Failing the Test: Germany Leads Europe in Dismantling Refugee Protection

"It was in Europe that the institution of refugee protection was born, and it is in Europe today that the adequacy of that system is being tested." Sadako Ogata, U.N. High Commissioner for Refugees1 I. INTRODUCTION Prior to 1993 Germany's constitutional guarantee was elegant in its simplicity: "Persons persecuted on political grounds shall enjoy the right of asylum."2 The difficulty that refugees from the Nazi regime had in obtaining asylum elsewhere was a fresh memory when Germany's postwar constitution opened German borders to those persecuted around the world. Adopted in the shadow of the death camps, this provision of the Basic Law of the Federal Republic of Germany protected refugees who entered Germany for close to half a century. Pursuant to this constitution, more than a million refugees sought asylum in Germany, a land from which so many fled in the 1930s and 1940s. The postwar era of refugee protection ended in Germany in July 1993, in large part, because the rest of Europe-particularly the European Union (EU) countries-failed to act. The EU watched the atmosphere of crisis grow as more than two million refugees and asylum-seekers sought protection in Europe during the prior decade. The EU failed to mount any joint efforts to assist member states in coping with asylum-seekers. The fifteen countries of the European Union were content to let one country shoulder the lion's share of the burden.3 Germany, by itself, had been receiving fifty percent of the applicants for asylum in Europe and the proportion seemed to be growing. 4 In response, Germany developed an elaborate social structure to house and feed asylum-seekers and a voluminous and sophisticated jurisprudence concerning asylum. Developments in Germany were monitored in other European capitals, but EU assistance to Germany was not forthcoming. As the country with the most at stake, Germany decided in 1993 to act unilaterally to halt the flow of refugees and asylum-seekers. This action by Germany, the bellwether of refugee law and policy in Europe in the last decades of the twentieth century, bodes ill for the institution of asylum throughout Europe. Many of the EU countries are watching Germany's new laws to see which restrictive measures prove effective and can be adapted for use back home. For example, the United Kingdom enacted a new asylum law in early 2000 that patterns social benefits for asylumseekers on restrictive measures adopted earlier by Germany,5 and is currently adopting the German policy of refusing to consider claims submitted by asylum-seekers who crossed other EU countries before they submitted their asylum applications.6 In the Netherlands, pending legislation would add to the refugee procedure the German rule that rejects asylum claims from nationals of countries that have ratified the international refugee convention.7 Other European countries, mainly to the east, are watching Germany's new laws to see how many asylum-seekers they shift to neighboring countries with less developed infrastructures and legal systems.8 Indeed, Ukraine is considering amending its refugee law in 2001 to add the "safe third country" concept so crucial to Germany's post-1993 approach.9 The Czech Republic has already done so.10 It is a safe prediction that major portions of Germany's restrictive asylum practices will be replicated in other European states. Government officials, advocates, and scholars have long recognized the important role Germany played in late twentieth century asylum law and policy, but there has been relatively little scholarly analysis of German legal developments in English.11 Having focused on refugee developments in Germany over the past fifteen years,12 my interest intensified in the 1990s as I observed the momentous legal changes to the German asylum system. My field work in Germany before and after unification gave me a greater comprehension of the profound changes taking place in German society in recent years. …