Master of Arts Thesis Euroculture
Georg-August University of Göttingen
University of Groningen
Submitted: August 2017
Comparative Study of Refugee Policies between Germany and China
Submitted by:
Name: Jing Pan Student number (Göttingen): 21566144 Student number (Groningen): S3069443 +49 17637418437 janep422@hotmail.com
Supervised by:
Georg-August University of Göttingen: Lars Klein University of Groningen: Francessco Giumelli
Göttingen, 31 July 2017
Signature:
MA Programme Euroculture Declaration
I, Jing Pan hereby declare that this thesis, entitled “Comparative Study of Refugee Policies between Germany and China”, submitted as partial requirement for the MA Programme Euroculture, is my own original work and expressed in my own words.
Any use made within this text of works of other authors in any form (e.g. ideas, figures, texts, tables, etc.) are properly acknowledged in the text as well as in the bibliography.
I declare that the written (printed and bound) and the electronic copy of the submitted MA thesis are identical.
I hereby also acknowledge that I was informed about the regulations pertaining to the assessment of the MA thesis Euroculture and about the general completion rules for the Master of Arts Programme Euroculture.
Signed:
Date: 31 July 2017
Abstract
The study examines the question of refugee and asylum seeker protection in China and Germany, by analyzing the policy framework and practices at the national level.
Drawing from existing UN Agreement and Protocols that both countries has been signatory to and the national policies of practices, with the data provided by different authorized organizations，the study underlines the difference of the policies and practices between the two countries and explores the causation factors for the decision making process of refugee policies through a qualitative case-based comparative analysis. Many differences are originally due to the systematic differences. Other major differences are with regards to the border control and paths to naturalization. Based upon these findings, the author argues that states make decisions according to their own political, cultural and economic interest.
Key Words:
Refugee policy, comparative study, Germany, China, decision.
Table of Content
Preface ... 1
Chapter 1 Introduction ... 2
Chapter 2 Literature Review... 6
2.1 Comparative Studies ... 6
2.1.1 Overview of Comparative Policy Studies ... 6
2.1.2 Comparative Immigration Studies ... 8
2.2 Refugee Policies and international Refugee Protection ... 11
2.2.1 Refugee Policies ... 12
2.2.2 Related Procedures ... 15
Chapter 3 General Background of International Refugee Regime ... 18
Chapter 4 Refugee Policies and Practices in Germany ... 20
4.1 General Background ... 20
4.2 Legislation background ... 21
4.2.1 Legislation relating to Refugee Admission and Rejection ... 21
4.2.2 Adjustment of Refugee Related Procedures due to the „Refugee Crisis‟ 26 4.2.3 Rights and Responsibilities of Refugees in Germany ... 26
4. 2.4 Durable Solutions ... 28
4. 3 International Organizations as Refugee Policy Actors in Germany ... 28
Chapter 5 Refugee Policies and Practices in China ... 32
5.1 General Background ... 32
5.2 Legislation Background ... 34
5.3 Refugee Policy in Practice in Main Land China ... 35
5.3.2 Local Police Registration... 37
5.3.3 Durable Solutions for Refugees in China ... 38
5. 3. 4 Path to Naturalization ... 39
5.3 The Role of International Organizations ... 42
Chapter 6 Comparative Study between China and Germany ... 44
6.1 Legislation background of refugee policies... 44
6.1.1 Political and Historical Background of Asylum Legislation ... 44
6.1.2 Legal Framework ... 46
6.2 Refugee Policies in Practice ... 48
7.2.1 Refugee Control Policy ... 48
6.2.2 Integration Policy ... 51
7.2.3 The Role of International Organizations ... 53
6.3 Summary ... 54
Chapter 7 Further Analysis of the Causation of Refugee Policy Decision Making ... 56
Chapter 8 Conclusion ... 59
Bibliography: ... 61
Appendix: ... 70
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Preface
The dissertation “Comparative Study of Refugee Policies between Germany and China”
is the comparative study work which is to fulfill the graduation requirements of the Master Program of Euroculture. I have been engaged in researching and writing this dissertation from January to July 2017.
In this case, I would like to express my sincere thanks to my supervisors – Dr. Lars Klein from Georg-August University of Göttingen and Dr. Francessco Giumelli from University of Groningen for their excellent guidance and support during the process.
Special thanks are to the UNHCR Beijing office and my colleagues who I have worked with during the 6-months internship. They have been beyond inspiring and have provided great assistance for the paper.
I would also like to thank my fellow Euroculturers with whom I have discussed and debated with regards to the research and beyond, as well as my friends and family who have supported me throughout the journey, their wise counsel and kind words have, as always, served me well.
I hope you enjoy the reading.
Jing Pan 31 July 2017
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Chapter 1 Introduction
Refugee policies or the policies of asylum have a great influence on the culture, economy and politics of a state, and have long been a hot subject for researchers, especially due to the refugee crisis that has taken place in Europe. Subject to migration policy, the study mainly focuses on the migration policies in different countries and the connections between policies and the decision making process. In this line, the author is going to conduct a comparative study to explore the differences and similarities of the two selected countries which are of different political and cultural background, and based on which, to examine the causation factors of the decision making process.
The method of comparative study has also been used quite often for the analysis of migration policies and refugee policies. According to Heidenhermer, the comparative study could help to find deeper reasons regarding policy decision making processes, for which the most basic objective is to explore why states have chosen different approaches to the similar problem.1 The objective of the comparative study coincides with my goal of this research and which is why it is chosen as the basic methodology for the paper.
