The FAQ answers questions about protecting refugee women and girls from violence. It begins with a glossary that clarifies key terms and their implications for refugee women. The glossary will be supplemented or updated as needed on the bff and FHK websites.
We then answer numerous frequently recurring questions at the interface between gender-based violence and flight, which we group into 13 thematic areas
Some of the questions are listed multiple times because they cover different topics and are therefore easier to find.
However, it should be noted that legal regulations in this area often change. This FAQ reflects the status as of August 2020. The current, revised edition incorporates changes from the last three years, particularly those brought about by the “Second Act to Improve the Enforcement of the Obligation to Leave the Country” – also known as the “Get Out Act.”
It is also important to note that the FAQ does not replace legal advice and in many cases can only provide general information and initial guidance.
The following questions and topics are covered in the FAQ:
There are fundamentally different reasons for staying in Germany. Firstly, there is residence for humanitarian or political reasons (asylum, refugee protection, subsidiary protection, prohibition of deportation, hardship). There is also residence for family reasons (birth, marriage, family reunification), and finally, residence for training, study, or work.
At the same time, however, it is possible to work during the asylum process under certain conditions. Or a recognized refugee may have a child, which can affect their residence permit. This can mean a so-called "change of track," for example, a change from humanitarian to family-related residency.
First, it must be clarified what the current basis for the stay is and what conditions the stay depends on, in order to then examine what rights and obligations are linked to it.
This FAQ focuses on questions related to humanitarian stays. It also discusses common "changes of track," such as starting training, employment, or the birth of a child.
For each “asylum application” (application for protection), the Federal Office will examine in the following asylum procedure in descending order whether:
Nowadays, the term "international protection" is generally used. The term "international protection" originates from European refugee law. Both refugee protection and subsidiary protection are referred to as international protection there.
Asylum seekers are legally permitted to stay in Germany for the duration of the asylum procedure. After submitting their application, they initially receive a so-called proof of arrival for the first few days. Once they formally submit their asylum application, they receive a green folding card, known as a "permission to stay," for the duration of the entire procedure. The permission to stay is not a residence title, but merely certifies legal residence in Germany until a decision is made on their asylum application. It therefore also applies for the duration of any court proceedings following the rejection of their asylum application by the Federal Office for Migration and Refugees (BAMF).
The residence permit expires when the BAMF’s decision on the asylum application has become final, i.e. incontestable, or independent of this decision, for example
if an asylum application is withdrawn.
Please note: The residence permit is often issued and extended for a period of six months, in some federal states even for a period of one year. However, if
If an irrevocable negative decision is made on the application within this period, the permit is no longer valid from this final decision. The person is then
obligated to leave the country. If this is not possible (immediately) due to lack of a passport, etc., the person will be asked to surrender their residence permit and will usually receive a temporary suspension of deportation.
The so-called obligation to take up residence requires asylum seekers to specify where they have their permanent residence for the entire asylum procedure.
This means that they must be living and registered. The residency requirement, like the residence requirement, applies from day one. Even if you move into a private residence
or in shared accommodation, there is still the obligation to live in a prescribed district or a
to live in a district-free city.
The “Second Act to Improve the Enforcement of the Obligation to Leave the Country” (in force since August 2019) stipulates that asylum seekers are now obliged
are required to reside in a reception center from the time of application until the decision on their asylum application, or in the event of a rejection of their asylum application, until their departure or deportation. However, this obligation may not exceed 18 months, or six months for families with children.
Residence requirement means that a person's radius of movement is limited to the city or district they live in, and they may not travel to another location without permission. Generally, the person then requires permission from the Federal Office or the relevant immigration authority to move outside of their assigned area. No prior permission to leave the assigned place of residence is required for an appointment with a government agency or court that requires personal appearance.
The residence requirement applies to persons in the asylum procedure from the day of application and ends after three months according to the law (Section 59a of the Asylum Act), unless the person is obliged to live in an (initial) reception facility beyond the three months. A residence requirement can also be reimposed later, for example, if the person has committed criminal offenses (more on this below)
A residence permit can be subject to a condition or requirement. One important such condition is the residence requirement, which obligates individuals with a humanitarian residence permit, in particular, to reside in a specific federal state or location.
This residency requirement, in the true sense of the word, does not apply to persons in the ongoing asylum process or those with tolerated status, but rather to those who already have a residence permit. It is generally imposed as long as the person in question receives state benefits.
An application for a cross-border change of residence should be approved in particular if the new place of residence ensures a livelihood without recourse to state benefits, if it enables the person to live together with a spouse or life partner, or if it provides protection against threats from family members or partners.
A corresponding regulation for recognized refugees and those granted subsidiary protection was added in the summer of 2016. The residence requirement under Section 12a of the Residence Act stipulates that these refugees must remain in the federal state that was responsible for their asylum procedure for a period of three years from the date of recognition.
Even refugees, once recognized, no longer enjoy the freedom of movement to live wherever they wish within the Federal Republic. The law even allows for the specific determination of the municipality in which the person concerned must take up residence. In cases of starting a course of study, training, or employment, or to avoid hardship, such a residence requirement can, of course, be waived (see also here and here).
The residence order can be lifted in cases of gender-based violence. The affected person has a duty to cooperate. They must generally explain their circumstances as part of the application for revocation. Suitable evidence includes medical certificates or hospital reports of physical or psychological injuries, confirmation of admission from a women's shelter, criminal charges, court protection orders, and court-ordered housing allocations under the Violence Protection Act or comprehensible statements from recognized victim and specialist counseling centers. Sufficiently presented and proven cases of violence protection always constitute grounds
to remove the residence requirement. In exceptional circumstances where there is an obvious urgent need for protection, the requirement to provide proof should also be waived.
In principle, any stay by a person from a country outside the European Union requires a permit. The person is required to leave the country if the residence permit expires after a certain period of time, is terminated by a negative decision regarding the granting or extension of a residence permit, or, for example, if an asylum procedure is finally and legally rejected.
This does not always mean that a person can leave the country immediately. Sometimes, departure is prevented due to practical or legal obstacles, such as a lack of a passport, a person on maternity leave and therefore unable to travel, a country of origin with no airport, or other reasons. In these cases, the person is issued a temporary suspension of deportation.
A tolerated stay is granted for a "temporary suspension of deportation" of persons without a German passport and who are required to leave the country. This means that a tolerated stay is NOT a residence permit and therefore does not establish legal residence. Those with tolerated stay are still required to leave the country, for example, because their stay has ended or the asylum procedure has been definitively rejected. This obligation can only be suspended, either currently or for a longer period, for certain reasons (e.g., illness, lack of a passport, etc.).
In contrast to deportation, which is an official enforcement of the termination of residence, expulsion merely revokes any right of residence and establishes a ban on re-entry.
Persons without a German passport can be deported, i.e. lose their right of residence, if they have been convicted of serious criminal offenses or are considered particularly "dangerous" to the public for other reasons and therefore a balance is struck between the state's interest in deportation and their private interest in remaining in the country to the detriment of the persons.
Until 2015, a "particularly serious" reason for deportation was considered to be if a person had been sentenced to at least two years' imprisonment. Following the events in Cologne on New Year's Eve 2015/16, a new ground for deportation was created: If a conviction was for crimes against life, physical integrity, sexual self-determination, or property, or if the conviction involved resisting law enforcement officers, then a one-year prison sentence was sufficient. Following further changes to the law, a one-year suspended sentence for simple bodily harm is now also sufficient for deportation. Even the unauthorized receipt of social benefits or a violation of the Narcotics Act are now considered sufficient grounds for deportation starting with a one-year sentence.
In each case, the authority or court must weigh up in each specific case whether the Federal Republic's interest in the person leaving the country outweighs their interest in remaining. In this regard, the person's "rootedness" in Germany and their residence status are particularly important.
Even a person who has been expelled does not necessarily have to leave the country or will not necessarily be deported. For example, if they have been recognized as a refugee and it is established that they are at risk of torture or human rights violations in their country of origin, they will generally not be deported, even if they have (significantly)
has committed a criminal offense. However, they will not be granted a residence permit. Instead, such a person often remains permanently in the status of "tolerated deportation."
Deportation is ultimately the execution of the obligation to leave the country. This means that deportation is always preceded by a decision terminating or not extending the stay. Furthermore, in the vast majority of cases, the person must first be asked to leave the country voluntarily and thus comply with their obligation to leave. Only if the person does not leave voluntarily can the authorities prepare and carry out the forced return and deportation.
Basic information on asylum and residence regulations, the asylum procedure, but also on family reunification or particularly vulnerable groups of refugees can be found on the GGUA Refugee Aid website: www.ggua.de/aktuelles/
The following compilation of working materials on rights and obligations during the asylum procedure is helpful for advising and supporting refugees:
During the asylum procedure, asylum seekers have specific obligations. This includes, in particular, the obligation to pursue the procedure. This includes filing an asylum application immediately after illegal entry, going promptly to the assigned reception facility, appearing in person at the Federal Office for Migration and Refugees (BAMF), and participating in the interview regarding the grounds for asylum. Furthermore, asylum seekers must be available to the authorities at all times throughout the entire procedure. This is ensured by the residence requirement and the residency requirement during the first months of the procedure. In extreme cases, a violation of the obligation to cooperate can result in the discontinuation of the procedure without the reasons for the flight and the asylum application ever being examined.
Furthermore, individuals are required to hand over any documents already in their possession to the authorities, thus helping to establish their identity. However, there is no obligation to obtain a passport during the ongoing asylum procedure. On the contrary, applying for a passport at the embassy of the country of origin at this stage of the procedure means that the individual once again places themselves under the (diplomatic) protection of the state from which they claim to have fled for fear of persecution. This may contradict their reasons for fleeing. The only exception is if a passport is required for marriage, since marriage is simply not possible without a passport.
However, those with tolerated status do in fact have an obligation to obtain a passport if they do not yet have one and this failure to present it is the reason for the tolerated status. If these persons of "unclear identity" cannot present a passport, they must prove that they have taken all reasonable steps, taking into account the circumstances of the individual case, to obtain a passport or passport substitute. The steps deemed reasonable include, in particular, appearing in person at the embassy of the country of origin and providing the necessary information and declarations – sometimes even a declaration of voluntary departure if the issuance of a passport is dependent on this. In addition, the fees set by the country of origin must also be paid, provided the amount is not unreasonable.
A violation of the obligation to cooperate in this way in obtaining a passport can, on the one hand, lead to only a "tolerated stay for persons with unclear identity" according to Section 60b of the Residence Act, the so-called "tolerated stay light" being granted. This is subject to even more far-reaching restrictions. On the other hand, the already reduced benefits can be further reduced and a fine of
Information on procedures under the Dublin III Regulation can be found at the following link: www.saechsischer-fluechtlingsrat.de/de/dublin-iii-verordnung-verordnung-eg-nr-6042013/
For a clear explanation of the terms see Glossary.
What is special for refugees, and thus also for refugee women affected by violence from so-called safe countries of origin, is that the Federal Republic of Germany, based on an assessment of the situation in the respective country, generally assumes that there is no political persecution or treatment in violation of human rights in these countries. This generally leads to the presumption for anyone originating from these countries that they are not being persecuted there. Their asylum application is therefore regularly rejected as "manifestly unfounded." The refugee must then, in a significantly abbreviated procedure, present facts and evidence that - contrary to this presumption - they are indeed threatened with persecution. This means, in particular, that the allegation of persecution must be very specific and detailed and cannot be limited solely to the generally difficult situation in the country of origin. Applications for protection from persons from so-called safe countries of origin are to be decided by the Federal Office within a week in an "accelerated procedure" (Section 30a of the Asylum Act).
The so-called safe countries of origin are listed in a list annexed to the Asylum Act. The list is reviewed every two years. Currently (as of August 2020), these include: the member states of the European Union, Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia (Article 16a of the Basic Law, Annex II to Section 29 of the Asylum Act).
There are further restrictions for persons from so-called safe countries of origin regarding accommodation. Among other things, special initial reception facilities are provided for them, in which they must live for the duration of the asylum procedure and, if necessary, until their departure. Those affected can have their freedom of movement restricted if they appeal against a negative asylum decision by being subjected to a residency requirement. They are often also banned from working, and their financial benefits may be reduced. The speed and strictness of these sanctions varies from federal state to federal state. Not all federal states have yet implemented these legal requirements, so these regulations are not always applied in practice. In which cases
gender-based violence can be used as a reason for asylum for refugee women from so-called safe countries of origin is answered in question 2.1.
The rejection of an asylum application as “manifestly unfounded” means significantly limited legal protection and further restrictions on remaining in Germany.
An appeal against a Federal Office decision regarding an asylum application as "manifestly unfounded" must be filed within just one week (instead of the usual two weeks). However, unlike a rejection as "simply unfounded," filing an appeal does not automatically mean that everything will remain the same for the applicant until the appeal proceedings are concluded.
Rather, during the ongoing legal proceedings, the immigration authorities can request that the applicant cooperate in obtaining travel documents for deportation and, in extreme cases, even deport the applicant to their country of origin. To avoid this, an urgent legal protection application must be filed in addition to the legal action, also within a week. In this application, the history of persecution and the resulting fear of persecution must be fully and comprehensively presented, substantiated, and evidence provided. This represents an enormous workload immediately following receipt of the negative decision within a week, and thus a difficult hurdle to overcome.
