This FAQ responds to questions revolving around the topic of protecting refugee women and girls against violence. It begins with a glossary that clarifies key terms and their consequences for female refugees. The glossary will be amended and updated as required on the websites of bff and FHK.
The FAQ then continues with a number of questions that are categorised according to ten broader topics. Some of the questions recur because they belong to different topics at the same time.
It is important to note that legal regulations frequently change in this field. This FAQ is concerned with the legal situation as of August 2020.
Generally, a residence permit for Germany can be granted on various grounds. It is possible to issue a residence permit on humanitarian or political grounds (asylum, refugee protection, subsidiary protection, ban on deportation, case of hardship), but also for family reasons (such as childbirth, marriage or family reunion) as well as for educational or study purposes or for work
purposes.
Under certain conditions, however, it also possible to take up employment while an asylum application is still pending. Or in case a recognised refugee becomes a parent, this may as well affect the residence status. This kind of situation can result in a change of residence status, which means, for example, that residence on humanitarian grounds will be changed into residence for family reasons.
At first it must be clarified what the current basis of the residence status is and to which conditions it is subject, so as to examine which rights and obligations this status implies.
This FAQ focuses on issues regarding residence on humanitarian grounds. It will also touch upon those cases where the residence status is likely to change, for example, after having taken up vocational training or employment or when a child has been born.
During the asylum procedure, the Federal Refugee Office will ascertain for each “asylum application” (application for protection), in descending order:
International protection is now the generally used term. The concept of international protection is derived from European Refugee Law. It subsumes both refugee protection and subsidiary protection under the category of international protection.
Asylum seekers are entitled to remain in Germany for the duration of their asylum proceedings. Upon registering as asylum applicants, they receive a so-called proof of arrival (Ankunftsnachweis) that is valid only for the first few days. Once they have filed a formal application, asylum applicants receive a permission to reside (Aufenthaltsgestattung), a foldable green card that is valid for the duration of the entire asylum procedure. The permission to reside is not a residence permit, but only documents that applicants are entitled to reside in Germany until their asylum application has been finally decided on. In case the Federal
Office for Migration and Refugees (BAMF) rejects an asylum application, the permission to reside also remains valid during possible court proceedings.
The permission to reside expires when the BAMF has come to a final, that is, non-appealable decision or, regardless of this decision, when an asylum application has been withdrawn.
Note: The permission to reside will often be issued for a duration of six months, in some German states even for a duration of up to one year, with a possible extension. If a final negative decision on the asylum application is made during this period, however, this decision will render “invalid” the permission to reside. The person concerned is then obliged to leave the country. If the person does not hold a passport or cannot (immediately) leave the country for other reasons, they will be asked to return the permission to reside, and instead a temporary suspension of deportation will be issued.
The so-called obligation to take up residence (Wohnsitznahmeverpflichtung) determines where asylum seekers are required to take up permanent residence, that is, where they have to live and be registered. Just as the residence obligation, this regulation takes effect from day one.
Also, in case of relocation to a private apartment or a shared accommodation, the obligation to reside in a prescribed district or independent town continues to apply.
The “Second Act for an Improved Enforcement of the Obligation to Leave the Country“ (“Zweites Gesetz zur besseren Durchsetzung der Ausreiseverpflichtung”, in force since August 2019) stipulates that asylum seekers are now obliged reside to in a reception facility for the time period between filing an application and receiving a decision or, in case of a negative decision, until they leave the country or are deported. However, this obligation may not apply for more than 18 months or, in the case of families with children, for more than six months.
Residence obligation (Residenzpflicht) means that the mobility of the person concerned is restricted to a particular town or district and that they may not travel to another location without permission. As a rule, the person then requires a permission from the BAMF or the responsible immigration office in order to leave the designated area. No prior permission is required to attend appointments at courts or authorities where appearance in person is necessary.
The residence obligation applies to asylum seekers once their application has been filed and ceases to apply after three months (section 59a, Asylum Act), unless the person is required to live in the (initial) reception centre for more than three months.
The residence obligation can be also be ordered at a later time, for example, when the person has been convicted of a crime (for details, refer to above).
A residence permit can be linked to certain conditions or restrictions. One of the most important of these subsidiary provisions is the residence restriction, which obliges especially persons who were granted a residence permit on humanitarian grounds to live in a particular state or town.
Hence the residence restriction as such does not apply to persons whose asylum proceedings are pending, but to those who already hold a residence permit. As a rule, the restriction will be applied as long as the person concerned receives state benefits.
Relocating from one state to another shall be approved particularly in cases where the change of residence makes it possible to secure one’s subsistence without relying on state benefits, where it allows one to live together with one’s marriage or life partner or where it provides protection from threatening family members or partners.
In Summer 2016, a new provision was added to the residence restriction that applies to recognised refugees and persons entitled to subsidiary protection. The residence restriction laid down in section 12a of the Residence Act requires these persons to reside in that state which was responsible for their asylum proceedings for three years after having been granted asylum. Hence even recognised refugees do not enjoy the freedom to choose their place of residence within Germany. This legal provision makes it also possible to designate the municipality where the person concerned has to take up residence. This kind of residence restriction can of course be removed in case one wants to take up studies, vocational training or employment or in order to avoid a case of hardship (see also here and here).
The residence restriction can be rescinded in cases of gender-specific violence. In such cases, the person concerned is under
obligation to cooperate. When filing an appeal against the residence restriction, they have to explain their personal situation. Among the documents that would support the appeal are medical or hospital records stating physical or psychological injuries, letter of confirmation that one has been admitted to a women’s shelter, criminal charges, protection orders issued by courts, a judicial assignment of an apartment in accordance with the Protection against Violence Act, but also comprehensive statements issued by recognised counselling centres for victims of violence. If a case has been thoroughly explained and documented as requiring protection against violence, it will always be regarded as grounds for rescinding the residence restriction. In exceptional situations, where an urgent need for protection is plainly evident, the obligation to provide documentation may be waived.
As a general principle, every person who is not a EU citizen requires a permit to stay in Germany. The person is obliged to leave the country if the residence permit expires after a certain period or if it ends due to a negative decision on granting or renewing a residence title, or if, for example, an asylum application has been finally rejected.
This does not always imply that a person also immediately leaves or is entitled to immediately leave the country. Sometimes there are actual or legal obstacles, for example, if documents are missing, if a person is unable to board because of maternity protection, if there is no airport in the country of origin, or for other reasons. In such cases, the deportation will be temporarily suspended. This does not amount to a residence title. It merely certifies that, although the person is obliged to leave, the deportation cannot be presently enforced.
A “temporary suspension of deportation” (Duldung) can be issued for persons who are obliged to leave the country and have no German passport. This means that the suspension of deportation does NOT amount to a residence permit and does not provide a basis for lawfully residing in Germany. Persons whose deportation has been suspended, for example because their permission to reside has ended or because their asylum application has been finally rejected, are still obliged to leave the country. Only specific reasons (e.g. illness, lack of passport etc.) can justify that the enforcement of this obligation is suspended temporarily or in the long term.
Whereas deportation refers to authorities enforcing the termination of residence, expulsion solely lays down the revocation of the residence title along with a re-entry ban.
Persons without German passport can be expelled, that is, lose their right of residence when they have been convicted for serious offences or are regarded as a danger to the public for other reasons. Weighing the public interest in expulsion against the individual interest in remaining will then result in an overriding interest in the person’s deportation.
Until 2015, the interest in expulsion was considered “especially serious” when the person concerned had been sentenced to a prison term of at least two years. After the incidents on New Year’s Eve of 2015/16 in Cologne, another grounds for expulsion was added: If the person has been sentenced for committed offences against life, physical integrity, sexual self-determination or property or for resisting enforcement officers, then a sentence for a prison term of one year will justify expulsion. After further legal changes, a sentence of one year on probation for causing bodily harm now already provides grounds for expulsion. A sentence of one year for receiving social benefits without entitlement or for committing an offence under the Narcotics Act are also considered grounds for expulsion.
In any case, the government agency or, in the event of an appeal against the decision, a court has to consider, in each individual case, whether the state’s concern with having the person deported outweighs the person’s wish to stay. In this regard, the person’s ‘rootedness’ in Germany and their residence status are of special importance.
However, a person that has been expelled will not in every case have to leave the country or rather will not necessarily be deported.
If, for example, refugee status has been recognised and if it has been determined that the person is threatened with torture or other human rights violations in their country of origin, the state will, as a rule, abstain from deportation, even if the person has become liable to prosecution in Germany. In this case, however, a residence permit will not be granted. Such a person’s deportation will more often be considered as permanently suspended.
Deportation refers to the execution of the obligation to leave. That is, deportation is in each instance preceded by a decision on terminating or discontinuing residence. Moreover, the person is at first required to voluntarily leave the country and thereby to comply with the obligation to leave. It is not until the person neglects to do so that authorities can prepare and enforce compulsory deportation.
Basic information on regulations relating to asylum and residence matters, but also on family reunification or on particularly vulnerable refugee groups, can be found on the website of GGUA refugee support:
The following compilation of materials on the rights and obligations during the asylum procedure is useful when it comes to counselling and supporting refugee women (information in German):
Asylum seekers are under particular obligations during the asylum procedure. This includes in particular the obligation to pursue the procedure. This means that, after unauthorised entry, they are obliged to immediately register as asylum applicants, to immediately report tontheir assigned reception centre, to personallynfile their application with a branch office of the BAMF and to attend the personal interview to present their reasons for taking flight. Also, during the entire asylum procedure, they have to be constantly available for the authorities. In the first few months of the procedure, this is ensured through the obligation to take up residence and through the residence obligation. Violations against obligations to cooperate can, in extreme cases, lead to a discontinuation of the procedure, without ever having examined the reasons for flight or the asylum application.
Moreover, asylum seekers are under obligation to provide personal documents to the authorities in order to help determine their identity. When asylum proceedings are pending, however, there is no obligation to obtain a passport. In fact, applying for a passport at the embassy of the country of origin will at this stage of the asylum procedure signal that the person seeks
the (diplomatic) protection of the very country it allegedly fled for fear of persecution. This can be seen as contradicting the stated reasons for flight. The only exception is when a passport is required for a marriage, since there is no access to a legal marriage without a passport.
