Germany’s ‘Legal Entry’ Framework for Syrian Refugees – A Tool for Containment?

by Christoph Tometten

Syrian refugees are in the process of finding a new home in virtually every municipality in Germany. The reception of refugees from Syria, and elsewhere, since summer 2015 made the headlines in almost every newspaper around the world. It is less well-known that Germany already offered protection to some Syrian refugees prior to 2015. Many arrived in Germany on their own and were granted asylum following a regular asylum procedure (they will be referred to hereinafter as ‘recognised refugees’). A number of Syrian refugees were admitted to Germany in the framework of various resettlement and humanitarian admission programmes established since 2012. These programmes, however, fall short of providing their beneficiaries with the same status, rights and guarantees as recognised refugees (Grote et al. 2016: 6), even though they generally meet the criteria set out in Article 1 of the 1951 Convention Relating to the Status of Refugees (hereinafter referred to as ‘the Refugee Convention’).

Following an analysis of what may be described as a ‘legal entry’ framework, I will show that the German resettlement and humanitarian admission programmes have serious, albeit different, shortcomings. As a consequence of the agreement between the European Union (EU) Member States and Turkey of 18 March 2016, known as the EU-Turkey deal, resettlement and humanitarian admission have tended to be transformed from a protection mechanism into a containment tool. They also fall short of constituting truly sustainable solutions to the plight of refugees in Syria’s neighbouring countries (i.e. Lebanon, Jordan, Turkey, Iraq) and in other protracted refugee situations because, as will be shown, they are used as alternatives to family reunion and conventional refugee protection, which place more duties on the host country. These aspects should be taken into due consideration in the context of the reform of the Common European Asylum System, given that the European Commission has made a proposal for a Regulation establishing a Union Resettlement Framework.

Background

Until 2012, Germany admitted refugees from first countries of asylum on an ad hoc basis. In 1957, it admitted around 13,000 refugees who had fled Hungary after the Soviet forces had brutally crushed the 1956 uprising. Almost 30,000 so-called ‘boat people’ from Vietnam were the first refugees from a non-European country admitted to Germany on a humanitarian basis, following a federal government decision in late 1978. In 1990, Germany admitted around 3,000 Albanians who had sought shelter in its embassy in Tirana, Albania’s capital city. The State Ministers for the Interior, responsible for implementing immigration laws and policies under Article 83 of the Basic Law, agreed to admit refugees from Bosnia and Herzegovina between 1992 and 1995. Likewise, refugees from Kosovo were admitted to Germany in 1999, and 2,501 Iraqi refugees were transferred from Syria and Jordan to Germany in 2009 and 2010 (Altmaier 2008; Bergmann and Dienelt 2016; Deutsches Rotes Kreuz 2009; Grote et al. 2016: 15; Kleinschmidt 2013; Orchard and Miller 2014: 68; Sachverständigenrat 2015: 11; UNHCR 2008). Additionally, in 1991, Germany launched an admission programme for Jewish persons from the Soviet Republics and their families; with some amendments, this programme is ongoing (Bergmann and Dienelt 2016).

Throughout all these years, Germany has been reluctant to commit to fixed resettlement quotas

Throughout all these years, Germany has been reluctant to commit to fixed resettlement quotas because governments and parliamentary majorities widely held that Germany was meeting its obligations for refugee protection by implementing its regular asylum procedure. By contrast, civil society organisations advocated for such quotas modelled on the experience of other countries. In 2008, welfare federations, human rights associations, partisan and religious groups, and unions created the ‘Save Me Campaign’ to lobby for the admission and integration of refugees on a local level. In December 2011, the Conference of State Ministers for the Interior finally agreed to launch a Permanent Resettlement Programme (Bokshi 2013: 33; Grote et al. 2016: 13). This programme offered resettlement to 300 refugees annually from 2012 to 2014, and for 500 refugees in 2015.