The extensive literatures, however, are focused mainly on western countries which have similar political and cultural background. The comparative refugee policy studies started off from the study of Europe, which has focused on several EU member states.
As a matter of fact, most researches are focused only on „western developed countries‟, such as the research conducted by Karen Musalo, Jennifer Moore and Richard A.
Boswell. They have adopted an international and comparative approach into the analysis of the refugee laws and policies, while focusing more on the traditional subjects such as the U.K., Germany, Canada, New Zealand and South Africa.2 Other researchers have shown similar interest in comparative studies among western countries. On the other hand, comparative work that has been focused on Asia seems to focus more on the ethnic side, such as the work of Skrentny et al. who has studied the link between ethnic
1 Arnold J. Heidenheimer , Comparative Public Policy (Palgrave Macmillan, 1990), 3.
2 Karen Musalo, Jennifer Moore and Richard A. Boswell, Refugee Law and Policy: A Comparative and International Approach Fourth Edition (2011), 5, http://www.cap-press.com/pdf/2170.pdf (accessed 05 June 2017).
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and migration policy.3
Therefore, critiques concerning the existing research are mainly with regards to the absence of non-western and developing countries, which is evident and unreasonable given the fact that there‟s also a great number of refugees exist outside of the
„developed countries‟.4 In this case, I argue that Asian countries should be included in the comparative research and that the difference between the non-western countries and the western „developed countries‟ should be explored.
In this case, in addition to a leading refugee receiving country – Germany, I have included China, which also has a long history of refugee protection into the comparative study to explore the causation factors for the decision making processes for refugee policies.
The reason for me to have chosen these two countries as main subjects of my comparative study is primarily due to their country profile with regards to refugee protection – Germany remains the leading western country for refugee protection, and has been actively involved in the development of the international protection regime as well as European legislation of refugee admission, especially during the time of the
„refugee crisis‟‟. China, on the other hand, also boasts a long history of refugee protection, and has also been ranked the first - even higher than Germany - for the most welcoming countries for refugees according to the Refugees Welcome Index in 2016.5 Additionally, these two countries are systematically distinct from each other with regards to refugee protection, and are therefore worth exploring.
Secondly, extensive literatures and debates have been focused on the refugee policies in Germany. As a western country which has been actively involved in the
3 John D. Skrentny et. al, “Defining Nations in Asia and Europe: A Comparative Analysis of Ethnic Return Migration Policy”, International Migration Review 41 (4) (2007): 793-825.
4 Stephen Castles, Hein de Haas and Mark J. Miller, The Age of Migration: International Population Movements in the Modern World Fifth Edition (New York: Guilford, 2014),
https://books.google.de/books?hl=zh-CN&lr=&id=KrwcBQAAQBAJ&oi=fnd&pg=PP1&dq=Castles,+S.
,+and+Miller,+M.J.,+The+Age+of+Migration:+International+Population+Movements+i&ots=w5GmpeQ AI1&sig=GRBZ-A-W-gx34Bpl2z5UCixdmT4#v=onepage&q=Castles%2C%20S.%2C%20and%20Mille r%2C%20M.J.%2C%20The%20Age%20of%20Migration%3A%20International%20Population%20Mov ements%20i&f=false (accessed 06 June 2017).
5 Reliefweb, “Refugees Welcome Survey 2016 – Views of Citizens Across 27 Countries”, Amnesty International,
http://reliefweb.int/report/world/refugees-welcome-survey-2016-views-citizens-across-27-countries (accessed 26 July 2017).
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refugee protection regime, it has been covered in most of the comparative migration and refugee policy literatures; on the other hand, though few research has been focused on China, the system itself is worth exploring. Additionally, since I have personally worked with the protection team in the UNHCR Beijing office, I could provide enough knowledge and information from my own personal experience.
These two countries are politically and culturally different from each other, however both are dedicated to refugee protection. As is mentioned, the main goal of this paper is to explore the causation factors for the decision making processes of refugee policies and also to provide empirical evidence for existing theories. Therefore, this research will not only provide empirical evidences to the existing migration studies from a different angle, but also bring the attention of comparative analysts to the country that has long been neglected from comparative research.
In light of these, the research question of the paper is formulated as: what are the causation factors for China and Germany to have chosen such refugee policies?
What is more, because of the special practical situation of refugee policies in China, the author has brought international organizations into the discussion of the practical aspect of the refugee policies. In this line, the sub-questions of the paper are formed as:
what are the differences between the refugee policies and their practices of Germany and China? And how do international organizations function differently as national refugee policy actors?
Based on the research question, the paper is divided into 9 chapters, the information of which will be briefly introduced and rationalized as follows:
Followed by the introduction, in order to set a theoretical and procedural foundation for the case studies and comparative studies and analysis that follows, literature review will be provided from two dimensions: firstly, literature with regards to policy studies, which includes a general introduction of comparative studies, as well as the overview of previous studies and their findings concerning different approaches to the migrations policies; and secondly, literature concerning refugee policies which contains the review of international treaties and procedural documents.
In chapter 4, a brief overview of the history and current international protection
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regime will be provided to give a general background for the case studies and comparative analysis on an international level.
Under a different note, chapters 4 and 5 are the case studies which provide thorough information of the refugee policies as well as their practices. For each country, general background, legislation and their practices, as well as the functions of the international organizations are introduced.
