FECL 44 (June 1996):
PRO ASYL recently obtained documents proving that the German Border Protection force, BGS (Bundesgrenzschutz), communicated the identities of a group of Afghan asylum seekers to the Afghan embassy in order to obtain substitute travel documents enabling the deportation of the refugees. This happened five months before the Federal Office for the Recognition of Refugees (BAFl) decided upon their applications.
In its request to the Afghan embassy, the BGS wrote that the asylum seekers in question were "illegally" staying in Germany. A spokesman for PRO ASYL, Heiko Kaufmann, said this was an obviously incorrect statement, since asylum seekers have a right to stay in the country pending a decision on their application. Mr Kaufmann further made it clear that German asylum law prohibits the communication of personal data of asylum seekers to the authorities of potential countries of persecution while their applications are being examined.
For its part, the Federal Office for the Recognition of Refugees, BAFl, stated that the BGS may hand out documents of asylum seekers to their respective embassies only once a rejection of their application is "foreseeable". Mr Kaufmann said this was merely an attempt to put all the blame on the Border Protection, since the BAFl instructed the BGS to provide travel documents for the asylum seekers in question already 5 months before the BGS actually contacted the Afghan embassy.
PRO ASYL argues that these procedures are making refugees into potential targets of the secret services of their home country and amounts to a violation of a fundamental element of asylum law - the secrecy of the asylum procedure. Moreover, the practice of cooperation with foreign embassies endangers family members remaining in the country of origin. According to PRO ASYL, persecution on the mere ground of kinship is widespread in Afghanistan. The NGO also said there was evidence indicating that the case of the Afghan refugees was not an isolated incident but revealed a routine practice of the BGS.
As a consequence, PRO ASYL demands that the Home Affairs Committee of the Federal Parliament examine the proceedings of the BGS.
Source: PRO ASYL, press release, Frankfurt/M, 5.6.96.
The Hessen Administrative Court ruled on 21 May that refugees from Somalia are not eligible for asylum in Germany. In a country lacking executive state organs, there can be no political persecution, the Court found. It argued that the local and regional clans ruling in Somalia could be characterised as "pre-state, but not state-like power holders".
Commenting on the judgement, PRO ASYL stressed that political persecution and human rights violations are characteristic precisely of civil war situations and that the jurisdiction of the Hessen Court amounts to an "attack against the Geneva Convention on Refugees". The Convention does not limit refugee status to merely victims of state sponsored prosecution.
The Hessen judgement confirms a growing trend in Germany to "define out" ever more refugees from the right to asylum. In earlier decisions by administrative courts, Afghan and Tamil asylum seekers were denied asylum on the same grounds as the Somalis in Hessen.
The German judiciary's restrictive interpretation of "persecution" according to the Convention is in line with the "Joint Position on a Common definition of the Term `Refugee'" adopted by the EU Justice and Home Affairs (JHA) Ministers in November 1995. Under the Joint Position, persecution by other parties than state authorities shall be considered only when it is "encouraged and authorised" by the public authorities. As a consequence, victims of persecution in countries where their are no public authorities according to the assessment of EU-member states, are not eligible for asylum.
France and Germany where among the strongest advocates of including this restrictive interpretation in the Joint Position which was adopted despite massive protests of the UNHCR.
The new jurisdiction results in ever more civil war refugees living in Germany only with short-time "tolerance" permits. The ensuing situation of constant uncertainty deprives them of any possibility to plan for their future, PRO ASYL holds.
Source: PRO ASYL, press release, Frankfurt/M, 22.5.96. On Joint Position, see also FECL No.39: "JOINT POSITION ON A COMMON DEFINITION OF THE TERM 'REFUGEE'".