On 20 July 2015, the EU Council agreed to resettle 22,504 refugees from first countries of asylum within two years, 1,600 of which would be resettled to Germany during this time period. In order to meet these pledges, the Federal Ministry of the Interior expanded the Permanent Resettlement Programme for 2016 and 2017. Subsequently, there appeared to be a shift in the way that resettlement was used. On 18 March 2016, in a controversial deal known as the EU-Turkey deal, the EU Member States and Turkey agreed that the EU Member States would resettle one Syrian refugee from Turkey for every Syrian refugee returned to Turkey. The German government has since clarified that all refugees resettled to Germany as part of the EU-Turkey deal will be offset from the quota of 1,600 refugees in 2016 and 2017 envisioned by the Permanent Resettlement Programme. As a result, since 18 March 2016, it has been expected that only Syrian refugees from Turkey would be admitted to Germany under the Permanent Resettlement Programme, given that the number of Syrian refugees eligible for resettlement in Turkey outnumbers by far the total number of refugees that may be admitted to the EU under the EU-Turkey deal (Grote et al. 2016: 13).

Notwithstanding the Permanent Resettlement Programme, the federal government also launched three so-called Humanitarian Admission Programmes for a total of 20,000 refugees from Syria in 2013 and 2014. With the exception of Bavaria, the Länder (hereinafter referred to as ‘states’) launched their own Humanitarian Admission Programmes for refugees from Syria, most of which were aimed at relatives of Syrians (and Palestinians) already living in Germany. Most of these programmes were terminated subsequently due to a lack of political will to admit further refugees above and beyond the increasing number of refugees arriving in Germany who were granted asylum. Some admission programmes are ongoing, however, especially in states governed by a left-wing majority, such as Berlin, Brandenburg, Hamburg, Schleswig-Holstein, and Thuringia.

It is important to note that these resettlement and humanitarian admission programmes do not prevent persons that fall within their scope to apply for a visa under the general provisions of German immigration law, nor to apply for asylum through the regular asylum procedure upon arrival in Germany. They may thus change their status following their arrival. The general requirements of German immigration law, however, are not easily met. In particular, section 22 of the Residence Act, a provision that allows for humanitarian admission on an individual basis, is very rarely applied.

An analysis of these multi-pronged policies suggests that, although Germany has offered safety to more Syrians than any other EU Member State through these resettlement and admission programmes, the ways in which these programmes are designed and implemented deserve criticism.

The existing ‘legal entry’ schemes

The existing legal framework under German law offers relevant vehicles for protection for Syrian refugees through a Permanent Resettlement Programme on the federal level and Humanitarian Admission Programmes, both on the federal and state level. Resettlement and humanitarian admission have in common that their beneficiaries are not, per se, recognised as refugees upon arrival in Germany (but may apply for asylum subsequently to their arrival) and therefore do not enjoy the same rights as recognised refugees. As will be shown, the eligibility criteria and some of the rights that these programmes grant to their respective beneficiaries differ.

The Permanent Resettlement Programme

In 2012, Germany established a Permanent Resettlement Programme. In the first year, 202 African refugees were resettled from Choucha, Tunisia, and 105 Iraqi refugees were resettled from Syria. In 2013, 300 Iraqis, Iranians, and Syrians were resettled from Turkey. In 2014, 300 refugees of various nationalities and stateless persons were resettled from Syria, Indonesia, and Turkey. In 2015, most of the 500 programme beneficiaries were resettled from Egypt; they were nationals of Iraq, Syria, and several African countries (Perrin and McNamara 2013: 13).

Although resettlement beneficiaries must be previously recognised as refugees by UNHCR, they are not formally recognised as refugees by the German government. 