Additionally, chapters 6 and 7 are the chapters for the comparative analysis, while in chapter 6 concrete comparative analysis is provided with regards to the refugee policies and practice based on the migration theory; in chapter 7, further analysis will be made with regards to the causations for the refugee policy based on the conclusions of chapter 6. The comparative study will be conducted based on the case study from a qualitative case-oriented approach, the aim of which is to generate the insights, conduct a more in-depth studies and also to provide the opportunity to study multiple and conjunctural causation.
In the last chapter, conclusions will be drawn upon the analysis in chapter 7 and 8, together with a short summary of the weakness of the paper and suggestions for further research.
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Chapter 2 Literature Review
The literature review provides a theoretical and informational foundation of the case studies and the comparative analysis that follows. In this chapter, literatures with regards to previous comparative studies and international refugee policies will be introduced thoroughly.
2.1 Comparative Studies
The methodology adopted in this paper is comparative policy studies. Therefore, in this part, comparative policy study will be conceptualized by looking into the literatures of comparative policy studies and the comparative immigration studies.
2.1.1 Overview of Comparative Policy Studies
In order to explore the causation of the different strategies of different states regarding refugee protection, and also the institutional arrangement for comprehensive protection, the comparative study is adopted to explore the deeper reason of the above-mentioned factors. In this section, comparative policy study will be conceptualized by looking into the literatures regarding the objective, methodology and shortcomings of comparative studies.
The objective of comparative policy study, according to Heidenheimer, is to address the process of several important policy stages – policy making, problem emergence and definition, policy formulation, policy implementation as well as evaluation. The basic research question for comparative policy study is, is that why did states choose different approaches to the problem and what‟s the reason for them to choose differently.6 They believe that the problems in western countries – the United States and Europe are quite similar. Therefore, comparative study could be used to address the question of how to develop the social policy (except for the field of education).7
According to Ragin, the aim of which is to generate the insights, conduct a more
6 Arnold J. Heidenheimer , Comparative Public Policy (Palgrave Macmillan, 1990), 3.
7 Ibid, p. 2.
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in-depth studies and also to provide the opportunities to study multiple and conjunctural causation.
“The goals of case-oriented investigation often are both historically interpretive and causally analytic. Interpretive work ... attempts to account for significant historical outcomes or sets of comparable outcomes or processes by piecing evidence together in a manner sensitive to historical chronology and offering limited historical generalizations which are sensitive to context. Thus, comparativists who use case-oriented strategies often want to understand or interpret specific cases because of their intrinsic value. Most, but not all, case-oriented work is also causal-analytic.
This companion goal is to produce limited generalizations concerning the causes of theoretically defined categories of empirical phenomena ... common to a set of cases.” 8
From which we can tell, the basic method for comparative policy study is to make comparison of selected countries. Though policy literature uniformly agrees to rely on case, the answer to which case should be selected and how should they be used is inconsistent.9 While most scholars such as Eckstein agree to focus on similar countries with similar problems, the Hayward and Watson study, on the other hand, suggests asking the same questions under the same topic within a comparable time frame, regardless of the country profile.10 In this paper, I have chosen the approach introduced by Hayward and Watson since Germany and China are different in terms of their political, cultural and economic background, but however comparable since these two countries are both dedicated to refugee protection, and have both been influenced by the refugee crisis.
However, according to different scholars, the shortcoming of the comparative study is also obvious, that is, the incompetence of the researcher is the main disadvantage of the study. This is mainly because that each case requires a thorough understanding of the system in all the selected countries. Another disadvantage is with regards to the
8 Charles Ragin C., The Comparative method: moving beyond qualitative and quantitative strategies, (Berkeley (CA): University of California Press,1987).
9 Harry Eckstein, “Case Study and Theory in Political Science,”, in Fred Greenstein and Nelson Polsby, eds. Strategies of Inquiry, Handbook of Political Science, Vol. 7, 1975, pp.79-138.
10 Andrew Shonfield, Modern Capitalism: The Changing Balance of Public and Private Power (New York, 1965), 67.
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selecting countries, since in some countries the difference are obscured,11 such as China in this research, internal diversity between the refugee protection system in Hong Kong, Macau and the Main land China might is as great as the difference between Main Land China and Germany.
2.1.2 Comparative Immigration Studies
Immigration policy is described to have two components – the immigration control policy or the immigration regulation policy and the immigrant policy introduced by Tommas Hammar in 1985. While the immigration control policy or immigration regulation refers to the rules and procedures that govern the admission and selection of foreign citizens, the immigrant policy refers to the policy that provides to resident immigrants, such as working, housing, welfare and educational opportunities.12
Similarly, the refugee policy could also be categorized into two parts: the first one is the refugee control policy which mainly refers to policies regarding the refugee admission, registration and refugee status determination, meanwhile the integration or protection policy covers the benefit and assistance of recognized refugees, such as financial assistance, housing, health care, education and other protection activities.
Scholars have conducted various comparative immigration studies to study the causation of the decision making for immigration policies.
First of all, with regards to the migration control policies, scholars have focused on the influence from 3 dimensions, namely, political, cultural and economic factors.
