Failing the test: Germany leads Europe in dismantling refugee protection

I. INTRODUCTION

Prior to 1993 Germany's constitutional guarantee was elegant in its simplicity: "Persons persecuted on political grounds shall enjoy the right of asylum."2 The difficulty that refugees from the Nazi regime had in obtaining asylum elsewhere was a fresh memory when Germany's postwar constitution opened German borders to those persecuted around the world. Adopted in the shadow of the death camps, this provision of the Basic Law of the Federal Republic of Germany protected refugees who entered Germany for close to half a century. Pursuant to this constitution, more than a million refugees sought asylum in Germany, a land from which so many fled in the 1930s and 1940s.

The postwar era of refugee protection ended in Germany in July 1993, in large part, because the rest of Europe-particularly the European Union (EU) countries-failed to act. The EU watched the atmosphere of crisis grow as more than two million refugees and asylum-seekers sought protection in Europe during the prior decade. The EU failed to mount any joint efforts to assist member states in coping with asylum-seekers. The fifteen countries of the European Union were content to let one country shoulder the lion's share of the burden.3

Germany, by itself, had been receiving fifty percent of the applicants for asylum in Europe and the proportion seemed to be growing. 4 In response, Germany developed an elaborate social structure to house and feed asylum-seekers and a voluminous and sophisticated jurisprudence concerning asylum. Developments in Germany were monitored in other European capitals, but EU assistance to Germany was not forthcoming. As the country with the most at stake, Germany decided in 1993 to act unilaterally to halt the flow of refugees and asylum-seekers.

This action by Germany, the bellwether of refugee law and policy in Europe in the last decades of the twentieth century, bodes ill for the institution of asylum throughout Europe. Many of the EU countries are watching Germany's new laws to see which restrictive measures prove effective and can be adapted for use back home. For example, the United Kingdom enacted a new asylum law in early 2000 that patterns social benefits for asylumseekers on restrictive measures adopted earlier by Germany,5 and is currently adopting the German policy of refusing to consider claims submitted by asylum-seekers who crossed other EU countries before they submitted their asylum applications.6 In the Netherlands, pending legislation would add to the refugee procedure the German rule that rejects asylum claims from nationals of countries that have ratified the international refugee convention.7 Other European countries, mainly to the east, are watching Germany's new laws to see how many asylum-seekers they shift to neighboring countries with less developed infrastructures and legal systems.8 Indeed, Ukraine is considering amending its refugee law in 2001 to add the "safe third country" concept so crucial to Germany's post-1993 approach.9 The Czech Republic has already done so.10 It is a safe prediction that major portions of Germany's restrictive asylum practices will be replicated in other European states.

Government officials, advocates, and scholars have long recognized the important role Germany played in late twentieth century asylum law and policy, but there has been relatively little scholarly analysis of German legal developments in English.11 Having focused on refugee developments in Germany over the past fifteen years,12 my interest intensified in the 1990s as I observed the momentous legal changes to the German asylum system. My field work in Germany before and after unification gave me a greater comprehension of the profound changes taking place in German society in recent years.13 As I monitored the constitutional amendment in 1993 and the subsequent legislation, I saw clearly that the asylum law had been fundamentally rewritten. How the new provisions, such as the safe third country principle, the accelerated hearings, and the limitations on the right to appeal, actually affected those on the ground was less clear.

To understand the significance of the legal changes, I went back to Germany to investigate events in the field. I wanted to identify concretely the full impact of the legal measures. I traveled to many cities and states in Germany, both in the east and in the west, talking to asylum-seekers and-whenever possible-visiting them where they live. I spoke to government officials, refugee advocates, religious leaders, judges, and private attorneys. I met with members of non-governmental organizations (NGOs) working at the local, national, and international levels. I visited holding areas at airports, asylum hostels in cities, reception centers in the countryside, asylum accommodations aboard ships, detention facilities in prisons, and many offices and private homes.

What I found is deeply disturbing. Acting under the rubric of burden-sharing and self-help,14 Germany stanched the flow of asylum-seekers, but it has done so at the price of violating international human rights norms and refugee law principles. The new German laws restrict access to German territory; they restrict access to the asylum procedure; they restrict the criteria for asylum; they restrict the right to appeal. Although Germany did not invent each of these restrictive mechanisms, Germany is the country that linked them together in the most comprehensive fashion.