From the moment they submit an asylum application, asylum seekers are initially subject to restrictions on their freedom of movement. They are obligated to reside in a specific location (residence requirement) and are also restricted in their freedom of movement (residence requirement).
Residence obligation means that the person in question may not leave the city or district without permission from the responsible authority. When the residence obligation ends, the person can travel and be on the move throughout Germany and even stay overnight with friends. For an appointment with a government agency or court where personal appearance is required, no prior permission to leave the assigned place of residence is required. The residence obligation applies to persons in the asylum process from the day of application and can, by law, end after three months (Section 59a of the Asylum Act), unless the person is required to live in an (initial) reception facility beyond the three months.
This has become the norm since the law was tightened. The obligation to reside in the initial reception center—and thus also the residency requirement—now applies until a decision is made on the asylum application, and if the application is rejected, until departure, but for a maximum of 18 months, or six months for families with children (see details below under residency requirement).
This means that even people who are later recognized as refugees and asylum seekers may lose 18 months that they could otherwise have used for integration.
The obligation to live in a reception facility, and thus the residence requirement, is also terminated when the person concerned receives notice to move to shared accommodation or an apartment. This means that the federal states have the option of shortening the duration of accommodation in initial reception facilities by allocating them to the municipalities.
Permission to leave the location subject to the geographical restriction can be granted for employment in another district, to attend school, for in-company training or further education, or theoretically even for university studies. Whether the authority grants permission is in most cases at its discretion. A legal entitlement to this only exists if there is an urgent public interest, compelling reasons require it, or if denying permission would constitute undue hardship. Experience has shown that it is not difficult to obtain permission for family matters (visiting the sick, weddings, deaths, etc.) or important doctor's appointments.
Leaving the district of residence without permission constitutes an administrative offense punishable by a fine. Repeated violations may also result in a fine or imprisonment. Even more importantly, a higher fine or imprisonment may jeopardize future humanitarian residency rights (see expulsion). Therefore, criminal proceedings for violating the residency requirement should be taken seriously.
A geographical restriction (residence requirement) can also be ordered after the end of an asylum procedure if the person in question is in possession of a temporary suspension of deportation (Duldung), particularly if the person has been convicted of a crime or if specific measures to terminate their stay are imminent. To make matters worse, a geographical restriction to the district of the immigration authority should also be ordered if the person allegedly prevented deportation by providing false information or by deceiving their identity or nationality, or if they failed to cooperate as required in obtaining passport documents, etc.
For people with a temporary suspension of deportation, the immigration authorities can also take "measures to promote departure," such as requiring them to report regularly to the immigration authorities for residence monitoring or to seek return counseling (Section 46 of the Residence Act). In this context, the requirement to always stay in one's accommodation at night has been rejected by courts. The courts ruled that such an order must have a meaningful connection to the purpose of the regulation and must not degenerate into harassment with a quasi-punishment character. However, "nighttime house arrest" is a restriction of liberty for which there is no legal basis in this form.
However, the obligation to inform the immigration authorities that the person intends to stay outside the apartment at night (e.g. by putting a note on the room door) was considered lawful.
If asylum seekers violate their obligations to cooperate, even this 18-month period can be extended again. In addition, the federal states can regulate that the 18-month period can be extended to 24 months in certain cases. Bavaria and North Rhine-Westphalia, for example, have made use of this option.
Upon application, asylum seekers are assigned to an initial reception center. They are then obligated to reside there for a maximum of 18 months, and families with minor children for up to six months. However, the obligation to reside in a reception center ends immediately if the person concerned receives a positive decision in their asylum application.
It is also shortened by allowing the person to move into shared accommodation or an apartment. This means that the federal states have the option of shortening the duration of accommodation in initial reception facilities by allocating them to the municipalities.
Special rules once again apply to persons from so-called safe countries of origin. These are countries where the legislature assumes that, due to a democratic system and the general political situation, there is generally no fear of political persecution, and that the respective state can generally also protect against persecution by other persons on its territory. The so-called "safe countries of origin" are listed in an appendix to the Asylum Act. The list is reviewed every two years. Currently (as of August 2020), these include: the member states of the European Union, Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia (Article 16a of the Basic Law, Annex II to Section 29 of the Asylum Act).
With the exception of EU citizens, these individuals are required to reside in the reception facility responsible for their admission for the duration of their asylum procedure. If their asylum application is rejected as "manifestly unfounded" or "inadmissible," this requirement applies even until their departure. During this time, they are not permitted to work and may only temporarily leave the territory specified in their residence permit if they receive permission from the Federal Office.
Information from the Refugee Council of Lower Saxony on the residence requirement: www.nds-fluerat.org/leitfaden/24-status-bei-aufnahme-aus-dem-ausland/wohnen-umziehen-reisen/
To facilitate the organization and enforcement of the residency requirement and the associated control of residents, so-called anchor centers have been created in some federal states.
AnkER stands for "Arrival, Decision, Return." Established in August 2018, these centers are initial reception facilities where refugees, unlike other initial reception centers, remain until the end of their asylum procedures. Furthermore, people whose asylum applications are rejected are to be deported directly from the anchor centers.
The stated goal of the anchor centers is to make the asylum process more "efficient." To this end, all authorities involved in the asylum process, such as the Federal Office for Migration and Refugees (BAMF), the Federal Employment Agency, the immigration authorities, the social welfare office, and administrative courts, are to be represented at the facilities. In fact, there are currently eight anchor centers in Germany: six in Bavaria, one each in Saarland and Saxony. One anchor center in Bavaria was closed at the end of 2019.
The hearing often takes place there. The decision can arrive within a week, and the next month. However, those who appeal against a negative decision often stay in the anchor center for two to three years – even though the current coalition agreement stipulates a maximum stay of 18 months, or six months for families.
Refugees face numerous problems in the anchor centers. In some facilities, residents cannot lock their rooms and have little space to retreat. In some cases, several families have to share a room. Police units, which are also deployed at football matches and demonstrations, come and go to confiscate food, kettles, and deodorant sprays.
Counseling on the asylum procedure in the anchor centers is provided by the Federal Office for Migration and Refugees (BAMF) – initially in group discussions and, if necessary, in individual consultations. Often, however, only group counseling is provided, providing general information about the asylum procedure but not addressing the individual situation of the refugees. Occasionally, no one is allowed into the anchor center – apart from officials or welfare organization staff. Asylum seekers must first find counseling services outside the center. Many of those affected also fear that contact with independent aid organizations will negatively impact their asylum procedure. This significantly impedes access to legal advice, which often results in a negative outcome in a very short time, especially for those with "poor prospects of remaining."
Doctors and psychiatrists criticize stressful factors such as inadequate protection against assault, a lack of privacy, and disturbances at night. They argue that the anchor facilities lack a systematic approach to identifying residents in particular need of protection. Even if special needs are identified, there is no procedure and insufficient staff to provide the necessary support. The organization Doctors of the World therefore withdrew from the so-called anchor center in Manching/Ingolstadt in October 2019 in protest.
The Federal Office for Migration and Refugees (BAMF) reports to the Federal Ministry of the Interior. The BAMF is responsible for conducting the asylum procedure, i.e., for the formal and substantive examination of asylum applications. The BAMF has at least one, and often several, branch offices in every federal state.
Applications are submitted in person. The personal interview during the asylum procedure also takes place at the Federal Office for Migration and Refugees (BAMF) or one of its branch offices. The BAMF records and stores the asylum seekers' personal data and fingerprints. The data is entered into the European database EURODAC, and a check is first carried out to determine whether another European country is responsible for the asylum procedure under the Dublin III Regulation. If not, Germany, and thus the BAMF, is responsible for the asylum procedure. In addition, each federal state has several initial reception centers (EAEs). These EAEs are often attached to BAMF branch offices.
Immigration authorities are state or municipal authorities. Immigration authorities are responsible for implementing residence regulations (according to the Residence Act). This includes enforcing decisions in asylum procedures, i.e., permitting relocations, issuing work permits, regulating residence after positive decisions, as well as implementing expulsions and deportations. Following a positive asylum decision, immigration authorities are bound by the decision of the Federal Office for Migration and Refugees (BAMF). This means they issue residence and settlement permits for recognized asylum seekers, refugees, and persons entitled to subsidiary protection in accordance with legal requirements. For all other migrants, such as foreign students, university graduates, workers, family members, etc., immigration authorities are the decision-makers.
The immigration authorities also issue residence permits for the duration of the asylum procedure, as well as tolerated stays during the Dublin procedure or after the final negative outcome of the asylum procedure.
Basic information on asylum and residence regulations, the asylum procedure, but also on
Family reunification or particularly vulnerable groups of refugees can be found on the GGUA Refugee Aid website: www.ggua.de/aktuelles/
The following compilation of working materials on rights and obligations during the asylum procedure is helpful for
Advice and support for refugees:
During the asylum procedure, asylum seekers have specific obligations. This includes, in particular, the obligation to pursue the procedure. This includes filing an asylum application immediately after illegal entry, going promptly to the assigned reception facility, appearing in person at the Federal Office for Migration and Refugees (BAMF), and participating in the interview regarding the grounds for asylum. Furthermore, asylum seekers must be available to the authorities at all times throughout the entire procedure. This is ensured by the residence requirement and the residency requirement during the first months of the procedure. In extreme cases, a violation of the obligation to cooperate can result in the discontinuation of the procedure without the reasons for the flight and the asylum application ever being examined.
Furthermore, individuals are required to hand over any documents already in their possession to the authorities, thus helping to establish their identity. However, there is no obligation to obtain a passport during the ongoing asylum procedure. On the contrary, applying for a passport at the embassy of the country of origin at this stage of the procedure means that the individual once again places themselves under the (diplomatic) protection of the state from which they claim to have fled for fear of persecution. This may contradict their reasons for fleeing. The only exception is if a passport is required for marriage, since marriage is simply not possible without a passport.
However, those with tolerated status do in fact have an obligation to obtain a passport if they do not yet have one and this failure to present it is the reason for the tolerated status. If these persons of "unclear identity" cannot present a passport, they must prove that they have taken all reasonable steps, taking into account the circumstances of the individual case, to obtain a passport or passport substitute. The steps deemed reasonable include, in particular, appearing in person at the embassy of the country of origin and providing the necessary information and declarations – sometimes even a declaration of voluntary departure if the issuance of a passport is dependent on this. In addition, the fees set by the country of origin must also be paid, provided the amount is not unreasonable.
Failure to comply with the obligation to cooperate in obtaining a passport in this way can, on the one hand, result in only being granted a "tolerated stay for persons with unclear identity" under Section 60b of the Residence Act, the so-called "tolerated stay light." This is subject to even more far-reaching restrictions. On the other hand, the already reduced benefits can be further reduced and a fine of up to €5000 can be imposed.
Information on procedures under the Dublin III Regulation can be found at the following link: www.saechsischer-fluechtlingsrat.de/de/dublin-iii-verordnung-verordnung-eg-nr-6042013/
For a clear explanation of the terms see glossary.
What is special for refugees, and thus also for refugee women affected by violence from so-called safe countries of origin, is that the Federal Republic of Germany, based on an assessment of the situation in the respective country, generally assumes that there is no political persecution or treatment in violation of human rights in these countries. This generally leads to the presumption for anyone originating from these countries that they are not being persecuted there. Their asylum application is therefore regularly rejected on the grounds of "manifestly unfounded." The refugee must now, in a significantly abbreviated procedure, present facts and evidence that, despite this presumption, they are in fact threatened with persecution. This means, in particular, that the allegation of persecution must be very specific and detailed and cannot be limited solely to the generally difficult situation in the country of origin. Applications for protection from persons from so-called safe countries of origin are to be decided by the Federal Office within a week in an "accelerated procedure" (Section 30a of the Asylum Act).
The so-called safe countries of origin are listed in a list annexed to the Asylum Act. The list is reviewed every two years. Currently (as of August 2020), these include: the member states of the European Union, Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia (Article 16a of the Basic Law, Annex II to Section 29 of the Asylum Act).
There are further restrictions for persons from so-called safe countries of origin concerning accommodation. Among other things, special initial reception facilities are provided for them, in which they must live for the duration of the asylum procedure and, if necessary, until their departure. Those affected can have their freedom of movement restricted if they appeal against a negative asylum decision by being subjected to a residency requirement. They are often also banned from working and their financial benefits can be reduced. The speed and strictness of these sanctions varies from federal state to federal state. Not all federal states have yet implemented these legal requirements, so these regulations are not always applied in practice. In which cases of gender-based violence
Question 2.1 answers the question of whether this can be used as a reason for asylum for refugee women from so-called safe countries of origin.
The rejection of an asylum application as “manifestly unfounded” means significantly limited legal protection and further restrictions on remaining in Germany.
An appeal against a Federal Office decision regarding an asylum application as "manifestly unfounded" must be filed within just one week (instead of the usual two weeks). However, unlike a rejection as "simply unfounded," filing an appeal does not automatically mean that everything will remain the same for the applicant until the appeal proceedings are concluded.
