International Migration and Refugee Law. Does Germany's Migration Policy Toward Syrian Refugees Comply?

Diab, Jasmin Lilian

International Migration and Refugee Law. Does Germany's Migration Policy Toward Syrian Refugees Comply?

Politics - International Politics - Topic: Public International Law and Human Rights

Summary

Germany will spend around $6.6 billion to cope with an estimated 800,000 refugees expected to have entered the country in the year 2016; this reality indeed extending further into 2017. Despite this overwhelming number of people entering the country, Chancellor Angela Merkel stated that there is “no legal limit to the number of asylum seekers Germany will take in in the coming years.” The announcement by Merkel's coalition government arrived following Germany and Austria opening their borders to the large numbers of refugees making their way north and west from the Middle East, Africa and elsewhere. In particular, this statement came after the Syrian refugee crisis created the biggest refugee crisis the world has seen since the Second World War.
Germany is seen as the immigration hub of Europe. It also happens to be the second most popular destination for immigrants after the United States of America. Germany is also the country in Europe with the highest numbers of foreign nationals to date. Germany established a new immigration law in 2005 was born out of a realization that it was coming to terms with a demographic crisis stemming from an ageing population and further complimented by a sharp decline national birth rates. In foresight, and within this unfortunate context, migration was seen by much of the German political class as an economic necessity, and the answer to the German economic and demographic time bomb.
Between the years 2009 and 2014, annual net migration in Germany rose from 100,000 to 580,000 individuals. Moreover, the inflow of foreign nationals increased from 266,000 to 790,000 individuals. As of January 2015, approximately 10% of residents in Germany were foreign nationals, with around 12% born outside the country. Naturally, these figures have all risen significantly following Merkel’s decision to allow what has reached one million refugees and migrants into Germany across 2016 and moving into 2017. Moving from this reality, the research will focus on the importance of the compliance of Germany’s migration policy with International Refugee and Migration Law, as it is crucial for the country’s survivability and move forward throughout this phase of its history. The importance of the research lies in whether or not Germany’s migration policy towards the Syrian Refugees in particular complies with its duties toward international law embodied in the treaties and conventions it has committed to.

Excerpt

Abstract

Germany will spend around $6.6 billion to cope with an estimated 800,000 refugees

expected to have entered the country in the year 2016; this reality indeed extending

further into 2017. Despite this overwhelming number of people entering the country,

Chancellor Angela Merkel stated that there is "no legal limit to the number of asylum seekers

Germany will take in in the coming years." The announcement by Merkel's coalition

government arrived following Germany and Austria opening their borders to the large

numbers of refugees making their way north and west from the Middle East, Africa and

elsewhere. In particular, this statement came after the Syrian refugee crisis created the

biggest refugee crisis the world has seen since the Second World War.

Germany is seen as the immigration hub of Europe. It also happens to be the second most

popular destination for immigrants after the United States of America. Germany is also the

country in Europe with the highest numbers of foreign nationals to date.

Germany established a new immigration law in 2005 was born out of a realization that it

was coming to terms with a demographic crisis stemming from an ageing population and

further complimented by a sharp decline national birth rates. In foresight, and within this

unfortunate context, migration was seen by much of the German political class as an

economic necessity, and the answer to the German economic and demographic time bomb.

Between the years 2009 and 2014, annual net migration in Germany rose from 100,000 to

580,000 individuals. Moreover, the inflow of foreign nationals increased from 266,000 to

790,000 individuals. As of January 2015, approximately 10% of residents in Germany were

foreign nationals, with around 12% born outside the country. Naturally, these figures have

all risen significantly following Merkel's decision to allow what has reached one million

refugees and migrants into Germany across 2016 and moving into 2017.

Moving from this reality, the research will focus on the importance of the compliance of

Germany's migration policy with International Refugee and Migration Law, as it is crucial

for the country's survivability and move forward throughout this phase of its history. The

importance of the research lies in whether or not Germany's migration policy towards the

Syrian Refugees in particular complies with its duties toward international law embodied

in the treaties and conventions it has committed to.