My investigation concluded that many of these legal provisions sound rational and even-measured on their own. When voiced by government officials removed from the plight of the individual asylum-seekers uprooted from their homes, the provisions seem sensible. They appear to protect the German asylum system by shifting asylum-seekers to countries they entered before they arrived in Germany and by weeding out those asylumseekers with bogus claims. However, when observed in combination with each other, and from the perspective of those seeking protection, it is clear that the new legal provisions have created an almost impenetrable asylum system that denies relief to many who need it.

My field work convinced me that the human costs of these new measures are great. They include a rise in clandestine migration, a rise in the number of asylum-seekers turned away without any examination of their claims, and a rise in those denied asylum even though asylum officers believe their claims of persecution.

The legal costs of the new German measures are also great. This article will examine how the German asylum system, as applied, violates the 1951 Convention Relating to the Status of Refugees. Turning away large numbers of asylum-seekers and directing them to less-secure states is a fundamental violation of the 1951 Convention. Germany and other states that ratified the 1951 Convention promised not to send refugees back to places where they will face persecution.

Based on my field work, this article will also show how the restrictive asylum system in Germany violates the European Convention on Human Rights and Fundamental Freedoms. State parties to this convention agree not to subject anyone to inhuman or degrading treatment or torture, and have applied this prohibition to deportation orders that send asylum-seekers back to danger.

Calling on evidence gathered as I witnessed asylum hearings and discussed them with participants, this article demonstrates further how recurrent problems with foreign languages and with gender bias call into question the integrity of the asylum procedure and the reliability of the asylum decisions. My investigation into the growing practice of detaining asylum-seekers in Germany also highlights the International Covenant on Civil and Political Rights and its requirements concerning detention.

The information I gathered leads me to conclude that current German practice violates multiple international legal norms. My research regarding the pertinent legal instruments and my research in the field lead to the conclusion that the new German approach to asylum poses a thoroughgoing and fundamental threat to the institution of refugee protection. It exacts great human and legal costs. It affects an entire region. If other EU countries follow the German example, Europe will fail the test regarding the system of refugee protection that, as the U.N. High Commissioner for Refugees pointed out, is currently underway.

II. BACKGROUND

This story of substantial refugee flows to post-World War II Europe begins in the 1980s, when asylum-seekers began to come in steady numbers from countries in Africa, Asia, and the Middle East. Earlier decades witnessed refugee movements in Europe, of course, in the wake of the 1956 Hungarian revolt, the 1968 Prague Spring uprising, and the 1975 denouement of the Vietnam War.15 The first three decades following World War II saw relatively few spontaneous refugees, although resettlement programs organized the movement of many of these individuals to Europe.16

This changed dramatically in the 1980s as air travel increased accessibility around the globe and other transcontinental travel networks developed. The Cold War had a significant impact, as proxy wars between client states in Africa and Asia created turmoil and displacement in many regions. Close to home, a last gasp of Iron Curtain politics in the mid-1980s delivered many asylum-seekers to the heart of western Europe. The German Democratic Republic issued transit visas to all those who could pay the state-owned airline in hard currency and then pointed the way to Checkpoint Charlie where asylum-seekers could enter West Berlin.17

The post-war economic boom had slowed, leaving EU countries-including Germany-coping with stagnant economies. As unemployment persisted in the 1980s, Germany and other EU countries enacted legislation to discourage asylum-seekers.18 If these measures were successful, it was difficult to discern. The numbers of asylum-seekers continued to rise.19

The demolition of the Berlin Wall in 1989 and the subsequent disintegration of the communist governments that ruled Eastern Europe and the Soviet Union triggered fear in EU countries of a gigantic flood of asylum-seekers from the east. This fear did not materialize, but large numbers of refugees did arrive from many parts of the globe. New waves arrived in the early 1990s, mainly from the south. War broke out in the former Yugoslavia; ethnic cleansing and mortar fire sent hundreds of thousands of refugees on the road.

Germany experienced exponential increases in the numbers of asylum-seekers. There were 121,000 new arrivals in 1989; 193,000 in 1990; and 256,000 in 1991.20 In 1992, more than 438,000 new asylum-seekers entered Germany, constituting over sixty percent of the asylum applications filed in the EU.21

Throughout these years, Germany, with more than half of the refugees and asylumseekers in the EU, enthusiastically embraced multilateral efforts to regulate migration and asylum. Germany was a founding member of the Schengen group,22 a small contingent of EU countries that agreed in 1985 to begin abolition of passport controls at their common borders. Germany ratified the Dublin Convention,23 an effort by EU states to develop standards for determining which state is responsible for deciding asylum applications when asylum-seekers have connections to more than one state. Germany was an insistent voice for joint EU action concerning asylum-seekers and war refugees.