Although resettlement beneficiaries must be previously recognised as refugees by the United Nations High Commissioner for Refugees (UNHCR), they are not formally recognised as refugees by the German government (Orchard and Miller 2014: 57; Papadopoulou et al. 2013: 68; Perrin and McNamara 2013: 32). Instead, resettled refugees are issued a residence permit per section 23(4) of the Residence Act that allows them to work and study; they are eligible for the same social benefits as German citizens. Like recognised refugees, they may apply for family reunion within three months of the issuance of the residence permit, without proof of sufficient financial resources to cover livelihood expenses in Germany (section 29(2) of the Residence Act). Unlike recognised refugees, resettled refugees are not issued a refugee travel document in line with Article 28 of the Refugee Convention and thus do not fall under the special safeguards that section 53(3) of the Residence Act reserves for holders of such document in the procedure preparing an expulsion for reasons of public security (Göbel-Zimmermann 2016). Resettled refugees may obtain a permanent residence permit after five years of residence upon completion of certain prerequisites (section 26(4) of the Residence Act), whereas recognised refugees may be granted permanent residence after just three years in certain circumstances (section 26(3) of the Residence Act). Finally, unlike recognised refugees, resettled refugees are not generally exempt from the obligation to renounce their former citizenship in order to be naturalised (section 12(1) of the Nationality Act). They are thus worse positioned than recognised refugees with regard to expulsion, permanent residence, citizenship and the issuance of travel documents.

The difference in treatment between recognised and resettled refugees is inconsistent with the fact that refugee status determination by UNHCR is a prerequisite for participation in the Permanent Resettlement Programme. Status determination by UNHCR is conducted according to the same criteria—i.e. the Refugee Convention—as status determination through a regular asylum procedure in Germany. UNHCR’s status determination procedure is a widely recognised equivalent to national procedures and in fact replaces the national procedure in a number of states (Göbel-Zimmermann 2016). It will be shown subsequently that the status of beneficiaries of the humanitarian admission programmes, both on the federal and the state level, differs even further from the status of recognised refugees. These differences add to the complexities of the German ‘legal entry’ framework.

Federal Humanitarian Admission Programmes

A preset quota of approximately 20,000 Syrians has been admitted to Germany through three federal Humanitarian Admission Programmes launched in May 2013, December 2013 and July 2014; by now, all Programmes have come to an end. With some minor variations, all three admission schemes contained the same criteria for admissibility, which were determined by the Federal Ministry for the Interior. The potential beneficiaries had to demonstrate that they were victims of conflict-induced displacement and reside in Syria (or a neighbouring country, Egypt, or Libya, depending on the year of the application). They were therefore likely to meet the criteria for refugee status under the Refugee Convention (Endres de Oliveira 2014: 287), although no reference to the Convention was made in the wording of the schemes. Applicants were also further screened and prioritised for admission based on their (1) perceived vulnerability, (2) existing ties to Germany, and (3) potential to contribute to Syrian reconstruction in a future post-war period. Within the scope of vulnerability, federal schemes gave special attention to and prioritised cases involving families with children, women in vulnerable situations, members of persecuted religious minorities and persons with specific medical needs (limited to a maximum of 3 percent of the total number of beneficiaries). Regarding ties to Germany, cases were prioritised when Syrians refugees had family ties to residents of Germany, had previously stayed in Germany, had knowledge of the German language, or had a relationship with Germany-based institutions or private sponsors willing and able to sponsor applicants. The latter included individuals with connections to the institutions and communities of Syrian religious minorities in Germany (Germany was home to the largest expatriate Syrian community in Europe before 2011). The third criterion took into consideration applicants’ potential to contribute to the reconstruction of Syria at a later stage, i.e. people that were expected to integrate easily into the German professional training and academic system as well as qualified professionals. A criminal record, reasonable suspicion of previous or current membership in a terrorist or criminal organisation, or any form of engagement in activities considered a danger to international peace led to exclusion from consideration and admission (Endres de Oliveira 2014: 290; Grote et al. 2016: 25; Scheinert 2016; UNHCR 2013).