Key words: Migration, Refugees, Germany, European Union, Policy, International Law

Contents

Acknowledgments i

Abstract

Chapter I: Introduction

The History of the Right to Asylum

The Duty of Hosting States

European Law and the Non-Refoulement Principle

Germany as an Emerging Country of Refuge

German Migration Policy Development and the Reasoning behind Opening

Boundaries

Chapter II: Literature Review

The Rights of Refugees

The Establishment of the UNHCR

The 1951 Convention and its 1967 Protocol and the Definition of a Refugee

The Scope of the 1951 Convention and its Limitations

The Duty of States vs. the Rights of Refugees

Chapter III: Methodology

Chapter IV: Migration to Germany and the Syrian Crisis in the EU

Migration to Germany in Figures

The Syrian Crisis and Refugee flows to Europe

The European Union Migration Policy

General Principles of Common European Asylum System

The Rights of Individuals Arriving at the Border under European Law

Substantive Rights: The Rights and Duties of Member States

Qualifications for International Protection

Return Directives and Readmission Requirements

Resettlement and Financial Instruments

Measures to Respond to the Refugee Crisis

Chapter V: The Evolution of German Migration Policy

The Right to Asylum in Germany

Steps Prior to Arrival at the German Border

Processes for Handling Refugees Arriving at the Border

Amendments to the Refugee Handling Procedure Due to the Current Refugee Crisis

Act on the Acceleration of Asylum Procedures and Benefits Awarded to Asylum Seekers

Support for Unaccompanied Refugee Minors in Germany

Steps to Determine Whether a Person is Entitled to Refugee Status in Germany

Screening Procedure for Arriving Refugees Being Resettled in Germany

Naturalization: Refugees Legally in Germany

Monitoring and Movement of Refugees While in Germany and the Role of Governments

Chapter VI: Does German Migration Policy toward Migrants and Refugees

Comply with International Law?

Airport Procedure

Legal and Political Criticisms

The Expulsion of Asylum Seekers and the Minimum Recommended Standards

Risk of Political Persecution

Harmonization of Asylum Laws

A Legal Policy Perspective

Current and Future Policy Debates: Rising Public Pressure vs. Integration

101

Analyzing Germany's Policy Shifts from 2000-to present

104

Improving the Burden-Sharing with the EU

108

Germany Fights Back Nationalist Movements: Announces Measures for Deporting

Migrant Criminals

110

Chapter VII: Future Prospects and Recommendations

115

Recommendations at the Level of EU-German/Turkish Relations

116

Observations in International Law

118

Bibliography

124

vii

Chapter I

Introduction

Annually, millions of individuals seek the protection of international refugee law, rendering

it one of the most significant international human rights mechanisms which exist to date.

Throughout the development of international refugee and migration law, the only

international legal norms which apply to refugees at global level in particular, remain the

1951 UN Convention Relating to the Status of Refugees as well as its 1967 Protocol. To

date, The Convention on Human Rights and its Protocol have been ratified by 150 UN

member-states. Under the conditions of the post-war era, The Convention was drafted

applying only to individuals who were identified as refugees as a result of events occurring

before the 1

of January 1951 in Europe. The 1967 Protocol subsequently came to remove

this temporal and geographical limitation.

Within the field of migration, refugees are considered a separate class of immigrants who

deserve specific measures of protection, as per international law, by the host state. Based

upon Article 1 of the 1951 Convention, and as modified by the 1967 Protocol, a refugee is

defined as an individual who "owing to well-founded fear of being persecuted for reasons of

race, religion, nationality, membership of a particular social group or political opinion, is

outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail

McAdam, J. (2007). Complementary Protection in International Refugee Law. Oxford University Press, Retrieve at:

http://www.iarlj.org/general/images/stories/docs/flyer_-

_mc_adam_complementary_protection_in_international_refugee_law.pdf

himself of the protection of that country"

The definition generally denotes that more than

one qualifying condition applies to an individual to be considered as a refugee. This entails

the following criteria: (1) Physical presence outside home country; (2) well-founded fear of

persecution (being at risk of harm is insufficient reason in the absence of discriminatory

persecution); (3) incapacity to enjoy the protection of one's own state from the feared

persecution.

Originally, this definition was intended to exclude internally displaced persons, economic

immigrants, and victims of natural disasters. The definition was also made to exclude

individuals fleeing violent conflict but not subjects of discrimination which amounts to

persecution.

Moreover, the obstacle of exclusivity of the definition outlines, in turn, the reality that a

refugee is not an asylum-seeker. The United Nations High Commissioner for Refugees

(UNHCR) defined an asylum seeker: `someone who says he or she is a refugee, but whose

claim has not yet been definitively evaluated'. In the cases of mass refugee influxes toward a

specific region due to a local, regional, or international conflict in particular, the reasons for

fleeing usually are justified and evident. Consequently, in dire circumstances, there is no

capacity to conduct individual interviews; and these individuals are often declared prima

facie refugees.