Rather, during the ongoing legal proceedings, the immigration authorities can request that the applicant cooperate in obtaining travel documents for deportation and, in extreme cases, even deport the applicant to their country of origin. To avoid this, an urgent legal protection application must be filed in addition to the legal action, also within a week. In this application, the history of persecution and the resulting fear of persecution must be fully and comprehensively presented, substantiated, and evidence provided. This represents an enormous workload immediately following receipt of the negative decision within a week, and thus a difficult hurdle to overcome.
From the moment they submit an asylum application, asylum seekers are initially subject to restrictions on their freedom of movement. They are obliged to live in a specific location (residence obligation) and are also restricted in their freedom of movement.
(residence requirement) limited.
Residence obligation means that the person in question may not leave the city or district without permission from the responsible authority. When the residence obligation ends, the person can travel and be on the move throughout Germany and even stay overnight with friends. For an appointment with a government agency or court where personal appearance is required, no prior permission to leave the assigned place of residence is required. The residence obligation applies to persons in the asylum process from the day of application and can, by law, end after three months (Section 59a of the Asylum Act), unless the person is required to live in an (initial) reception facility beyond the three months.
This has become the norm since the law was tightened. The obligation to reside in the initial reception center—and thus also the residency requirement—now applies until a decision is made on the asylum application, and if the application is rejected, until departure, but for a maximum of 18 months, or six months for families with children (see details below under residency requirement).
This means that even people who are later recognized as refugees and asylum seekers may lose 18 months that they could otherwise have used for integration.
The obligation to live in a reception facility, and thus the residence requirement, is also terminated when the person concerned receives notice to move to shared accommodation or an apartment. This means that the federal states have the option of shortening the duration of accommodation in initial reception facilities by allocating them to the municipalities.
Permission to leave the location subject to the geographical restriction can be granted for employment in another district, to attend school, for in-company training or further education, or theoretically even for university studies. Whether the authority grants permission is in most cases at its discretion. A legal entitlement to this only exists if there is an urgent public interest, compelling reasons require it, or if denying permission would constitute undue hardship. Experience has shown that it is not difficult to obtain permission for family matters (visiting the sick, weddings, deaths, etc.) or important doctor's appointments.
Leaving the district of residence without permission constitutes an administrative offense punishable by a fine. Repeated violations may also result in a fine or imprisonment. Even more importantly, a higher fine or imprisonment may jeopardize future humanitarian residency rights (see expulsion). Therefore, criminal proceedings for violating the residency requirement should be taken seriously.
A geographical restriction (residence requirement) can also be ordered after the end of an asylum procedure if the person in question is in possession of a temporary suspension of deportation (Duldung), particularly if the person has been convicted of a crime or if specific measures to terminate their stay are imminent. To make matters worse, a geographical restriction to the district of the immigration authority should also be ordered if the person allegedly prevented deportation by providing false information or by deceiving their identity or nationality, or if they failed to cooperate as required in obtaining passport documents, etc.
For people with a temporary suspension of deportation, the immigration authorities can also take "measures to promote departure," such as requiring them to report regularly to the immigration authorities for residence monitoring or to seek return counseling (Section 46 of the Residence Act). In this context, the requirement to always stay in one's accommodation at night has been rejected by courts. The courts ruled that such an order must have a meaningful connection to the purpose of the regulation and must not degenerate into harassment with a quasi-punishment character. However, "nighttime house arrest" is a restriction of liberty for which there is no legal basis in this form.
However, the obligation to inform the immigration authorities that the person intends to stay outside the apartment at night (e.g. by putting a note on the room door) was considered lawful.
If asylum seekers violate their obligations to cooperate, even this 18-month period can be extended again. In addition, the federal states can regulate that the 18-month period can be extended to 24 months in certain cases. Bavaria and North Rhine-Westphalia, for example, have made use of this option.
Upon application, asylum seekers are assigned to an initial reception center. They are then obligated to reside there for a maximum of 18 months, and families with minor children for up to six months. However, the obligation to reside in a reception center ends immediately if the person concerned receives a positive decision in their asylum application.
It is also shortened by allowing the person to move into shared accommodation or an apartment. This means that the federal states have the option of shortening the duration of accommodation in initial reception facilities by allocating them to the municipalities.
Special rules also apply to persons from so-called safe countries of origin. These are countries where the legislature assumes that, due to a democratic system and the general political situation, political persecution is generally not to be feared, and that the respective state can, in principle, also protect against persecution by other persons on its territory. The so-called "safe countries of origin" are listed in an appendix to the Asylum Act. The list is reviewed every two years. Currently (as of August 2020), these include: the member states of the European Union, Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia (Article 16a of the Basic Law, Annex II to Section 29
Asylum Act).
With the exception of EU citizens, these individuals are required to reside in the reception facility responsible for their admission for the duration of their asylum procedure. If their asylum application is rejected as "manifestly unfounded" or "inadmissible," this requirement applies even until their departure. During this time, they are not permitted to work and may only temporarily leave the territory specified in their residence permit if they receive permission from the Federal Office.
Information from the Refugee Council of Lower Saxony on the residence requirement:
www.nds-fluerat.org/leitfaden/24-status-bei-aufnahme-aus-dem-ausland/wohnen-umziehen-reisen/
To facilitate the organization and enforcement of the residency requirement and the associated control of residents, so-called anchor centers have been created in some federal states.
AnkER stands for "Arrival, Decision, Return." Established in August 2018, these centers are initial reception facilities where refugees, unlike other initial reception centers, remain until the end of their asylum procedures. Furthermore, people whose asylum applications are rejected are to be deported directly from the anchor centers.
The stated goal of the anchor centers is to make the asylum process more "efficient." To this end, all authorities involved in the asylum process, such as the Federal Office for Migration and Refugees (BAMF), the Federal Employment Agency, the immigration authorities, the social welfare office, and administrative courts, are to be represented at the facilities. In fact, there are currently eight anchor centers in Germany: six in Bavaria, one each in Saarland and Saxony. One anchor center in Bavaria was closed at the end of 2019.
The hearing often takes place there. The decision can arrive within a week, and the next month. However, those who appeal against a negative decision often stay in the anchor center for two to three years – even though the current coalition agreement stipulates a maximum stay of 18 months, or six months for families.
Refugees face numerous problems in the anchor centers. In some facilities, residents cannot lock their rooms and have little space to retreat. In some cases, several families have to share a room. Police units, which are also deployed at football matches and demonstrations, come and go to confiscate food, kettles, and deodorant sprays.
Counseling on the asylum procedure in the anchor centers is provided by the Federal Office for Migration and Refugees (BAMF) – initially in group discussions and, if necessary, in individual consultations. Often, however, only group counseling is provided, providing general information about the asylum procedure but not addressing the individual situation of the refugees. Occasionally, no one is allowed into the anchor center – apart from officials or welfare organization staff. Asylum seekers must first find counseling services outside the center. Many of those affected also fear that contact with independent aid organizations will negatively impact their asylum procedure. This significantly impedes access to legal advice, which often results in a negative outcome in a very short time, especially for those with "poor prospects of remaining."
Doctors and psychiatrists criticize stressful factors such as inadequate protection against assault, lack of privacy, and disturbances at night. They argue that there is no systematic approach in the anchor facilities to identify residents in particular need of protection. Even if special needs have been identified, there is no procedure and insufficient staff to provide the people with the necessary support. Therefore, the organization Doctors of the World withdrew from the so-called anchor center in Manching/Germany in October 2019 in protest.
Ingolstadt withdrawn.
The Federal Office for Migration and Refugees (BAMF) reports to the Federal Ministry of the Interior. The BAMF is responsible for conducting the asylum procedure, i.e., for the formal and substantive examination of asylum applications. The BAMF has at least one, and often several, branch offices in every federal state.
Applications are submitted in person. The personal interview during the asylum procedure also takes place at the Federal Office for Migration and Refugees (BAMF) or one of its branch offices. The BAMF records and stores the asylum seekers' personal data and fingerprints. The data is entered into the European database EURODAC, and a check is first carried out to determine whether another European country is responsible for the asylum procedure under the Dublin III Regulation. If not, Germany, and thus the BAMF, is responsible for the asylum procedure. In addition, each federal state has several initial reception centers (EAEs). These EAEs are often attached to BAMF branch offices.
Immigration authorities are state or municipal authorities. Immigration authorities are responsible for the implementation of residence regulations (according to the Residence Act). This includes the execution of decisions in the asylum procedure, i.e., permitting relocations, issuing work permits, regulating residence after positive decisions, as well as the implementation of expulsions and deportations. Following a positive decision on asylum, immigration authorities are bound by the decision of the Federal Office for Migration and Refugees (BAMF). This means that they issue
Residence and settlement permits are issued for recognized asylum seekers, refugees, and those granted subsidiary protection in accordance with legal requirements. For all other migrants, such as foreign students, university graduates, workers, family members, etc., the immigration authorities are the decision-makers.
The immigration authorities also issue residence permits for the duration of the asylum procedure and during
of the Dublin procedure or after a final negative outcome of the asylum procedure, the toleration permits are terminated.
Basic information on asylum and residence regulations, the asylum procedure, but also on family reunification or particularly vulnerable groups of refugees can be found on the GGUA Refugee Aid website: http://www.ggua.de/aktuelles/
The following compilation of working materials on rights and obligations during the asylum procedure is helpful for advising and supporting refugee women:
Obligations to cooperate, in particular obtaining a passport
During the asylum procedure, asylum seekers have specific obligations. This includes, in particular, the obligation to pursue the procedure. This includes filing an asylum application immediately after illegal entry, going promptly to the assigned reception facility, appearing in person at the Federal Office for Migration and Refugees (BAMF), and participating in the interview regarding the grounds for asylum. Furthermore, asylum seekers must be available to the authorities at all times throughout the entire procedure. This is ensured by the residence requirement and the residency requirement during the first months of the procedure. In extreme cases, a violation of the obligation to cooperate can result in the discontinuation of the procedure without the reasons for the flight and the asylum application ever being examined.
Furthermore, the persons are obliged to hand over any documents already in their possession to the authorities and thus help to clarify their identity. However, there is no obligation to obtain a passport during the ongoing asylum procedure. On the contrary, applying for a passport at the embassy of the country of origin in that country means
At this stage of the procedure, the person must once again place themselves under the (diplomatic) protection of the state from which they claim to have fled for fear of persecution. This may contradict their reasons for fleeing. The only exception is if the passport is required for marriage, since marriage is simply not possible without a passport.
However, those with tolerated status do in fact have an obligation to obtain a passport if they do not yet have one and this failure to present it is the reason for the tolerated status. If these persons of "unclear identity" cannot present a passport, they must prove that they have taken all reasonable steps, taking into account the circumstances of the individual case, to obtain a passport or passport substitute. The steps deemed reasonable include, in particular, appearing in person at the embassy of the country of origin and providing the necessary information and declarations – sometimes even a declaration of voluntary departure if the issuance of a passport is dependent on this. In addition, the fees set by the country of origin must also be paid, provided the amount is not unreasonable.
Failure to comply with the obligation to cooperate in obtaining a passport in this way can, on the one hand, result in only being granted a "tolerated stay for persons with unclear identity" under Section 60b of the Residence Act, the so-called "tolerated stay light." This is subject to even more far-reaching restrictions. On the other hand, the already reduced benefits can be further reduced and a fine of up to €5000 can be imposed.
Information on procedures under the Dublin III Regulation can be found at the following link:
https://www.saechsischer-fluechtlingsrat.de/de/dublin-iii-verordnung-verordnung-eg-nr-6042013/
For a clear explanation of the terms, see the glossary.
What is special for refugees and thus also for refugee women affected by violence from so-called safe countries of origin is that, based on an assessment of the situation in the respective country, the Federal Republic generally assumes that there is no political persecution or treatment in violation of human rights in these countries.
takes place. This generally gives rise to the presumption for anyone originating from these countries that they will not be persecuted there. Their asylum application is therefore regularly rejected as "manifestly unfounded". The refugee must now, in a significantly shortened procedure, present facts and evidence that – contrary to this presumption – they are in fact threatened with persecution. This means in particular that the allegation of persecution must be very specific and detailed and may not be limited solely to the generally difficult situation in the country of origin. The Federal Office is to decide on applications for protection from persons from so-called safe countries of origin within a week in an "accelerated procedure" (Section 30a of the Asylum Act).
The so-called safe countries of origin are listed in a list annexed to the Asylum Act. The list is reviewed every two years. Currently (as of August 2020), these include: the member states of the European Union, Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia (Article 16a of the Basic Law, Annex II to Section 29 of the Asylum Act).
Further restrictions for persons from so-called safe countries of origin:
There are further restrictions for persons from so-called safe countries of origin regarding accommodation. Among other things, special initial reception facilities are provided for them, where they must live for the duration of the asylum procedure and, if necessary, until their departure. Those affected can have their freedom of movement restricted if they appeal against a negative asylum decision by being subjected to a residency requirement. They are often also banned from working and their financial benefits may be reduced. The speed and strictness of these sanctions varies from federal state to federal state. Not all federal states have yet implemented these legal requirements, so these regulations are not (yet) always applied in practice. Question 2.1 answers the question in which cases gender-based violence against refugee women from so-called safe countries of origin can be used as a reason for asylum.