Federal programme beneficiaries received a two-year residence permit per section 23(2) of the German Residence Act upon arrival. This residence permit entails the right to work and study and the same access to social benefits as German citizens. Like resettled refugees, beneficiaries are not issued a refugee travel document and therefore do not benefit from the same safeguards as recognised refugees in an expulsion procedure (section 53(3) of the Residence Act). Federal programme beneficiaries also fall under the same laws governing access to permanent residence (section 26(4) of the Residence Act) and naturalisation (section 12(1) of the Nationality Act) as resettled refugees and therefore do not enjoy the aforementioned advantages of recognised refugees in this regard. Unlike resettled refugees, however, they do not enjoy the privilege of family reunion without proof of sufficient financial resources (sections 5(1) and 29 of the Residence Act). They are therefore worse positioned than recognised refugees when it comes to the issuance of travel documents, the safeguards against an expulsion for reasons of public security, and the conditions for permanent residence and citizenship; and they are worse positioned than both recognised and resettled refugees with regard to family reunion.

The formal observation that at no point will German authorities assess the well-founded character of a federal programme beneficiary’s (hypothetical) asylum claim is a highly questionable justification for this difference in treatment. According to UNHCR, most Syrians seeking international protection are likely to fulfil the requirements of the refugee definition due to a well-founded fear of persecution for their imputed political opinion (UNHCR 2015: 22). In line with these considerations, several German administrative tribunals and courts (beginning with the Higher Regional Court of Saxony-Anhalt in July 2012) have found that Syrian asylum seekers generally have a well-founded fear of persecution due to their membership in the social group of expatriate Syrians. Following these decisions, virtually all Syrians were recognised as refugees in the regular asylum procedure (Endres de Oliveira 2014: 287; Orchard and Miller 2014: 56). It is only since early 2016, well after completion of the federal humanitarian admission procedures, that Syrian applicants are increasingly denied refugee status and granted subsidiary protection instead. The Federal Office for Migration and Refugees argued that expatriate Syrians are no longer at risk of persecution due to their expatriate status, given that the Syrian regime allegedly resumed the delivery of national passports at its consular services abroad. This change in practice occurred at a time when the perceived openness of Chancellor Merkel’s refugee policy had come to face growing skepticism domestically. However, several administrative tribunals and courts, including state-level appeals courts, have challenged the agency’s reasoning and granted refugee status by court order to Syrian refugees who appealed initial rejection of asylum applications. There is no final decision on this issue yet because the agency has taken the matter to higher courts (N.N. 2016).

State-level Humanitarian Admission Programmes

In addition to the federal programmes detailed above, Syrian refugees have been admitted to Germany under state-level Humanitarian Admission Programmes launched in 2013. Under German law, states have the authority to independently make such decisions in order to respond to humanitarian needs. Federal and state-level humanitarian admission programmes may thus coexist and applicants may apply for either one or several of these programmes. All states except Bavaria (governed by the Christian Social Union, a regional conservative party) launched their own Humanitarian Admission Programmes in response to the Syrian crisis, but most states have since terminated these programmes, with the notable exceptions mentioned above. Between 2013 and 2015, 21,500 visas were issued to beneficiaries of state-level programmes (Grote et al. 2016: 6).

Eligibility criteria vary across states and have changed over time. While certain core criteria do exist, others significantly diverge (Sachverständigenrat 2015: 17; Scheinert 2016). Across all states, humanitarian admission is restricted to family members of a person already lawfully residing in Germany for a certain period of time (at least one year, depending on the state); in some states, this person must hold German or Syrian citizenship. Eligible family members include parents, grandparents, grandchildren, and siblings of the German resident, as well as spouses and children of these members of the extended family. In most states, applicants must hold Syrian citizenship; only in some states may applications of persons without Syrian citizenship settled in Syria, namely Kurds and Palestinians, be considered. In terms of all state-level Humanitarian Admission Programmes, applicants must reside in Syria, a neighbouring country or Egypt. The family member who resides in Germany (or, in some states, any person willing to do so) has to pledge financial responsibility for the applicant for the duration of five years (section 68(1) of the Residence Act). The pledge is a legally binding contract between the family member residing in Germany and the state. Social welfare authorities and immigration authorities may claim reimbursement of any expense arising from the beneficiary’s stay, including deportation costs in the event that the lawfulness of the stay is terminated, for instance following an expulsion for reasons of public security (section 68(1) of the Residence Act). Only pledges of persons who can show a sufficiently high and regular income to cover maintenance costs for themselves, their dependents already in Germany, and the applicants are admissible. As this pledge can turn into a considerable financial burden, some states decided to exclude costs for medical insurance from the scope of the pledge; these costs are then borne by the municipalities as long as the beneficiaries are unable to sustain their own livelihood expenses.