Edwards, A., Stevens, D., Lambert, H., Juss, S., Shah, P., Guild, E., ... & Gilbert, G. (2013). International Refugee

Law.

Harthaway, J. C. & Nevey R. A., (1997). Making International Refugee Law Relevant Again: A Proposal for

Collectivized and Solution-Oriented Protection, pp. 115-145, Harvard Human Rights Journal. Retrieve at:

http://heinonline.org/HOL/LandingPage?handle=hein.journals/hhrj10&div=8&id=&page=

The History of the Right to Asylum

International Human Rights Treaties, and International refugee law neither clarify an

entitlement to asylum for the individuals concerned, nor do they inflict an obligation upon

states to grant asylum to individuals fleeing persecution. To make this delicate balance

clearer, individuals have a right to seek asylum, not necessarily be granted asylum.

Furthermore, states have the right to grant asylum, without being bound to any obligations

or enforcements. The 1951 Convention

(or The Geneva Convention) does in no way

guarantee asylum-seekers the right to be granted refugee status. Even in cases where

individuals fulfil all the necessary conditions to be considered refugees. The final decision

as to whether or not a refugee status is granted remains at state discretion. However, states

are "obliged" to refrain from actions that would purposely, directly, or indirectly, endanger

asylum-seekers, especially endangerment resulting from returning these individuals to

their country of origin; however, whether or not there are consequences or means of

making states conform to these standards, remains a gray area in International Law. In the

maintenance of their sovereignty, every state is free to institute their own tailored

conditions upon which they would grant asylum stemming from and reinforced by the

fact that, in theory, no state is entitled to interpret the Geneva Convention authoritatively,

different from other international human rights treaties. The UNHCR has the duty to

supervise its application. This in no way gives the UNHCR the authority to, in turn, enforce

The 1951 Refugee Convention is the key legal document that forms the basis of our work. Ratified by 145 State

parties, it defines the term `refugee' and outlines the rights of the displaced, as well as the legal obligations of

States to protect them. More at: http://www.unhcr.org/1951-refugee-convention.html

mandatory interpretations. The Convention has always left its interpretation to domestic

law-makers and national courts.

Due to their overwhelmingly vulnerable situation, asylum-seekers are at many instances,

forced to enter their country of refuge (host country) illegally. As stated previously, the

Convention

does not require that states grant asylum-seekers entry to their territory;

however within the frame-work of the non-refoulement principle, entering a state party to

the Convention illegally does not forfeit protection (Article 31). Individuals who enter their

host country illegally may still meet the requirements to be granted refugee status if they

meet the relevant criteria outlined by the state in question. However, the question does

remain about whether or not states' capacities to intercept large influxes of refugees into

their borders are not only plausible, but whether or not it interphases with their rights as a

sovereign state to begin with. Refugees illegally present within the territory of the host

country must not be penalized for their illegal entry should they be (Article 31):

x Entering directly from the territory where their lives or freedom were

threatened and if they report themselves immediately to the authorities,

x Showing good reason for their illegal entry.

Restrictions upon their internal movement may be imposed until their case is reviewed and

their official status is granted. As for refugees, legally present in the territory, Article 26 of

the Convention grants them the right to select their area of residence as well moving freely

within the border of their host state. The UNHCR has clarified that it believes the detention

Ibid

1951 Geneva/Refugee Convention

of asylum-seekers must be a measure of final resort, when all other means of controlling a

given situation have been exhausted. Detention must be based upon plausible belief that

this refugee is a threat to the state in which he/she is present. The UNHCR has in turn

outlined a set of guidelines for detention of asylum-seekers. In specific states, in cases

where refugees constitute any form of threat or are suspected of illegal activity, they are

confined to refugee camps and their movement inside the country is restricted. In other

states, detention of irregular immigrants until their case is reviewed, and their status as

refugees is granted, for it is a legal and common practice.

The research question will tackle the interplay between state policy and its duties towards

international law, and the standards it is intended to enforce. It will look into the

aforementioned reality with a critical approach as to whether Germany's migration policies

towards the Syrian refugees in particular, maintain and comply with its duties towards

international treaties, conventions and agreements which currently constitute the

framework of international refugee and migration law.