The rejection of an asylum application as “manifestly unfounded” means significantly limited legal protection and further restrictions on remaining in Germany.
A legal action must be filed against a decision by the Federal Office regarding an asylum application as "manifestly unfounded" within just one week (instead of the usual two weeks). However, unlike a rejection as "simply unfounded," filing a legal action does not automatically result in the applicant's situation remaining as it was until the legal proceedings are concluded. Rather, during the ongoing legal proceedings, the immigration authorities can request that the applicant cooperate in obtaining travel documents for deportation and, in extreme cases, even deport the applicant to the country of origin. To avoid this, an application for urgent legal protection must be filed within one week in addition to the legal action. In this application, the applicant's history of persecution and the resulting fear of persecution must be fully and comprehensively presented, substantiated, and evidence must be presented. This represents an enormous workload immediately following receipt of the negative decision within a week and thus a difficult hurdle to overcome.
From the moment they submit an asylum application, asylum seekers are initially subject to restrictions on their freedom of movement. They are obligated to reside in a specific location (residence requirement) and are also restricted in their freedom of movement (residence requirement).
Residence obligation means that the person concerned may not leave the city or district without permission from the responsible authority. When the residence obligation ends,
The person can travel and move throughout Germany and even stay overnight with friends. For an appointment with a government agency or court where personal appearance is required, no prior permission to leave the assigned place of residence is required. The residence requirement applies to persons in the asylum process from the day of application and can, by law, end after three months (Section 59a of the Asylum Act), unless the person is required to remain in an (initial) reception facility beyond the three-month period.
This has become the rule since the law was tightened. Now, there is an obligation to live in the initial reception center – and thus also the residence obligation – until the decision on the asylum application is made and, in the case of rejection, until departure, but for a maximum of 18 months, and for families with children, a maximum of 6 months (see details below at
Residence obligation).
This means that even people who are later recognized as refugees and asylum seekers may lose 18 months that they could otherwise have used for integration.
The obligation to live in a reception facility, and thus the residence requirement, is also terminated when the person concerned receives notice to move to shared accommodation or an apartment. This means that the federal states have the option of shortening the duration of accommodation in initial reception facilities by allocating them to the municipalities.
For employment in another district, for school attendance, for in-company training or further education, or theoretically even for university studies, permission to leave the place for which the spatial restriction applies can be granted. Whether the authority grants permission is in most cases at its discretion. A legal entitlement to this only exists if there is an urgent public interest, compelling reasons require it, or if the refusal of permission would constitute undue hardship. Experience has shown that it is not a problem to obtain permission for family matters (visiting the sick, weddings, deaths, etc.) or important
to get doctor's visits.
Leaving the residence district without permission constitutes an administrative offense punishable by a fine. Repeated violations may also result in a fine or imprisonment. Even more importantly, a higher fine or imprisonment may jeopardize a subsequent humanitarian right of residence (see expulsion). Criminal proceedings for
Violation of the residence obligation should therefore be taken seriously
be taken.
A geographical restriction (residence requirement) can also be ordered after the end of an asylum procedure if the person in question is in possession of a temporary suspension of deportation (Duldung), particularly if the person has been convicted of a crime or if specific measures to terminate their stay are imminent. To make matters worse, a geographical restriction to the district of the immigration authority should also be ordered if the person allegedly prevented deportation by providing false information or by deceiving their identity or nationality, or if they failed to cooperate as required in obtaining passport documents, etc.
For people with a temporary suspension of deportation, the immigration authorities can also take "measures to promote departure," such as requiring them to report regularly to the immigration authorities for residence monitoring or to seek return counseling (Section 46 of the Residence Act). In this context, the requirement to always stay in one's accommodation at night has been rejected by courts. The courts ruled that such an order must have a meaningful connection to the purpose of the regulation and must not degenerate into harassment with a quasi-punishment character. However, "nighttime house arrest" is a restriction of liberty for which there is no legal basis in this form.
However, the obligation to inform the immigration authorities that the person intends to stay outside the apartment at night (e.g. by putting a note on the room door) was considered lawful.
In case of violation of the cooperation obligations imposed on the asylum seekers, even this period of 18 months can be extended again.
The states regulate that the 18-month period can be extended to 24 months in certain cases. Bavaria and North Rhine-Westphalia, for example, have made use of this option.
Upon application, asylum seekers are assigned to an initial reception center. They are then obligated to reside there for a maximum of 18 months, and families with minor children for up to six months. However, the obligation to reside in a reception center ends immediately if the person concerned receives a positive decision in their asylum application.
It is also shortened by allowing the person to move into shared accommodation or an apartment. This means that the federal states have the option of shortening the duration of accommodation in initial reception facilities by allocating them to the municipalities.
Special rules once again apply to persons from so-called safe countries of origin. These are countries where the legislature assumes that, due to a democratic system and the general political situation, there is generally no fear of political persecution, and that the respective state can generally also protect against persecution by other persons on its territory. The so-called "safe countries of origin" are listed in an appendix to the Asylum Act. The list is reviewed every two years. Currently (as of August 2020), these include: the member states of the European Union, Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia (Article 16a of the Basic Law, Annex II to Section 29 of the Asylum Act).
With the exception of EU citizens, these individuals are required to reside in the reception facility responsible for their admission for the duration of their asylum procedure. If their asylum application is rejected as "manifestly unfounded" or "inadmissible," this requirement applies even until their departure. During this time, they are not permitted to work and may only temporarily leave the territory specified in their residence permit if they receive permission from the Federal Office.
Information from the Refugee Council of Lower Saxony on the residence requirement:
https://www.nds-fluerat.org/leitfaden/11-fluechtlinge-mit-aufenthaltserlaubnis-nach-25-abs-3-aufenthg-national-schutzberechtigte/92-wohnen-umziehen-und-reisen/
To facilitate the organization and enforcement of the residency requirement and the associated control of residents, so-called anchor centers have been created in some federal states.
AnkER stands for “Arrival, Decision, Return.” The centers, created in August 2018, are initial reception facilities in
In contrast to other initial reception centers, refugees will remain there until the end of their asylum procedures. Furthermore, people whose asylum applications are rejected will be deported directly from the anchor centers.
The stated goal of the anchor centers is to make the asylum process more "efficient." To this end, all authorities involved in the asylum process, such as the Federal Office for Migration and Refugees (BAMF), the Federal Employment Agency, the immigration authorities, the social welfare office, and administrative courts, are to be represented at the facilities. In fact, there are currently eight anchor centers in Germany: six in Bavaria, one each in Saarland and Saxony. One anchor center in Bavaria was closed at the end of 2019.
The hearing often takes place there. The decision can be made within a week, and after a month. However, people who appeal against a negative decision often remain
two to three years in the anchor center – although the current coalition agreement provides for a maximum duration of 18 months or 6 months for families.
Refugees face numerous problems in the anchor centers. In some facilities, for example, residents cannot lock their rooms and have
There are hardly any places to retreat. In some cases, several families have to share a room. Police units, which are also deployed at football matches and demonstrations, come and go to confiscate food, kettles, or deodorant sprays.
Counseling on the asylum procedure in the anchor centers is provided by the Federal Office for Migration and Refugees (BAMF) – initially in group discussions and, if necessary, in individual consultations. Often, however, only group counseling is provided, providing general information about the asylum procedure but not addressing the individual situation of the refugees. Occasionally, no one is allowed into the anchor center – apart from officials or welfare organization staff. Asylum seekers must first find counseling services outside the center. Many of those affected also fear that contact with independent aid organizations will negatively impact their asylum procedure. This significantly impedes access to legal advice, which often results in a negative outcome in a very short time, especially for those with "poor prospects of remaining."
Doctors and psychiatrists criticize stressful factors such as inadequate protection against assault, lack of privacy, and disturbances at night.
Anchor facilities lack a systematic approach to identifying residents in particular need of protection. Even if special needs were identified, there was no procedure and insufficient staff to provide people with the necessary support. Therefore, the organization Doctors of the World withdrew from the so-called Anchor Center Manching/Ingolstadt in October 2019 in protest.
The Federal Office for Migration and Refugees (BAMF) reports to the Federal Ministry of the Interior. The BAMF is responsible for conducting the asylum procedure, i.e., for the formal and substantive review of asylum applications. The BAMF has at least one, and often several, branch offices in every federal state. Applications must be submitted in person.
The personal interview in the asylum procedure also takes place at the BAMF or one of its branch offices. The BAMF records and stores the personal data and fingerprints of asylum seekers. The data is entered into the European database EURODAC, and a check is carried out to determine whether another European country is responsible for the asylum procedure under the Dublin III Regulation. If not, Germany, and thus the BAMF, is responsible for the asylum procedure. Furthermore, each federal state has several
Initial reception facilities (EAEs). EAEs are often attached to BAMF branch offices.
Immigration authorities are state or municipal authorities. Immigration authorities are responsible for the implementation of residence regulations (according to the Residence Act). This includes the execution of decisions in the asylum procedure, i.e., permitting relocations, issuing work permits, regulating residence after positive decisions, as well as the implementation of expulsions and deportations. Following a positive decision on an asylum procedure, immigration authorities are bound by the decision of the Federal Office for Migration and Refugees (BAMF). This means that they issue residence and settlement permits for recognized asylum seekers, refugees, and persons entitled to subsidiary protection in accordance with the legal requirements. For all other migrants, e.g., foreign students, university graduates, workers, family members, etc., the
Immigration authorities are the decision-makers. The immigration authorities also issue residence permits for the duration of the asylum procedure, as well as tolerated stays during the Dublin procedure or after a final negative outcome of the asylum procedure.
Gender-based violence can occur in different situations in the refugee context, which leads to very different consideration in the asylum procedure in Germany:
Only violence or gender-based persecution suffered in the country of origin can lead to the granting of refugee status or subsidiary protection status.
According to the wording of the Geneva Refugee Convention, a refugee is a person who, owing to a well-founded fear of being persecuted because of his or her race,1, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country." This is therefore a case of persecution in the country of origin. Persecution also includes forms of gender-based violence.
The persecution based on the sex In the course of the interpretation and further specification of the grounds for persecution in the Geneva Refugee Convention, it was assigned to the ground of persecution of "membership of a particular social group." Initially, the focus was on the persecution of women due to gender-specific characteristics. Gender-specific persecution relevant to refugees primarily includes sexualized violence perpetrated by members of state structures in the exercise of their state authority in the country of origin (including torture, rape in police custody or in prison). Furthermore, state persecution measures against women that are solely based on Gender connect.
These include, among others, genital mutilation, forced marriage, the danger due to the supposed “Western influence of women”2.
If the persecution does not come from members of the state structures themselves, but from husbands, neighbors, other people from the community, etc., in addition to the
After determining the seriousness of the persecution, a second step must be taken to determine that the state and its organs are unwilling or unable to protect against this persecution. However, case law is inconsistent. For example, in cases of forced marriage, courts reach all sorts of very different decisions, from determining an obstacle to deportation to granting refugee status.
It is important for those affected by persecution that the determination of refugee protection or obstacles to deportation is fundamentally a case-by-case decision and generalizations are not possible.
Even if there is case law, for example, which considers the “strong westernization”3 While the persecution of a woman from a country like Afghanistan is considered a reason for a risk of persecution, this does not apply to all courts, and it also depends on the assessment of the individual case. The persecution of LGBTIQ* people based on their sexual orientation or gender identity also falls undisputedly under the persecution criterion of "membership to a particular social group."
Gender-based persecution while fleeing or in the host country, however, cannot lead to refugee status. However, if it results in severe physical and/or psychological harm to the affected person, making survival in the country of origin impossible, it can lead to a ban on deportation and the granting of a residence permit.
[1] The term "race" is used here because it is used in legal texts. Currently, the term and its deletion from the Basic Law are the subject of much debate. For criticism, see, for example: heimatkunde.boell.de/de/2008/11/18/zur-problematik-des-begriffs-rasse-der-gesetzgebung and https://www.institut-fuer-menschenrechte.de/fileadmin/user_upload/Publikationen/Policy_Paper/policy_paper_10_und_welcher_rasse_gehoeren_sie_an.pdf
[2] The term is coined by case law.
[3] Higher Administrative Court of Lüneburg, judgment of 21.09.2015 September 9, - 20 LB 14/14.08.2007; judgment of the Administrative Court of Munich of 23 August 07.50455 - M 09.03.2012 K 2; judgment of the Asylum Court of Austria of 422385 March 1, Ref. No. C2011 8-XNUMX/XNUMX/XNUMXE
In cases of gender-based persecution, the person seeking protection can request to be interviewed by a specially trained or sensitized person. The Federal Office for Migration and Refugees (BAMF) has so-called special representatives for gender-based persecution. Furthermore, women, and usually LGBTIQ* people, can, for example, insist that a female person conduct the interview and that women be involved as interpreters if the person cannot speak about what they have experienced in the presence of men.
Ideally, the person seeking protection will request this – possibly with the support of a counseling center or a lawyer – before the interview so that everyone is prepared for the actual appointment. However, even if this hasn't happened, BAMF staff should regularly ask the person concerned during the interview whether they are okay with the interview being conducted by a cisgender man or whether they would prefer a female interviewer.