As under the federal Humanitarian Admission Programmes, a residence permit is issued to beneficiaries of a state-level Humanitarian Admission Programme upon arrival, albeit on the basis of a different provision of the Residence Act, section 23(1). This permit offers rights different from those granted to recognised refugees, resettled refugees, and federal programme beneficiaries. The Residence Act does not explicitly grant state-level programme beneficiaries access to the labour market, but this access has been granted by section 31 of the Employment Regulation of 30 June 2013. State-level programme beneficiaries may also study but, unlike federal programme beneficiaries, they may apply only for lower social benefits than German citizens (section 1(1) of the Asylum Seekers’ Benefits Act). Due to the private sponsorship system in place for state-level programmes, social welfare authorities can further claim reimbursement for the costs if a beneficiary applies for these latter benefits. Unlike recognised refugees (but like resettled refugees and federal programme beneficiaries), they are not issued refugee travel documents and thus treated less favourably in expulsion procedures (section 53(3) of the Residence Act). They also do not enjoy the same privileges as recognised refugees with regard to citizenship (section 12(1) of the Nationality Act) and permanent residence (section 26(4) of the Residence Act). Unlike recognised and resettled refugees, they may not apply for family reunion without proof of financial resources (sections 5(1) and 29 of the Residence Act). They are thus treated less favourably than all other ‘legal entry’ beneficiaries.

The differences between the Permanent Resettlement Programme and the federal and state-level Humanitarian Admission Programmes expose the critical variation in Germany’s humanitarian admissions that leads to better conditions for some beneficiaries, although being admitted through one programme instead of another is often luck more so than any other factor. Despite these inconsistencies, the German ‘legal entry’ framework is generally viewed as a potential model for international refugee protection. However, the EU-Turkey deal has largely undermined this momentum, transforming the framework into a tool for efficient management of refugee arrivals. Whereas management is necessary to ensure effective protection, it becomes problematic when its focus shifts from protection to containment in the sense of movement control and goes along with restrictions to the rights of those seeking protection. As will be shown subsequently, this is the case for both resettlement and humanitarian admission in the German context, albeit for different reasons.

The subversion of resettlement in the aftermath of the EU-Turkey deal

The EU-Turkey deal is a symbol of paradigmatic change in European and international refugee policy that prioritises more efficient administrative response to refugee movements over individual rights to asylum

On 18 March 2016, the EU and Turkey agreed upon several measures to address the arrival of several thousand refugees per day on the Greek islands. The EU-Turkey deal is a symbol of paradigmatic change in European and international refugee policy that prioritises more efficient administrative response to refugee movements over individual rights to asylum (Deutsches Institut für Menschenrechte 2016). This political agreement has not yet been fully implemented, and full implementation remains uncertain in light of recent political developments in Turkey. However, as a paradigmatic shift, it confirms that Germany and the wider EU increasingly consider resettlement as a tool for efficient administration, management, and consequently containment of refugees rather than a tool for protection that complements refugee protection in first countries of asylum (Chetail 2016: 587). The EU-Turkey deal thus exacerbated the tendency in European refugee policy of limiting the responsibilities of the EU and its Member States at the expense of first countries of asylum, especially those in the Global South, and ultimately the rights of refugees (Chetail 2016: 593; Chetail and Bauloz 2011: 4; Goodwin-Gill and McAdam 2007: 409; Valluy 2009:277).