In terms of the political influence, the state is seen as a central political actor and immigration as a kind of national interest, which mainly relates to the macro-economy and political interests of the hosting countries. In this case, Christopher Rudolph has provided a systematic theoretical framework for the relationship between immigration and security: he argued that high level of threat in an international level makes the authority to prioritize the military dimension of security and while the external threats decline, social security is prioritized, for which the strategy will be modified to
11 Linda Hantrais, International comparative research: theory, methods and practice (Basingstoke:
Palgrave Macmillan, 2009), 22.
12 Tomas Hammer, European Immigration Policy (Cambridge: Cambridge University Press, 1985), 7-10.
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strengthen border control and also to accelerate the process of immigrants‟ integration.13 The most recent research conducted by Givens et al. has built his model in light of the
„9·11‟ terrorist attack in the United States, in which he argued that social exclusion of immigrants and their descendants has proved that securities threats are not only in an international level, but also from within. They argue that scholars and decisions makers have often neglected the immigrant integration, and that the emphasis on security has worsened the conditions of immigrants in their host countries, which has aggravated the security threat.14
Under a different note, in the research of Soysal in 1994 while studying the relationship between the international system and the immigration policies, and argued that it is the international pressure of the human rights regime that the states are a part of rather than the domestic politics that have influenced the authority to have reached the decision.15
In terms of the cultural influence of the nations, scholars have identified the
„national identity‟ rather than the public opinions that is changing overtime. The
„national identity‟, according to Bhagwati, is the “central value and echoes that characterize one‟s society” however, it “could be diluted by the entry of individuals and groups who do not share them.”16 Others argue that there are different levels of tolerance for foreigners, which is fundamentally defined by “how the country regards itself – its own national mythology.”17 Different literatures have provided different ideas with regards to the influence of „national identities‟ on immigration policies.
Leitner, for instance, argued that “dominant racial and national ideologies, defining who belongs and who does not belong to a national community, also influence who is
13 Christopher Rudolph, “Security and the Political Determinants of Migration Control: A Quantitative Analysis”, Migraciones Internacionales 2 (1) (2003): 161-70.
14 Terry E. Givens, Gary P. Freeman, and David L. Leal, Immigration Policy and Security: U.S., European, and Commonwealth Perspectives (New York: Routledge, 2009).
15 Yasemin N. Soysal , Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago:
University of Chicago Press,1994).
16 Jagdish N. Bhagwati, Incentives and Disincentives: International Migration. 1984, Weltwirtschaftlisches Archiv, 120 (4), 678 – 701.
17 Peter Stalker, The work of Strangers: A Survey of International Labour Migration (Geneva:
International Labour Office, 1994), 138.
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admitted.”18 He proposed that the more homogeneity the population is, the more people will feel threatened by the influx of foreigners.19
What is more, German political sociologist, Christian Joppke has studied the relationship between ethnicity and migration, and created the term - „re-ethnicization‟ to indicate the policies which aims to facilitate the return of emigrants or compatriots, even after several generations abroad.20 Similarly, Skrentny et al. (2007) conducted the comparative study of immigration policies between Asia and Europe, and they argued that Asian states are more likely to retain or renew their ties with co-ethnics abroad for economic interest.21
Attention has also been put into economic interests. Since voluntary migrants will participate in the economy of the host countries, analysts have therefore sought for the determinants of migration policies with regards to economic actors within the host country. Some scholars have chosen to research from the Marxian approach, such as Castles and Kosack, Castells as well as Petras, they argued that migrants could be deemed as a the surplus pool of labor which helps the state to overcome the shortage of skills and crisis. However the labor is not always wanted – capitalists need labor forces that could be easily mobilized and disband when the time come. According to Petras, it is because that “capital accumulation does not proceed at a steady and even pace, […]
capital needs to have this [migrant] labor surplus to use, at its disposal, only to discard it when it is not required for production.”22
While above-mentioned studies has focused on states‟ control over the migration controls, researchers have also debated about whether or not the immigration policies and borders are still in control of the states, especially in the study of European countries. For example, Cornelius et. Al argued that the states have lost their control
18 Helga Leitner, International Migration and the Politics of Admission and Exclusion in Postwar Europe, Political Geogaphy 14 (3) (1995): 359-78.
19 Ibid.
20 Christian Joppke, “Citizenship between De- and Re-Ethnicization,” European Journal of Sociology 44 (3) (2003b): 266-93.
21 John D. Skrentny et. al, “Defining Nations in Asia and Europe: A Comparative Analysis of Ethnic Return Migration Policy”, International Migration Review 41 (4) (2007): 793-825.
22 E M. Petras, The Global Labor Market in the Modern World Economy. In the Global Trends in Migration, ed. M. Kritz, C.B. Keely and S.M. Tomasi (New York Center for Migration Studies, 1981), 44-63.
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over immigration and introduced the „gap‟ theory, which indicates the gap between the desire of the state and what they could actually achieve.23
On the other hand, with regards to the immigration integration, which for refugee policies should be the path to naturalization and refugee protection, comparative studies have been done with regards to the welfare system of immigrants and citizenship.
For example, Sainsbury built her analysis based on the inclusion and exclusion dimension of Castles and Miller, as well as the Gøsta Esping-Andersen‟s welfare regime typology, and recognized variations in reception regimes stemmed from the different entry categories such as refugees and asylum seekers, etc. Her findings indicate that the social rights for immigrants are better developed in Germany and Sweden than in the United States since their welfare regimes are more extensive.24
On the other hand, obtaining the citizenship is deemed as the best solution when immigrants could obtain the membership and gaining access to all the benefits as a citizen, together with protection, for instance the protection against deportation. In this case, scholars have been striving to study the different policies with regards to the states‟
policy of naturalization in different periods of time. However, due to the limit of the scope of the paper, the comparison of citizenship will only be covered as part of comparative analysis and will not be further discussed. Therefore, further introduction of literature will not be provided in this section.