In case a deportation has been suspended, however, there is indeed an obligation to obtain a passport if the person concerned does not hold a passport and if this is also the reason for the suspension of deportation. If this “person whose identity is not verified” cannot provide a passport, they have to prove that, taking into account the particular circumstances of the individual case, they have taken all measures that can reasonably be expected of them in order to obtain a passport or a replacement passport. Among the measures that can be reasonably expected of them is particularly the personal visit to the embassy of their country of origin in order to give all the required details and declarations – sometimes also a declaration of
their voluntary departure if issuing a passport is made subject to this condition. They also haven to pay the fees determined by their country of origin, as far as it is a reasonable amount.
Violations against this obligation to cooperate in obtaining a passport, on the one hand, may result in the fact that only a “temporary suspension of deportation for persons whose identity is not verified” (the so-called “Duldung light”) according to section 60b of the Residence Act will be issued. This form of suspension involves even more drastic restrictions. On the other hand, already reduced benefit payments can be further cut and a fine of up to 5.000 € can be issued.
Basic information on the Dublin III Regulation (2015) can be found under:
www.saechsischer-fluechtlingsrat.de/de/dublin-iii-verordnung-verordnung-eg-nr-6042013/
More Information you can find in the Glossary.
In the case of refugees from so-called safe countries of countries and, by implication, female refugees who have been affected by violence, it should be noted that, based on an assessment of the situation in the respective country, the Federal Republic will assume that no political persecution or human rights abuses occur in these countries.
This means that, as a rule, it is be presumed that any person from these countries does not have to fear persecution. Their asylum applications are thus routinely turned down as “manifestly unfounded”. The displaced person then enters into a much shorter procedure, in which they have to provide facts and evidence that – contrary to the abovementioned presumption – they actually have to fear persecution in their country of origin. This procedure includes giving a very specific and detailed account of the persecution, which must not be not limited to the generally difficult situation in the country of origin. When persons from so-called safe third countries apply for asylum, the Federal Office shall decide on their asylum application in a “fast-track procedure” (section 30a, Asylum Act) within one week of the application being filed.
The so-called safe third countries are listed in an annex to the Asylum Act. The list is reviewed every two years. Currently (as of August 2020), the list includes the following countries: the EU member states, Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Former Yugoslav Republic Montenegro, Senegal, Serbia (German Basic Law, section 16a;
Asylum Act, Annex II to section 29).
There are further restrictions pertaining to the accommodation of persons from so-called safe countries of origin. There exist, among other things, special reception centres where they are obliged to reside for the duration of the asylum procedure and possibly until deportation. If the persons concerned file an appeal against the rejection of their asylum applications, they can be deprived of their mobility rights by imposing a residence obligation on them. Also, they will often be banned from taking up employment, just as it is possible to cut their benefits. How quickly and strictly authorities will resort to such sanctions varies from one federal state to the other. Not all federal states have implemented these legal provisions, so that these regulations still do not always apply practically. The cases in which women from so-called safe countries of origin can assert gender-specific violence as a reason for seeking asylum will be addressed in another chapter.
Classifying an asylum application as “manifestly unfounded” (that is, rejecting it) entails a considerable restriction of legal protection and further restrictions concerning the stay in Germany.
In case an asylum request is considered “mani-festly unfounded”, however, an appeal must be filed within one week only. But, in contrast to a request that is simply considered “inadmis-sible”, filing an appeal here does not by default mean that everything remains the same for the woman until the appeal procedure has been concluded.
Instead, the Foreigners Office can urge the women during the appeal proceedings to assist procuring travel documents that would facili-tate the deportation, and, in extreme cases, the woman can even be deported to her country of origin.
In order to prevent this, an additional emer-gency appeal for legal protection should be filed. In this appeal, the personal story of persecution must be described completely and thoroughly, along with evidence. This involves an enormous effort that needs to be taken care of within a week right after the negative decision and represents an obstacle that is very difficult to overcome. This is aggravated by the fact that, in most cases, the prospects for success are limited.
Once an asylum application has been filed, asylum seekers’ mobility rights will be temporarily regulated. Accordingly, they are required to take up residence, just as their freedom of movement can be curtailed.
Residence obligation means that the person concerned may not leave a designated town or district without permission from the responsible authority. When the residence obligation ceases to apply, the person may travel throughout Germany and stay overnight with friends. In order to attend appointments at authorities or courts where personal appearance is mandatory, no prior permission is required to leave the designated area. The residence obligation applies to asylum seekers once their application has been filed and shall cease to apply after three months (section 59a, Asylum Act), unless the person is required to live in the (initial) reception centre for more than three months.
The latter has become increasingly the rule since the asylum laws were tightened. Because currently the obligation to reside in an initial reception centre – and thus also the residence obligation – applies until the asylum application has been decided on or, in case of a negative decision, until the applicant leaves the country, but it may not apply for more than 18 months or, in the case of families with children, for more than six months (for details see below under obligation to take up residence).
This means that persons who later are recognised as entitled to asylum possibly lose 18 months that they could have otherwise used for the purpose of integration.
The obligation to reside in a reception centre and with it the residence obligation cease to apply when the person concerned receives approval to relocate to a shared accommodation or apartment. This means that German states can shorten the duration of the stay in initial reception centres by allocating asylum seekers to a particular municipality.
It is also possible to issue a permission to leave the district specified in the residence restriction for the purpose of taking up employment, attending school, starting or continuing vocational training and theoretically for study purposes as well. In most cases, the issuing of such a permission is at the discretion of the authorities. A legal entitlement exists only if an urgent public interest applies, if it is necessary for compelling reasons or if denying permission would constitute undue hardship. Experience
has shown that it is unproblematic to obtain a permission for family reasons (hospital visits, marriage, death of a family member etc.) or for urgent visits to doctors.
Violating a residence restriction constitutes an administrative offence that is punished with a fine. Repeated violations may be punished with a substantial fine or a prison sentence. More importantly, substantial fines or prison sentences might later compromise the entitlement to a residence permit on humanitarian grounds (see under deportation). Criminal proceedings due
to violations of a residence restriction should therefore be taken seriously.
A territorial restriction (residence obligation) can also be ordered once the asylum proceedings have been completed, when the person concerned is subject to a temporary suspension of deportation, especially when the person has been convicted of a criminal offence or when concrete measures to terminate their residence are imminent. A stricter regulation also provides that a territorial restriction shall be ordered when the person concerned has allegedly prevented their deportation by presenting false information or by misleading the authorities as to their identity or nationality or by neglecting their obligation to cooperate in obtaining a passport etc.
Additionally, the Immigration Office may order “measures to facilitate the departure” of persons who are subject to a suspension of deportation, such as the obligation to regularly report to the Immigration Office for monitoring purposes and to seek repatriation counselling (section 46, Residence Act). In this context, however, courts have rejected the obligation to stay in a facility all night. Courts held that such an order must be reasonable in relation to the purpose of the regulation and that it must not turn into a form of harassment with punitive character. A “nightly house arrest” in this form, however, constitutes a restriction of freedom that has no legal grounds.
On the other hand, courts have considered as lawful to require the person concerned to inform the Immigration Office that they intend to spend time outside of a facility at night (e.g. by posting a note on the room door)
If any obligations to cooperate are violated, the residence obligation can also be extended beyond 18 months. Moreover, German states may in certain cases order that the duration shall be extended from 18 to 24 months. Bavaria and North Rhine-Westphalia, for example, have made use of this provision.
Upon filing an application, asylum seekers are assigned to an initial reception centre. They are obliged to reside there for a period of up to six months or, in case of families with minor children, for up to six months. If, however, the person concerned receives a positive notice on their asylum application, the obligation to reside in a reception centre immediately ends.
The obligatory period can also be shortened if the person concerned is allowed to relocate to a shared accommodation or an apartment. This means it is possible for the federal states to shorten the duration of a stay in an initial reception centre by assigning responsibility to a particular municipality.
There are also special regulations that apply, among others, to persons from so-called safe countries of origin.
In the case of so-called safe countries of origin, the legislator assumes that, due to their democratic status and general political situation, there is no threat of persecution in these countries and that the respective state is capable of protecting citizens from persecution by non-state actors. The so-called safe countries of origin appear in a list contained in the annex to the Asylum Act. The list is reviewed every two years. Currently (as on September 2017), the following countries are included:
the member states of the EU, Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, the former Yugoslav Republic of Montenegro, Senegal, Serbia (Asylum Act, annex II ad section 29a).
Persons from these countries, except for EU citizens among them, are required to reside in the responsible reception centre for the duration of their asylum procedure. This rule can even apply until deportation if their asylum application has been rejected as “manifestly unfounded” or “inadmissible”. During this time, they are not allowed to take up work and may only temporarily leave the area specified in their residence permit if they have received permission from the Federal Refugee Office.
Information on residence restrictions by the Refugee Council Lower Saxony (2015): www.nds-fluerat.org/leitfaden/24-status-bei-aufnahme-aus-dem-ausland/wohnen-umziehen-reisen/
Lastly, there is the residence restriction (Wohnsitzauflage) that has been added to section 12a of the Residence Act in 2016. This provision does not apply during but after the asylum procedure. This means that, for three years after having been granted asylum, recognised refugees are obliged to reside in that federal state which was responsible for their asylum procedure. Hence refugees cannot simply relocate to another federal state once they have been recognised as refugees. Moreover, according to this law, it is possible to specify in which municipality exactly the person concerned has to reside. The cancellation of the residence restriction can be achieved if a person takes up a study program, an apprenticeship or an employment, or because of other important reasons, such as violence and the ensuing necessity of taking refuge in a women’s shelter in a different municipality or in a different federal state.
For further information:
Work material by the German Parity Welfare Association on residence restriction and relocation : https://www.nds-fluerat.org/wp-content/uploads/2017/02/Brosch%C3%BCre-Wohnsitzauflage-%C2%A712-AufentG.pdf
Fact sheet on residence restriction by the Refugee Council Lower Saxony: https://www.nds-fluerat.org/wp-content/uploads/2017/02/Fact-Sheet-%C2%A712-a-AufentG.pdf
In order to facilitate the implementation and enforcement of the obligation to take up residence and in order to allow for the related possibility of monitoring the inhabitants, some German states have created so-called AnkER facilities.
AnkER stands for “arrival, decision, return” (“Ankunft, Entscheidung, Rückführung”). These facilities were created in August 2018 and serve as initial reception centres, where – in contrast to other reception facilities – refugees remain until their asylum proceedings have been concluded. Also, individuals whose asylum application has been rejected now can be deported directly from the AnkER facilities.
The stated objective of the AnkER facilities is to make the asylum process “more efficient”. For this purpose, all stakeholders who are involved in the asylum process are represented at the facilities, including BAMF, Federal Labour Office, Immigration Office, Social Welfare Office as well as administrative courts. Currently, there are eight AnkER facilities in Germany: six in Bavaria and one each in Saarland and Saxony. One AnkER facility in Bavaria was closed again in late 2019.