Under the EU-Turkey deal, all irregular migrants arriving in Greece via Turkey after 20 March 2016, are to be returned to Turkey. For every Syrian returned to Turkey from the Greek islands, another Syrian is to be resettled from Turkey to the EU. According to the joint statement of the EU Council and the Turkish government:

Resettlement under this mechanism will take place, in the first instance, by honouring the commitments taken by Member States in the conclusions of Representatives of the Governments of Member States meeting within the Council on 20 July 2015, of which 18.000 places for resettlement remain. Any further need for resettlement will be carried out through a similar voluntary arrangement up to a limit of an additional 54,000 persons. The Members of the European Council welcome the Commission’s intention to propose an amendment to the relocation decision of 22 September 2015 to allow for any resettlement commitment undertaken in the framework of this arrangement to be offset from non-allocated places under the decision. Should these arrangements not meet the objective of ending the irregular migration and the number of returns comes close to the numbers provided for above, this mechanism will be reviewed. Should the number of returns exceed the numbers provided for above, this mechanism will be discontinued.

At the national level, the German government has decided to ‘offset’ its share of refugees in the ambit of the agreement from the numbers it pledged to resettle at the EU Council meeting of 20 July 2015. It is expected that the majority of the 1,600 refugees that Germany pledged to resettle in the framework of its Permanent Resettlement Programme in 2016 and 2017 will be resettled as part of the EU-Turkey deal. The focus on Syrian refugees dismisses the plight of refugee populations such as the Rohingyas in Bangladesh, Somalis in Kenya or Liberians in Guinea (Fielden 2008; Milner and Loescher 2011; Slaughter and Crisp 2009; UNHCR 2006: 105). Resettlement is thus perverted to a tool for the efficient administration, management and, concomitantly, containment of refugee movements instead of responsibility sharing and the enhancement of individual rights on a global level.

This analysis, however, cannot fully extend to Germany’s Humanitarian Admission Programmes, which warrant critique on other grounds, namely that they may be described as a weak substitute for more sustainable solutions such as family reunion and resettlement stricto sensu.

Humanitarian admission as a weak substitute for durable solutions

The Humanitarian Admission Programmes were arguably created to ‘manage’ and prioritise the admission of Syrian refugees under alternative legal and administrative processes that are separate from the usual instruments of German immigration law that allow for the admission of refugees from first countries of asylum. Had the Permanent Resettlement Programme been widened, many Syrians could have been resettled without the setup of alternative Humanitarian Admission Programmes, at either the state or the federal level. Many Syrians could also have gone to Germany through family reunion, if the provisions allowing for reunion with the extended family under general immigration law had been applied more generously.

Humanitarian admission as a weak substitute to resettlement

Although the status of resettled refugees differs from the status of recognised refugees, it offers a wider range of rights and guarantees and there is no reason why these rights and guarantees should not be granted to the beneficiaries of humanitarian admission. The only legal argument for a difference in treatment is that, when the Humanitarian Admission Programmes were created in 2013, UNHCR did not consider the Syrian refugee crisis as a protracted refugee situation, which called for resettlement as a durable solution (Goodwin-Gill and McAdam 2007: 497). Although UNHCR has no general definition of a protracted refugee situation, it has repeatedly described a protracted refugee situation as ‘one in which refugees find themselves in a long-lasting and intractable state of limbo’ (UNHCR 2004: 1). It has held that such a situation arises where ”refugee populations of 25,000 persons or more … have been in exile for five or more years in developing countries” (UNHCR 2014: 2). In 2013, the Syrian refugee crisis had not yet passed the threshold of five years. Thus, the federal and state governments were in a position to argue that beneficiaries of humanitarian admission did not meet the preconditions for resettlement and could therefore be treated differently. They were also in a position to argue that, in order to be granted a full set of rights per the Refugee Convention, beneficiaries of humanitarian admission could apply for asylum subsequent to their arrival. However, most beneficiaries of humanitarian admission are now in the same or a similar situation as beneficiaries of the Permanent Resettlement Programme — most find themselves outside their country of origin, owing to a well-founded fear of being persecuted for reasons relevant for refugee status — and should, therefore, be granted the same rights and guarantees. Germany’s failure to grant all Syrian refugees, if not refugee status, at least the status of resettled refugees can thus no longer be justified.