The EU turned a deaf ear to Germany's exhortations. While professing the desirability of joint action and the equity of a more even distribution of asylum-seekers, the EU temporized. There were endless studies and multiple working groups. Responsibility sharing was debated, but burden-sharing proposals never moved beyond the draft stage.24

In the early 1990s, close to 600,000 Bosnians fled to EU countries.25 Sixty percentover 340,000-went to Germany.26 German society was severely taxed, fiscally and psychologically, by the unification process that began in 1990. In addition, Germany already sheltered over 200,000 others who had been granted refugee status, 130,000 family members of refugees, 650,000 de facto refugees, and 285,000 asylum-seekers.27 Desperate for a more even distribution of the asylum-seekers and war refugees in Europe, Germany consulted with sister EU states. There were EU resolutions calling on member states to share the burden of sheltering displaced persons 28 and proposals for joint action to offer temporary protection to war refugees,29 but in the end, these were only exhortatory.30

Finally, Germany acted on its own. In 1993, Germany amended its constitution and passed restrictive asylum legislation. It excluded asylum-seekers who had crossed safe third countries from eligibility for asylum. It truncated asylum proceedings in a wide variety of circumstances. It limited judicial review. In taking these steps, Germany hoped to protect its own borders from future asylum-seekers and to force some of the neighboring states to shoulder more responsibility for refugees in Europe. It hoped to reduce the time and effort spent on asylum applications filed in Germany.

The results of Germany's self-help have been stark. From more than 435,000 asylumseekers in 1992, the asylum applications fell to 127,000 in 1994.31 By 2000, the number of new asylum-seekers had fallen to 78,500.32 During these years the percentage of asylumseekers recognized as refugees plummeted. The Federal Refugee Office33 recognized 7.3% of the asylum-seekers as refugees in 1994.34 By 1997, the recognition rate decreased to 4.9%.31 In 1998, it fell further to 3.9%.36 It has continued its downward trend, dropping to 3% in 1999, and 2.9% in 2000.37

The numbers vividly portray how drastic the changes have been in Germany. What they do not signal are the unmeasurable costs. Thousands of asylum-seekers have been turned away by Germany to an uncertain fate elsewhere. Thousands more have now become clandestine immigrants in Germany. Additional thousands exist above ground in a legal limbo, neither regularized in status nor deported. The vulnerability of the those without legal status needs no emphasis. The human toll on those who face a continuing uncertain future is more hidden.

Other western European countries face similar pressures from asylum-seekers. Although their asylum system statistics may be lower than those in Germany, many EU states also perceive themselves as magnets for asylum-seekers and for economic migrants, both of whom they fear. They are watching Germany's efforts to shift the refugee protection burden elsewhere. If Germany, with its elaborate asylum social structure and its multilayered asylum jurisprudence, can achieve this goal, other EU states will be eager to adopt the restrictions pioneered in Germany. Whether Germany and other EU states can change their treatment of asylum-seekers and simultaneously comply with international law is another story.

III. THE INTERNATIONAL LEGAL STANDARDS

When the High Commissioner for Refugees spoke about the birth of the institution of refugee protection in Europe, she was referring to the 1951 Refugee Convention Relating to the Status of Refugees.38 Adopted in Geneva in the aftermath of World War II, the 1951 Refugee Convention is the most widely adopted legal instrument regarding refugees. More than 135 states are parties,39 and there is such widespread consensus concerning some of the convention's terms that they have developed into customary international law.40 The 1951 Refugee Convention adopts a generous and inclusive refugee definition:

[A refugee is] any person who ... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that Country.41

Much of the Convention focuses on the rights that states must provide to those recognized as refugees, but does not impose duties concerning asylum-seekers.42 The most crucial provision of the Convention applies to both, although its express language refers to refugees: "No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."43

There is no derogation from this non-refoulement provision. It is the centerpiece of the Refugee Convention-states that become parties do not commit themselves to providing asylum or permanent residence to refugees,44 but they expressly agree that they will not return a refugee to persecution. This obligation applies to all refugees, not just to those provided permanent residence. Accordingly, states may not turn away asylum-seekers at their borders without running afoul of the non-refoulement provision because some of those asylum-seekers may satisfy the 1951 Refugee Convention definition of refugee. In effect, states must treat all asylum-seekers as presumptive refugees until there has been a determination that they are not.