The Duty of Hosting States

The 1951 Refugee Convention outlines a duty upon states to accord to refugees the same

equal rights with those of their population. It also allows the granting of rights particularly

those listed as "the most favored aliens" or "aliens" in general. The rights given to refugees

are to be founded upon the legality of their situation within their host country, as well as

upon the duration of their intended stay within the hosting territory. The first level of

The 1951 Refugee Convention and 1967 Protocol, Retrieve at: http://www.unhcr.org/1951-refugee-

convention.html

rights is given on the basis of the mere presence of an individual within a state member's

territory, even if this individual's presence is illegal. Such rights include:

x Freedom of religion (Article 4),

x Property rights (Article 13),

x The right to primary education (Article 22),

x The right to access to the courts (Article 16(1)),

x A limited right to move freely, subject to justifiable restrictions (Article 31(2))

The second level of rights is to be granted when refugees are legally and lawfully residing

in the host state this indeed includes the period where their asylum claim is being

processed. These rights include:

x The right to self-employment (Article 18)

x The right to move freely, subject to regulations applicable to aliens in general

(Article 12)

Another level of rights are ensured immediately when an individual is officially recognized

as a refugee, and in turn as an individual lawfully residing under a member-state

jurisdiction. These rights include:

x The right to paid employment (Article 17) under conditions no less favorable than

for other aliens or foreigners.

x The right to work without any restriction after a period of three years' extended

residence (Article 17(2)).

Ibid

Although an ideal circumstance that the host state has the economy and infrastructure to

ensure that individuals lawfully residing within its borders are ensured proper income and

employment, the reality of the matter is that at instances, this is not plausible and cannot

be applied. Take the case of the approximately 1.8 million Syrian refugees

within the

Lebanese territory, employing these refugees is not only currently impossible as far as the

state's capacity, but this will also have major demographic, political and social implications

which might threaten the already fragile fabric of Lebanon and its peace and stability in its

entirety.

Worthy of noting is that the absence in the Convention of a single and clear definition of the

concepts of `present lawfully', `staying lawfully', or `residing lawfully' allows states the

luxury, considerable discretion in according these rights to the refugees within their

borders. Despite the outlines of the Convention, as above-mentioned, states are free to

grant permanent or temporary residence to the individuals in question, as well as to assign,

or decline rights to work and free-movement. States' decisions indeed lead to great

differences with respect to refugees' rights on the international level.

European Law and the Non-Refoulement Principle

On the European level, the Geneva Convention's definition of refugees is included within

the Treaty on the Functioning of the European Union

(Article 78) as well as within the EU

Charter of Fundamental Rights (Article 18). The EU possesses an all-encompassing set of

Op. cit. pg. 5

The Treaty on the Functioning of the European Union (2007) is one of two primary Treaties of the European

Union, alongside the Treaty on European Union (TEU). Originating as the Treaty of Rome, the TFEU forms the

detailed basis of EU law, by setting out the scope of the EU's authority to legislate and the principles of law in

those areas where EU law operates. More at: http://eur-lex.europa.eu/legal-

content/en/TXT/?uri=CELEX:12012E/TXT

legislations on asylum-seekers. This legislation has often been the subject of criticism by

the UNHCR. The Qualification Directive

also states that other individuals who are entitled

to international protection should be treated equal status with refugees.

The overall purpose of the Convention remains to ensure protection to refugees, as defined

in the Convention primarily, this being through guaranteeing that they will not be

returned to their country of origin or deported to any other territory where they are at risk

of facing persecution. Article 33 of the Convention puts forward what has become widely

recognized and adopted as non-refoulement principle in international law which states: `No

Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of

territories where his life or freedom would be threatened on account of his race, religion,

nationality, membership of a particular social group or political opinion'. Exceptionally, this

form of protection does not apply to individuals who present a security threat to their host

country (Article 33(2)), such as individuals suspected of terrorism or terrorist related

activity, trafficking, or weapon and drug smuggling, etc. The Geneva Convention does not

exclude removal of asylum-seekers to safe third countries. The distinction lies here:

asylum-seekers illegally present within the territory of a state may be required to seek

protection in a third country; however, those legally present may not be expelled from its

territory (Article 32).

The purpose of the Qualification Directive is to harmonize the criteria by which Member States define who

qualifies as a refugee, as well as other forms of protection for persons who face serious risks in their country of

origin (subsidiary protection). The original objective of the Directive is to ensure that persons fleeing persecution

are identified and have access to the same level of protection, regardless of the Member State where they lodge

their asylum application.

Ibid

Due to its inadmissible importance, the principle has constituted an integral part of other

international human rights treaties either explicitly such as in the Convention against

Torture, Article (3) or implicitly through the relevant jurisprudence such as in the

European Convention on Human Rights, Article (3) and International Covenant on Civil and

Political Rights, Article (7). The principle has also becomes part of customary international

law, making it universally binding.