At the AnkER facilities the personal interview often takes place within one week after arrival, and after a month one can already receive notice. However, persons who have received a negative notice often remain in an AnkER facility for two to three years – although the coalition agreement stipulates that the maximum duration is 18 months or six months for families.
Refugees encounter numerous problems at the AnkER facilities. In some cases, for example, inhabitants cannot lock their rooms and have hardly any privacy. In other cases, several families have to share a single room. Police units that are also deployed at soccer games or demonstrations walk in and out of the rooms as they wish, confiscating groceries, electric kettles and deodorant sprays.
The counselling sessions on the asylum procedure are conducted by the BAMF – at first in group discussions and, if needed, also in one-on-one conversations. Often, however, there will be only group discussions, in which the asylum procedure will be explained in general, without addressing the individual situation of the refugees. At times no one is allowed to enter the AnkER facilities, expect for staff members of authorities or welfare associations. Asylum seekers are faced with the difficulty of finding out about external counselling services in the first place. Many of them are also worried that contacting an independent aid organisation might negatively affect their asylum proceedings. As a consequence, their access to legal counselling is heavily impeded, which means that especially persons with “poor prospects to remain” will often very quickly receive a negative notice.
Doctors and psychiatrists have also criticised stress-inducing factors such as insufficient protection against abuses, lack of privacy and nightly disturbances. It has been pointed out that AnkER facilities lack any kind of systematic approach for identifying particularly vulnerable inhabitants. Even in those cases where special protection needs have been identified, there was no clearly defined procedure and not enough staff members to offer the inhabitants the support they need. The organisation Doctors of the World has therefore departed the AnkER facility Manching/Ingolstadt out of protest in October 2019.
The Federal Office for Migration and Refugees is subordinated to the Federal Ministry of the Interior. It is responsible for overseeing the asylum procedure, that is, for reviewing the asylum application in terms of both form and content. It has at least one branch office in every federal state. The asylum application has to be filed in person. The personal interview during the asylum procedure also takes place at the Federal Office or one of its branch offices.
The Federal Office registers and stores the personal data and fingerprints of asylum seekers. The data will be fed into the European database EURODAC, and at first it will be checked if, according to the Dublin III Regulation, another European country is responsible for the asylum procedure. If not, then Germany and thus the Federal Office of Migration and Refugees is responsible.
Moreover, in each federal state, there are several reception centres, which are often connected to the branch offices of the Federal Refugee Office.
Foreigners Offices are state or municipal authorities. They are responsible for implementing the residential regulations (as laid down in the Residence Act). This includes the execution of decisions made during the asylum procedure, that is, as regards the permission to relocate, the provision of work permits, the residential regulations following the approval of asylum applications, but also the implementation of expulsions and deportations. Once an asylum application has been approved, the Foreigners Offices are bound to the decisions made by the Federal Office. That is, they issue residence and permanent settlement permits for recognised refugees, asylum seekers and persons eligible for subsidiary protection. In the case of all other migrants (foreign students, graduates, employees, relatives and so on), the Foreigners Offices are responsible for making decisions. The Foreigners Offices also grant residence permits during the asylum procedure, just as they issue temporary suspensions of deportations during the Dublin procedure or after a final rejection of the asylum procedure.
In the context of flight, gender-specific violence can occur in different situations, so that its consideration during the asylum procedure varies greatly in Germany:
Only violence suffered or gender-specific persecution in the country of origin can lead to the recognition of refugee status or subsidiary protection status. Because, according to the Geneva Refugee Convention, “the term ‘refugee’” applies to any person who “owing to well-founded fear of being persecuted for reasons of race[1], 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”. Hence the issue at stake is persecution in the country of origin. Persecution also implies forms of gender-specific violence.
In the course of interpreting and further specifying the reasons for persecution given in the Geneva Convention, gender-based persecution has been assigned to “membership of a particular social group”. In doing so, the focus was at first on the gender-based persecution of women. The category of gender-specific persecution of refugees primarily pertained to sexualised violence committed by members of the state while exercising their authority in the country of origin (including torture, rape during police custody or incarceration). It also includes persecution measures by the state against women that are solely based on gender.
Such measures comprise, among others things, genital mutilation, forced marriage, or threats based on the supposed ‘westernisation of women’ (This term is derived from its use in jurisdictional practice.). If the danger of persecution does not emanate from the state but from husbands, neighbours or other community members, then it has to be determined in a second step that the persecution is substantial and that the state and the organs of state are unwilling or incapable of protecting against such persecution.
However, the jurisdiction is inconsistent in this regard. In the case of forced marriage, for example, courts have reached all kinds of decisions, sometimes considering it an obstacle to deportation, sometimes as crucial to the recognition of refugee status.
What is important for the persons concerned is that the establishment of refugee protection status or obstacles to deportation is always an individual case-by-case decision and that it is impossible to make generalizations in this context.
Even if, for example, there are court cases in which a ‘considerable westernisation’[2] of women from Afghanistan has been recognised as a risk of persecution, such a decision cannot be expected from all courts and depends, moreover, on the particular person who is responsible for making the decision.
The persecution of LGBTI based on their sexual orientation or gender identity has meanwhile also been considered an indisputable reason for persecution owing to “membership of a particular social group”.
Gender-specific persecution during flight or in the host country, on the other hand, cannot result in the recognition of refugee status. However, if such persecution involves considerable physical and/or psychological suffering in such a way as to threaten the life (survival) of the person concerned, this might entail that a prohibition of deportation is declared and that the person concerned is granted a residence permit.
[1] The term race (Rasse in German) is used because legal texts make use of it. There is a discussion going on about using the term ‘Rasse’ and changing it in the german constitutional law.
[2] Verdict by the Higher Administrative Court Munich, September 21, 2015 - ref. no. 9 LB; verdict by Administrative Court Munich, August 14, 2007, ref. no. M 23 K 07.50455; verdict by the Asylum Court Austria, March 9, 2012, ref. no. C2 422385-1/2011/8E
In cases of gender-based persecution the person seeking protection can request to be heard by a specifically trained professional or a person with an awareness for this topic. At the BAMF there are specially-commissioned case-officers focusing on gender-based persecution. Moreover, women and usually also LGBTIQ*can, for example, insist that a woman conducts their interview and that a female interpreter is present if the person concerned is unable to share their experiences in the presence of men.
Ideally, the person seeking protection should apply for this – possibly with the help of a counselling centre or an attorney – already in advance of the interview, so that everyone is prepared for the actual interview. But even if no such application was filed, the BAMF employees should routinely ask the person concerned during the interview if they agree that a man conducts the interview or if they would rather prefer to be interviewed by a woman.
Moreover, it is always possible to present (expert) statements from counselling centres to the BAMF in order to substantiate one’s account of having experienced gender-based violence. However, such statements do not replace the personal interview with the applicant. It is only in very rare and particularly exceptional cases that the personal interview may be omitted due to a statement explaining the person’s special vulnerability.
It should also be noted that a very detailed statement from the person seeking protection does not replace the personal testimony, which means that they might have to explain everything all over again, even if they have already submitted a statement including an account of their experiences to the BAMF.
Especially in cases where persons are psychologically strained by the gender-based violence they have suffered, expert statements from counselling centres can be helpful to make the person heard at the BAMF, to ensure that their concern will be thoroughly examined and to support their personal testimony. When preparing such a statement, the following aspects should, among other things, be definitely taken into consideration:
The person drafting the statement should proceed very carefully and only within the framework of their professional qualification. This means they should not comment on aspects beyond their knowledge (such as the situation in the country of origin, just as social workers should not comment on psychological disorders etc.).
Great caution is also required when recounting the personal biography. Vague formulations, translation mistakes or other misunderstandings often lead to inconsistencies or inaccuracies that later on might contradict what is stated in the personal testimony. However, inconsistencies in one’s history of persecution pose one of the most serious problems during the asylum procedure. This is because authorities and courts still widely assume that a displaced person can at any time recount their experiences in a manner that is consistent and without internal contradictions, merely using different words each time.
This means that any overly detailed account of one’s experiences given in advance of the personal interview at the BAMF will limit the possibilities of presenting one’s experiences. It might also lead to situations in which interviewed persons are asked to resolve contradictions that they themselves are not even aware of.
It is often more helpful if the person drafting the statement describes how the (first) encounter with the asylum seeker went, what impression they made, how their conversation developed and what else the person drafting the statement noticed.
As a matter of principle, directives for the protection against violence do not directly influence the asylum procedure. The asylum procedure is primarily concerned with assessing the situation in the country of origin.
But, as explained above, violence committed by a husband can influence a woman’s asylum procedure to the effect that such violence is considered an obstacle to deportation. In that case, it will be determined whether the violence committed by the husband or the circumstance that, for example, the husband’s children were or are (temporarily) being seized, might involve persecution upon returning to the country of origin. This can, for example, be the case if, according to the jurisdiction of the country of origin, the children belong with the husband’s family after a divorce and if the woman, who has fled together with her children from the husband, is threatened by the husband’s family.
However, this issue can only be assessed on an individual case-by-case basis and cannot be generalised.
It is indispensable to consider, not only in the case of long-term separations but especially in the case of a directive for the protection against violence, that the asylum applications of marriage partners can be processed individually. In that case, it is crucial to consult a lawyer beforehand.
In the case of a divorce, it needs to be clarified first which kind of residential status the marriage partners have and if both or one of their asylum applications is still being processed or if protection status has already been granted.
It should also be considered whether the stay – in our case, usually the women’s stay – depends on cohabitation or marriage status. There are different constellations:
Accordingly, in the case of a divorce, it should be taken into consideration if the woman might have her own reasons for having to fear persecution, which she as yet has possibly not asserted, or if the divorce could amount to a new obstacle to deportation (see above).
In many cases, the divorce as such or, for example, the circumstance that the children are supposed to remain with the husband in the country of origin, can be considered a new obstacle to deportation. This issue should be clarified in each individual case by consulting a lawyer.
What is different again is the situation in which parents have children together who receive refugee protection through the father. In that case, the divorced woman can as well secure her residence title by providing parental care.
Regarding issues related to family law, there are generally no particularities that apply to persons whose asylum applications are being processed. Any person who seeks asylum can file a motion at a family court in order to obtain the right to determine the place of residence, to care and custody, to maintenance and to protection against violence. Difficulties may arise as the persons concerned do not hold German citizenship, so that due to their different nationalities, there is often the question of which particular legislation applies.
