The situation, that thousands of asylum seekers under ‘subsidiary protection’ in Germany took legal steps to the right of asylum, is once again on the agenda. According to this news in DW; the number of cases filed in Germany’s North Rhine-Westphalia state for asylum seekers in 2016 is 2 cents more than in the previous year and this number is expected to increase further in the coming years. An important part of the cases was made to the German Federal Office for Migration and Refugees (BAMF) on the grounds of ‘failure-to-act’ and also deprived of many rights, including the right of family reunification and searching job depending on this situation. These asylum seekers were claiming that they should be in the status of ‘refugees’ within the framework of the Geneva Convention; In November, after the German Schleswig Supreme Administrative Court granted BAMF the status of ‘subsidiary protection’ of Syrian war asylum seekers, it seems that the situation has been further exacerbated, as interpreted as a ‘signal‘ for other courts. Under which laws did this provincial council justify this practice of BAMF? We will take a general look at the asylum system by assessing the historical problem of Germany’s current legal problem.
When we look at the first three quarters of last year in Europe, almost two-thirds of the nearly 1 million asylum requests were made in Germany, which had the highest record of all-time immigration in the previous year. In the first 3 quarters of 2016, Germany accounts for 85 percent of the total ‘adjudicated’ asylum application in the EU. It can be said that the ‘delay cases’, about which asylum seekers always complain, are also directly related to this high number of applications.
In Germany, which is a party to the 1951 and 1967 Treaties on the Law of the Refugees, the institution that sets up immigration and immigration policies is the Parliament and the Federal Government. Apart from these, state courts with many autonomous autonomies should not be forgotten within their jurisdiction to carry out immigration and immigration policies. In this context, the German State, signing the 1951 Convention, considers persons who have suffered persecution as a refugee because of their nationality, religion, certain social group membership or political considerations. The attitude of the country, which has adopted a more liberal stance after World War II, seems to have changed over the years. The more liberal attitudes in this period may be the result of low asylum application figures as well as Germany’s low labor force needs. Likewise, the share of this workforce about the restructuring of the country in that process was very important. For this purpose, Germany welcomed thousands of people from many countries, especially from Turkey. This situation lasted until the mid-1970s. In later periods, the number of immigrants in this country had substantially increased as the reaction to the military coup in Turkey and the increase in the number of people coming from other countries to this country. The collapse of the Berlin Wall and the German reunification have profoundly influenced to migrations to the country; especially along with the influx of Germans from Eastern Germany and Central Europe, social hatred and grudge have boosted against foreigners which Turkish immigrants formed the large majority.
As a result of all this, the articles on the right to asylum in the Constitution were altered in 1993; the restrictions on this subject have increased; the procedure of asylum seekers escaping from war and civil war has been involved in the national regulations.
When we come to the situation of today’s asylum seekers, the main difficulty arises in relation to the concept of ‘political persecution’ that Germany sets about asylum seekers. As specified in the report that Avrupa’da Geçici Koruma Rejimi Örnekleri (Declaration of Temporary Protection Regime in Europe) by the Family and Ministry of Social Policies in December 2015:
In accordance with the decisions of the Federal Constitutional Court, political persecution applies only to situations which are exerted by private persons whom the states or states encourage or approve. In cases where states lose control over their territory, any actions, including actions held by the state, does not enter into the scope of political persecution. Therefore, in cases where the state lost control such as war and civil war, for those who escape from these territories, there is no right to an asylum due to political persecution as stipulated by the Constitution.
In this conditions, the ‘refugee’’ status claimed by Syrian asylum seekers has also been rejected and out of the ‘refugee’ concept mentioned in the Geneva Conventions, the reform in 1993 provided people with subsidiary protection status and temporary residence for a year. This also applies in the case of the State courts and the Federal Government in the case of a reconciliation, and it’s the opposite situation, the chance of benefiting of the asylum seekers is gone. Apart from that, despite the fact that the Federal Government makes the immigration policies, the state administrative courts have to cover the costs of the cases filed in this respect. If this is the case, it is not hard to foresee that this problem will occupy the agenda of Germany and the EU for a long time, if we consider that problems such as personnel insufficiency will increase in parallel with the numerical excesses of the cases in many provinces.