The European Convention for the Protection of Human Rights and Fundamental Freedoms45 also imposes obligations on states in dealings with asylum-seekers and refugees. The Convention states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."46

The European Court of Human Rights has forcefully applied this convention to state action that returns those seeking protection to situations that threaten their life and safety.47 Germany and all the other EU states have ratified the European Human Rights Convention, and their actions are limited by its provisions and its developing jurisprudence.48

Other sources of international law apply to refugees and asylum-seekers. The International Covenant on Civil and Political Rights (ICCPR) limits the conditions that can be imposed on them during the examination of their claims.49 It specifically addresses detention, and emphasizes the fundamental distinction states must observe between the treatment of those convicted of crimes and those detained without criminal charge or merely accused of illegal activity: "Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons."50 The growing practice of detaining rejected asylumseekers often runs afoul of this provision.

IV. THE LEGAL FRAMEWORK IN GERMANY

Prior to 1993, Germany saw its obligations to refugees as a function of both the German Constitution, which guaranteed asylum to all those persecuted on political grounds, and the 1951 Refugee Convention, which defined as refugees those who fear persecution based on their race, religion, nationality, social group, or political opinion. An extensive jurisprudence developed, exploring the differences, as well as the congruences, between these two perspectives. Much of the German jurisprudence focused on the constitutional provision because it was considered broader in many respects and because the German courts were familiar with interpreting and applying the German Constitution.

The 1993 amendment to the German Constitution ostensibly preserves the institution of asylum in Germany. It retains the prior constitutional language, which states: "Those persecuted on political grounds have the right to asylum."51

The amendment then adds several provisions that sharply reduce the number of individuals eligible to rely on this constitutional protection. First, those who pass through safe third countries on their way to Germany may not invoke the right to asylum.52 Second, those who come from safe countries of origin may not invoke the right to asylum, unless they can present evidence to overcome the presumption that persecution does not exist.53

Third, those whose claims are deemed manifestly unfounded and those from safe countries of origin have limited procedural rights.54 They can challenge a negative administrative decision in court only in extremely limited circumstances. In addition, their challenges do not stay the execution of deportation orders, which allows the authorities to deport asylumseekers while they pursue their limited right to appeal.

These constitutional changes, when combined and added to the restrictive measures already in place, drastically altered the asylum system in Germany. The separate provisions of German law have been interwoven in a largely successful attempt to limit asylum-seekers in Germany. They have begun to accomplish a primary objective, which is to prevent asylum-seekers from reaching Germany. They have substantially accomplished an additional objective, which is to restrict access to the German asylum procedure even for those who manage to evade the obstacles to entry and arrive on German soil. They have made significant progress toward a third objective, which is to reduce the substantive and procedural rights of those who manage to find their way through the various barriers to access and enter the asylum procedure. The criteria for refugee status are exceedingly strict. The time deadlines are short, and the avenues for appeal are very limited.

To understand the impact these restrictions have on asylum-seekers and the ways in which the system results in individual decisions that violate international law, this article will examine the German legal measures in the order that most asylum-seekers face them.

V. RESTRICTIONS ON ACCESS TO THE TERRITORY

Not surprisingly, the first German laws that most asylum-seekers encounter are provisions that restrict access to Germany. Germany erected the first barrier to asylumseekers in places far from German soil. Indeed, this barrier is generally outside Europe. It has two components-visa requirements and carrier sanctions-that combine to keep asylum-seekers from ever reaching German territory. The restrictions on access to territory are so effective that most asylum-seekers never get to Germany to tell their story. Although this means that I did not meet them during my field work in Germany, a little imagination will allow us to understand the impact of these restrictive laws on the lives of individuals fleeing from persecution. Consider, as you read the legal provisions below, the case of dissidents from Sierra Leone who manage to reach Senegal and to scrape together enough money for airfare to Germany.

A. Visa Policies

An elaborate network of visa restrictions aims to halt asylum-seekers before they even begin their trip to Germany or to other EU countries. The Federal Republic of Germany established visa requirements well before 1993, as did other European states. The number of states whose nationals require a visa to enter Germany has continued to grow. Germany now extends a visa requirement to all major refugee-producing countries.