Such questions likewise have to be approached by other non-German couples or families.
Moreover, couples and families whose asylum application is still being processed have consider and clarify whether the asylum procedures are handled separately and what this implies as to the authority to represent the children. If, for example, a woman breaks up with her partner and takes the children with her, then she would actually have to file a request, along with her application to custody rights, to obtain the right to act as the sole representative regarding all matters pertaining to the children during the asylum procedure. Or, in the opposite case, the woman would have to file a motion to the effect that she will also be informed about decisions pertaining to her children, even if she has no access to information regarding her husband’s asylum application. In this context, the Federal Office for Migration and Refugees, lawyers and administrative courts frequently create legal facts that rest on shaky foundations in terms of family law.
In general, marriage contracts that have been concluded in a foreign country do no require additional recognition in Germany. It is possible to file a request for the certification of a marriage contract to be included in the marriage register if one of the marriage partners holds the German citizenship.
The requirements for concluding a marriage con-tract are subject to the legislation of the country of origin. A marriage contract that has been conclu-ded in the country of origin is also valid in Germany and will be officially recognised if the material and legal requirements for marriage (e.g. unmarried status, minimum age) were met by both partners in the country of origin at the time when the marriage was concluded and if the marriage has been recog-nised in the country of origin (according to section 13 of the Introductory Act to the German Civil Code). Exemptions from the recognition of mar-riages can be made if a foreign legal norm violates the public policy doctrine (the so-called “ordre public”). That is, if a foreign marriage is obviously irreconcilable with the basic principles of German law, it will not be recognised and therefore con-sidered invalid in Germany.
An assessment regarding the violation of the basic principles of German law (see section 6 of the Introductory Act to the German Civil Code) can only happen on an individual case basis and requires consideration of the special charac-teristics of the foreign legislation. A violation has been presumed if, for example, it is legal to marry at the age of 14 in the country of origin.
Unaccompanied underage refugees in Germany will be routinely entrusted to the Youth Welfare Office and appointed a legal guardian.
If, for example, an underage refugee arrives with their marriage partner, then it will first be determined whether the marriage is considered valid in Germany. In this context, there have been substantial changes since the introduction of the “Act Against Child Marriage” on July 18, 2017.
According to this law, it is now banned to conclude a marriage if one of the marriage partners is under 18 years of age, even with the consent of the parents or the Youth Welfare Office, as it was possible until now. Regarding marriages between minors concluded in a foreign country, it is now the case that marriages involving persons under 16 years of age are, as a rule, considered invalid and that marriages involving persons between 16 and 18 years of age shall be annulled upon request.
This has far-reaching legal consequences whose practical applications and effects remain to be seen.
The title alone, “Act Against Child Marriage”, signals a stigmatising attitude towards marriage in the public sphere. The term “child marriage” suggests the forced marriage of children, especially of girls up to the age of 14.
In fact, marriages with and between underage person arise out of various contexts, out of different realities of life. It seems inappropriate, for example, to frame the marriage between a 17-year-old and a 19-year-old adolescent, who married in order to flee from Syria to Germany, in terms of a “child marriage” (German Institute for Youth Human Services and Family Law, DIJuF e. V., February 22, 2017).
Further problems arise if, for example, a minor and their partner are already parents or if they have a child in Germany. In that case, paternity first has to be determined and recognised.
For this purpose, an underage person requires the approval of a legal representative (section 1596, paragraph 4, sentence 2, subsentence 2, German Civil Code). According to past experience, a legal guardian (representative) will only be appointed after a longer interval, in many cases only after months.
During that period, the legal representation of a child of an underage mother is restricted (section 1673, German Civil Code). It is possible to claim retroactive maintenance, but still such payments for supporting subsistence might be lacking for months.
Visitation rights are also not enforceable without legal paternity. The situation is similar when it comes to common parental care: The right to cooperative care involving the partner of an underage mother can only be claimed by issuing mutual custody declarations. This also requires the approval of the mother’s legal representative (section 1626c, sentence 2, subsentence 1, German Civil Code), which means that delays and unclear legal situations are to be expected. It is also questionable if and when the parents will receive appropriate counselling / information in order, for example, to catch up on the acknowledgement of paternity and the submission of mutual custody declarations.
In the case of a divorce, it needs to be clarified first which kind of residential status the marriage partners have and if both or one of their asylum application is still being processed or if protection status has already been granted.
It should also be considered whether the stay – in our case, usually the women’s stay – depends on cohabitation or marriage status. There are different constellations:
Accordingly, in the case of a divorce, it should be taken into consideration if the woman might have her own reasons for having to fear persecution, which she as yet has possibly not asserted, or if the divorce could amount to a new obstacle to deportation (see above).
In many cases, the divorce as such or, for example, the circumstance that the children are supposed to remain with the husband in the country of origin, can be considered a new obstacle to deportation. This issue should be clarified in each individual case by consulting a lawyer.
What is different again is the situation in which parents have children together who receive refugee protection through the father. In that case, the divorced woman can as well secure her residence title by providing parental care.
Below you can find an overview of medical support services and social benefits for refugees.
Medical support for refugees:
Medical support for person without regular residence status
Information by Diakonie: www.diakonie.de/fileadmin/user_upload/Diakonie/PDFs/Broschuere_PDF/English_Version_BAG_Gesundheit_Illegalitaet_Arbeitspapier_Gesundheitsversorgung_fu__r_Menschen_ohne_Papiere_April_2017.pdf
Medi-Büro locations throughout Germany: medibueros.org
Psychotherapeutic services
Social rights of refugees (information in German)
As long as the Federal Office (BAMF) or the Foreigners Office is still processing the asylum application, refugees – including female refugees who have been affected by gender-based violence – have to pay on their own for legal counselling.
In this case, however, it is possible, just as in the case of family or criminal proceedings, to apply for legal aid for extra-judicial proceedings. Still, a one-time legal aid amounting to roughly 100 € does not allow for appropriate legal representation during the asylum procedure.
Refugee support organisations, such as Pro Asyl, the German AIDS Service Organisation (Deutsche AIDS Hilfe), Reporters Without Borders and others, often subsidise the legal representation of refugees. It is also possible to consult women’s organisations on whether they can subsidise attorney fees in individual cases.
If the Federal Office (BAMF) partially or completely rejects an asylum application and if an appeal against this decision is filed at the administrative court, then it is possible to apply for legal aid to cover the costs of the complaint proceedings. The approval of such legal aid depends, for one thing, on whether the person concerned is in need of it. The person thus has to prove that she does not have the necessary financial means at her disposal. For another thing, the outcome of the proceedings at least needs to be still open. The state will not cover the costs for lawyers to get involved in court proceedings that are futile from the outset.
For this reason, the administrative court will decide on whether or not to grant legal aid based on the prospects of the complaint. This kind of decision-making process is as unpredictable as the outcome of the proceedings differs from court to court. Hence it is by no means possible to predict whether or not legal aid will be granted when filing a complaint.
Since the decision on granting legal aid is often made only very late during court proceedings, lawyers generally ask for a retainer and for fees to be paid in monthly instalments, for which the client then can be reimbursed in case legal aid is granted.
During administrative court proceedings, legal representation is not obligatory. This means that the person concerned does not have be represented by a lawyer. Hence, for example, a complaint can be filed within a certain period of time at the court’s office for legal requests directly by the refugee herself. At this office, there will be court personnel who can assist with the application. Another option would be to consult an experienced circle of supporters in order to draft a sound statement for the application, so that it becomes possible to call in a lawyer only at a later time.
Yes, in general, a woman who has been affected by violence can receive a counselling voucher. It will be difficult, however, to find a lawyer who is willing to take over the extensive legal representation required by an asylum procedure in return for a counselling voucher of 100 € (see above)
Once the procedure has been concluded, the possibility of making use of a counselling voucher depends on the prospects of a complaint. As soon as the court proceedings have commenced, the right to counselling assistance ceases and is followed by the right to legal aid (see above).
For an overview of the possibilities for funding a stay in a woman’s shelter: See attached table.
There are possibilities for funding interpreters through public subsidies, namely through funding and support programs by federal states and municipalities as well as state shares in funds for women’s shelters and expert counselling centres. However, such arrangements are not available in all federal states and not in all women’s shelters and counselling centres.
The quality of interpretations, the access to funding possibilities, and the accounting procedures may vary considerably from region to region and from case to case.
For an initial consultation of a women affected by violence or in order to determine which language she speaks, the nationwide hotline “Violence Against Women” can be contacted (see the info sheet of the hotline “Violence Against Women”: Multilingual counselling upon request by a support organisation: www.hilfetelefon.de/das-hilfetelefon.html
As yet there is no consistent nationwide arrangement regarding the funding of interpretation services. In practice, this leads to a dramatic shortage of professional translations.
As a result, it is often children or non- professional supporters recruited from a wider social context who take care of translations.
It is likewise problematic that, in many locations, public subsidies are not made available for professional interpreters but only for language mediation. This way the professional standards that are necessary when it comes to a sensitive subject such as violence cannot be ensured.
Moreover, poorly paid team members with the necessary language skills are often additionally hired (for example, as marginal employees on a 400€ basis) or deployed as interpreters in such a way that goes beyond their actual responsibilities. In refugee shelters, this task is frequently carried out by security guards, so that there is a mixing up of professional roles, which also constitutes a breach of the requirement of neutrality on the side of the interpreter.
Also, interpretation services are often only available for larger language groups (e.g. Arabic or Russian), while interpreters for other languages are hard to find.
Expert counselling centres and women’s shelters have for a long time requested from federal, state and local authorities that adequate funding for interpretation services shall be made available in all federal states through-out Germany.
The residence obligation (see above) restricts mobility rights during the first few weeks after submitting an asylum application or, in the case of persons from so-called safe countries of origin, for the whole duration of the asylum procedure. This means that women affected by violence, who in order to escape their perpetrators have to relocate to a place that the residence obligation keeps them from going to, first have to obtain a permit (by filing a request, if possible in written form, at either the Federal Office or the Foreigners Office, depending on the stage reached in the asylum procedure). Otherwise they will violate the residence obligation and commit an offence. In the case of women affected by violence, such an offence, which occurs due to having to escape the perpetrator, is deemed justified and has no direct negative influence on the asylum procedure.
Since this often involves a situation of imminent danger, it is generally possible to file the request belatedly or rather the women’s conduct will be considered as having been excused.