2.2 Refugee Policies and international Refugee Protection
As the main subject of this paper, the refugee policy and international refugee regime will serve as the foundation for the case analysis as well as the comparative studies that follows. On the one hand, refugee policy subject to the study of policy of humanitarian and on the other hand also belongs to a part of the migration policy. The humanitarian policy highlights the feature of protection. While the conceptualization of refugee policies and relevant definitions sets the foundation for the explanation of the entire
23 James F. Hollifield, Philip L. Martin, and Pia M. Orrenius (eds.), Controlling Immigration: A Global Perspective, Third Edition (Stanford: Stanford University Press, 2014).
24 Diane Sainsbury, “Immigrants‟ Social Rights in Comparative Perspective: Welfare Regimes, Forms of Immigration and Immigration Policy Regimes,” Journal of European Social Policy 16 (3) (2006), 229–
44.
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thesis, the introduction of international refugee regime and related procedures in international standards provide the legal and procedural foundation for the comparative study of the protection system between Germany and China. Therefore, in this section, literatures regarding refugee policies and international refugee protections are reviewed, which includes legal documents as well as the procedural guidelines.
2.2.1 Refugee Policies
The concept of the right to asylum is originally from ancient Greece, which indicates the right to receive protection when he or she is persecuted in his or her own country.25 And currently, the right to asylum is codified by the article 14 of the Universal Declaration of Human Rights. According to the definition of the 1951 Geneva Convention Relating to the Status of Refugees, „protection‟ is defined as:
“all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law, namely human rights law, international humanitarian law and refugee law. It is primarily the responsibility of states. In the absence of State protection, international actors may intervene.” 26
The ancient Greece and in the 1951 convention both highlighted the word
„persecution‟, however there‟s no universally acknowledged definition of its definition.
It is commonly recognized as “human rights abuses or other serious harm, often, but not always, perpetrated in a systematic or repetitive way”.27
According to the 1951 Convention, the UNHCR mainly recognizes 5 types of people as the main group of Persons of Concerns with related to refugee protection, namely, asylum-seekers, refugees, stateless persons, internally displaced persons and returnees, among those the refugees, asylum seeker and stateless persons are the main focus of the refugee policy of the countries discussed in this paper. Their definitions are
25 “Asylum Definition”. Merriam-Webster Dictionary. Retrieved 2012-08-17,
https://www.merriam-webster.com/dictionary/asylum (accessed 27 July 2017); “Asylum”, Online Etymology Dictionary, http://www.etymonline.com/index.php?term=asylum (accessed 27 July 2017).
26 UNHCR, “Module 1 What is refugee protection?” Refugee Protection Training Project, available at:
http://www.unhcr.org/4371d9482.pdf (accessed 26 June 2017).
27 Ibid.
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introduced as follows:
First of all, asylum-seekers refer to those people who have left their home country and claims to have sought for asylum in other countries for security. 28 While most of the countries expect asylum-seekers to be recognized as refugees, not all of them are in need of international protection. These people who do not qualify for protection will be rejected and thus not to be considered as asylum seekers. The detailed procedure of refugee recognition and rejection will be introduced in the next section.
When the asylum-seekers qualify for the standard of international protection, they will then be recognized as „refugees‟. The 1951 Convention defines „refugee‟ as a person who:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”29
This definition has also been expanded in the 1967 Protocol, and was recognized and adopted in the states‟ refugee protection mandates. This definition also sets up the legal foundation for the refugee status determination which is used to assess whether an asylum seeker qualifies for the criteria for a refugee.
And lastly, when a person does not obtain or be recognized by all the states in the world, he or she is normally be referred to a stateless person.30
Under a different note, in order to provide protections for the persons of concerns that are mentioned above, the international legal framework is structured as follows:
“Everyone has the right to seek and to enjoy in other countries asylum from
28 UNHCR, Convention and Protocol relating to the Status of Refugees, Geneva, Switzerland (Geneva, 1967), available online at: http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf (accessed 26 May 2017).
29 Id.
30 UNHCR, Convention Relating to the Status of Stateless Persons, (Geneva, 1954), available online at:
http://www.unhcr.org/ibelong/wp-content/uploads/1954-Convention-relating-to-the-Status-of-Stateless-Pe rsons_ENG.pdf (accessed 27 May 2017).
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persecution.”31 The Article 14(1) from the Universal Declaration of Human Rights (UDHR) is the first document to have stated the right for asylum in other countries. The legal framework of the international refugee regime contains 4 main bodies, namely, the Human Rights law, International Humanitarian Law (IHL), Refugee Law and National Laws. Firstly, the Human Rights Law applies to everyone including the IDPs and people who have been forcibly displaced in another country, in which the right to seek asylum have been listed in the UDHR.
Secondly, the IHL applies only to people – including refugees, IDPs and stateless people who are not or are no longer participating in hostilities, and those people who are caught up in armed conflict, in which the definitions of warfare.