Despite the fact that in the 1951 Refugee Convention, the scope of the principle of non-

refoulement is limited to refugees, and exceptions with the aim of maintaining national

security are allowed, these limitations do not exist in the other three above-mentioned

treaties. States who are signatories to these international treaties are thus obligated not to

deport any individuals to their countries of origin if they are at risk of being exposed to

torture or to cruel, inhuman or degrading treatment or punishment whether they fulfil the

requirements to be considered a refugee or not.

Germany as an Emerging Country of Refuge

In 2015, Germany was the main EU country of destination for immigrants and refugees. A

briefing from the International Organization for Migration's Global Migration Data Analysis

Centre in Berlin presents the main data on arrivals of migrants, refugees, and asylum-

seekers during 2015. The figure below depicts first time asylum applications in Germany,

by main citizenships.

Derek N. White, Christi L. Thornton, Kristen Hunsberger, Zoe Meier & Ericka Curran (2013), International

Refugee Law, The American Bar Association: The Year in Review, Retrieve at:

http://www.americanbar.org/content/dam/aba/publications/international_lawyer/til_47_1/refugee.authcheckda

m.pdf

Figure 1: Source: IOM

During 2015, one million individuals registered with the intention to seek asylum in

Germany. The data shows that since April 2015, the majority of first-time asylum

applicants were from Syria. But relatively little is known about the profile of the people

who registered an intention to apply for asylum in Germany. This is because Germany's

EASY

data collection system does not collect data on anything except the country of

origin of the applicant as well as on the receiving German federal state. It does not collect

information on the socio-economic profiles of the individuals.

In Germany, a quota system is used to fairly distribute refugees and asylum-seekers among

German federal states. This system allocates a specific percentage of asylum applicants,

based upon tax receipts and population numbers, to each federal state.

The International Organization for Migration (IOM) is an intergovernmental organization that provides services

and advice concerning migration to governments and migrants, including internally displaced persons, refugees,

and migrant workers. More at: www.iom.org

The nation-wide distribution system EASY (Erstverteilung von Asylbewerbern - Initial Distribution of Asylum

Seekers) is used to determine which reception center is responsible for accommodating the asylum seeker. After 3

months the asylum seeker is transferred to an accommodation center until their case has been finalized.

Blay, S., & Zimmermann, A. (1994). Recent Changes in German Refugee Law: A Critical Assessment. The

American Journal of International Law, 88(2), 361-378. doi:10.2307/2204107

The map, illustrated below, depicts the distribution of asylum seekers within Germany,

based upon the quota system. The information which remains unclear is the number of

individuals residing in reception centers at any one time. Asylum applicants are required to

stay in a reception facility upon arrival for up to six months at a time.

Figure 2: Sources: Die Bundesregierung (2015)

Germany will spend around $37 billion (from 2016 to 2017) to cope with an estimated

additional 500,000 refugees expected to have entered the country between 2016 and 2017

according to the Head of the Federal Office for Migration and Refugees (BAMF), Frank

Jurgen Weise. Despite this overwhelming number of people entering the country,

Chancellor Angela Merkel stated that there is "no legal limit to the number of asylum

seekers, Germany will take in in the coming years."

The announcement by Merkel's

coalition government arrived following the opening by Germany and Austria their borders

to the large numbers of refugees making their way north and west from the Middle East,

Africa and elsewhere. This statement, in particular, came after the Syrian refugee crisis

created the biggest refugee exodus the world has seen since the Second World War.

German Migration Policy Development and the Reasoning behind Opening

Boundaries

As stated previously, Germany is seen as the immigration hub of Europe. It also happens to

be the second most popular destination for immigrants after the United States of America.

Germany is also the country in Europe with the highest numbers of foreign nationals to

date.

Germany established a new immigration law in 2005 out of a realization that it was coming

to terms with a demographic crisis stemming from an ageing population and further

complimented by sharp decline in national birth rates. In foresight, and within this

unfortunate context, migration was seen by many of the German political class as an

economic necessity, and the answer to the German economic and demographic time

bomb.

