right [to asylum] and the procedural laws derived from it, a proviso reserving national rights was included in the agreement. But the CDU/CSU caucus made clear that it would not ratify the agreement unless an amendment to the Basic Law allowed the German federal and state legislatures to retain their full legislative authority in matters regarding legislation between the European countries. The Union [CDU/CSU] worried that Germany would become a “buffer country” for asylum seekers; with this, they meant that Germany still would not be able to easily deport asylum seekers, even when their applications had been rejected in another member state of the Schengen Agreement.

The package of laws on asylum policies basically consists of three parts: the amendment to the Basic Law, changes in the Asylum Procedure Act, and – with respect to the welfare benefits paid to asylum seekers – changes in social law. In addition, there are agreements that should facilitate the naturalization of foreigners; discretionary decisions made by the administration are being replaced by legal rights. Refugees from civil wars will receive special legal status. These legal amendments should make it easier for the SPD to agree to the package as a whole. Among other stipulations, the SPD demanded that the regulation of immigration go above and beyond asylum policies and address other issues as well. The demand for an immigration law – which, admittedly, was also not uncontroversial within the SPD – was rejected by the Union. In the future, welfare support is to be provided to asylum seekers, who are generally housed in communal homes, predominantly as a non-cash benefit.

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