Entitlement to asylum , Date: 2023.06.22, format: Article, area: Asylum and refugee protection

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Accordingly, persons who would be subject to a serious human rights violation should they return to their country of origin are entitled to asylum and deemed to have been persecuted on political grounds because of their

  • race (The term "race" is used in accordance with the wording of the Geneva Refugee Convention.)
  • nationality,
  • political opinion,
  • fundamental religious conviction, or
  • membership of a particular social group (A group may also be regarded as a specific social group on the basis of the joint characteristic of sexual orientation.)

without having an alternative of refuge within the country of origin or other possibility of protection against persecution.

Background information

In accordance with Article 16a of the Basic Law (Grundgesetz – GG) of the Federal Republic of Germany, persons persecuted on political grounds have the right of asylum. The right of asylum has constitutional status as a fundamental right in Germany. At its core, it serves to protect human dignity, but it also protects life, physical integrity, freedom and other fundamental human rights. It is the only fundamental right to which only foreigners are entitled.

All negative state activity – even if it is related to one of the personal characteristics mentioned above – does not necessarily constitute persecution that is relevant to asylum. Rather, it must firstly constitute a deliberate violation of legal interests whilst, secondly, it must be intended in terms of its intensity to marginalise those concerned from the community. Finally, it must be a measure which is so grievous as to be in breach of human dignity and go beyond what residents of the country in question otherwise have to tolerate.

As a matter of principle, only state persecution is considered, that is persecution emanating from the State. Exceptions apply if non-state persecution can be attributed to the State, or if non-state persecution itself has come to replace the State (quasi-state persecution).

Emergency situations such as poverty, civil wars, natural disasters or a lack of prospects are therefore ruled out as a matter of principle as reasons for granting asylum in accordance with Article 16a of the Basic Law (GG).

Safe third countries

Recognition of entitlement to asylum is ruled out if an individual enters from a safe third country. This also applies if it is impossible to return them to this third country, for instance because the country is not specifically named due to a lack of appropriate information provided by the asylum applicant. The German Asylum Act (Asylgesetz) defines the Member States of the European Union, as well as Norway and Switzerland, as safe third countries.

Reasons for not qualifying for protection

An entitlement to protection with regard to the three forms of protection mentioned above – entitlement to asylum, refugee protection and subsidiary protection – cannot be considered if reasons for not qualifying apply. This may be the case if:

  • an individual has committed a war crime, a crime against peace or against humaity,
  • a serious (non-political) criminal offence
  • has breached the goals and principles of the United Nations,
  • is to be regarded as a risk to the security of the Federal Republic of Germany, or
  • constitutes a danger to the public because he/she has been finally sentenced to at least three years' imprisonment (one year under certain preconditions) for a felony (Verbrechen) or a particularly serious misdemeanour (Vergehen).

The legal basis and consequences

  • residence permit for three years
  • A settlement permit may be issued after five years if the requisite preconditions are met. This period is reduced to three years if the applicant has a knowledge of German (level C1 of the Common European Framework of Reference for Languages) and is largely able to make a secure living.
  • unrestricted access to the labour market – gainful employment permitted
  • entitled to privileged family reunification

Article 16a para. 1 of the Basic Law

Section 2 subsection (1) of the Asylum Act

Section 25 subsections (1) to (3) of the Residence Act

Section 26 of the Residence Act