The cost of Merkel's refugee crisis: Germany to spend £37BN to fix migrant chaos:

http://www.express.co.uk/news/world/761162/Angela-Merkel-Germany-Migrant-Crisis-costs-refugees

Report: Germany to spend 94 billion euros on refugees in next five years: http://www.dw.com/en/report-

germany-to-spend-94-billion-euros-on-refugees-in-next-five-years/a-19258420

Sarmadi, D. (2014). Germany ranks second most popular immigration destination:

http://www.euractiv.com/section/global-europe/news/germany-ranks-second-most-popular-immigration-

destination/

Migration Policy Institute, Country Profile: Germany: http://www.migrationpolicy.org/country-

resource/germany

BAMF forecasts the inflow intro Germany through taking into account the following

factors:

x Developments in countries of origin;

x Information from German institutions dealing with migration issues;

x The number of asylum applications in Germany;

x Policy responses to migration across Europe.

Indeed bound by decisions at the level of the EU, another factor which might slightly affect

the inflow of refugees into Germany is the number of individuals relocated under the EU's

Emergency Relocation Scheme which aims to relocate 160,000 people from Greece and

Italy to seventeen other EU member states. So far only forty individuals have been

relocated to Germany.

A study conducted by the German Institute for Economic Research

(DIW) highlighted the

positive long-term effects of the German decision to open its borders to such a large

number of immigrants, despite the criticism it received at the level of the international

community. The study finds that the arrival of such a large number of immigrants in

Germany will not only contribute positively to the country's economic performance, but

will also create a high demand for goods and services, in turn, increasing overall labor

supply.

Ibid

Emergency Relocation Scheme 2015: http://www.europarl.europa.eu/legislative-train/theme-towards-a-new-

policy-on-migration/file-2nd-emergency-relocation-scheme

https://www.diw.de/en

Ibid

Furthermore, the European Commission estimates that this sharp rise in the number of

asylum seekers in Europe could have a positive impact on the GDP of EU Member States,

increasing it by on average 0.2 to 0.3 per cent by the end of the year 2017. Indeed, the full

realization of these socio-economic benefits will largely depend upon the extent to which

migrants are capable of being fully integrated into German society in the next five years.

At another level, the highly difficult process of European integration and the European aim

to unify or at least harmonize immigration and asylum procedures across EU member

states, places Germany in a position of seeking to adopt legislation which takes into account

transnational commitments.

From a Public International Law perspective, the question remains as to whether or not

secondary community law is able to reach the standards of the Geneva Convention on

Refugees and International Human Rights treaties. From a German perspective, the extent

to which German practice serves Public International and European Law standards is to be

explored specifically in the case of the massive influx of Syrian Refugees it is embarking

upon in 2017.

Research Question and Organization

The research will examine the extent to which Germany's migration policy is in compliance

with International Refugee and Migration Law in the case of the Syrian Refugees further

enriching the debate currently highly contested within the international community in the

areas of migrant and refugee rights, as well as international law in general.

Ibid

The topic selection was founded in strong and significant relevance to the current threat

upon migration and development, as well as the development of migration theory and

international refugee and migration law. The obstacles, findings and outcomes of this

research, pose critical questions and debates in the area of migration theory which

contribute to its overall evolution into more of a hard law.

The research was conducted qualitatively through expert interviews, desk research, as well

as founded upon legal precedence and government issued statements. It is divided into six

chapters and is distributed as follows:

Chapter I is the introduction. Chapters II will encompass a comprehensive literature review

of the international framework in place. Chapter III will explain the methodology adopted

throughout this research. Chapters IV, V, and VI will tackle migration to Germany and the

Syrian refugee crisis in the EU, the evolution of Germany's migration policy, and the

compliance of this policy with international law respectively. The research will conclude in

Chapter VII with recommendations based on findings.

Chapter II

Literature Review

The Literature Review will tackle the various treaties and convention currently in place

within the international system, and which are concerned with refugees and migrants in

particular whether directly or indirectly. This review will observe the currently

international framework in place and assess its role in preserving and/or protecting the

rights of refugees respectively.

The Rights of Refugees

Beginning with refugee rights, the Convention Relating to the Status of Refugees (Geneva

Convention 1951) and its Protocol (1967), international refugee law received one of its

first concrete documentations. This convention was the first international agreement

covering the most fundamental aspects of a refugee's life. It spelled out a set of human

rights that should be at the very least equivalent to the freedoms enjoyed by foreign

nationals living legally in a given country and in many cases those of citizens of that state.

It recognized the international scope of refugee crises and the necessity of international

cooperation in tackling the problem, including burden-sharing among states. As of 1

October 2002, 141 countries had ratified the Refugee Convention.

