Germany: The right of asylum
Section 16a of the constituion of the Federal Republic of Germany
According to Section 16a of the constitution (Grundgesetz, GG) of the Federal Republic of Germany political persecutees have the right of asylum.
The right of asylum is afforded in Germany
- on basis of the obligations under international law arising from the Geneva Refugee Convention of 1951,
- on basis of the German constitution: the right of asylum is a basic right that is granted to foreigners.
The right of asylum serves the protection of human dignity in a wider sense. Consequently, a persecution is considered to be political, if it
- intentionally violates the right of an individual,
- in connection with his/her political opinion, his/her religious belief or with unalterable characteristics that mark him/her as being different,
- and the violation excludes him/her from the general peace framework of the united state due to its intensity.
Not every netativ state measure
Yet not every negative state measure – even if it refers to one of the named personal characteristics– is a persecution relevant for asylum. It rather has to be
- an intentional violation of legally protected right,
- and of such intensity that it excludes the affected person from society,
- and that is so severe that it violates human dignity and goes beyond that which is considered to be generally acceptable by the citizens of the particular state.
Generally, it has to be state persecution. Thus, the persecution has to emanate from the state. Non-state persecution is relevant as quasi-state persecution, if - it is attributed to the state or - the non-state persecutor represents the state.
No general emergency sitioations
Thus, general emergency situations are excluded as grounds to grant asylum, e.g.: - poverty, civil wars, - natural catastrophe or - lack of prospects.
Subsidiary proteciton possible
Under certain circumstances subsidiary protection may be granted.
Entering via safe country
The right of asylum in Germany is also excluded, if Germany was entered via a safe third country. This also applies if repatriation to this third-country is not possible. „Safe third countries“ according to German Asylum Procedure Law (Asylverfahrensgesetz) are the member states of the European Union as well as Norway and Switzerland.