In addition, expert opinions from counseling centers can always be submitted to the Federal Office for Migration and Refugees (BAMF) to support the claim of experiencing gender-based violence. However, these do not replace the applicant's personal statement. Only very rarely and in exceptional cases does a personal interview occur due to a statement indicating the applicant's extreme vulnerability.
It is important that even if the person seeking protection makes extensive statements, it must be clear that this does not replace their presentation and that they may have to repeat everything.
has to tell, even if their story has already been sent to the Federal Office with the statement.
Expert opinions from counseling centers can be helpful, especially in cases where individuals are suffering from severe psychological distress due to gender-based violence, to ensure that the individual's voice is heard by the Federal Office for Migration and Refugees (BAMF), to achieve a more in-depth discussion of the issue, and to support the individual's case. When preparing such an opinion, the following points, among others, must be observed:
The person making a statement should always do so very carefully and only within the scope of their professional qualifications, i.e. they should not comment on matters that are outside their knowledge (for example, on conditions in the country of origin or social workers should not comment on mental illnesses, etc.).
Great caution is required when recounting one's personal life story. Often, ambiguities, translation errors, or other misunderstandings lead to errors or even inaccuracies that may later contradict what the person says at the interview. However, contradictions in one's own history of persecution are one of the biggest problems in the asylum process. Authorities and courts still largely assume that a refugee can repeat and recount what happened to them at any time, completely consistent and without contradiction, perhaps even using different words.
Any overly detailed description of the events submitted to the Federal Office before the personal interview limits the person seeking protection's own options for explanation and may require him or her to clarify contradictions that are not even clear to him or her.
In many cases, statements in which the person writing the statement explains how the (first) contact with the person seeking protection went, how the person encountered them, how the conversation went and what the person writing the statement noticed are more helpful.
In principle, violence protection orders have no direct impact on the asylum procedure. The asylum procedure primarily involves assessing the situation in the country of origin.
As already explained, however, violence on the part of a spouse can influence a woman's asylum procedure to the extent that it may constitute an additional obstacle to deportation. The assessment then considers whether the partner's violence, or the fact that, for example, their children have been or are being (temporarily) taken away from them, could constitute persecution in the event of a return to the country of origin. For example, if, in the event of a separation, the children belong to the husband's family under the (customary) law of the country of origin, and the woman, who fled from her husband with the children, is threatened by the husband's family. However, this can only be answered for the specific individual case and cannot be generalized.
Not only in the case of a long-term separation, but especially in the case of a protection from violence order, it is important to consider the possibility of the spouses' asylum applications being separated. It is very important to seek legal advice beforehand.
In the event of a separation, it must first be clarified in detail on a case-by-case basis what residence status the spouses have, whether one or both are still in the asylum process or whether a protection status has already been granted. It must also be examined whether the residence status – in our cases usually that of the woman – depends on her cohabitation or marriage with her spouse. There are various scenarios:
In the event of a separation, it must therefore be examined whether the woman has her own reasons for persecution, which she may not have even asserted, or whether the separation may
constitutes a new reason for an obstacle to deportation.
Often, the separation itself or the fact that the children are supposed to remain with their father in the country of origin can be a new reason for, for example, an obstacle to deportation. This question should be addressed in the
Each individual case can be clarified through expert legal counsel. The situation is different again if there are children who have been granted refugee protection through their recognized father. In this case, the separated woman can also secure her residence by exercising parental custody (see 11.).
In family law disputes, there are generally no special rules for persons undergoing asylum proceedings. Thus, any person undergoing asylum proceedings can file an application with the family court for the right to determine the child's place of residence, for custody and access rights, for maintenance, and for protection from violence. Substantive difficulties can sometimes arise because, due to the different nationalities of the parties involved, which are certainly not German, questions often arise regarding the applicable law. Such questions are also similar to those faced by other non-German couples or families.
Additionally, for couples and families still in the asylum process, it is important to consider and clarify whether the asylum procedures will be separated and what this means for the children's right of representation. For example, if the woman separates and takes the children with her, sole representation for the asylum procedure – all matters concerning the children – would have to be applied for as part of the custody arrangements. Or, in the opposite case, an application would have to be made for the woman to be informed of decisions affecting her children, even if she no longer has insight into her husband's proceedings. In these cases, the Federal Office for Migration and Refugees (BAMF), lawyers, or even administrative courts often create situations that are on shaky ground under family law.
Marriages concluded abroad generally do not require special recognition in Germany. An application for registration of the marriage in the marriage register can be submitted if one of the spouses is a German citizen.
The requirements for marriage are governed by the law of the country of origin. A marriage concluded in the country of origin is also valid and recognized in Germany if, at the time of the marriage,
Marriage is only valid if the substantive legal requirements for marriage (e.g., singleness, minimum age) are met for both partners under their respective domestic law, and the marriage is recognized in the country of origin (according to Art. 13 EGBGB: Introductory Act to the German Civil Code). Exceptions to the recognition of marriages may apply if a legal norm abroad violates so-called "ordre public." This means that if the foreign marriage is manifestly incompatible with fundamental principles of German law, it will not be recognized in Germany or will be invalid.
The assessment of a violation of the fundamental principles of German law (cf. Art. 6 EGBGB) can only be made on a case-by-case basis and taking into account the specifics of foreign law. For example, a violation has been assumed if the country of origin allows children to marry as early as 14 years of age.
In Germany, minor refugees who are not accompanied by their parents are regularly taken into care by the youth welfare office and are assigned a guardian.
If the minor has fled here with their spouse, it must first be clarified whether the marriage is considered valid in Germany. The "Act to Combat Child Marriages," which came into force on July 18.07.2017, XNUMX, has brought about radical changes in this regard.
Marriages in which one of the partners is under 18 years of age can no longer be entered into in Germany, even with parental consent or the Youth Welfare Office, as was previously the case. For marriages concluded abroad with minors, marriages involving persons under 16 are generally void, and marriages involving minors between 16 and 18 years of age must be annulled upon request. This can have far-reaching legal consequences.
The title itself, "Law to Combat Child Marriages," clearly illustrates a public attitude toward stigmatizing marriage. The term "child marriage" suggests the forced marriage of children, especially girls under the age of 14. In fact, marriages with and between minors have multiple backgrounds; they reflect different realities. For example, the marriage between a 17-year-old and a 19-year-old, who married to escape from Syria together, is inaccurately framed as "child marriage" (German Institute for Youth Welfare and Family Law (DIJuF) on February 22, 2017).
Problems arise, for example, when a minor and her partner already have a child, or when a child is born in Germany. Paternity must then first be acknowledged or established. For this, the minor requires the consent of her legal representative (Section 1596, Paragraph 2, Sentence 2, Half Sentence 2 of the German Civil Code). However, based on previous experience, a guardian (legal representative) is often only appointed after a considerable time lag, often months.
During this time, the child of the underage mother has only limited legal representation (Section 1673 of the German Civil Code). While maintenance claims can be asserted retroactively, they may be lacking for months to cover daily living expenses.
Visitation rights are also unenforceable without legal paternity. The same applies to parental custody of shared children: Joint custody of the partner of the minor mother can only be achieved through the submission of concurrent custody declarations. This also requires the consent of the mother's legal representative (Section 1626c, Paragraph 2, Sentence 1 of the German Civil Code), so delays and unclear legal situations can be expected in the area of parental custody. It is also questionable whether and when the parents will receive appropriate advice/information, for example, to subsequently acknowledge paternity and submit concurrent custody declarations.
In the event of a separation, it must first be clarified in detail on a case-by-case basis what residence status the spouses have, whether one or both are still in the asylum process or whether a protection status has already been granted. It must also be examined whether the residence status – in our cases usually that of the woman – depends on her cohabitation or marriage with her spouse. There are various scenarios:
In the event of a separation, it must therefore be examined whether the woman has her own reasons for persecution which she may not have even asserted or whether the separation may constitute a new reason for an obstacle to deportation.
Often, the separation itself or the intended retention of the children with the father in the country of origin can be a new reason for, for example, an obstacle to deportation. This question should be clarified on a case-by-case basis with expert legal advice. The situation is different again if there are children who have been granted refugee protection through the recognized father. In this case, the separated woman can also secure her residence by exercising parental custody (see below).
Refugees – and thus also refugee women affected by gender-based violence – must pay the costs of legal advice themselves as long as the proceedings are still being processed by the Federal Office for Migration and Refugees (BAMF) or the immigration authorities.
As in family law or criminal law proceedings, legal aid can be applied for in the out-of-court procedure. However, the very costly legal representation in the
Asylum procedures are not affordable for a one-time consultation fee of approximately €100. Refugee support organizations, such as Pro Asyl, Deutsche AIDS Hilfe, Reporters Without Borders, and others, often subsidize refugee representation. Women's organizations can also be asked whether they will subsidize the costs of legal representation in individual cases.
If the asylum application is rejected in whole or in part by the Federal Office for Migration and Refugees and an appeal is filed against it with the administrative court, legal aid can be applied for for the appeal proceedings. Whether legal aid is granted depends, on the one hand, on the person's need. It must therefore be proven that they do not have the necessary financial means themselves. On the other hand, the outcome of the proceedings must at least be open. The state does not pay a lawyer to conduct court cases that are hopeless from the outset. Therefore, the administrative court examines in advance in legal aid proceedings whether the action can be successful. Here, the decision-making practice regarding whether legal aid is granted varies as much as the decision-making practice in the proceedings themselves varies between the courts. It can therefore by no means be said in principle that legal aid will always be granted in appeal proceedings.
Since the decision as to whether legal aid will be granted is often made very late in the court proceedings, lawyers usually require an advance payment and regular monthly installments towards the fees, which must then be credited if legal aid is granted.
In administrative asylum proceedings, legal representation is not mandatory. This means that the person concerned does not need to be represented by a lawyer. Therefore, for example, a lawsuit, which must always be filed within a specific deadline, can be submitted by the refugee themselves by fax or in person at the legal applications office of the competent court. Court staff are available there to assist applicants. A well-founded statement of claim can also be prepared by a "smart" group of support staff, so that lawyers can often be involved at a later date.
Yes, in principle, a woman affected by violence can receive a legal aid certificate during the asylum procedure. However, it will be difficult to find a lawyer who can take on the very comprehensive representation in an asylum procedure for the €100 fee that they can bill with a legal aid certificate (see above).
After the proceedings have been concluded, you can still obtain advice on the prospects of a possible lawsuit with a legal aid certificate. Once the legal proceedings have been initiated, legal aid is no longer available; instead, legal aid begins (see above).
Overview of financing options for stays in women’s shelters: Table in the appendix.
There are opportunities to finance interpreters through public funding through state or municipal funds or funding programs, as well as through the state's share of funding for women's shelters and specialized counseling centers. For example, some federal states provide access to online interpreting services for counseling centers. However, these regulations are not available in all federal states or for all women's shelters and specialized counseling centers. The quality of translations, access to funding, and billing procedures can vary considerably from region to region and from case to case.
For initial consultation with a woman affected by violence or to determine her language, the nationwide helpline “Violence against Women” can be consulted (see information sheet
the helpline “Violence against Women”: Multilingual advice after a call from a support facility:
https://www.hilfetelefon.de/fileadmin/content/Materialien/Infoblaetter/Hilfetelefon_Gewalt_gegen_Frauen_Infoblatt_Unterstuetzungseinrichtungen_barrierefrei617.pdf).
To date, there is no uniform federal regulation for the financing of interpreting services. This leads to a glaring shortage of professional translators in practice. As a result, children or non-professional support staff in the social environment often translate in everyday practice.
It is also problematic that in many places, public funding is used to finance not professional interpreting, but rather language mediation. The urgently needed resources for the sensitive topic of violence
The necessary standards regarding expertise and professional distance cannot necessarily be guaranteed.
In addition, lower-paid employees with relevant language skills are often hired specifically for this purpose (e.g., on a €400 basis) or assigned to translate beyond their actual duties or roles. In refugee shelters, these employees are often security guards, which leads to role diffusion and violates the required neutrality of the translator.
In addition, translation services are often only available for the largest language groups (e.g. Arabic or Russian), while translations into other languages are difficult to obtain.
Specialist counseling centers and women's shelters have long been demanding that the federal, state and local governments provide sufficient financial resources for interpreting services in all federal states.
The residence requirement (see above) restricts freedom of movement in Germany in the first few weeks after applying for asylum or, in the case of people from so-called safe countries of origin, possibly for the duration of the entire asylum procedure. This means that, for example, women affected by violence who are fleeing from their perpetrators and going to a place they are not allowed to go to because of the existing residence requirement must obtain permission in advance (depending on the status of the procedure from the BAMF or the immigration authorities, by application and ideally in writing) or otherwise violate this obligation and thereby commit an administrative offense. For women affected by violence, such an administrative offense, which arises from fleeing from the perpetrator, is considered justified and has no direct negative impact on the asylum procedure.
Since these are often situations of acute danger, subsequent consent can usually be obtained or the woman's behavior can be considered excusable.
At the beginning of the asylum procedure, there is an obligation to live in an initial reception centre - until the decision on the asylum application is made, in the case of a negative decision until departure, but for a maximum period of 18 months, in the case of minor children and their parents or other guardians for a maximum period of six months (Section 47 of the Asylum Act).