The development of a body of international law, conventions and guidelines to protect

refugees began in the early part of the 20

century under the League of Nations, the

predecessor of the United Nations. It culminated on July 28, 1951, when a special UN

conference approved the Convention relating to the status of refugees. The Convention

clearly defines who is a refugee and what kind of legal protection, other assistance and

social rights he or she should receive from states signatories to the treaty. Equally, it

describes a refugee's obligations to host governments and certain categories of persons,

such as war criminals.

This first instrument was limited to the protection of mainly European refugees in the

aftermath of World War II; but a 1967 Protocol expanded the scope of the Convention as

the problem of displacement spread around the world. The original document inspired

further regional instruments such as the 1969 Africa Refugee Convention and the 1984

Latin American Cartagena Declaration.

The Establishment of the UNHCR

The United Nations High Commissioner for Refugees (UNHCR) was created in 1951 to

assist in the international protection of refugees. The organization's primary objective is to

ensure that all persons can exercise the right to seek asylum to secure safe refuge in

another state, and to return home voluntarily if both they and their sending state fulfill all

conditions and legal requirements. The UNHCR currently helps more than 21 million

people; and the Convention, which has proved to be remarkably flexible in rapidly changing

times, remains the cornerstone of refugee protection.

Increasingly, the current majority of world conflicts involve disputes between political or

ethnic groups within countries rather than wars between countries. Given this trend, the

number of persons caught in conflicts within their own countries who are forced to leave

their homes is likely to increase.

The 1951 Convention and its 1967 Protocol and the Definition of a Refugee

The 1951 Convention and the 1967 Protocol, both relating to the Status of Refugees, are the

central foundations in international laws and regulations about refugee protection. The

1951 Convention defines the term "refugee", enumerates the rights of refugees, and

establishes the legal obligation of States to protect refugees. The Convention prohibits the

expulsion or forcible return of persons accorded refugee status: no refugee should be

returned in any manner to a country or territory in which his or her life or freedom would

be threatened (non-refoulement). The delicate interpretation of the non-refoulement

principle has constituted the center of international debate. Namely, it has posed questions

surrounding state sovereignty and the rights of the state amid international realities which

threaten its peace and security. Moreover, although this principle secures an individual's

right to stay, and to be protected from "harm", it does not dictate the fate of the individual

(refugee or asylum seeker in this case), once this individual has entered a given state. State

sovereignty and local policies are at play in this instant an argument to a large extent

which may secure the preservation of the role and the sovereignty of the state to take on

the measures it deems fit in their treatment.

The 1967 Protocol extended the application of the 1951 Convention to persons who

became refugees after 1 January 1951, without any geographic limitation. By the end of

2013, the 1951 Convention and its 1967 Protocol had been ratified by 144 and 145 United

Nations Member States, respectively. Presently 142 States are Parties to both instruments.

The 147 States that had ratified either the 1951 Convention or the 1967 Protocol

collectively hosted 6.7 million refugees in 2013, 42.6 per cent of the global refugee

population.

The definition of the term refugee is found in Article 1 of the convention and is defined as

follows: " As a result of events occurring before 1 January 1951 and owing to well-founded

fear of being persecuted for reasons of race, religion, nationality, membership of a particular

social group or political opinion, is outside the country of his nationality and is unable, or

owing to such fear, is unwilling to avail himself of the protection of that country; or who, not

having a nationality and being outside the country of his former habitual residence as a result

of such events, is unable or, owing to such fear, is unwilling to return to it."

The Scope of the 1951 Convention and its Limitations

This Convention goes on to clearly state that it shall cease to apply to any person falling

under the terms of section "A" of Article 1 if:

(1) He has voluntarily re-availed himself of the protection of the country of his

nationality; or

(2) Having lost his nationality, he has voluntarily reacquired it; or

(3) He has acquired a new nationality, and enjoys the protection of the country of his

new nationality; or

(4) He has voluntarily re-established himself in the country which he left or outside

which he remained owing to fear of persecution; or

(5) He can no longer, because the circumstances in connection with which he has been

recognized as a refugee have ceased to exist, continue to refuse to avail himself of the

protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under section A (I) of

this article who is able to invoke compelling reasons arising out of previous

persecution for refusing to avail himself of the protection of the country of nationality;

(6) Being a person who has no nationality he is, because the circumstances in

connection with which he has been recognized as a refugee have ceased to exist, able

to return to the country of his former habitual residence;

Provided that this paragraph shall not apply to a refugee falling under section A (I) of

this article who is able to invoke compelling reasons arising out of previous

persecution for refusing to return to the country of his former habitual residence.

