The legal situation in Germany
Information about the legal situation of chechen refugees coming to Germany
05.Jan.02 - Information about the legal situation of chechen refugees coming to Germany
A) Asylum procedure
The asylum law is subject to special rules of procedure, laid down in the Asylum Procedure Act. The Federal Office for the Recognition of Foreign Refugees decides on asylum applications and obstacles to deportation. The officers of the Federal Office are not bound to instructions. For this reason there might be different decisions in similar cases.
A request for asylum can be filed at the branch offices of the Federal Office, at the Police or the border police or at the aliens authority. If the request is made at the border police, the applicant will be refused, if he enters from a "safe third country" (see below) without having a visa for Germany or a Schengen-visa. After filing the request for asylum, the procedure starts. A request for asylum has been made, if "it can be drawn from the alien's written, oral or otherwise expressed desire, that he is seeking protection from political persecution or that he requests protection from deportation or other return to a state where he would be subject to the threats defined in the Geneva Convention on Refugees".
If the request ist filed at the police or the aliens authority the applicant will be sent to the next branch office of the Federal Office to file the formal application for asylum. This must happen immediately, otherwise the permission to stay in Germany expires after two weeks. There is no possibility to choose, which branch office shall be competent. If you are interested to live in a certain region or that a certain branch office or court decides about your application, we advise you to apply directly at this branch office, although there is no guarantee, that you can stay there.
After arriving at the branch office, the formal procedures start. You will be asked for identification papers and documents, your personal data and fingerprints will be taken, you will be asked, which languages you speak and you will be given a sleeping-place at the reception center. If you have no papers, your asylum application will nevertheless be received and you don not have to fear to get arrested and deported, if you cannot identify.
After some days you will be given a date for the hearing at the Federal Office. This hearing is the central and most important part of the asylum procedure as far as the authority is concerned. The Federal Office's decision is to a great etent founded on this hearing. The refugee can be accompanied by an attorney or by another personen providing support. The Federal Office will invite an interpretor in one of the languages you mentioned to speak but you have the legal possibility to bring your own interpretor.
If you have proofs for the events, which made you leave the country, bring them with you. You can also bring witnesses as proof for your persecution.
Women and traumatized refugees can ask for a specially trained officer resp. a female officer.
Unfortunately many refugees are not aware of the great significance of the hearing. It is the most important opportunity to explain the reasons for the flight and if no complete and detailed information is recorded there, there is hardly a chance for cure, as also the courts will refer to the record of the first hearing. So it is vital to give all details and to insist, that every detail is taken down in the record. Otherwise details later presented at court will be dismissed as "enhanced argument".
If possible, you should contact a support group or a lawyer before you attend the hearing.
Normally the hearing will begin with questions about the personal data, the family, the profession. These questions seem quite trivial, but it is important to answer precisely, as alreay slight contradictions can make you seem unreliable. Then the Federal Office will focus on the itinerary of coming to Germany. Firstly this has the aim of proving, that the refugee has entered Germany via a safe third country (see below). Secondly, the questioning of the itinerary has the function to find reasons in order to present the refugee as unreliable. If you have entered Germany with a passeport from someone you know, it is better to tell this and refuse to give the name of this person than to tell an unbelievable story. If you have come with a visa, be aware that all visa issued by the German embassies are recorded and the other Schengen countries are obliged to give information about the issue of a visa, if they are asked.
After the hearing you have the immediate opportunity to correct or complete the record. Don't sign, if the record is not re-translated to you word by word. Normally the Federal Office will send you the protocol of the hearing before the decision is being made. It is important to control the protocol again. Often there are mistakes in the protocol, because details were misunderstood by the officer or the interpretor ore data are written down wrong. Try to find someone to translate sentence by sentence and don't hesitate to write a letter to the Federal Office if something is wrong, even if you consider it not important. You don't know, what is important and what is not and as the consequences can be very hard.
The Federal Office is responsible for alle obstacles to deportation regarding the home country. If you or your children suffer from a serious sickness, it is important to mention.