Once the asylum procedure has begun, asylum applicants are required to live in an initial reception centre – until their application has been decided on or, in case of a negative decision, until they leave the country, but not for more than 18 months and, in case of minor children and their parents or other persons entitled to custody, not for more than 6 months (section 47, Asylum Act).
However, this obligation ceases to apply immediately upon receiving a positive notice on the asylum application or when the person becomes entitled to a residence permit through marriage or civil partnership or when the person is allocated to a collective accommodation. At the beginning of the asylum procedure, there is the obligation to stay in a reception centre for a duration of up to six weeks, or for six months at most.
The question of whether a person is allocated to a shared accommodation or obtains the right to take up their own residence is settled different-ly from one state to the other.
The obligation to reside in a reception centre may, upon application, be rescinded at the discretion of authorities for reasons of public health (e.g. in case of infectious diseases), for reasons of public safety or order (e.g. escalating tensions among inhabitants or threats of outside attacks) as well as for other compelling reasons. “Other compelling reasons” are, for example, severe (psychological) illnesses and cases where the asylum applicant or one of their family members is in need of nursing and care.
One way to achieve an early release from a reception facility is to request reallocation to a shared accommodation or an apartment for reasons of protection against violence.
Persons who have filed an asylum application or whose deportation has been suspended will be allocated to a particular place of residence. After allocation, it is possible to file a reallocation request in order to obtain a permit to move to another place of residence (within the same state or from one state to another). In cases where applicants belong to a particularly vulnerable group (e.g. with an urgent need for specialised assistance), it is sometimes helpful to request an allocation to a specific place right from the start when the asylum application is submitted.
In doing so, the domestic community of family members or “other equally important humanitarian reasons” shall be taken into account.
The person concerned herself (and possibly with the help of supporters) can at any time urge for fast-track processing of a reallocation request – in the case of experiences of violence, the request will be well-substantiated. There is no general legal or administrative provision stating that certain requests will undergo fast-trackprocessing. As a general principle, if authorities remain inactive for at least three months, it is possible to take action against failure to act at the administrative court. In social lawsuits, however, there must be a period of inactivity of six months prior to filing a complaint.
It follows from the wording of the legal regulation that the internal distribution of a federal state takes precedence over crossborder distribution and that this shall be taken into account, especially in cases of reallocation requests due to humanitarian reasons. That Foreigners Office, which is responsible for a particular place of arrival, takes care of processing the requests.
Whether and to which extent the request will and can be granted according to the location of choice thus depends on which humanitarian reasons exist and will be claimed for the particular location. In this context, it is important, for example, to put forward that the woman will receive the support she needs at the location of choice, that supportive relatives live there or that there is a vacancy in a women’s shelter. In general, the requirements for substantiating a reallocation request are relatively high; however, in the case of women affected by violence, they can be substantiated by taking the abovementioned aspects into account.
Expressing a general desire to live in a particular place is usually not enough.
A reallocation request filed after one’s deportation has been suspended, that is, possibly after the rejection of an asylum application, will only be granted in very exceptional cases. From an administrative perspective, the person concerned is under obligation to leave the country, so their rights are confined to a minimum. However, in these cases too, the right to protection against violence shall not be undermined, so it is advisable to file a corresponding request, provided that the requirements are met.
It is, of course, possible for women who have been affected by violence and whose asylum application is still being processed to preclude perpetrators from returning to shared accom-modations and own apartments. The police can impose a restraining order on the perpetrators, and accommodation providers can pronounce a house ban.
When issuing such orders, however, a potential residence restriction or obligation on the side of the perpetrator needs to be taken into consideration. If a residence obligation still applies to the perpetrator, then he will commit an offence by being expelled from his assigned territory. In case a residence restriction still exists, he cannot simply take up residence outside of that territory. In case of an order issued by the family court, the order thus has to make reference to a modified residence restriction or include an allocation to a different accommodation.
As a general principle, directives for the protection against violence do no have any direct influence on the asylum procedure. The asylum procedure is first and foremost about assessing the situation in the country of origin.
However, as already explained above, violence committed by the marriage partner can influence the asylum application of a woman affected by violence to the effect that it might constitute an additional obstacle to deportation. In this case, it will be assessed whether the violence committed by the partner or, for example, the circumstance that the latter’s children (temporarily) have been or are being taken away might entail persecution upon assumed return to the country of origin. This might be the case, for example, if, according to the legislation of the country of origin, the children belong to the husband’s family after the divorce and if the wife, who together with the children has fled from her husband, is threatened by the husband.
Yet this question can only be answered for an individual case and does not allow for generalisation.
It is indispensable to keep in mind that the asylum applications submitted by the marriage partners can be processed separately, not only in the case of a long-term divorce but also when it comes to directives for the protection against violence. It is very important to consult a lawyer on this issue.
As a result of years of cooperation between the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSFJ), UNICEF, welfare associations, the German Network and Coordination Office Against Trafficking In Human Beings (KOK), the Association of Women’s Shelters and many other partners, the implementation of the “Second Act for an Improved Enforcement of the Obligation to Leave the Country” (the so-called “Geordnete Rückkehr-Gesetz”, which primarily aims at facilitating deportation) also involved adding a clause under section 44, sentence 2a of the Asylum Act, which stipulates that each German state shall take appropriate accommodation measures in order to ensure the protection of women and vulnerable person.
The group of persons as defined by this provision includes, according to the explanatory memorandum, not only women, but also minors, disabled persons, elderly persons, pregnant women, LGBTI persons, single mothers with underage children, victims of human trafficking, persons with severe physical illnesses, persons with psychological illnesses and persons who
have suffered torture, rape or other forms of severe psychological, physical or sexual violence, for example, victims of gender-specific violence, female genital mutilation, forced marriage, or victims of violence based on sexual, gender-specific, racist or religious motives.
In 2016, the nationwide “Minimum Standards for the Protection of Refugees and Migrants in Refugee Accommodation Centres” were established for the first time and have now already been published in a third and significantly
extended edition:
These minimum standards provide guidelines for developing and implementing internal protection concepts for refugee
accommodations. Many German states have developed their own concepts for protection against violence, which are partly mandatory for the organisations operating the accommodation facilities, but remain rather vague when it comes
to their implementation. Often, for example, they draw on formulations like “generally”, “if possible”, “if not possible, other solutions shall be applied”.
The responsibility for the appropriate implementation of the protection concepts lies on the managing directors of each accommodation. To effectively support the women, however, it is extremely helpful when other stakeholders as well are familiar with the protection concepts – also to create awareness of the fact that in each accommodation facility there has to be a clearly defined contact person that victims of violent abuse or sexualised violence can approach.
An overview of concepts for the protection against violence can be found on the following
website:
gewaltschutz-gu.de/weitere_materialien/gewaltschutzkonzepte_berichte_und_ andere_veroeffentlichungen/
A residence restriction (imposed after conclusion of the asylum procedure, in case one holds a residence permit on humanitarian grounds or has been granted international protection status) can, upon request, be lifted in order to avoid cases of hardship. According to law, violence against women constitutes such a case of hardship. Therefore, a person affected by violence cannot be reasonably expected to remain at a place if the residence restriction also obliges the perpetrator to remain at the same place. Likewise, it cannot be reasonably expected to comply with a residence restriction if this would undermine a protection order pursuant to the Act on Protection against Violence or any other measures necessary for protection against violence (especially against domestic or gender-specific violence).
If a case that requires protection against violence has been sufficiently explained and documented, it shall always be regarded as a case of hardship pursuant to section 12a of the Residence Act, and an existing residence restriction shall be lifted.
The person concerned must, within six weeks of taking flight from their allocated residence submit an application, in which they explain that they have suffered domestic or gender-specific violence and that they will continue tobe threatened with such violence, unless they receive permission to relocate. Therefore, it should be described, as precisely as possible, what kind of violence was used, when it was used and who used it. Further, it should be stated to which location and which protective facility one requests to be relocated. Apart from the statement explaining the situation, one should also present appropriate documentation. This includes not only medical or hospital records, but can also be a letter of confirmation that one has been admitted to a women’s shelter or a protection order issued by a court, in accordance with the Act on Protection against Violence and the like. In especially exceptional cases, such documenting requirements may be waived.
It is also important to note that persons who find themselves in such a violent situation and then temporarily (for up to six weeks) leave their allocated municipality or even state do not violate against the residence restriction laid down in section 12a of the Residence Act and thus also do not commit an administrative offence. The Immigration Office that is responsible for
the area to which the residence restriction applies is also responsible for processing the application. This office must, however, obtain approval from the Immigration Office that is responsible for the area to which the applicants intends to move.
According to a circular issued by the Federal Ministry of the Interior (BMI) and the BMFSFJ in February 2020 concerning residence regulations in cases of protection against violence, applications for avoiding cases of hardship due to domestic and/or gender-specific violence shall be processed with special priority
(see also www.nds-fluerat.org/wp-content/uploads/2020/03/BMI_BMFSFJ_Wohnsitzrglng_Gewaltschutz_14-02-2020.pdf).
As yet there is no consistent nationwide complaint structure for refugees and their supporters.[1] Currently, different groups of persons address their complaints to various actors within and outside of shelters.
It should be possible to address complaints to all parties active within a shelter (management, staff, inhabitant representatives, external expert bodies or cooperation partners as well as volunteers).
Unless there are no formally defined complaint structures, the following actors are among the potential addressees of complaints:
a) actors capable of influencing political processes:
b) actors with political responsibilities and decision-making power
The “Minimum Standards for the Protection of Children, Adolescents and Women in Refugee Accommodation Shelters”, issued by the federal initiative of the Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSFJ) and UNICEF, demands the establishment of both internal and external complaint offices.
Further information (in German)
[1] The state of North Rhine-Westphalia constitutes an exception as it provides funding a complaint office in every state shelter. Moreover, the state has arranged for a supraregional coordination office, mobile controlling team as well as a round-table located at the state’s ministry of internal affairs.
If a woman has already moved to a women’s shelter due to acute violence, then the following issues should be noted: In case of an existing obligation to reside in another municipality or district, a request has to be filed with the authorities at the arrival location, so as to be reallocated to the municipality in which the women’s shelter is located (see here and here or see appendix).
There might also exist a residence obligation (see above), so that by changing the women’s shelter, the woman concerned will commit an offence. However, if committed by a woman who has been affected by violence and who flees to escape her perpetrator, such an offence will be considered justified and has no direct negative impact on the asylum procedure.