On the other hand, this obligation ends immediately with a prior positive decision on the asylum application, or if the person has a legal right to a residence permit through marriage or the establishment of a civil partnership, or if they are assigned to shared accommodation. Whether this is assigned to shared accommodation or the right to seek one's own accommodation varies from federal state to federal state.
The obligation to reside in the initial reception center can be terminated upon request at the discretion of the court for reasons of public health (e.g., infectious diseases) or for other reasons of public safety or order (e.g., escalating tensions among residents or threats of external attacks), or for other compelling reasons. "Other compelling reasons" include, for example, serious (mental) illness and the need for care or nursing of the asylum seeker or their relatives.
One way to achieve early release from the reception facility is to be assigned to shared accommodation or one's own apartment for reasons of protection from violence.
Individuals applying for asylum or those with a temporary suspension of deportation are assigned to a specific place of residence. Once assigned, an attempt can be made later to obtain permission to move to another location (within the federal state or across federal states) by submitting a relocation application. In cases of particularly vulnerable individuals (e.g., those with an urgent need for specialized support), it is sometimes advisable to request initial assignment to a specific location through an assignment application right at the beginning of the asylum application. When deciding on applications, the fact that family members live together in a household or "other humanitarian reasons of comparable importance" must be taken into account.
It is always possible for the affected person, possibly with the help of supporters, to push for expedited processing of a relocation application – in cases of violence, this must also be well-founded. There is no general legal or administrative requirement that certain applications be processed expeditiously. In principle, if an authority fails to act, a so-called action for failure to act can be filed with the administrative court after at least three months.
The wording of the law/regulation stipulates that internal distribution takes precedence over cross-border distribution, and this must be observed particularly in the case of relocation applications for humanitarian reasons. The immigration authority responsible for the place of immigration (the so-called "relocation authority") is responsible for processing the applications.
The extent to which the move to the desired location is granted and can be granted depends on whether humanitarian reasons exist and are presented that necessitate a move to that exact location. For this purpose, it is important, for example, to demonstrate that the woman will receive the necessary support in the desired location, that relatives live there who can support her, or that there is a place available in a women's shelter there. The requirements for justifying relocation applications are generally quite demanding, but in the case of women affected by violence, they can be well-founded under the aforementioned aspects. A generally stated desire to live in a specific location is usually not sufficient.
Relocation under tolerated status, i.e., potentially after a negative outcome of an asylum procedure, is only permitted in exceptional cases. From the authorities' perspective, the person is obligated to leave the country, and their rights are therefore limited to a minimum. Nevertheless, even in these cases, protection against violence must not be circumvented, and appropriate applications should be submitted if the requirements are met.
Of course, even in the case of women affected by violence in the asylum process, there is the possibility of expelling perpetrators from shared accommodations and their own homes. The police can expel the perpetrators from the refugee accommodation, and the accommodation facilities can ban them from the premises.
However, the instructions to be issued must take into account any possible residence requirement or residency requirement for the offender. If the offender is still subject to a residency requirement, they commit an administrative offense if they are expelled from the area assigned to them due to a violence protection order. Furthermore, if a residence requirement is in place, they cannot simply take up residence outside the area. Therefore, if a family court orders an offender to be expelled from accommodation for a longer period, the order must include a reference to the change in the residence requirement under residence law or the assignment to new accommodation.
Violence protection orders do not have a direct impact on the asylum procedure, because the asylum procedure primarily concerns the assessment of the situation in the country of origin.
As already explained above in question 3.4, however, the spouse's violence can influence the asylum procedure of a woman affected by violence to the extent that it may constitute a new obstacle to deportation for the woman. The assessment then considers whether the partner's violence or the fact that, for example, their children have been or are being (temporarily) taken away from them could lead to persecution in the event of a return to the country of origin. For example, if, in the event of a separation, the children belong to the husband's family under the law of the country of origin, and the woman, who fled from the husband with the children, is threatened by the husband's family.
However, this can only be answered for each specific individual case and cannot be generalized.
Not only in the case of a long-term separation, but especially in the case of a protection from violence order, it is important to consider the possibility of the spouses' asylum applications being separated. It is very important to seek legal advice beforehand.
In the "Orderly Return Act", which is entirely designed to end the stay in Germany, and which emerged from the pressure of several years of cooperation between the Federal Ministry for Family Affairs, Senior Citizens, Women, UNICEF, welfare associations, KOK, Women's Shelter Coordination Association and many other partners, Section 44 (2a) of the Asylum Act was added, which stipulates that the states should take appropriate measures to ensure the protection of women and persons in need of protection when accommodating asylum seekers.
According to the explanatory memorandum, persons within the meaning of this norm include, in addition to women, minors, people with Disabilities, elderly people, pregnant women, lesbian, gay, bisexual, trans or intersex people, single parents with minor children, victims of Human trafficking, persons with serious physical illnesses, persons with mental illnesses and persons,
who have suffered torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of gender-based violence, female genital mutilation, forced marriage or victims of violence based on sexual, gender, racial or religious motives.
For the first time in 2016, nationwide uniform “Minimum Standards for the Protection of Refugees in Refugee Accommodation” were developed, which are now available in their third, significantly expanded edition:
https://www.bmfsfj.de/blob/117472/bc24218511eaa3327fda2f2e8890bb79/mindeststandards-zum-schutzvon-gefluechteten-menschen-influechtlingsunterkuenften-data.pdf
The minimum standards serve as guidelines for the development and implementation of internal protection concepts in refugee shelters. Many federal states have developed their own violence protection concepts for refugee shelters, some of which are mandatory for the operators of the accommodation facilities, but remain rather vague regarding their concrete implementation. For example, the following often appear: "as a rule," "as far as possible," and "if not possible, other solutions will be sought."
The responsibility for ensuring that violence protection policies are adequately implemented lies with the full-time management of each shelter. However, it is also extremely helpful for other parties involved in supporting the women to be familiar with violence protection policies – also to know that every shelter must have clearly designated contact persons for victims of violent assault or sexualized violence.
An overview of violence protection concepts can be found on the following website:
http://www.gewaltschutz-gu.de/weitere_materialien/gewaltschutzkonzepte_berichte_und_andere_veroeffentlichungen/
A residency requirement (after completion of the asylum procedure if the applicant holds humanitarian status or has been granted international protection) can be lifted upon request to avoid hardship. According to the law, such hardship exists in cases of violence against women. Accordingly, it is unreasonable for a person affected by violence to be tied to a place of residence if the person committing the violence is also tied to that place of residence by the residency requirement. It is also unreasonable if a residency requirement counteracts a protective order under the Violence Protection Act or other necessary measures to protect against violence (particularly domestic or gender-based violence).
If the case of protection from violence is sufficiently explained and proven, a hardship case within the meaning of Section 12a of the Residence Act shall always exist and any existing residence obligation shall be lifted.
Within six weeks of fleeing their assigned place of residence, the affected person must submit an application stating that they have suffered domestic or gender-based violence and that they are at risk of such violence in the future if they are not allowed to change their place of residence. Therefore, the type, time, and date of the violence must be described as specifically as possible. They must also state the location and protective facility to which they intend to relocate their residence. In addition to a description of the circumstances, appropriate evidence must also be submitted. This includes medical certificates, hospital reports, confirmation from a women's shelter, or a court order of protection under the Protection Against Violence Act, among other documents. Such evidence may be waived in exceptional circumstances.
It is also important to note that individuals do not violate the residency requirement under Section 12a of the Residence Act, and thus do not commit an administrative offense, if they temporarily stay (for six weeks) outside the municipality or even the federal state to which they were assigned in such a violent situation. The immigration authority responsible for the location where the residency requirement applies is responsible for processing the application. However, this authority must obtain the approval of the immigration authority of the location to which the move is planned.
According to a joint circular from the Federal Ministry of the Interior and the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth (BMFSFJ) from February 2020 on residence regulations in cases of violence protection, applications to avoid hardship, particularly in cases of domestic and/or gender-based violence, are to be processed with special priority:
https://www.nds-fluerat.org/wp-content/uploads/2020/03/BMI_BMFSFJ_Wohnsitzrglng_Gewaltschutz_14-02-2020.pdf)
There are currently no nationwide complaint structures for refugees and their supporters1Complaints are currently being addressed by various groups of people to different bodies inside and outside accommodation facilities.
Complaints within the accommodation should be able to be addressed to all persons involved there (management, staff, residents' representatives, external specialist agencies or cooperation partners, as well as volunteers working in the accommodation).
If there are no formally established complaint structures, the following higher-level bodies, among others, may be considered as possible recipients of complaints:
The “Minimum Standards for the Protection of Refugees in Refugee Accommodations” of the federal initiative of the BMFSFJ and UNICEF call for both internal and external complaint bodies.
[1] An exception is the state of North Rhine-Westphalia, which funds a complaints office in each state accommodation facility. In addition, NRW has a supra-regional coordination office, mobile controlling teams, and a round table located at the Ministry of the Interior of the state of North Rhine-Westphalia.
If the woman has already gone to a women's shelter due to an acute situation of violence, the following must be observed: If there is an existing residence obligation for another town or district, an application for relocation to the town where the women's shelter is located must be made to the immigration authority (see above).
There may still be a residency requirement (see above), and the affected woman violates these rules by moving to a women's shelter. This constitutes an administrative offense. However, for women affected by violence, such an offense, which arises from fleeing from the perpetrator, is considered justified and has no direct negative impact on the asylum process.
Violating the residency requirement constitutes an administrative offense (Section 86 of the Asylum Act), and multiple violations constitute a criminal offense (Section 85 No. 2 of the Asylum Act). However, for women affected by violence, such an administrative offense, which arises from fleeing from the perpetrator, is considered justified and has no direct negative impact on the asylum procedure.
Individuals applying for asylum or those with a temporary suspension of deportation are assigned to a specific place of residence. Once assigned, an attempt can be made later to obtain permission to move to another location (within the federal state or across federal states) by submitting a relocation application. In cases of particularly vulnerable individuals (e.g., those with an urgent need for specialized support), it is sometimes advisable to request initial assignment to a specific location through an assignment application right at the beginning of the asylum application. When deciding on applications, the fact that family members live together in a household or "other humanitarian reasons of comparable importance" must be taken into account.
It is always possible for the affected person, possibly with the help of supporters, to push for expedited processing of a relocation application – in cases of violence, this must also be well-founded. There is no general legal or administrative requirement that certain applications be processed expeditiously. In principle, if an authority fails to act, a so-called action for failure to act can be filed with the administrative court after at least three months.
The wording of the law/regulation stipulates that internal distribution takes precedence over cross-border distribution, and this must be observed particularly in the case of relocation applications for humanitarian reasons. The immigration authority responsible for the place of immigration (the so-called "relocation authority") is responsible for processing the applications.
The extent to which the move to the desired location is granted and can be granted depends on whether humanitarian reasons exist and are presented that necessitate a move to that exact location. For this purpose, it is important, for example, to demonstrate that the woman will receive the necessary support in the desired location, that relatives live there who can support her, or that there is a place available in a women's shelter there. The requirements for justifying relocation applications are generally quite demanding, but in the case of women affected by violence, they can be well-founded under the aforementioned aspects. A generally stated desire to live in a specific location is usually not sufficient.
Relocation under tolerated status, i.e., potentially after a negative outcome of an asylum procedure, is only permitted in exceptional cases. From the authorities' perspective, the person is obligated to leave the country, and their rights are therefore limited to a minimum. Nevertheless, even in these cases, protection against violence must not be circumvented, and appropriate applications should be submitted if the requirements are met.
Overview of financing options for stays in women’s shelters: Table in the appendix.
Changing a person's surname is governed by the law of the country to which they belong (homeland law). Therefore, German authorities are generally only permitted to change the surnames of Germans. The relevant law, the Law on the Change of Surnames and First Names (NamÄndG), and the associated administrative regulations, treat stateless persons living in Germany equally with recognized refugees and asylum seekers. According to this law, the first and/or surname of these persons can be changed if there is a compelling reason to justify the change.
A name change for persons who are still in the asylum procedure or who are not in Germany as recognized asylum seekers or refugees and who therefore have to contact the authorities of their
It is therefore not possible for them to turn to their home countries.
A name change is an exception; therefore, it should only be justified if the applicant's legitimate interest in changing their name outweighs the public interest in retaining their current name. For example, discrimination in the labor market is not a sufficient reason, as it is not the purpose of name law to counteract undesirable social developments. Examples of important reasons can be found in the General Administrative Regulation on the Law on the Change of Surnames and First Names (NamÄndVwV).
Another important regulation is the simplified name change procedure under Article 47 of the Introductory Act to the German Civil Code (EGBGB). According to this regulation, a person applying for German citizenship, for example, after being granted refugee status, may change their surname following naturalization if it particularly reveals the foreign origins of the person bearing the name and the applicant values a less conspicuous surname in the interest of further integration. This can also include a German-language version of the previous first and last name, or, if no such form exists, even a new name.
Since November 2016, the new sexual offense law has been in force in Germany, implementing the long-demanded "no means no" principle. Under the new law, sexual assault is punishable even if it is carried out against a person's recognizable will. However, the new sexual offense law also introduces stricter regulations regarding residence rights.
