Major asylum (Großes Asyl)§ 53 of the Aliens Act (Ausländergesetz)
§ 32 a of the Aliens Act (Ausländergesetz)
Article 16 a l of the Basic Constitutional Law: 'The politically persecuted have the right to asylum.'
The first precondition of the granting of major asylum (Großes Asyl) is that the refugee fled his/her country because (s)he was under the 'imminent risk of suffering, or suffered, political persecution'. These grounds must also be the motive for the refugee to have fled. If the persecution already occurred some time ago, then only minor asylum (Kleines Asyl) will be considered. When this decision is made the grounds for persecution must still be extant.
A further precondition is that the refugee 'is a target of state persecution'. Political persecution is for example not the case when the state structures of the country no longer exist, or during a state of civil war. Such would be for example presumed for Afghanistan at present. The power of persecution (Verfolgungsmächtigkeit) of the state is said to be absent. Persecution through a third party may be recognised if the state were to be, in principle, capable of preventing the persecution but fails to do so.
'Political persecution' (Politische Verfolgung) exists when the persecution takes place as a consequence of 'race', religion, nationality, of a certain social group, or on grounds of political conviction. Borderline cases are persecution of ones' sexual orientation or ones' gender, and of conscientious objection or desertion. General methods of oppression of the people of a totalitarian state do not inveigle the right to asylum.
'Persecution of a group' (Gruppenverfolgung) exists when a member of a certain group is under threat of persecution. The individual in such a case has not actually had to suffer persecution. Persecution of a group is nevertheless seldom conferred, since otherwise (from the point of view of the state) too many individuals would have to be granted asylum.
If the refugee has the so-called 'inländische Fluchtalternative', the alternative of fleeing within his/her country's borders, then there is no possibility of being recognised as a rightful claimant to asylum (in this way, for example, Western Turkey is often presupposed as an 'inländische Fluchtalternative' for Kurds). The same is true if the refugee has already found refuge elsewhere, that is; previously resided in a so-called safe third country (Safe third countries are all member states of the European Union (Belgium, Denmark, Greece, Spain, France, Ireland, Italy, Luxembourg, The Netherlands, Austria, Portugal, Finland, Sweden, Great Britain) as well as Norway, Poland, Switzerland and The Czech Republic).
Attached to the granting of major asylum is a legally assured residence status (Aufenthaltserlaubnis) in the FRG, as well as the issuance of a travel permit and visa-exception within the European Union. Language courses of six to eight months duration are offered. With regard to work permits and social benefits, legitimate claimants to the right of asylum have the same rights as Germans.
Subsequent inclusion of relatives (Familiennachzug) for next of kin (spouse and under-age children) is possible.
§ 51 I of the Aliens Act (Ausländergesetz): 'Deportation is inadmissible if the threat of persecution exists.'
If the refugee is not recognised as a legitimate claimant to asylum under § 16 a l of the Basic Constitutional Law, the Bundesamt must examine whether protection from deportation (Abschiebeschutz).
The interpretation of this paragraph is contentious. It is applied for example if the refugee can present grounds for asylum which occurred after (s)he fled. These for example could be political activities which were initiated in Germany and are not connected with an active political conviction in the homeland, but that could now lead to political persecution in the event of deportation.
The refugee receives the status of refugee in accordance with the Geneva Convention. This includes an authorisation of residence (Aufenthaltsbefugnis), and if the refugee does not have a valid passport then (s)he receives a refugee-passport (Flüchtlingspaß).
In regard to a work permit (Arbeitserlaubnis), the 'convention-refugees' enjoy the same status as Germans. Subsequent inclusion of next of kin (spouse and under-age children) is possible.
If neither major nor minor asylum is granted the Bundesamt must examine whether any obstacles to deportation exist under § 53 of the Aliens Act ('Protection from deportation by threat of treatment contrary to human rights').
'An alien may not be deported to a state in which an actual threat of torture exists.' In such a case it must be proved that the threat of torture actually exists to the individual. The argumentation that a certain ethnic group is generally threatened by torture is insufficient.
'An alien may not be deported to a state in which (s)he is wanted for a crime and the threat of execution exists. In such cases the rules concerning deportation are applied accordingly.' With regard to the regulations governing deportation, it may only then take place if the native state stipulates that a sentence of death will not be applied.
'An alien may not be deported to a state which, according to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 would render the deportation inadmissible'. The European Convention for the Protection of Human Rights and Fundamental Freedoms corresponds in the main to the fundamental rights regulations of article 1 and 2 I of the Basic Constitutional Law. Any treatment contrary to human rights is proscribed. None of the German authorities may participate in the expulsion of an individual to a state which practices persecution. In such a case a toleration of stay (Duldung) must be granted. In practice this provision is hardly ever applied.
'Through the deportation of an alien to another state it may be foreseen whether a considerable actual threat exists to life and limb, or freedom...!'
In accordance with § 32 a of the Aliens Act, war and civil war refugees may obtain a provisional authorisation of residence (Aufenthaltsbefugnis). This regulation is not valid in general for all civil war refugees but only for groups of refugees to which the German federal government and the German state governments agree upon. At present a civil war regulation does not exist in this sense. (Only a de-facto civil war regulation exists for Bosnians, which means they may temporarily stay in the FRG on humanitary grounds).
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