B) "Safe third country clause" and Dublin Treaty
Like most other european states Germany does not feel responsible for the asylum application, if the refugee could have claimed for asylum in a safe third country on the way to Germany. The exception is, that the refugee posesses a visa issued by the german embassy or the very close familiy members already have been given asylum before. This would make Germany responsible for the asylum procedure. All countries neighboring Germany are considered safe third countries. This means, that it is not possible to ask for asylum at the border if you travel on the land. Refugees have to enter the country illegally before asking for asylum. If the refugee asks for asylum some days after entering Germany illegally there will be no negative consequences such as arrest. If someone is controlled by the police without papers it is still possible to ask for asylum but it is important to insist, that you have been in Germany not longer than some days. Be careful that they do not find any proof, that you have been in Germany illegally for a longer time. If the police or other German authorities find any proofs, such as tickets, receipts, registration forms, residence permit or if you tell, that you came to Germany from Poland or the Czech Republic, they would try to send you there. If you passed a country of the European Union or if you entered Germany with a visa, issued by the embassy of another EU-country, this country is by the Dublin Treaty responsible for your asylum claim and Germany can send you there. If you want to have your asylum procedure in Germany but entered with a visa from another EU-country, please contact a lawyer or a local refugee support group to give advice, what can be done.
C) Asylum law
1.) The German law differentiates between the asylum status according to Art. 16 a of the German constitution and the refugee status by the Geneva Convention on refugees, transferred into german national law by ß 51 Abs. 1 of the Aliens Act. The asylum status is given only to those, who entered Germany legally with a visa by a german embassy or those, who have entered Germany directly from the country of origin or a country not considered a safe country (Ukraine, Georgia, etc.) with plane or ship. Those, who arrive by plane and ask for asylum at the border police at the airprt, have to go through the horrible "airport procedure" with a very high danger of immediate deportation and very bad circumstances. We cannot recommend it to anybody. If you arrive by plane and manage to pass the controls to avoid the airport procedure, you will have to prove, that you came by plane. So keep tickets or at least know the name, you used, the flight number and the time of departure. Then the Federal Offivce or the court can ask the airline, whether you have been on board.
2.) The asylum status according to Art. 16 a GG and the refugee status according to the Geneva convention on refugees (as it is handled in Germany) refer to "political persecution". Firstly, political persecution means persecution of the state or government-like organisations. Persecution by third persons can be considered as political persecution only, if the state refuses protection. Secondly, persecution is only political persecution, if the persecution follows from the affiliation with a race, religion, nationality or a particular social group or a political opinion. Persecution for reasons of public order, criminal procedures or moral are normally not considered as political persecution, as long as there is no additional punishment or mistreatment for the above mentioned political reasons, such as nationality or political opinion. If you were persecuted not by the government, but by some "private" persecutor, this can be an obstacle to deportation, if you could not find shelter.
3.) Thirdly, the persecution must be relevant in terms of asylum. An intervention relevant in terms of asylum occurs, when an act of persecution violates or endangers the most important objects of legal protection, such as life and limb or personal freedom. This danger or violation must be so intensive, that there is no other way out than leaving the country. Discrimination, harassment and disadvantages in employment, housing, education etc are normally not enough.
4) At fourth, a prognosis of further persecution will be made. The German law requires a probability of persecution at the time of decision about the asylum claim. This can be months or - in the case of juridical proceedings - years after the persecution has taken place and there might be many changes in the political situation. If the officer of the Federal office or the court believes, that someone has been persecuted individually, asylum can be denied only, if a recurrance of persecution measures in case of return can be ruled out with sufficiant probability. If the refugee has not been subject to individual persecution but has fled the country for reasons of group persecution, which might have affected him if staying in the country, the refugee status will only be granted, if there is a "considerable probability" of persecution in case of return.
5) Fifth, the refugee and the asylum status are only granted, if there is no "internal flight alternative", i.e. a possibility of living within the country. This is of specific importance for Chechen refugees. Chechens are considered as Russian citizens with the constitutional right to settle down in the whole Russian Federation. So some courts decide, that the persecution of the chechens is only regional persecution limited to Chechnya and that it is possible for chechen refugees to settle down at other places in the Russian Federation.