And lastly, the International refugee law indicates two particular documents, namely, the United Nations Convention relating to the Status of Refugees which was adopted by the General Assembly in 1951 (the 1951 Convention), in which the fundamental protection principles of the international refugee protection regime are stated.32 These two documents has formed the cornerstone of the international legal framework for international refugee protection, in which the core principles are listed, namely, „Non-refoulement‟33 and „prohibition of expulsion‟, „non-discrimination‟,
„non-penalization‟ and other rights such a „right to documentation‟, „access to work‟,
„public education‟, „access to the courts‟, „freedom of movement‟ and „freedom to practice their religion‟, etc.34
Under a different note, for stateless persons the protection principles are slightly different. The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are two fundamental documents for statelessness, of which the former on aims to guarantee a basic standard of standard of the treatment for all stateless people, and the latter set the goal on avoiding all future
31 United Nations, Universal Declaration of Human Rights. Available online at:
http://www.un.org/en/universal-declaration-human-rights/ (accessed 11 May 2017).
32 UNHCR, Convention relating to the Status of Refugees.
33 The principle of non-refoulement indicates that refugees should not be returned to the countries where they might face being persecuted. It is part of the customary international law and is therefore applied in all countries, no matter if they have been signatory to the 1951 convention.
34 UNHCR, Convention relating to the Status of Refugees.
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statelessness cases.35
One thing to mention is that the UNHCR‟s mandate applies not only to the countries which are parties to the stateless conventions but also to those that have not been signatory to the documents.36
2.2.2 Related Procedures
The standard for refugee recognition has been adopted all over the world based on the refugee‟s definition in the 1951 Convention. As is mentioned earlier in the definition of the term „refugee‟, the five „conventional ground‟ are also the criteria of whether the asylum-seekers could qualify for the international protection, namely a refugee status.
When the applicants‟ claim fits into one or more grounds that has been mentioned in the Convention, he or she will be granted a refugee identity. 37
Although the procedure of Refugee Status Determination is conducted by different refugee policy actors in different countries, the responsibility Refugee Status Determination is primarily the states‟ responsibility. The procedures relating to the status of refugees could be divided into 3 periods, namely, application period, the refugee status determination period and resettlement application.
During the application period, registration is the first step for persons of concerns to get in touch with the UNHCR office. The procedure has been standardized in the Registration Handbook published by the UNHCR in 2003,38 prior to the document there‟s huge discrepancies with regards to the registration policies, standards, procedures and systems in different regions even though they shared common elements.
According to the document, principally forcibly displaced people of all ages should be registered individually as soon as they access safety. During the registration detailed
35 UNHCR, Handbook on Protection of Stateless Persons, 2014 Geneva, available at:
http://www.unhcr.org/protection/statelessness/53b698ab9/handbook-protection-stateless-persons.html (accessed 26 May 2017).
36 UNHCR, Convention relating to the Status of Refugees.
37 UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV. 3, available at:
http://www.refworld.org/docid/4f33c8d92.html (accessed 29 May 2017).
38 UN High Commissioner for Refugees (UNHCR), UNHCR Handbook for Registration, September 2003, available at: http://www.refworld.org/docid/3f967dc14.html (accessed 29 May 2017).
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personal bio-data as well as the substantive claim of the applicant. This procedure serves as the foundation of the Refugee Status Determination interview and decisions.
The personal data of the applicant will not only be saved in the global digital database but also be saved as hard copies in the field office. When the applicant is successfully registered under the UNHCR mandate, he or she would obtain the „asylum seeker‟
identity and therefore will obtain the document for their provisional stay in the hosting countries, this temporary document is valid until the applicant loses his or her „asylum seeker‟ or „refugee‟ status.39
When the applicant is successfully registered, he or she will be able to reside in the hosting country legally during the pending session. After several months‟ pending session, which is depending on the case volume and the urgency of the claim, the applicants will be interviewed by the RSD officer. The interview will be documented in detail by the RSD officer for further evaluation.
The Refugee Status Determination evaluation was standardized by mainly based on the interpretation of the term „refugee‟ in the 1951 Convention, in which the evaluation has been standardized as to whether the claim falls into the “well-founded fear” which are sorted into 5 categories. Therefore, after the evaluation of the credibility and the claim – whether it fit into one of the 5 grounds for refugee recognition, the applicant will either be accepted as „refugee‟ or be rejected, which is normally be referred to as „first instance accepted‟ and „first instance rejected‟. When the applicant is accepted, his or her identity will change into the refugee and will be issued a standard documentation for the applicant to legally stay in the hosting country and enjoy the respective rights and remuneration. The rejected applicant could also file an appeal application for his or her case to be reevaluated by the authority and the result is deemed as „second instance‟, and this result is final and could not be changed.
For a refugee, he or she might lose his or her identity normally when there‟s a durable solution to his or her case. The „durable solutions‟ indicates the situation where refugees, IDPs and stateless persons are satisfactorily and permanently resolved to live normal lives in a secured environment, whose ultimate goal is for refugees to gain full
39 UNHCR, Registration Handbook, 2003.
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protection of a state. These solutions are divided into three categories, namely, firstly, the ultimate repatriation which refers to the situation where refugees return to their own country of origin in their own willingness when the circumstances allow them to do so;
the second category of durable solutions is local integration, which mainly refers to the situation when refugees integrates in the host country legally, economically and socially by availing themselves to the protection of the local government; last but not least is resettlement, which occurs only when refugees are selected and transferred from the host country to a third State which accept them as refugees with permanent residence status. However, for IDPs, different from refugees, durable solutions are limited within the country, which limits the geographical distinction to districts and therefore mainly include sustainable return to the place of origin, sustainable local settlement in the area where IDPs have taken refuge and sustainable settlement elsewhere in the country.