A violation of the residence obligation constitutes an offence (section 86, Asylum Act), and repeated violations will already be considered a criminal offence (section 85, sentence 2, Asylum Act). However, if committed by a women who has been affected by violence and who flees to escape her perpetrator, such an offence will be considered justified and and has no direct negative impact on the asylum procedure.
Persons who have filed an asylum application or whose deportation has been suspended will be allocated to a particular place of residence. After allocation, it is possible to file a reallocation request in order to obtain a permit to move to another place of residence (within the same state or from one state to another). In cases where applicants belong to a particularly vulnerable group (e.g. with an urgent need for specialised assistance), it is sometimes helpful to request an allocation to a specific place right from the start when the asylum application is submitted.
In doing so, the domestic community of family members or “other equally important humanitarian reasons” shall be taken into account.
The person concerned herself (and possibly with the help of supporters) can at any time urge for fast-track processing of a reallocation request – in the case of experiences of violence, the request will be well-substantiated. There is no general legal or administrative provision stating that certain requests will undergo fast-track processing. As a general principle, if authorities remain inactive for at least three months, it is possible to take action against failure to act at the administrative court. In social lawsuits, however, there must be a period of inactivity of six months prior to filing a complaint.
It follows from the wording of the legal regulation that the internal distribution of a federal state takes precedence over crossborder distribution and that this shall be taken into account, especially in cases of reallocation requests due to humanitarian reasons. That Foreigners Office, which is responsible for a particular place of arrival, takes care of processing the requests. Whether and to which extent the request will and can be granted according to the location of choice thus depends on which humanitarian reasons exist and will be claimed for the particular location. In this context, it is important, for example, to put forward that the woman will receive the support she needs at the location of choice, that supportive
relatives live there or that there is a vacancy in a women’s shelter. In general, the requirements for substantiating a reallocation request are relatively high; however, in the case of women affected by violence, they can be substantiated by taking the abovementioned aspects into account.
Expressing a general desire to live in a particular place is usually not enough.
A reallocation request filed after one’s deportation has been suspended, that is, possibly after the rejection of an asylum application, will only be granted in very exceptional cases. From an administrative perspective, the person concerned is under obligation to leave the country, so their rights are confined to a minimum. However, in these cases too, the right to protection against violence shall not be undermined, so it is advisable to file a corresponding request, provided that the requirements are met.
For an overview of the possibilities for funding a stay in a woman’s shelter: See attached table.
When it comes to changing names, the legislation of the country in which the person concerned is a citizen is decisive. For this reason, German authorities may, as a general principle, only permit the name change of German citizens. In the relevant legal text, the Act on Changing Surnames and First Names (NamÄndG) and the corresponding administrative provision, stateless persons and recognised refugees as well as persons entitled to asylum have the same status. Hence first name and/or surname of such persons can be changed provided that such change is justified by an important reason.
Changing a name is not possible for persons whose asylum application is still being processed or persons who reside in Germany not as recognised refugees or as persons entitled to asylum but for other reasons and who could therefore consult the authorities of their countries of origin.
The right to name change is a legal exception that shall only be granted if the applicant’s legitimate interest in protection outweighs the public interest in maintaining the current name. Discrimination on the job market, for example, is not considered a sufficient reason, since the naming law is not intended to counteract undesirable social developments. Case examples for important reasons can be found in the administrative provision accompanying the Act on Changing Surnames and First Names.
Another important provision is the simplified name change procedure that can be found under section 47 of the Introductory Act to the German Civil Code. According to this provision, a person who, for example, applies for German citizenship after having been recognised as a refugee can change their surname following naturalisation if that surname is particularly indicative of the person’s foreign origin or if, in the interest of further integration, the person would prefer a less conspicuous surname. For this purpose, the person may as well adopt a German version of the current first name or surname or, if such a version does not exist, even a completely new name.
In September 2016, the new penal code for sexual offences came into force in Germany, implementing the long-demanded principle ‘no means no’. According to the new legislation, any non-consensual act of a sexual nature constitutes a punishable offence. However, this new legislation on sexual offences also involves a tightening of regulations governing the right of residence.
These amendments pertain both to the right of expulsion and the possibility of deportation. Expulsion means that a person holding a residence title in Germany may be deprived of that title. It does not necessarily mean that this person can be deported because factually and legally this is often not possible. In such a case, the person will be denied participation in many areas of social life, for example, by withholding a work permit or the access to an integration course.
What is relevant in this context is the section of the Residence Act concerning the interest in expulsion, which can be of serious and of particularly serious public interest (section 54, Residence Act). In the past, the interest in expulsion was, according to section 54, sentence 1 of the Residence Act, considered as particularly serious, and it was mostly imposed on persons who had been sentenced to a prison term of at least one year and who had committed an offence using violence or a threat of danger to life and so on. In the future, the interest in expulsion will be considered as particularly serious in the case of any kind of sentence according to section 177 of the Criminal Code, thus making expulsion or deportation far easier. In addition to expulsions, deportations will be possible even if persons are in danger in their country of origin or if they are entitled to asylum. According to section 60 of the Residence Act, deportation is also possible in those cases in which a person has been sentenced to a prison term of at least one year according to section 177 of the Criminal Code.
This means that persons can be excluded from refugee protection and that they will not be recognised as refugees. In any case, the Foreigners Office or the Federal Office of Migration and Refugees still has to determine whether or not there are obstacles to deportation. If, for example, persons have to face the death penalty in their country of origin or a form of incarceration that involves human rights violations or the like, they can still not be deported.
This tightened legislation entails more severe punishment for perpetrators without German passport, because this group of persons has to expect, in addition to being convicted according to the Criminal Code, a negative impact on their residential status. This legislation could also negatively influence the readiness to report offences, since affected persons might be reluctant to report a known perpetrator without German passport if this would lead to the perpetrator’s deportation.
Among the amendments was also the introduction of offences committed within a group (section 184j, Criminal Code). This provision states that “whosoever participates in a group that coerces another person to commit an offence” is liable to prosecution. This way persons can be punished for acts they have neither committed nor anticipated. This legal provision represents a political reaction to the assaults in Cologne on the night of New Year’s Eve 2015/2016. The media coverage of these events created the impression that sexual harassment in Germany is primarily a problem related to perpetrators who are non-“bio-deutsch” (that is, migrants). There is reason to fear that, in the future, the definition of group membership will be strictly aligned with this very criterion.
Church asylum refers to religious communities temporarily accommodating refugees – at times also irrespective of the religious belief of the asylum seekers. It aims at preventing deportation in situations of danger (also in the case of deportations according to the Dublin III Regulation) and at resuming or reexamining an asylum procedure or the consideration of a case of hardship on the side of the responsible state authorities.
The decision on granting church asylum is mostly made by the church leadership or council. The church community can receive advice from staff members of the Commissioner for Refugees and Migration or from parish offices for refugees that many state churches and dioceses have established. Moreover, the arrangement and implementation of church asylum can be supported by (church) counselling centres, migration services and the local working groups on “Church Asylum”.
The Foreigners Office or another responsible local authority will be informed by the church community on their decision on granting asylum.
The asylum-granting church community provides a space to live and prepare food and with sanitary facilities. Often there is a circle of supporters that assists the parish council and its members and the refugees in their everyday life (e.g. during conversations with lawyers and authority representatives and by connecting them with local initiatives).
In most cases, church asylum is financed through donations received by the parish. The duration of fundraising varies from a few weeks to several months.
In many cases where church asylum was granted after 1 August 2018 the BAMF extended the time limit for transfers of asylum seekers to the EU country where they first entered from six to 18 months.
The time limit for such transfers will thus be extended to 18 months if
If a documentation of hardship in order to avoid church asylum is rejected and subsequently church asylum is granted, the period for transfer will also be extended to 18 months. Even if the documentation is submitted two weeks or less prior to the expiry of the regular period for transfers, it cannot, according to the BAMF, be processed anymore, so that the period of transfer will in this case also be extended (www.nds-fluerat.org/wp-content/uploads/2018/09/BAMF-Merkblatt.pdf).
However, under the Dublin III Regulation,extending the period of transfer to 18 months is only possible when the person concerned has “absconded”, that is, when they have not complied with a deportation order or when they are not (anymore) registered with the police and are considered as having disappeared.
Administrative courts as well as administrative high courts have largely objected to the assessment of the BAMF that persons who were granted church asylum shall, under the conditions described above, be considered as “absconding” and that the period for transfer shall be extended accordingly. The courts have above all argued that neither law nor fact prevent authorities from carrying out the transfer of a person that was granted church asylum. It is rather the state that refrains from enforcing the law, since churches do not enjoy many special rights that would prevent authorities from carrying out a transfer, if necessary, by means of coercion.
Due to the strict approach taken by the BAMF, the cases of church asylum have significantly decreased. Many parishes have become cautious and sometimes fear legal consequences. Those parishes that continue to grant church asylum to refugees must now adjust to providing one and a half years of support. Moreover, the uncertainties related to church asylum and its duration put an additional enormous psychological burden on refugees. Legal decisions regarding this matter can be foundmat the database of asyl.net, when searching for the keywords “church asylum” and “Dublin procedure”.
A child who is born in Germany generally has the same nationality as its parents or one of its parents. The residence status of the child also derives from the residence status of its parents or one of its parents.
If one of the parents is a German citizen, the child will also acquire German nationality by birth (Nationality Act, section 4[1]). This likewise applies if the child is not born in Germany.
Depending on the particular right of domicile to which the parents are subject in their home country, the child will additionally acquire their citizenship if the citizenship law of the parents’ home country provides that a child who is born abroad acquires its parents’ citizenship. Under such circumstances, the child is not required to choose one nationality upon attaining legal age. In this case, the child may possibly have one or two nationalities in addition to German citizenship.
If only the father is a German citizen at the time of the birth and if the parents are not married at the time of the birth, the father has to acknowledge paternity first. Only then, German citizenship can be conferred to the child.
In Germany, recognition of paternity does not necessarily require that the father who acknowledges paternity is also the biological father. Legal regulations are explicitly designed to also protect relationships in which a father who is not the biological father takes on responsibility for the child and acknowledges paternity.
But even if none of the parents are German citizens, a child who is born in Germany will acquire German citizenship, namely if
This definition does not apply to the period of the asylum procedure which is usually not considered as lawful residence, but only as permitted residence. Once that asylum has been granted, however, this period will be retroactively declared as lawful residence. Since persons whose asylum procedure is still pending cannot acquire a settlement permit, they are unable to meet the abovementioned requirements, even if their asylum procedure has been pending for years.
