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efms Migration Report

March 2004

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EU Council of Ministers reaches agreement on recognition of refugees

At a Council meeting in Brussels, EU interior and justice ministers have reached an agreement on common EU regulations concerning the recognition of refugees. The agreement marks an important step towards harmonising European asylum law. The respective EU directive is to be passed April.

The directive comprises minimum standards for the recognition of refugees and other migrants that are in need of protection, including regulations on so-called "subsidiary protection", i.e. a status of protection for those who need international protection but are not recognized as refugees according to the criteria of the Geneva Convention on Refugees. In addition, the directive also contains common minimum standards for refugee entitlements. However, ministers have agreed that most questions concerning the access to the labour market and social security systems will continue to remain under national authority.

Reaching an agreement on this so-called "recognition directive" has become possible after Otto Schily (SPD), the German Interior Federal Minister, had struck a compromise with German opposition parties, resulting in a general acceptance of the EU draft directive as a basis for the planned reform of German migration law. In effect, this would also entail the recognition of refugees who have been victims of non-governmental and gender-specific persecution.

Concerning the directive on common minimum standards for asylum procedure, EU ministers have once again failed to reach an agreement the sticking point continuing to be the notion of safe third countries. The UK government has expressed reservations concerning proposals for the definition and the underlining defining criteria of such safe third countries. Moreover, the Council continues to debate the implementation of the third-country concept in asylum law, and ministers have also expressed varying views on whether rejected asylum seekers should be granted residence entitlements until their cases have been reviewed by appeal bodies and finally decided upon. The Irish government, which is currently presiding the EU Council, has presented proposals, according to which rejected applicants would - under certain conditions - not be granted residence entitlements until their cases have finally been decided upon.

Meanwhile, those proposals and the concept of safe third countries have criticised by European human rights organisations and the UNHCR arguing that those regulations could even endanger the life of some rejected asylum seekers. Ruud Lubbers, the UN-Commissioner for Refugees, has also pointed out that the EU would set a "negative example" within the international community if it were to implement the proposals on asylum procedure. According to Mr. Lubbers, the new regulations pose the threat of "eroding the global asylum system".

An agreement on the planned asylum procedure directive would also have a major impact on the future harmonisation of European asylum law. If the Council of Ministers passes the directive prior to May 1, 2004, all future Council decisions on asylum policy would no longer be taken unanimously, in accordance with the current practice, but by a qualified-majority vote. As it will be extremely difficult to reach unanimity in the Council once the ten accession states have become EU members (resulting in an enlarged Council consisting of 25 ministers), the Irish EU presidency is urging Council members to pass the directive according to schedule, i.e. before May 1.
FR 30.03.04 // Press statement BMI 30.03.04 // SZ 30.03.04 // FR 31.03.04 // NZZ 31.03.04 // Press UNHCR 31.03.04

Talks on migration reform receive impetus from agreement on labour migration

The working group set up by the parliamentary conference committee in order to find a compromise between government and opposition parties on the planned reform of German migration law has been able to reach a compromise on several key points.

Concerning labour migration, negotiators have finally agreed to scrap legislative proposals that would allow labour migrants to enter Germany without having obtained an employment contract beforehand. However, labour market access is to be improved for entrepreneurs and highly qualified specialists from non-EU countries. Similarly, labour access restrictions for migrant labour with intermediate qualifications are to be eased, provided that they have obtained an employment contract for a position that cannot be filled by applicants from Germany or other EU member states - including nationals of EU accession countries. However, the general recruitment ban is to be upheld for low-skilled foreign labour forces.

At present, it also seems likely that the age up to which children of non-German residents are allowed to join their parents in Germany will remain unchanged. In contrast to government proposals, which had set out to lower the age limit to twelve years, negotiators have agreed to maintain the current age limit of 16 years. Furthermore, negotiators have in principle agreed to set up state commissions for hardship cases, which are to resolve cases where the expulsion or deportation of non-German residents would lead to particular hardship.

Concerning the protection of refugees for humanitarian reasons, government and opposition parties have still been unable to reach a compromise on legislative details, even though both sides have agreed to accept EU proposals for a directive on the recognition of refugees as the basis for national German legislation. Another sticking point continues to be the funding for the planned additional integration measures.

Following the terrorist attacks in Madrid on March 11, questions of national security have come to the forefront of negotiations on migration reform. Leading representatives of CDU and CSU, the main opposition parties, have demanded that the new migration law should comprise additional security measures, in particular provisions that would allow authorities to immediately expel foreign nationals who are suspected of being involved in terrorist activities. Notwithstanding the fact that the chief negotiators of the governing parties, Volker Beck (Greens) and Dieter Wiefelspütz (SPD), have rejected all proposals that would allow expulsions or deportations based on mere suspicions, Federal Interior Minister Otto Schily (SPD) has called for removing restrictions on expulsions in cases where a "fact-based risk prognosis" can be made.