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Chapter 3 General Background of International Refugee Regime
The history of international protection of refugees could be traced back to the League of Nations when it became an awareness that the responsibility of protecting refugees belongs to the international community. In 1921 Dr. Fridtjof Nansen was elected to be the first High Commissioner for Russian refugees. Before the establishment of the UNHCR, there are several international institutions specializing in the refugee protections, in which the largest one is the International Refugee Organization (IRO) and in 1949 the General Assembly of the UN decided to replace the IRO with the UNHCR.40
The year 1951 was the turning point for international refugee protection as it is the year when the 1951 Convention Relating to the Status of Refugees (1951 Convention) were drafted, and also marked the establishment of the UNHCR. In 1950 the statute of the UNHCR was adopted by the General Assembly, in which stated that the main task of the UNHCR is to “provide international protection” for refugees and to seek permanent solutions and assisting the government in seeking for durable solutions such as resettlement to a third country, voluntary repatriation.41
Up till now, according to the statistics of the UNHCR, there are altogether 65.3 million people who are forcibly displaced worldwide: in which 21.3 million are refugees – 16.1 million under UNHCR mandate and 5.2 million Palestinian refugees registered are registered by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA); 10 million are stateless people; and lastly 107,100 people are refugees who has been resettled to a third country.42
These people come from different regions, according to the statistics, the top three refugee producing countries in the entire world are Somalia (1.1 million), Afganistan(2.7 million) and Syria (4.9 million), altogether they produced 53% of refugees worldwide. And on the other hand, the five top hosting countries for refugees are Pakistan (1.6 million), Lebanon (1.1 million), Islamic Republic of Iran (979,400),
40 Erika Feller, “The Evolution of the International Refugee Protection Regime”, Vol. 5:129, (2001), https://law.wustl.edu/harris/documents/p129_Feller.pdf (accessed 17 May 2017).
41 Ibid.
42 UNHCR, “Figures at a Glance”, 2016, http://www.unhcr.org/figures-at-a-glance.html (accessed 16 May 2017).
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Ethiopia (736,100) and Jordan (664,100). Regarding the overall geographical map of the hosting countries worldwide, 39% of the world‟s displaced populations are hosted in Middle East and North Africa, 29% in Africa, 14% in Asia and Pacific, 12% in America and 6% in Europe. These statistics are disposed every year by the UNHCR in their annual report.43
43 UNHCR, “The Global Appeal and Supplementary Appeals”, 2017,
http://www.unhcr.org/the-global-appeal-and-supplementary-appeals.html (accessed 21 May 2017).
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Chapter 4 Refugee Policies and Practices in Germany
Germany has a long history of refugee protection, which could be traced back to the days when it signed the UN convention relating to the status of refugees in 1951. In recent years, with the occurrence of the „refugee crisis‟, Germany plays an important role in refugee issues within the EU and its advocacy has influenced all over the world.
In this section, the refugee policy, the procedural acts, their practices as well as the role of different international organizations will be introduced in details.
4.1 General Background
The right to asylum has been recognized as a constitutional right in Germany which is written under article 16a of the Basic Law of Germany.44 It could be granted to everyone who has fled political persecution, which is defined as the persecution which could specifically do harm to individual rights, however excludes the individual from the “general peace framework of the state unit”. According to the constitutional law, an asylum seeker is allowed to stay in Germany when he or she is granted a “political asylum, refugee status, or subsidiary protection, or even the agency declares a deportation prohibition”. 45 The constitutional right to asylum also indicates that the human dignity is protected and that no state is entitled to persecute individual for political, religious reasons or other personal characteristics that makes him/ her different.46 However, not every disadvantage or material hardship is in favor of the person‟s right to asylum.47
Besides, Germany has been signatory to the Geneva Convention Relating to the Status of Refugees of 1951 and has also applied the convention into the German law.
The definition of refugee in the 1951 Convention which has been introduced in the previous chapter has also been incorporated into the 3rd section of the German Asylum
44 Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 1, art. 16a, unofficial English translation at http://www.gesetze-im-internet.de/englisch_gg/basic_law_for_the_federal_republic_of_germany.pdf, archived at http://perma.cc/RW2X-HD46 (accessed 10 May 2017).
45 Id. At 334 et seq.
46 Id. At 333.
47 Id. At 335.
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Act.48
According to the statistics provided by the Federal Office for Migration and Refugees (BAMF), by April, there were altogether 69,60 individual being registered as asylum seekers in 2017. And in 2016 alone, there were 745,545 applicants, within which 256,136 individuals have been recognized as refugees, and 433,719 cases remain pending. The overall refugee rate of all applicants in 2016 is 42.1%.49 The number of people seeking for asylum peaked in August in 2016, and is significantly dropped in 2017.50 The top 10 countries of origin are Syria, Afghanistan, Iraq, Iran, Eritrea, Albania, Pakistan, Nigeria, Russia and undefined countries.51
4.2 Legislation background
The two most important immigration laws with regards of migration and asylums are the Asylum Act and the Residence Act, which rules and regulations for the admission of refugees and the procedural standard for handling refugee applications.52 The Asylum Act regulates the procedures and consequences of asylum granting and denying, while the Residence Act codifies the rules for refugees to enter, stay, and work in Germany.