If both parents are not of German nationality, and if the parents’ nationalities are different from each other, and neither of them has been residing in Germany long enough, then the mother’s citizenship will be conferred to the child. If the mother is married to the father and if the father acknowledges paternity, then both parents’ citizenships will be conferred to the child. In this context it is important to take heed of the citizenship laws of the countries in question. Problems often arise when parents cannot prove their citizenship by means of valid passports. As long as this is the case their citizenship cannot be determined.
The following sections start from the premise that the woman who is seeking advice has not (yet) secured a residence permit. If, however, the woman or mother holds a residence permit or perhaps even German citizenship, this situation might entail slightly different consequences for the father whose residence permit is, in turn, dependent on the child’s status. In this case, the father’s relationship to the child will be a matter of particular importance.
The following family constellations are possible:
[1] Nationality Act: https://www.gesetze-im-internet.de/englisch_stag/index.html
If a father who is a German citizen is not married to the mother, he first has to acknowledge paternity for the child. The German citizenship will then also be conferred to the child, pursuant to sections 3 and 4 of the Nationality Act.
As it is the case with binational marriages, it will often be alleged that paternity is only acknowledged in order to secure German citizenship for the non-German mother.
A relatively new legal regulation in section 1597a of the German Civil Code (BGB) thus provides that notaries or other authorities with the right to issue notarisations, particularly the youth welfare office, are not allowed to record claims of paternity if there are “concrete indications for an abusive use of the acknowledgement of paternity”.
The acknowledgement of paternity will be considered “abusive” if it serves the specific purpose of establishing the conditions necessary for the legal entry or residence of the child, father or mother or if it merely serves to obtain German citizenship for the child.
The legal regulation comprises five examples specifying situations in which abusive use will be assumed. The examples refer, among other things, to cases where there is an obligation to leave the country that can be enforced or to cases where the father, mother or child have filed an asylum application, although they are citizens of a safe country of origin, pursuant to section 29a of the Asylum Act. If such indications exist, then notaries, youth welfare office or civil registry office are required to report the “case” to the foreigners’ office.
The foreigners’ office will then establish whether the request for acknowledgement of paternity is actually “abusive” or not. Usually the parents will be personally interviewed for this purpose. If the foreigners’ office establishes that the request for acknowledgement of paternity is not “abusive“, then paternity will be certified. If the foreign mother and the child do not otherwise hold a residence permit, their deportation will be suspended until the procedure is concluded (section 60a, subsection 2, sentence 1 of the Residence Act[2]).
If the father is a German citizen, the German citizenship will also be conferred to the child.
The mother will in this case be granted a residence permit until the child attains full age (section 28, subsection 1, sentence 3 of the Residence Act).
[2] Residence Act; Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory: https://www.gesetze-im-internet.de/englisch_aufenthg/index.html
Another case in which the child acquires German citizenship by birth is when one of the parents has been lawfully residing in Germany for eight years and holds a settlement permit, because this is considered an example of successful integration. Once that paternity has been recognised, the mother will thus be granted a residence permit pursuant to section 28, subsection 1, sentence 3 of the Residence Act.
The child will NOT acquire German citizenship by birth, but will instead have its parents’ nationality if
In such cases the decision on granting a residence permit is at the discretion of the foreigners’ office. A child born in Germany can, for the time being, be granted a residence permit pursuant to section 33 of the Residence Act.
Generally, however, in any family constellation in which one of the parents is not a citizen of Germany or an EU member state, the decision on issuing a residence permit to mother and child depends on whether their subsistence is secure. If the family relies on public services, even if only partially, the parents will be told that they could as well lead a family life in their country of origin.
Some constellations are known as so-called patchwork families, for example, if a father looks after a child from another relationship or a child who has German citizenship.
Due to this relationship, the father will then be granted the right to stay and receive a residence permit. However, as the father-child-relationship with the second child is also protected by the constitution, the child and the mother will in certain constellations be granted a residence permit as well. But judicial practices have sometimes become more restrictive in this regard. The Higher Administrative Court of Berlin-Brandenburg (OVG), for example, has already decided that, where necessary, a child with German citizenship can also be expected to relocate to its country of origin if family reunification cannot be arranged otherwise.
Special case: Only the father is entitled to custody
A child who is born in Germany and who does not have German citizenship may be granted a residence permit ex officio (pursuant to section 33, subsection 2 of the Residence Act) only if
The mother of the child will be granted a temporary suspension of deportation and in some cases also a residence permit (pursuant to section 25, subsection 5 of the Residence Act), namely if
The protection of marriage and the family by article 6 of the German Constitution and by article 8 of the European Convention on Human Rights (ECHR) does not in itself involve a domestic prohibition of deportation and an obstacle to departure, but only in cases when the existing family unit can be reasonably expected to continue only in Germany and not in the shared country of origin or in one of the parents’ country of origin and when no higher public interests still require departure or deportation.
The fact alone that one family member holds a residence or settlement permit does not represent an obstacle to (joint) departure and also does not constitute a prohibition of deportation (Federal Administrative Court, judgment delivered on April 30, 2009 – BVerwG 1 C 3.08). However, individual cases require examination as to the status of integration of those family members (especially underage persons) who would be affected by a possible separation and as to whether it is reasonable to expect the affected family members to (jointly) leave the federal territory. In such cases, equal consideration must be given to the concerned persons’ rootedness in Germany and their uprooting from the country of origin.
If non-German family members have different nationalities, they must state that their joint entry to one of the countries of origin is not possible. Where necessary, the persons concerned have to consult with the responsible consulates on whether and under which conditions and at which time it is possible for them to continue to live as a family unit in one of their home countries (Administrative Court Berlin, order issued on April 17, 2008 – VG 24 A 80.08).
If one of the home countries has signed the European Convention on Human Rights (ECHR), it can be safely assumed that the country in question complies with article 8 of the ECHR and that family reunification will be in possible in this country.
It is therefore generally possible to demand that a non-German relative joins a non-German citizen who is obliged to leave the country, so that both have to leave together for one of their countries of origin or a shared country of origin in order to start or continue to live as a family unit in this country.
When it comes to assessing whether this decision is reasonable or not, the objective circumstances matter and not the relative’s personal attitude, which, by its very nature, cannot be verified (Higher Administrative Court Berlin-Brandenburg, order issued on July 7, 2008 – OVG 3 S 44.08; see also Higher Administrative Court Berlin-Brandenburg, order issued on May 20, 2011 – OVG 3 S 37.11, on a case regarding parents who live together and where the parent who holds a residence permit announces to remain in Germany even after the departure of the parent who is obliged to leave).
This constellation also requires that a father who is not married to the mother acknowledges paternity. In case of doubt, the details laid out under section 1 will apply (determination of paternity). Once that paternity has been recognised, the father’s and/or the mother’s nationality will be conferred to the child.
Upon request, the child will also be granted asylum status by way of the international protection of family members pursuant to section 25, subsection 2 of the Asylum Act.
The idea behind this is that family members are also at risk of persecution and therefore have to be included in the protection.
However, it is not mandatory that the child chooses this option and applies for refugee status – derived from the father’s status – by way of the protective legislation for family members. If the father’s child is a recognised refugee, the child can also apply for a residence permit pursuant to section 33 of the Residence Act.
A mother who has so far not been lawfully residing in Germany can – by way of her child’s residence status – apply for a residence permit pursuant to section 36, subsection 2 or section 25, subsection 5 of the Residence Act.
If the father is citizen of an EU member state and acknowledges paternity, his citizenship will be conferred to the child as well. This, then, also allows the mother of the child to receive a residence permit for family members of EU citizens. In this case, the mother will primarily be subject to the European Freedom of Movement Act and and not the German Residence Act. Also, she will not be granted a German residence title, but will receive an EU residence permit card. EU legal regulations are less restrictive in this regard than German residence laws.
Difficulties may arise in this context if the father abandons the mother and the child and, for example, leaves Germany. In this case, the child will continue to be a citizen of an EU state, for example, of France. The child will then be allowed to reside in Germany, but would, strictly speaking, have to possess sufficient means of subsistence for itself and its mother. Court decisions vary on this issuewhich means that each case will be assessed on an individual basis.
If both parents’ asylum procedures are still pending, the Federal Office for Migration and Refugees demands that an asylum procedure for the child who is born in Germany shall also be initiated. If the parents neglect to do this, the Federal Office will initiate the procedure. The parents will be notified and asked if and on which grounds they wish to claim asylum for their child.
In case the parents choose to initiate the asylum procedure, the child will, just like its parents, receive a residence permit for the duration of the procedure. If the parents waive the procedure, the child will only be granted a temporary suspension of deportation that will be valid until the parents’ asylum procedure is concluded. Depending on the outcome of the parents’ or the father’s asylum request, the abovementioned details will then apply.
In this case, the father has no right of residence and is obliged to leave Germany, so that no residence title of any kind can be conferred to the child. Such a case often depends on the reasons why the father is not leaving, although he is obliged to, and possibly also on the reasons why he cannot be deported.
There are a number of reasons why the father cannot be forced to leave or why he cannot be deported. This is, for example, because
If an end of this situation is not foreseeable, it is possible that both the father and the child and, as a consequence, also the mother will be granted residence pursuant to section 25, subsection 5 of the Residence Act. This becomes an option when the deportation of a person has been suspended for 18 months and for reasons which are beyond the person’s control. In such cases, however, foreigners’ offices decide at their own discretion, adopting a very restrictive interpretation of this legal regulation. Moreover, these cases are generally rather rare.
If the father is (partly) also responsible for creating an obstacle to deportation – for example, when he does not cooperate in obtaining a passport –, then he himself brings about his residence status, as it were, and therefore shall not benefit from it. Such a situation often entails sanctions, such as an employment ban or the imposition of a residence obligation. Since the father will not be granted a residence permit, the child can also only expect a temporary suspension of deportation.
The parents of a child who is born in Germany frequently come from different countries. Moreover, if the parents cannot provide adequate documents, then it is often difficult, if not impossible, to receive birth certificates for children born in Germany and to clarify their nationality. For lack of necessary documents and due to issues of family protection, these families cannot be deported to their countries of origin. Although authorities urge the persons concerned to take care of how they and their partner and children can gain entry to their county of origin, this request is often near impossible to satisfy. This is why it happens, time and again, that binational families remain in Germany, although neither parents nor children are granted a right of residence. Sometimes they continue to be tolerated for years, even if this situation involves many legal restrictions for them.
If the father refuses to acknowledge paternity for the child, the mother can file a complaint to establish paternity at the family court. In this case, where it is likely that the father neither cares nor maintains any contact with the child, the family court will order the father to take a paternity test.