Humanitarian admission as a weak substitute for family reunion

The federal Humanitarian Admission Programmes did not require a family link, but it is likely that some federal programme beneficiaries fit the criteria for family reunion under general immigration law. In that case, they would have been entitled to a family reunion visa and other Syrians could have been admitted on a humanitarian basis instead. Beyond these cases, it is more obvious that the state-level Humanitarian Admission Programmes function as a substitute for family reunion schemes. Although there is no entitlement to a visa for family reunion beyond the core family (spouses, minor children, and parents of minor children), German immigration law contains provisions for the reunion of members of the extended family (section 36(2) of the Residence Act. It also allows for exceptions to the obligation to show the ability to cover one’s livelihood expenses (section 5(1) of the Residence Act). Immigration authorities have discretion to apply these provisions and do so only in very specific cases, especially related to parents of adults in need of specific personal care, and relatives of nationals from countries exempt from visa requirements. Due to its discretionary character, it is almost impossible to challenge a decision that refuses family reunion to members of the extended family successfully, as long as this decision is not arbitrary. Therefore, the authorities are reluctant to create precedents in the application of these provisions because any departure from such precedents in similar cases could constitute a breach of the constitutional right to equal treatment and thus be arbitrary (Sachs 2014). More specifically, once authorities grant family reunion based on the discretionary provisions of the Residence Act to extended family members of Syrian refugees who live in Germany, it becomes more difficult to refuse family reunion to later applicants who find themselves in a similar situation. Humanitarian admission, as any decision by a public authority, is also subject to judicial review but challenging the refusal of humanitarian admission is even harder than challenging the refusal to benefit from extended family reunion. The decision on family reunion is taken jointly by the federal consular services abroad and the state immigration authorities whereas humanitarian admission requires the additional approval of the Federal Ministry for the Interior (Bergmann and Dienelt 2016). The combination of discretion on different levels makes it almost impossible to prove the arbitrary character of a decision. The states have thus opted for an approach that allows for better planning, to the detriment of the individual rights of the refugee and his or her family.

Conclusion

This suggests that the underlying political intention for the setup of the framework is not necessarily to ensure protection but rather to facilitate efficient administrative procedures and to contain refugee movement.

The German ‘legal entry’ framework offers more venues for protection than in any other EU Member State, but it fails to provide its beneficiaries with the same status, the same scope of protection, the same rights and guarantees as refugees who are recognised in the regular asylum procedure. It combines various programmes with multiple admission criteria and procedures that offer an easier and faster access to protection for some to the detriment of others. This suggests that the underlying political intention for the setup of the framework is not necessarily to ensure protection but rather to facilitate efficient administrative procedures and to contain refugee movement. The design of the framework fails to align the status and rights of beneficiaries of one or the other kind of ‘legal entry’ and thus lacks consistency.

Such a fragmented framework is not an ideal model for the development of ‘legal entry’ frameworks in other countries, nor on the EU level. Syrians admitted to another country due to war-related persecution should obtain the same status, the same rights, obligations and guarantees, independently of the administrative set-up of the programme that has led to their resettlement elsewhere. It would be appropriate to grant them refugee status and all rights guaranteed by the Refugee Convention as well as all rights guaranteed to refugees under European and national law.


Christoph Tometten holds an LL.M. from the Universities of Cologne and Paris 1. He is a policy advisor to Volker Beck, Member of the Federal Parliament of Germany, and a counsellor for migrants and refugees at a local NGO in Berlin. The focus of his work is on German and European refugee policy, citizenship, family reunion and labour migration. He wishes to thank Pauline Endres de Oliveira, Naoko Hashimoto and Patricia Ward for their valuable comments. A draft version of this article was presented at the 16th Conference of the International Association for the Study of Forced Migration, held in Poznań in July 2016.


The views in this article are those of the author alone and do not necessarily reflect the views of OxMo.


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