This concerns both the right to expulsion and the possibility of deportation. Expulsion means that a person who has a residence permit in Germany is deprived of this right. It does not mean that this person can necessarily be deported, as this is often not actually or legally possible. In this case, these people are denied participation in many areas of society, such as a work permit, participation in integration courses, etc. (see Glossary).
In the Residence Act, the formulation of the interest in expulsion is relevant, which in certain cases is particularly difficult or
can weigh heavily. (Section 54 of the Residence Act). Until now, according to Section 54 (1) of the Residence Act, the interest in expulsion was particularly strong and was usually imposed on people who had been sentenced to a prison term of at least one year, if they used violence during the crime or had made qualified threats, etc. In future, the interest in expulsion will weigh heavily in the case of every conviction under Section 1 of the Criminal Code and will therefore make expulsion or deportation easier. In addition to expulsions, deportations should also be possible in the future if the people are threatened with danger in their country of origin or if they are entitled to asylum. According to Section 177 (60) of the Residence Act, deportation should also be possible in these cases if a person has been sentenced to a prison term of at least one year for an offense under Section 177 of the Criminal Code. This means that people can be excluded from refugee protection and will not be granted refugee status. However, it must still be examined by either the immigration authorities or the Federal Office for Migration and Refugees (BAMF) whether there are any obstacles to deportation. If the person is threatened with the death penalty or imprisonment in violation of human rights, for example, in their country of origin, they cannot be deported.
This tightening of the law will result in harsher punishment for offenders without a German passport, as they face negative consequences for their residency status in addition to their conviction under the Criminal Code. There are also concerns about negative repercussions for those affected, who may not report a known offender without a German passport if doing so would threaten their deportation.
Also newly introduced was the offense of crimes committed by a group (Section 184j of the German Criminal Code). According to this, anyone who participates in a group of people who pressure another person to commit a crime against them is guilty of a crime. This allows people to be punished for an act they neither committed nor foresaw. This provision is a political reaction to the attacks on New Year's Eve 2015/16, which were reported by the media to create the impression that sexual assault in Germany was primarily a problem for non-"ethnic" German perpetrators. There is reason to fear that the definition of group membership will be based precisely on this criterion in the future.
Church asylum means the temporary reception of refugees by religious communities – sometimes regardless of the asylum seekers' faith. The goals are to prevent deportation in dangerous situations (including so-called Dublin III deportations), as well as to allow the asylum application to be reopened or re-examined, or to be assessed for hardship by the responsible state authorities.
The decision to grant church asylum is usually made by parish leadership or councils. The parish can receive advice from refugee assistance agencies, migration officers, or refugee parish offices, which many regional churches and dioceses have established. In addition, (church) counseling centers, migration services, and local "Asylum in the Church" working groups can support the preparation and implementation of church asylum.
The municipality will inform the immigration authorities or the competent authority of the municipality’s decision to grant church asylum.
The municipality granting asylum provides living space, cooking facilities, and sanitary facilities. Often, there is a support group that supports the municipality's board and staff, as well as the refugees, in their daily lives (e.g., networking with local initiatives and discussions with lawyers and government officials).
Church asylum is usually funded through donations from the congregation. The duration can vary from a few weeks to several months.
For many church asylums granted after August 01, 2018, the BAMF is extending the transfer period to the EU member state from 6 to 18 months.
The transfer period will therefore be extended to 18 months if:
If a dossier is rejected to avoid church asylum and subsequently granted, the transfer deadline is also extended to 18 months. Even if a dossier is received by the Federal Office for Migration and Refugees (BAMF) less than two weeks plus one day before the expiration of the transfer deadline, the BAMF states that it can no longer be processed, so the extension is explained here as well:
https://www.nds-fluerat.org/wp-content/uploads/2018/09/BAMF-Merkblatt.pdf
However, according to the Dublin III Regulation, an extension of the transfer period in the Dublin procedure to 18 months is only possible if the person is “absconding”, i.e. has not complied with a request to appear for deportation or has no longer been registered with the police and is considered to have absconded.
However, the BAMF's assessment that persons in church asylum should be treated as "fugitives" under the above-mentioned conditions and the transfer deadline extended accordingly has been largely contradicted by the administrative and higher administrative courts. The courts primarily argue that the authorities are neither legally nor factually prevented from carrying out the transfer of a person in church asylum. Rather, the state is waiving its right to enforce its law. A special right of the churches, which would prevent the authorities from
There is no way to carry out a transfer – possibly by direct force.
As a result of the BAMF's tightened procedures, the number of places available for church asylum has plummeted. Many congregations are intimidated and, in some cases, fear criminal consequences. Congregations that continue to accept refugees in church asylum must now generally prepare for one and a half years of support. The uncertainty now also extends to church asylum and the lack of clarity about its duration are also placing enormous additional psychological strain on refugees. Case law on this topic can be found in the asyl.net decision database under the keywords "church asylum" and "Dublin procedure."
The website includes events, news, statements, addresses, publications, and further information. The ecumenical Federal Working Group on Asylum in the Church is the "organizational association of the church asylum movement in Germany. It consists of the networks of all church congregations that are willing to protect refugees from deportation through 'church asylum' if there are reasonable doubts about their safe return."
http://www.kirchenasyl.de/
in the newsletter of the women’s shelter coordination “Protection from violence for refugee women” 1/2015, pages 9-10:
https://www.frauenhauskoordinierung.de/fileadmin/redakteure/Publikationen/Newsletter/newsletter_FHK_2015-1_web.pdf
https://www.kirchenasyl.de/erfahrungsberichte/
http://www.kirchenasyl.de/aktuelles/
A child born in Germany generally has the nationality of their parents or one of their parents. Their residence status is also derived from the residence status of their parents or one of their parents.
If one parent of the child has German nationality, the child is also German by birth (§ 4 StAG[1]). This applies even if the child is not born in Germany.
According to the respective national laws of their parents, the child also has the nationality of those countries if the nationality laws of the parents' countries of origin stipulate that a child born abroad acquires citizenship. In these situations, the child is not required to make a decision when they reach adulthood. They may then have one or two additional nationalities in addition to German citizenship.
If only the father is a German citizen at the time of the child's birth and the parents are not married to each other at the time of birth, the father must first recognize the child as his. Only then can the child receive German citizenship from him.
In Germany, it is not mandatory for the acknowledging father to also be the biological father for paternity to be recognized. The law explicitly aims to protect relationships in which a non-biological father assumes responsibility for a child and acknowledges it as his own.
However, a child born in Germany acquires German citizenship even without a parent who is a German citizen if:
The years spent in the asylum procedure generally do not constitute legal residence in the sense required here, but merely permitted residence. They subsequently become legal residence if the asylum procedure ends with a positive decision. Since individuals still in the asylum procedure cannot obtain a permanent residence permit, they cannot meet the requirements even after years of asylum procedures.
If the parents have different non-German nationalities and neither has lived in Germany for a sufficient length of time, the child has the mother's nationality and, if she is married to the father or if the father recognizes the child as his own, also the father's nationality. The legal regulations of the states whose nationality is in question must be observed in this case.
Problems often arise because parents cannot prove their nationality by presenting valid passports. Until then, nationality cannot be determined.
In the following, it is assumed that the woman seeking advice does not (yet) have secure residency. However, if the women or mothers have secure residency status or even German citizenship, the consequences for the fathers, who in turn derive their residency from their children, may be slightly different. In this case, the father's relationship with the child is particularly important.
The following family constellations are conceivable:
[1] Nationality Act: https://www.gesetze-im-internet.de/rustag/
If a father with German citizenship is not married to the mother, he must first acknowledge paternity of the child. According to German nationality law, the child also becomes German through this acknowledgement (Sections 3 and 4 of the German Nationality Act).
As with bi-national marriages, it is often assumed that the recognition of paternity was only carried out in order to secure residence for the non-German mother.
A relatively new legal regulation therefore stipulates: Notaries or the certifying authority, in particular the youth welfare office, may not certify paternity if there are “concrete indications of an abusive recognition of paternity”, § 1597a BGB:
Acknowledgment of paternity is deemed to be "abusive" if it is carried out specifically for the purpose of creating the legal prerequisites for the permitted entry or residence of the child, the person acknowledging paternity, or the mother, or if it serves solely to procure German citizenship for the child. The law contains five standard examples where concrete indications of this are to be assumed: among other things, if there is an enforceable obligation to leave the country or if the person acknowledging paternity, the mother, or the child have applied for asylum and are citizens of a safe country of origin pursuant to Section 29a of the Asylum Act. If there are indications of this, notaries, the youth welfare office, or the registry office must report the "case" to the immigration authorities for review.
The immigration authorities then examine whether the acknowledgment of paternity was in fact "abusive." They will usually interview the parents in person. If they conclude that the acknowledgment of paternity was not "abusive," paternity is certified. The foreign mother and child, if they do not have other forms of residence, will receive a temporary suspension of deportation until the review is completed (Section 60a, Paragraph 2, Sentence 13 of the Residence Act).[2]).
If the father is a German citizen, the child also acquires German citizenship. The child's mother then receives a residence permit until the child reaches the age of majority, in accordance with Section 28 Paragraph 1 No. 3 of the Residence Act.
[2] Residence Act; Act on the Residence, Employment and Integration of Foreigners in the Federal Territory: https://www.gesetze-im-internet.de/aufenthg_2004/
A child acquires German citizenship at birth even if one of its parents has been legally residing in Germany for eight years and is in possession of a settlement permit, as this represents successful integration.
Subsequently, after paternity has been acknowledged, the mother receives a residence permit in accordance with Section 28 Paragraph 1 No. 3 of the Residence Act.
The child does NOT acquire German citizenship at birth, but the citizenship of his or her parents if:
Here, the granting of a residence permit is at the discretion of the immigration authorities.
A child born here can initially be granted a residence permit under Section 33 of the Residence Act. However, in all family constellations in which no family member is German or has EU citizenship, the residence of the child and mother depends on whether their livelihood is secure. If the family is dependent on public benefits, even if only partially, the parents are told that they can also live in their country of origin as a family.
Sometimes there are so-called patchwork situations: For example, the father has another child from another relationship with whom he maintains contact or who has German citizenship. In this case, he receives a right of residence and a residence permit. However, since the father-child relationship with the second child is also protected by fundamental rights, in certain situations both the child and mother are also granted residence. However, case law has become significantly more restrictive in some cases. For example, the Higher Administrative Court (OVG) of Berlin-Brandenburg has already ruled that the German child may also be expected to move to their country of origin if the family cannot be established otherwise.
Subcase: The father has sole custody
A child born in the Federal Republic of Germany who does not have German nationality will be granted a residence permit ex officio, Section 33, Sentence 2 of the Residence Act, only if:
The child's mother receives a toleration permit and may, under certain circumstances, also be granted a residence permit in accordance with Section 25 Paragraph 5 of the Residence Act if:
The protection of marriage and family under Article 6 of the Basic Law and Article 8 of the European Convention on Human Rights does not, in itself, constitute a domestic-specific ban on deportation or an obstacle to departure. This applies only if the existing family unit can reasonably be maintained exclusively within the federal territory and not in the common home country or one of the home countries of the family members, and if, furthermore, no overriding public interest nevertheless requires departure or deportation. The mere fact that a family member possesses a residence or settlement permit does not preclude (joint) departure and does not constitute a ban on deportation (Federal Administrative Court, judgment of April 30.04.2009, 1 – BVerwG 3.08 C XNUMX –). When examining the individual case, however, the integration of the family members affected by a possible separation (in particular minors) as well as the reasonableness of the (joint) leaving of the Federal territory with regard to the family members concerned must be examined, whereby roots in the Federal territory must be weighed against uprooting from the country of origin.
If foreign family members have different nationalities, they must demonstrate that joint entry into one of their home countries is not possible. If necessary, those affected must clarify with their consular authorities whether, and if so, under what conditions and at what time, they are permitted to continue living together as a family in one of their home countries (VGBerlin, decision of April 17.04.2008, 24 - VG 80.08 A XNUMX -).
If one of the home countries has signed the European Convention on Human Rights, it can generally be assumed that Article 8 of the ECHR is also observed there and that family reunification in that country will also be possible.
As a result, a foreign family member of a foreign national required to leave the country can, in principle, be required to travel with that foreign national to the shared homeland or one of their home countries in order to maintain or continue their family life there. The assumption of unreasonableness depends on objective circumstances and not on the family member's opposing inner attitude, which, by its very nature, is not amenable to review (Higher Administrative Court of Berlin-Brandenburg, decision of July 10.07.2008, 3 - OVG 44.08 S 20.05.2011 -; cf. also Higher Administrative Court of Berlin-Brandenburg, decision of May 3, 37.11 - OVG XNUMX S XNUMX - for the similarly assessed case of parents living together, in which one parent legally resident announces that they will remain permanently in the federal territory with their children, even if the other parent required to leave the country departs).
In this case, too, the father who is not married to the mother must acknowledge the child as his own, and in case of doubt, the provisions set out above under 11.1 (examination of the recognition of paternity) apply.
After the recognition of paternity, the child has his and/or the mother’s nationality.
If the child applies accordingly, they will also receive refugee protection through the route of international protection for family members, Section 26 Paragraph 2 of the Asylum Act.