The Convention does not apply to persons who are, at present, receiving from organs or

agencies of the United Nations other than the United Nations High Commissioner for

Refugees, protection or assistance. When such protection or assistance has ceased for any

reason, without the position of such persons being definitively settled in accordance with

the relevant resolutions adopted by the General Assembly of the United Nations, these

persons shall ipso facto be entitled to the benefits of this Convention.

Furthermore, the Convention shall not apply to a person who is recognized by the

competent authorities of the country in which he has taken residence as having the rights

and obligations which are attached to the possession of the nationality of that country, nor

will it apply to any individual with respect to whom there are serious reasons for

considering that:

(a) He has committed a crime against peace, a war crime, or a crime against

humanity, as defined in the international instruments drawn up to make provision in

respect of such crimes;

(b) He has committed a serious non-political crime outside the country of refuge prior

to his admission to that country as a refugee;

(c) He has been guilty of acts contrary to the purposes and principles of the United

Nations.

The Duty of States vs. the Rights of Refugees

Under the 1951 Refugee Convention

The Convention clearly states that the Contracting States shall not impose penalties, on

account of their illegal entry or presence, on refugees who, coming directly from a territory

where their life or freedom was threatened in the sense of Article 1, enter or are present in

their territory without authorization, provided they present themselves without delay to

the authorities and show good cause for their illegal entry or presence. Moreover, the

Contracting States shall not apply to the movements of such refugees restrictions other

than those which are necessary and such restrictions shall only be applied until their status

in the country is regularized or they obtain admission into another country. The

Contracting States shall allow such refugees a reasonable period and all the necessary

facilities to obtain admission into another country.

Furthermore, the Contracting States shall not expel a refugee lawfully in their territory on

grounds of national security or public order (Article 32, Expulsion). The expulsion of such a

refugee shall be only in pursuance of a decision reached in accordance with due process of

law. Except where compelling reasons of national security otherwise require, the refugee

shall be allowed to submit evidence to clear himself, and to appeal to and be represented

for the purpose before competent authority or a person or persons specially designated by

the competent authority (Article 32, Expulsion). The Contracting States shall allow such a

refugee a reasonable period within which to seek legal admission into another country. The

Contracting States reserve the right to apply during that period such internal measures as

they may deem necessary (Article 32, Expulsion).

Moreover, the non-refoulement principle (Article 33, Prohibition of expulsion or return

"refoulement") states that no Contracting State shall expel or return a refugee in any

manner whatsoever to the frontiers of territories where his life or freedom would be

threatened on account of his race, religion, nationality, membership of a particular social

group or political opinion (Article 33).

The benefit of the present provision may not, however, be claimed by a refugee against

whom there are reasonable grounds as danger to the security of the country in which

he/she is, or who, having been convicted by a final judgement of a particularly serious

crime, constitutes a danger to the community of that country (Article 33).

Under the 1990 International Convention on the Protection of the Rights of All Migrant

Workers and their Family Members

Within the realm of international migration law, this convention lays out the foundation for

the understanding of migration in the international context. The International Convention

on the Protection of the Rights of All Migrant Workers and their Family Members breaks

new ground by extending the protection for migrant workers and members of their family

world-wide. It transcends a simple application of existing human rights legislation to a

specific category of individuals. The Convention advances how the international

community conceives the application of human rights in its provisions for equality of

treatment between female and male migrant workers, between documented and

undocumented workers, and between nationals and non-nationals.

More than over one hundred million migrants, including migrant workers, refugees,

asylum-seekers, permanent immigrants and others, live and work in a country other than

that of their birth or citizenship. In all, they represent two percent of the world's

population.

Persons who qualify as migrant workers under the provisions of the

Convention are entitled to enjoy their human rights regardless of their legal status. The

Convention reflects an up-to-date understanding of migratory trends as seen from the

point of view of both the countries of origin and the host countries of migrant workers and

their families. The Convention recognizes the specifically vulnerable lives of migrant

workers and the subsequent need to strengthen legal protections in a more comprehensive

op. cit. pg. 18

Details

Pages
Type of Edition: Erstausgabe
Publication Year: 2017
ISBN (PDF): 9783960676515
ISBN (Softcover): 9783960671510
File size: 10.7 MB
Language: English
Publication date: 2017 (June)
Grade: 98
Keywords: Migration Refugees International Law Germany European Law Asylum German Policy Syria Syrian Crisis

Author

Jasmin Lilian Diab (Author)

International Migration and Refugee Law. Does Germany's Migration Policy Toward Syrian Refugees Comply?

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Author

Jasmin Lilian Diab (Author)