In a related issue, representatives of the red-green governing parties have agreed to stream-line appeal procedures for foreign residents that are to be expelled. Under their proposals, foreign residents who have received expulsion orders will in future have to appeal directly to the Federal Administrative Court, effectively shortening appeal entitlements to one instance only and thus stream-lining appeal procedures. In cases where deportations cannot be carried out, due to the fact that the foreign residents concerned face torture or the death penalty in their home country, government and opposition proposals have called for stricter registration rules and, in some cases, even preventive detention.
SZ 10.03.04 // Welt 10.03.04 // FR 13.03.04 // Welt 13.03.04 // FR 16.03.04 // FR 20.03.04 // FTD 22.03.04 // Welt 23.03.04 // Welt 25.03.04 // Welt 26.03.04 // Welt 27.03.04 // taz 29.03.04 // Handelsblatt 31.03.04

Deportations of Kosovo-Albanians temporarily suspended

According to an announcement of the Federal Interior Ministry, state governments of the German Länder have agreed to temporarily suspend deportations of Kosovo-Albanians, in response to the latest escalation of violence and the resulting instable security situation in the province. Prior to this decision, deportation procedures had only been suspended for Kosovo refugees who are members of Romany or Serbian ethnic minority groups.

The UN administration in Kosovo had informed German authorities that, for the time being, it would not accept any repatriations of Kosovo refugees carried out irrespective of their ethnic origin. In the same vein, the UNHCR has repeatedly called on the world community to grant international protection to refugees from Kosovo who are members of ethnic minority groups.
Press statement UNHCR 18.03.04 // FTD 30.03.04 // Handelsblatt 30.03.04

Upper Administrative Court grants residence title to second wife of Iraqi refugee

The Upper Administrative Court of Koblenz (Rhineland-Palatinate) has granted a residence title to the second wife of a recognised Iraqi refugee. When the claimant entered Germany in 1999, together with her husband and his first wife, authorities in Ludwigsburg had refused to grant her more than a so-called toleration certificate, stating that, under German foreign-resident law, only one wife can be recognised as the legal spouse of a resident.

When the second wife appealed against this administrative decision, her appeal was first rejected by the local administrative court, but has now been upheld by the upper administrative court (OVG). The OVG has ruled that the woman is entitled to a residence authorisation. Even though the court has conceded that second wives are not protected by the so-called spouse privilege of German law, it has still decided that, in view of the fact that the woman has been living in a marital relationship with her husband for years, it would be inadmissible to expel her to Iraq (Ref: 10 A 11717/03.OVG)
FAZ 13.03.04 // NZ 30.03.04 // taz 30.03.04

Federal Constitutional Court has upheld place-of-residence allocation for Spätaussiedler

The Karlsruhe-based Federal Constitutional Court has ruled that the administrative practice of allocating a certain place of residence to Spätaussiedler (ethnic German immigrants) is in accordance with German law, stating that respective regulations in the German residence law are constitutional. The Place-of-Residence Allocation Act (Wohnortzuweisungsgesetz) stipulates that ethnic German immigrants who have just entered Germany can be allocated a certain place of residence for the first three years of residence. If they move to another place of residence during that period, they will forfeit welfare entitlements.

In the underlying case, a 57-year old ethnic German immigrant and her 25-year old son had submitted a constitutional appeal against these regulations, claiming that they have been discriminated against, as other welfare recipients are entitled to choose their place of residence without any restrictions. The claimants argued that the practice violates their constitutional right to free movement.

Judges at the Karlsruhe court have conceded that the practice of residence allocation "infringes considerably" on the constitutional right to free movement. However, they have also emphasised that this infringement is counterbalanced by a "significant public interest", as the place-of-residence allocation for newly arriving Spätaussiedler has prevented "residence concentrations" of ethnic German immigrants in certain areas. The practice has thus contributed to a fair division of the ensuing expenses (e.g. for welfare payments and integration measures) among local authorities.

The court has also pointed out that the practice of residence allocation fosters the integration of Spätaussiedler into German society and thus, according to presiding judge Hans-Jürgen Papier, eventually furthers the interests of the people concerned. The judges have at the same time called on legislators to pass hardship regulations allowing ethnic German immigrants to change their place of residence under certain conditions (BVerfG, 1 BvR 1266/00).

Jochen Welt (SPD), the Federal Government Commissioner for Aussiedler Affairs, has welcomed the court ruling, and expressed his intention to present a draft for hardship regulations, as demanded by the court.
FR 18.03.04 // NZ 18.03.04 // taz 18.03.04

Asylum statistics

In March 2004, a total of 3,411 people have submitted a petition for political asylum in Germany, an increase by 422 applicants (+14.1 %) over last month. Compared to March 2003, the number of asylum applicants has decreased by 918 people (- 21.2 %). During the first three months of 2004, asylum figures have fallen by 31.9 % ( - 4,756), compared to the same period last year.

In March 2004, applicants' main countries of origin were Turkey (418), Serbia and Montenegro (383), the Russian Federation (209), Vietnam (148) and Slovakia (144). One striking fact has been the tripling of asylum applications submitted by nationals of Slovakia. Afghanistan and Iran, on the other hand, were no long among the ten main countries of origin.

The Federal Office for the Recognition of Foreign Refugees has decided on the applications of 6,830 people during March 2004, 118 of whom (1.7 %) have been recognised as entitled to political asylum. A further 144 applicants (2.2 %) have been granted protection against deportation according to §51 Par.1 Foreigners Act (AuslG). The applications of 4,343 (63.6 %) asylum seekers have been rejected, and a further 2,225 cases (32.6 %) have been closed for other reasons (e.g. because applicants have withdrawn their petition).
BMI Press statement 05.04.04

March 2004

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