If the test confirms paternity, then the father’s nationality is decisive for the residence status of the mother and the child. In case the father is a German citizen, the child acquires German citizenship by birth. The mother will, in turn, be granted a residence permit until the child is of legal age (see above). If the father is not a German citizen and refuses to maintain contact with the child, this constellation will make it very difficult for the mother and the child to receive a long-term residence permit.
If the father is unknown, no rights can be derived from this situation. The child will acquire the mother’s nationality, and the child’s residence status will also depend on the mother’s status.
If the mother receives a residence permit because her child has acquired German citizenship by birth, this also means that any siblings will be granted residence permits: If one family member is a German citizen, the entire family will be tied to Germany, although this involves the legal restrictions mentioned above.
The legal requirements for a successful asylum application are very high. It is therefore important that refugees from countries in which – according to the Federal Office and the courts – they do not have to fear individual persecution do not merely wait for the outcome of their asylum proceedings. Instead, they should as well consider alternative ways to achieve a legal stay. The same holds true in cases where the authorities assume that the person concerned could have also found protection from persecution in their own country.
Until recently, there were no legal provisions, nor was there any political will to enable persons who are subject to a temporary suspension of deportation to again obtain a lawful residence status – unless the person would become entitled to a residence permit after having given birth to a child that acquires German/ European citizenship or after having married a German/European citizen (see above under point 11). Even in case of a marriage according to German law or the birth of a German child, the immigration offices will, as a rule, insist that the person concerned returns to their country of origin and initiates a regular procedure for family reunification.
This means that some persons will be subject to a suspension of deportation for many years, although this status is actually supposed to apply only to cases where a deportation order is suspended temporarily.
For some time now, there have also been other options which were primarily introduced to serve the interests of employers and the economy. Persons who have been staying in Germany for a long time and are subject to a suspension of deportation can by taking up vocational training or employment obtain a lawful residence status.
Already since 2015, persons without German passport who are required to leave the country and who have started a vocational training can, under certain conditions but regardless of their age, be granted suspension of deportation for the entire duration of a quality vocational training. Since 1 January 2020, this suspension of deportation for the purpose of training is defined by the newly added section 60c of the Residence Act.
A requirement is that one has started quality vocational training or has been granted an according training place that leads to a certificate in a state-recognised or similarly regulated occupation and normally takes two years. Shorter trainings as an assistant or helper are also permitted for occupations in which a labour shortage exists (e.g. care assistance) if one has been granted a quality training place that starts directly afterwards.
The suspension of deportation for the purpose of training is an option for persons whose deportation has been suspended for at least three months. But it is also an option for persons who started a training during their asylum procedure and would like to continue this training after the rejection of their asylum application, provided that they themselves and the training place meet the relevant requirements.
The suspension of deportation for the purpose of training cannot be granted when the person is not permitted to pursue an economic activity pursuant to section 60a, sentence 6 of the Residence Act, when the person has been convicted of an offence intentionally committed or when the person is from a safe country of origin.
Moreover, the person is only entitled to the suspension of deportation for the purpose of training when their identity has been established in time or when the person has at least complied with their obligation to cooperate in establishing their identity. If their identity cannot be determined, although they can provide proof of their cooperation, the decision upon granting the suspension of deportation is at the discretion of the authorities.
Once granted, the suspension of deportation for the purpose of training can, after successful completion of the vocational training, be renewed for six months for the purpose of seeking employment. If the person is kept on in the training enterprise, this provides a possibility to eventually obtain lawful residence status.
Another newly added provision that is in effect since 1 January 2020 is section 60d of the Residence Act, the temporary suspension of deportation for the purpose of employment. This provision aims at enabling persons whose deportation has been suspended to obtain a lawful residence status and to provide them with a prospect of remaining in Germany. It is a key date regulation, which means it only applies to persons who have entered Germany before 1 August 2018. However, only very few refugees and persons whose deportation has been suspended are able to meet the high requirements:
Despite its high requirements, the new legal regulation allows for transitioning into a lawful residence status in a similar way as
sections 25a and 25b of the Residence Act. It is therefore advisable that persons applying for asylum or international protection also take these possibilities into consideration from the beginning of their stay in Germany.
The “temporary suspension of deportation for persons whose identity is not verified” (section 60b of the Residence Act)” is a stricter provision that applies to persons who are obliged to leave Germany and who, from the perspective of the Immigration Office, lack cooperation in establishing their identity and/or obtaining a passport. According to this provision, a person who is obliged to leave the country because their asylum procedure has been concluded or for other reasons will be granted a temporary suspension of deportation that involves drastic restrictions. The person is not allowed to pursue an economic activity, is subject to a residence restriction, their benefit payments will be cut, they can be taken into custody awaiting
deportation, custody to enforce cooperation or custody to secure departure.
What also negatively affects the prospects for legal residence is that the length of time during which the person is granted this kind of suspension will not be counted towards the time requirements for the rights of residence according to sections 25a and 25b of the Residence Act.
If the person has not undertaken any efforts to cooperate, but does so at a later point, the person shall again be granted a regular suspension of deportation.
It is not only reasonable to expect and thus required from the person that they apply in person for a passport, but also that they apply for additional documents with the embassy or the authorities of the country of origin and pay for any fees accrued.
Moreover, it is considered reasonable to expect them to participate in collective interviews with the embassy or a delegation of the country of origin and to provide a statement declaring that they will “voluntarily” return and, if necessary, that they will complete compulsory military service.
Most of these requirements are not new, the immigration offices have been asserting them in different guises for years. But now they are enshrined in law, so that violating the obligation to cooperate in acquiring a passport will immediately lead to a “second-class” suspension of deportation.
In this context, it is also important that acquiring a passport or establishing one’s identity also assume a more significant role for granting suspension of deportation for the purpose of training or for the purpose of employment. Persons who enter Germany as of 2020 shall be granted suspension of deportation for the purpose of training only when their identity has established beyond doubt within six months of entering the country.
Note: While an initial asylum procedure is pending and has not been rejected as manifestly unfounded, there is NO obligation to acquire a passport or to cooperate in acquiring a passport. In this regard, caution should be exercised because immigration offices will sometimes, due to ignorance or bad faith, require cooperation (see information above).
Istanbul Convention is a shorthand term for the “Council of Europe Convention on preventing and combating violence against women and domestic violence” that is in effect since August 2014. The Convention stipulates that gender equality shall be enshrined in the national laws of the signatory states and that all discriminatory legislation shall be abolished. This creates an obligation for state authorities to take corresponding measures in areas such as prevention, protection and sanctioning. In Germany, the Istanbul Convention entered into force in 2018.
With regard to refugee law, articles 60 and 61 of the Convention are particularly relevant, since they assert the principle of non-refoulement of persons seeking protection (61) and stipulate that the signatory states shall recognise gender-based violence against women as grounds for asylum and for granting refugee protection status (60).
In asylum proceedings, gender-based violence is mostly (still) linked to “membership of a particular social group” as defined in the Geneva Refugee Convention. For example, section3b, sentence 4 of the Asylum Act states that “if a person is persecuted solely on account of their sex or sexual identity, this may also constitute persecution due to membership of a certain social group.” Accordingly, gender-based persecution will be subsumed under the same category, just like sexualised violence, genital mutilation or also punishment for violations of dress codes and so on. This, however, narrows the perspective on persecution and at times results in other dimensions of persecution (such as political or religious beliefs and the like) being overlooked. The Istanbul Convention, in contrast, calls for a gender-sensitive perspective that also takes into consideration other grounds for persecution such political or religious beliefs, nationality and racism. This is because violence due to one’s «gender», which manifests itself as sexism and misogyny, is inherent in any other form of persecution.
In this context, the strength of the Istanbul Convention is that also violence in partnerships is explicitly regarded as a form of gender-based persecution that is relevant for the decision on refugee status. This means that, if states neglect to take protective measures, one would in practice be entitled to protection due to having been subjected to partnership violence.
In Germany, the requirements laid down in the Convention are at least in theory implemented in the asylum procedure, in that the BAMF will, in cases of violence, have a specially-commissioned case-officer focusing on gender-specific persecution conduct the interview. Moreover, in such cases, the person concerned is granted the right to a female interviewer and a female interpreter.
As regards residence law, article 59, sentences 1 to 3 of the Convention define binding regulations, but since the German government has made a reservation in respect to sentences 2 and 3 of this article, these regulations are currently non-binding.
Article 59, sentence 1 of the Convention stipulates that, in case of violence in a marriage, the person affected by violence shall be granted an autonomous residence permit, irrespective of the duration of the marriage. The German Residence Act, however, states that a marriage must have existed for at least three years and that, for shorter marriages, this requirement can only be waived in order to avoid particular hardship.
Article 59, sentence 2 of the Convention stipulates that persons whose residence status depends on that of their spouse or partner shall be granted an autonomous residence permit in the event that their spouse or partner are deported (due to having been convicted of a criminal offense). German law provides no comparable regulation that would be applicable to such situations. With its reservation against this provision, the German government obstructs the protection of women against violence as required by the Convention.
Article 59, sentence 3 of the Convention stipulates that women affected by violence shall be granted a residence permit when they are supposed to give testimony in corresponding criminal proceedings. Regarding this point, the legal situation for women in Germany has improved, despite the reservation made by the government. The newly added sentence 4a of section 25 of the Residence Act states that women affected by violence shall in such cases be granted a temporary residence permit if their stay in the federal territory is considered to be appropriate in connection with criminal proceedings relating to the case of violence, if they have broken off contact to the accused persons and if the woman has declared willingness to testify as a witness in the criminal proceedings.
Also, after the criminal proceedings have ended, the residence permit shall, according to section 25, sentence 4a, subsentence 3 of the Residence Act, be extended if humanitarian or personal reasons or public interests require the person’s further presence in the federal territory.
With the latter provision, it was taken into account that many women who had become victims of violence or human trafficking preferred to stay illegally in Germany if their willingness to testify as a witness excludes any possibility of extending a temporary residence permit. Once the criminal proceedings had ended, an illegal stay often seemed preferable to having to return to their respective countries of origin.
Authors:
Barbara Wessel
Dorothee Frings, table: “Funding the stay of female refugees in women’s shelters“
Editorial team:
Katharina Göpner, Federal Association of Rape Crisis Centres and Women’s Counselling Centres in Germany (bff)
Elisabeth Oberthür, Association of Women’s Shelters (FHK)
Im Verein Frauenhauskoordinierung e.V. sind folgende Bundesverbände Mitglied