The "internal flight alternative"
According to the judgements of the high court a place can be considered as an internal flight alternative, if the refugee is safe from political persecution and if he does not have to suffer similar serious dangers, such as danger of starving, living under the subsistance level, high mortality due to insufficient medical care or if there is for instance only the possibility to live in tents or ruins, if this danger would not have been the same in the place of origin. This means, that if you have moved from Chechnya to another place in the russian federation before coming to Germany you will be asked, why you did not stay there. If you suffered persecution also at this place, it is clearly no flight alternative. If you stress to the unbearable situation at the place, where you found the first shelter from persecution, you will have to explain, that your personal situation in the place of origin was better, before you had to flee.
This is the main problem for the chechen refugees coming to Germany and other western european countries. There are some cases pending at the high courts to clarify the situation of chechen refugees in other parts of the Russian federation, especially Moskow and St. Petersburg.
Until now the court of Schleswig-Holstein does not consider Moskow and other parts of Russia as safe places, if somebody already suffered persecution personally. Schleswig-Holstein seems to be the best place for chechen refugees in Germany to apply f¸r asylum. The Federal Office still grants asylum in many cases and those, who have been rejected, have a good chance to win at the administrative court. Of course there are exceptions: if a refugee states, that he had been living in other parts of Russia or abroad already for a long time and has never suffered persecution, he would not be accepted as a refugee.
The refugee council of Schleswig-Holstein is well informed about the legal situation and they can give you the name of a lawyer, who is specialised in asylum cases from chechens and other caucasian refugees.
D) Judicial proceedings
Same weeks after the hearing at the Federal Office you will receive the decision. There are some possible decions:
- you could be given asylum or refugee status
- the Federal Office could state obstacles to deportation
- the asylum claim could be rejected
- the deportation to a safe third country could be ordered.
- the asylum claim could be rejected as "manifestly unfounded"
The last case is worst, because the action at court against the decision has to be filed within one week and an additional application for the suspensive effect of the action has also to be filed. If this application is rejected, one has to leave Germany within one week.
If the asylum claim is rejected only as "unfounded", the action at court has to be filed within two weeks. If you are not sure, if the deadline is missed, you should go to a lawyer immediately. During the court proceedings the asylum seeker is allowed to stay in Germany. It is important to submit new facts or new evidence (documents, witnesses) to the court before the hearing at the court is scheduled, as the court should have the possibiliy to prepare the hearing carefully. After some months (or years) the case will be heard at the court. Normally there is only one judge and he will ask you to tell him again, why you left and asked for asylum in Germany. The judge might ask tricky questions to evoke contradictions. Stay calm and don't let yourself be involved in speculations, why things happened in this or that way, and why the persecutors acted in the way they did. Judges love these kind of questions because they can make you look untrustworthy. It is important to be wellprepared and to read the record of the hearing at the federal office some days in advance. Even if you think, that you still know everything there might be some things you forgot. Be aware, that slight contradictions may make the judge distrusting you. If you have proofs, it is important to bring them now, as it is the last opportunity.
If the court rejects the action, there is the possibility of filing an application for admission of appeal within two weeks after the written judgement has been served. The application has to be filed by a lawyer. The chances of success are very small, but while the duration of the proceedings at the high court it is possible to stay in Germany and try to look for another solution.
E) Social situation
During the asylum and the judicial proceedings the asylum-seekers get housing and social benefits. The first weeks the asylum-seekers have to live in the reception center and are later distributed throughout the country and get accomodation in a common refugee lodging. Many of these lodgings are quite bad and sometimes four people share on room. One family usually gets one or two rooms. During the proceedings it is forbidden to move and for leaving the region of living the refugees need a permission.
The asylum-seekers get social benefits. In some German countries they get food packages and pocket money. In other countries the asylum-seekers get vouchers or a chip card with a credit. After one year the asylum-seekers are allowed to work in jobs, which people with a privileged status do not want. Self-employment is not allowed. Children can go to public schools and kindergarten.
After granting asylum or refugee status, higher social benefits and allowance for children will be paid and the permission to work at every working-place is given.