ADMINISTRATIVE BARRIERS, HUMILIATION AND HARASSMENT: THE GERMAN SOLUTION OF THE REFUGEE-PROBLEM
Just half a year ago, a new asylum legislation entered into effect in Germany. Since, the number of asylum seekers has diminished by more than half. This "success" is due both to a series of bilateral treaties, all focusing on the itinerary of refugees rather than their claim of persecution, and to massive deterrence. The following assessment of the German success story is by Felix Schneider, a Frankfurt based teacher and journalist. It was first published in the Swiss weekly Die WochenZeitung .
In order to perceive, how the scanty remainders of the system of protection for asylum seekers are collapsing, one should first recall the minimum standards of international refugee law:
- The principle of "non-refoulement" (it implies that nobody may be returned to a country, where his physical integrity, life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion), and the prohibition of deportations to third countries which do not respect the "non-refoulement" principle;
- A fair, individual examination of every asylum application by a competent authority;
- A right of appeal against the rejection of an application at at least a second independent instance;
- A right of temporary residence in the country of application pending a final decision on the claim.
The crucial initiative in giving up these minimal rules of protection was taken by the Federal Republic of Germany. After the breakdown of the Soviet Union, Germany, if only because of its geographical position, its power and its attractivity for refugees, was bound to play a key role in forming European refugee policy. On the level of home politics, refugees were made the scape-goats for the numerous problems haunting the contry in its historically new situation. Against the background of burning reception centres for asylum seekers and murderous attacks against "foreigners", a national coalition of all major parties graduous-ly agreed upon meeting growing anger among the population by taking a materially and symbolically far-reaching decision - the first constitutional ammendment in reunited Germany which paved the way for the mutilation of the right of asylum.
The concepts of the so-called safe third countries and safe countries of origin combined with summary fast-track procedures are at the core of both the constitutional amendment and a jumble of regulations which were put into force or ammendedin the second part of 1993.
Since that time, the crucial factor determining the outcome of asylum procedures is no longer the reason of flight, but the itinerary.
The abstraction from the concrete, individual story of a refugee in favour of administrative and inter-governmental arrangements is characteristical of the new German asylum law. That this resulted in a great many restriction of the judiciary which - irrespective of particular judges' or lawyers' intentions - hitherto often turned out to support the cause of refugees, simply because it dealt with concrete individual cases.
Safe third countries
The German legislator has set up a category of third countries automatically considered as "safe". It comprises all EC-states and all states which, according to Germany's own assessment comply with the 1951 Geneva Convention on Refugees and the European Convention on Human Rights, and thus i.a. all states neighbouring the Federal Republic of Germany. Any asylum seeker entering Germany via such a "safe country", is immediately sent back without access further examination and irespective of his claim of persecution. The law provides no legal remedy with suspensive effect against such fast-track rejections.
Ever since the introduction of this regulation on 1 July 1993, refugees have made bitter experiences with the alleged safety of third countries. Thus, Germany for instance routinely returns rejected asylum seekers to the "safe country" Czechia. Yet, in Czechia, asylum applications must be filed at the first entry. Thus, returnees from Germany have no right to apply for asylum. Neither Poland nor Czechia dispose of the personal, logistical or judicial base for coping with a larger number of asylum procedures.
Some of Germany's neighbour-states have already reacted to the new German practice by in their turn concluding return agreements with their respective neighbours: Poland with Bulgaria, Slovakia, Czechia, Austria, Romania and the Ukraina; Slovakia with Czechia, Poland, Romania and the Ukraina.
Rough justice at airports
90% of asylum seekers travel to Germany by land. Yet, since the introduction of the "safe country" regulations, their chance to have their application at least examined, is practically nill. Refugees who can afford the necessary costs, time and travel organisation therefore now enter Germany by plane. Accordingly, authorities are concentrating the bulk of deterrance on international airports.
The refugee trying to board a flight to Germany, will often bump into officers of the Bundesgrenzschutz (BGS: the German border protection forces) already at the airport of departure, where they act as "advisors of the airline-companies".
According to the BGS' own reports, such officers are on duty in cities such as Moscow, Manila, Singapore, Kuala Lumpur, New Delhi, Istanbul, Riga and Lagos. During "refugee-suspect" flights, passport checks sometimes even occur during the flight. Upon arrival in Frankfurt international airport, suspect planes are parked far away from the gates. BGS-officers board the isolated plane and carry out their "forefield-control". The officers' behaviour against suspect passengers is often rude, threatening and humiliating. Yet it is to them, an asylum seeker must present his application the first time.
An interpretor working for the BGS in Hamburg sarcastically talks about a new auditionary defect among border protection officers, who no longer are able to hear the word "asylum". Thus refugees simply stay on the plane. Should a refugee nonetheless succeed in convincing a BGS-officer about his distress, this will only mark the beginning of the procedure prior to the procedure, i.e. the battle for mere entry, the battle for the grace of being accomodated under miserable conditions and to pursue an asylum procedure with an uncertain end. Persons lacking a valid travel document or coming from a country classified as a "safe country of origin" (at the moment: Bulgaria, Gambia, Ghana, Poland, Romania, Senegal, Slovakia, Czechia, Hungary) are denied entry at once. Instead, they are detained in a highly guarded prison-like building on the airport area. Within the very next days he will be interrogated: Refugee, beware! Tell everything, even the most intimate details of torture. Because you will have no more occasion to complete your story later - in front of a court, for instance. Such is the new regulation called the "preclusion provision" in German bureaucratic language. Within three days the Federal Office for Refugees will make a decision. Three days later, the asylum seeker's lawyer must have appealed the decision with an administrative court. The judges will make their decision within 14 days.
Considering these circumstances - who can manage to get excited about regular searches on refugees, about their routine submission to criminal identification, about the the sheerly unrestrained electronic storage of their personal data?
Who will put through the demand for the protection of Croatians from deportation? Who will protect Kurds from being returned to Turkey? Who is still able to notice that, since 1 November a new law effectively excludes a considerable number of refugees from social security, an institution once set up in order to assure every person's right to a life in human dignity, in the words of the legislator.
Indeed, refugees are the first group of persons who are being excluded from the constitutional guarantee of human dignity. No need then to underline that, meanwhile, the very last public servant around the country - if he is not a deliberate supporter of refugees (such officials exist too) - has grasped what he is expected to do: chicane refugees - within and beyond the boundaries of law.
Felix Schneider
Contact: Felix Schneider, Schubert Str. 26, Frankfurt a.M., FRG, Tel: +49/69 745526