The idea is that family members are included in the refugee's risk of persecution and thus also in the protection.
However, the child does not necessarily have to take this route and be recognized as a refugee through family refugee protection—derived from the father. As the child of a recognized refugee, they can receive a residence permit under Section 33 of the Residence Act.
The mother, whose residence was not previously secured, can obtain a residence permit through her child's residence in accordance with Section 36 Paragraph 2 of the Residence Act or Section 25 Paragraph 5 of the Residence Act.
If the father is a national of another European country and recognizes the child, the child also receives this European nationality.
The child's mother can then also obtain a right of residence as a family member of an EU citizen. In this case, the right of freedom of movement applies to her primarily, not the German Residence Act. She will also not receive a residence permit, but rather an EU residence card. EU law is more generous than German residence law.
Things can get complicated if the father leaves mother and child, for example, and moves away from Germany. In this case, the child will still have a European nationality, such as French, and is therefore allowed to stay in Germany. However, the child would then have to have sufficient means of subsistence for themselves and their mother. However, there are different rulings from different courts on this matter, and it must be clarified on a case-by-case basis.
If both parents are in the asylum process, the Federal Office for Migration and Refugees requires that asylum proceedings be initiated for the child born here as well. If the parents fail to do so, the Federal Office will initiate the procedure. The parents will receive notification of this and be asked whether they wish to proceed with the asylum process and what grounds for asylum they cite for their child.
If the parents initiate the procedure, the child, like the parents, will receive a residence permit for the duration of the asylum procedure. If the parents waive the procedure, the child will only receive a temporary suspension of deportation until the outcome of the parents' asylum procedure is decided.
Depending on the outcome of the parents’ or father’s asylum proceedings, the above will apply.
In this case, the father cannot provide the child with any legal right of residence in Germany, as he himself has no right of residence and is obliged to leave the country.
Here it often depends on why the father is obliged to leave the country but does not leave and possibly cannot be deported.
It may not be possible to force the father to leave the country or to deport him for various reasons, such as:
If an end to this situation is not foreseeable, both the father and the child, and consequently also the mother, may be eligible for residence under Section 25 Paragraph 5 of the Residence Act. This can be granted if a person has been granted a temporary suspension of deportation for 18 months for reasons beyond their control. However, the immigration authorities have their own discretion in this regard and apply this very restrictively. Moreover, these cases are rather rare.
If the father himself (or partly) caused the obstacle to deportation, for example, by failing to cooperate in obtaining a passport, his tolerated status is essentially his own doing, and he is not supposed to benefit from it. This often results in sanctions, such as a work ban and the imposition of a residence permit. Since the father will not receive a residence permit, the child will also only be tolerated.
The parents of children born here often come from different countries. In addition, it is often difficult or even impossible to obtain birth certificates for children born in Germany and to clarify their citizenship if the parents do not have sufficient papers. Due to a lack of the necessary documents and for reasons of family protection, these families cannot be deported to one of their countries of origin. The authorities do require those affected to take care of entry options for their partners and children, but this is often almost impossible. So it happens again and again that such bi-national families remain in Germany. However, neither the parents nor the children are granted a right of residence. They sometimes remain in the status of toleration (Duldung) for years, with all the restrictions on their rights that this entails.
If the father refuses to acknowledge paternity, the mother can file a petition with the family court to establish paternity. If, as is likely in this situation, the father shows no interest in his child and has no contact or interaction with him, the family court will commission a paternity test.
If paternity is established in this way, the father's nationality determines whether the mother and child can remain in Germany. If the father is a German citizen, the child also acquires German citizenship at birth. The mother then receives a right of residence until the child reaches the age of majority (see above). If the father is not a German citizen and has no or does not want any contact with the child, it is very difficult for the child and mother to obtain permanent residency through this route.
If the father is unknown, no rights can be derived from this. The child receives the mother's nationality, and his or her residence also depends on the mother's residence.
Further information on cases of sexual violence and possible effects on residence permits
If the mother obtains residence through the child because the child acquires German citizenship at birth, the residence of any siblings is also secured: with the legal restrictions already mentioned above, the German citizenship of one family member anchors the entire family in Germany.
The legal requirements for a successful asylum procedure are very high. For refugees from countries where the Federal Office and the courts only very rarely consider individual persecution, it is therefore important not to simply wait for the outcome of the asylum procedure, but to consider alternative paths to legal residence. This also applies in cases where the authorities assume that the person could have found protection from persecution in their own country.
Until recently, it was neither legally regulated nor politically desirable to return from a tolerated status to legal residence – unless the person acquired a right to a residence permit, for example, through the birth of a German/European child or through marriage to a German/European person (see 11). Even in cases of a German marriage or the birth of a German child, the immigration authorities generally require the person to leave the country of origin and undergo the regular family reunification procedure.
This means that there are people who have been in possession of a tolerated status for many years, even though this was (or should have been) only a temporary suspension of deportation.
For some time now, there have been opportunities, particularly in the interests of employers and businesses, to obtain legal residency for people who have lived in Germany for a long time and are tolerated.
Since August 2015, persons without a German passport who are required to leave the country and who begin training have, under certain conditions and regardless of age, been entitled to a toleration permit for the entire duration of their qualified training. Since January 01.01.2020, 60, the toleration permit for training purposes has been regulated by the new Section XNUMXc of the Residence Act.
The prerequisite is the start or imminent start of a qualified apprenticeship, i.e., a company-based or school-based vocational training program that leads to a state-recognized or comparable qualification and normally lasts two years. Shorter assistant or helper training programs in "shortage occupations" (e.g., nursing assistant) are also permitted, provided that qualified training is guaranteed immediately afterward.
The training toleration permit is available to individuals who have been in possession of a toleration permit for at least three months at the time they begin training. It is also available to individuals who have begun training during the asylum process and wish to continue it after their asylum application has been rejected, provided they themselves, as well as the training they have begun, meet the requirements for the training toleration permit.
The permit cannot be issued if there is a ban on working under Section 60a Paragraph 6 of the Residence Act or if the person has been convicted of an intentional offence, as well as for persons from safe countries of origin.
Furthermore, a person is only entitled to a temporary suspension of deportation for training purposes if their identity has been verified in a timely manner or if they have at least cooperated in the process of verifying their identity. If their identity could not be verified despite demonstrable cooperation, the granting of temporary suspension of deportation is at the discretion of the authority.
A granted training permit can be extended for a further six months after successful completion of the training to allow for a suitable position. If a job in the training occupation is subsequently found, this can ultimately lead to legal residence.
Newly introduced and effective from January 01.01.2020, 60, is the "Arbeitsduldung" (exemption from employment) in Section XNUMXd of the Residence Act. This is intended to provide certain tolerated persons with legally secure residence and a prospect of remaining.
This is a cut-off date regulation, meaning it is only available to persons who entered the Federal Republic before August 01.08.2018, XNUMX.
However, the high requirements can only be met by a very limited number of refugees and tolerated persons:
Despite the stringent requirements, the newly created regulations allow for transitions to legal residence, as envisaged in Sections 25a and 25b of the Residence Act. For individuals seeking asylum or international protection, it is advisable to consider these options from the beginning of their stay in Germany.
However, for those persons required to leave the country who, in the opinion of the immigration authorities, do not sufficiently address their identity and/or obtain a passport, the "tolerated status for persons with unclear identity" (Section 60b of the Residence Act) has been introduced. This means that a person who, after completing an asylum procedure or otherwise being required to leave the country, does not actively cooperate in their own deportation will receive this toleration status, which is associated with drastically worsening conditions. This toleration status entails a work ban, a residency requirement, reduced benefits, and detention pending deportation, detention for cooperation, and custody pending departure.
What is also serious from a residence law perspective is that the periods during which a person is in possession of this toleration permit are not counted towards the temporal requirements for the right of residence under Sections 25a and 25b of the Residence Act.
If the failure to cooperate is subsequently made up for, a regular toleration permit should be issued again instead of the “second-class” toleration permit.
It should be reasonable, and therefore mandatory, for those affected not only to apply for the passport themselves, but also to apply for additional documents at the embassy or authorities of the country of origin and to pay the associated fees. Furthermore, participation in collective hearings at the embassy or a delegation of the country of origin should be reasonable, as should the submission of a declaration to the country of origin that they are willing to return "voluntarily" and, if necessary, also complete military service.
Most of these requirements are not new; they have been imposed in various forms by immigration authorities for years. However, they have now become law, and failure to obtain a passport immediately results in second-class toleration.
Important in this context is that obtaining a passport or verifying identity also plays a greater role in applying for a training permit (Ausbildungsduldung) or the newly created employment permit (Arbeitsduldung). For people coming to Germany from 2020 onwards, a training permit (Ausbildungsduldung) will only be available if they have provided unequivocal proof of their identity no later than six months after entry.
Please note: During the ongoing initial asylum procedure, unless it has been rejected as manifestly unfounded, there is NO obligation to obtain a passport or to cooperate in it. Caution is advised here, as immigration authorities sometimes request this out of ignorance or malice (see above).
The Istanbul Convention is the name of the Council of Europe Convention on preventing and combating violence against women and domestic violence, which has been in force since August 2014. The convention stipulates that gender equality must be enshrined in the legal systems of the signatory states and that all discriminatory provisions must be abolished. This creates an obligation for state authorities to take appropriate measures, for example, in the areas of prevention, protection, and sanctions. The Istanbul Convention has been applicable law in Germany since 2018.
Relevant to the area of refugee law are Articles 60 and 61 of the Convention, which formulate the prohibition of refoulement of persons seeking protection (61) and stipulate that in the Contracting States violence against women on the grounds of sex is considered a reason for asylum or for granting refugee protection (60).
In asylum procedures, gender-based violence is usually (still) attributed to the Refugee Convention characteristic of "membership of a particular social group." Section 3b No. 4, second half-sentence, of the Asylum Act states, "(...) persecution on the grounds of a particular social group can also occur if it is linked solely to gender or gender identity." Accordingly, gender-based persecution such as sexualized violence, circumcision, or punishment for violating dress codes, among other things, is subsumed under this characteristic. However, this narrows the perception of persecution and occasionally obscures women's view of other characteristics of persecution (such as political convictions, religion, etc.). In contrast, the Istanbul Convention rightly calls for a gender-sensitive interpretation of other grounds for persecution, such as political convictions, religion, nationality, and racism. After all, attacks on "gender," as sexism and misogyny, are inherent in every other characteristic of persecution.
The strength of the Convention in this area currently lies in the fact that intimate partner violence is explicitly perceived as gender-specific persecution relevant to refugees. In the absence of state protection measures, this would, in practice, mean a right to protection in cases of intimate partner violence.
The requirements of the Convention regarding the conduct of the asylum procedure have been implemented in Germany, at least in theory, by the Federal Office having the interview conducted by special representatives for gender-based violence in cases of violence and by the right to a female interviewer and also a female interpreter.
In terms of residence law, the provisions of Article 59 paragraphs 1 to 3 of the Convention also constitute binding rules, but the Federal Republic of Germany has declared a reservation to the provisions of paragraphs 2 and 3 of Article 59, so that these provisions are currently not binding.
Article 59 paragraph 1 of the Convention provides for an independent right of residence for the persons affected by domestic violence, regardless of the duration of the marriage. In German law, however, a Marriage period of three years, for shorter marriages a very special hardship must be demonstrated.
Paragraph 2 of Article 59 of the Convention stipulates that persons whose residence is dependent on that of their partner are also granted an independent right of residence if the latter is deported (for a criminal offense). There is no comparable provision in German law. With its reservation, the Federal Government is opposing the protection required by the Convention for women in this situation.
Article 59, paragraph 3 of the Convention provides for a residence permit for women affected by violence who are to testify as witnesses in relevant criminal proceedings. Despite the declared reservation for women, the legal situation has improved in this regard. The newly inserted paragraph 4a in Section 25 of the Residence Act now provides for a residence permit to be issued in these cases if the presence in the
Federal territory is considered appropriate for the criminal proceedings, the person has broken off all contact with the accused persons and has declared their willingness to testify as a witness in the criminal proceedings.
According to sentence 3 of Section 25 paragraph 4a of the Residence Act, the residence permit thus granted should now be extended even after the criminal proceedings have ended if humanitarian or personal reasons or public interests require the person's continued presence in the federal territory.
This approach takes into account the experience that many women affected by violence or human trafficking prefer an illegal status in Germany if they are denied any possibility of an extendable stay in connection with a court testimony. They choose this option rather than being forced to return to their respective countries of origin after the conclusion of criminal proceedings.
Authors:
Barbara Wessel
Dorothee Frings, Table: “Financing of refugee women’s shelter stays”
Editors:
Issue 3: Elisabeth Oberthür, Women's Shelter Coordination Association, and Katharina Göpner, bff: Federal Association of Women's Counseling Centers and Women's Emergency Hotlines - Women Against Violence Association
Issue 2: Gloria Goldner and Tatjana Leinweber, Women's Shelter Coordination Association
Issue 1: Anita Eckhardt and Katharina Göpner, bff: Federal Association of Women's Counseling Centers and Women's Emergency Hotlines - Women Against Violence eV
The following federal associations are members of the Women’s Shelter Coordination Association
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