4.2.1 Legislation relating to Refugee Admission and Rejection
The results of an asylum application are either approved or denied, the applicant has the responsibility to leave Germany if he or she is rejected, the applicant then will be subject to deportation proceedings.
48 Asylgesetz [Asylum Act], Sept. 2, 2008, BGBl.I at 1798, § 3, http://www.gesetze-im-internet.de/
bundesrecht/asylvfg_1992/gesamt.pdf, archived at http://perma.cc/5UGT-VNNE, unofficial English translation available at http://www.gesetze-im-internet.de/englisch_asylvfg/englisch_asylvfg.pdf, archived at http://perma.cc/E2YA-U7LK (accessed 10 May 2017).
49 BAME, “Aktuelle Zahlen zu Asyl[Current Number of Asylum]”, April 2017, available only in German at:
http://www.bamf.de/SharedDocs/Anlagen/DE/Downloads/Infothek/Statistik/Asyl/aktuelle-zahlen-zu-asyl -april-2017.pdf?__blob=publicationFile (accessed 10 May 2017).
50 Id.
51 Id.
52 Aufenthaltsgesetz [Residence Act], Feb. 25, 2008, BGBl. I at 162, as amended, § 45a, http://www.gesetze-im-internet.de/bundesrecht/aufenthg_2004/gesamt.pdf, archived at http://perma.cc/2PK7-NQL8, unofficial English translation available at
http://germanlawarchive.iuscomp.org/?p=281, archived at http://perma.cc/P5Y3-V27S (accessed 10 May 2017).
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As is already mentioned in the International Refugee Protection part in chapter 2, the first step for the applicant to be in the process of being a refugee is to be registered under the refugee handling authority. In Germany, this procedure is handled by the state itself. In this case, applicant could be registered either at the bother or within the state.
For applicants arriving directly at the border, he or she would be directed to the closest repletion facility for registration. Later on, the allocation of these registered asylum seeker normally would depend on the EASY system53 which will decide reception facility based on the capacity available. There‟s a quota for each German states, so that they could accept only a certain number of applicants, this system is called Königsteiner Schlüssel. The number for each state, however, is being changed every year based on the amount of tax receipts and the population of that state.54 However, those applicants who are from the listed safe third countries will not be registered since they have no right to asylum, thus will be removed to their home countries.55 These listed safe countries include European Union (EU) countries, Norway, and Switzerland.56
Nevertheless, for applicants who arrived at some Airport, according to the “airport procedure”, the applicants with sufficient documents are registered directly at the airport.
For this category, the list of safe countries of origin are expanded to all EU countries, Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia.57 Decisions of whether refugee status is granted are made within a couple of days by the federal government, and if the result is negative, the applicant will be denied for the entry of the country with the threat of being deported back to his or her home country.58 The applicants still have the right to appeal within 3 days and the result of the ruling of the judges will be processed within 14 days.59 When the applicant is pending, he or she must remain in the airport and wait for the result.
Apart from the application or registration procedures as well as the handling after
53 The abbreviation EASY means Erstverteilung von Asylbegehrenden (“initial distribution of asylum seekers”).
54 Id. P. 45, para. 1.
55 Id. P. 26a, para. 1, 34a, para. 1.
56 Id. P. 26a, para. 2, annex I.
57 Id. P. 29a in conjunction with annex II.
58 Id. §§ 26a, para. 1, 34a, para. 1.
59 Id. § 18a, paras. 4, 6, no. 3.
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recognition, the process of recognizing asylum seekers as refugees are the similar with the procedure which is already mentioned in the International Refugee Protection part in chapter 2. The applicants are evaluated mainly based on the in-person interview. After the submission of the asylum application, the applicants are invited for doing an interview (only for applicant that‟s above 6 years old). With the assistance of interpreters, the applicant will be acknowledged of the rights he or she has in his or her own language. As is mentioned in Chapter 2, the applicant has the responsibility to corporate and to provide information to prove of persecution or serious harm.60
Based on the assessment of the interview, the case workers will make a decision. In the meantime, German regulations allows case workers to consult the Federal Office‟s Asylum and Migration Information Centre and its Migration Info Logistics (MILo) by sending the individual inquiries to the German Foreign Office and to obtain advices regarding difficulties of language, physical technical documents and medical and other problem that requires expertise.61
German legislation has standardized the refugee admission and rejection in details.
On the one hand, as a complement of the 1951 convention, the Asylum Act and the Residence Act listed the situations where asylums seekers could be recognized as refugees. According to the political persecution that is legalized in article 16a of Basic Law, if the applicant is proved to be the victim of political persecution he or she might be granted a refugee status. What is more, the section 3, paragraph 1 of the Asylum Act also codified the asylum under the Geneva Convention for the purpose of humanitarian reasons, including the standard and criteria for political asylum and other humanitarian grounds.62
The applicants who are granted a political asylum could receive a three-year residence permit (Aufenthalfserlaubnis).63 And after these three years, a settlement permit (Niederlassungserlaubnis) which has no time limit is issued to the refugees
60 Id. § 25, para. 1, sentence 1.
61 Federal Office for Migration and Refugees, supra note 23, at 17.
62 Other humanitarian reasons are listed in article 3a and 3b of the Asylum Act.
63 Residence Act, §.26, para. 1.