In this respect, Germany and the EU are in accord. Although they have not adopted a joint approach to dealing with asylum-seekers, the EU states have reached consensus concerning those countries whose nationals must possess a visa in order to enter EU territory.55 Currently, the EU has listed over 100 countries whose citizens need a visa to cross into EU member states, and there are plans to expand the visa requirement to thirty more countries.56 In addition, EU member states retain the right to require visas from nationals of countries that do not appear on the EU list.

Citizens of those countries for which either Germany or the EU has imposed a visa requirement, such as Sierra Leone, must obtain advance permission from German consulates or embassies abroad before they can enter Germany. This is impossible in most cases. Fearing persecution in one's homeland is not a basis for receiving a German visa. All those who lack visas, Sierra Leonean asylum-seekers as well as others, are legally prohibited from entering Germany. This visa policy precludes almost all the refugees in the world from entering Germany legally.

B. Carrier Sanctions

Enforcement of the visa requirement occurs in two stages: first, by airline employees, then, by border guards. In 1987, Germany enacted legislation that imposes on air, sea, and other carriers a fine of DM 2000 for each foreigner transported to Germany who lacks a residence permit or a required visa.57 In addition, the law requires the carrier to pay all public expenditures incurred due to the arrival of the unauthorized individuals, as well as to bear the cost of transporting them away from Germany.58

For asylum-seekers, the sanctions on carriers have created a practically impenetrable barrier to reaching Germany and many other developed countries. Airline employees know that the airline company will be subject to serious fines if it carries passengers to Germany who lack the required travel documents. Therefore, the airline workers will protect their employer against possible financial penalties and forbid those without visas from boarding.

Suppose the political dissidents from Sierra Leone were able to flee to Senegal and to purchase airplane tickets from Dakar to Frankfurt. When the Sierra Leoneans appear at the airport in Dakar and produce valid passports but cannot produce German visas, the airline employees refuse to allow them to board the plane. Pleas of persecution suffered in Sierra Leone, even evidence of torture such as amputated limbs, will be to no avail. At best, if the airline employees are sympathetic to the plight of the Sierra Leoneans, they may direct them to seek visas from the German embassy in Dakar or to seek protection in Senegal itself. That the German consular officials would not provide visas in this situation and that Senegal might be unable or unwilling to provide protection to Sierra Leoneans would be irrelevant to the decisions of the airline employees.

The same scenario applies to Tamils from Sri Lanka who manage to travel to Bombay where they can buy airplane tickets to Frankfurt and to women fleeing the Taliban in Afghanistan who arrive in Istanbul with airfare to Germany. It applies to all asylum-seekers from all the major refugee-producing countries. Unless the asylum-seekers obtain prior official approval to enter Germany, as evidenced by visas issued by a German consular officer, the airline employees prevent the asylum-seekers from boarding the plane.

During the last decade the carrier sanctions and the visa requirement have had a major impact on asylum-seekers. In combination, they have effectively moved the border from German soil to airports in countries far away from Germany.59 Airline employees, untrained in international refugee law or human rights law and motivated only by their employer's business interest in avoiding sanctions, prevent the great majority of asylum-seekers who lack visas from a chance to come to Germany to lodge an asylum request. The private employees act to enforce German law. Their actions turn away thousands of individuals who may face threats to their life or freedom due to their political views, nationality, religion, race, or social group. These efforts to enforce German law run counter to the nonrefoulement provision of the 1951 Refugee Convention.

Since 1993 these preventive measures focused on air travel have assumed vast new significance because the constitutional amendment has changed the ground rules for asylumseekers arriving in Germany by land. If the Sierra Leoneans, Tamils, or Afghans travel overland to Germany rather than attempt to enter Germany by air, they will face German border guards rather than airline employees. The border guards will also demand that those who wish to enter Germany produce valid German visas, of course, but prior to 1993 those physically present at the border had the possibility of overcoming the visa requirement. Those who requested asylum at the border were entitled to enter Germany and file an asylum application, even if they lacked a valid visa. The adoption of the safe third country principle in 1993 eliminated the possibility of seeking asylum at the border. The land barriers now are as impenetrable to asylum-seekers as those erected at airports overseas.

VI. RESTRICTION To ACCESS TO THE ASYLUM PROCEDURE

Asylum-seekers who somehow cross the border and enter Germany are, in general, still out of luck. New legal measures, the heart of the 1993 constitutional amendment, create major restrictions to access to the asylum procedure even for those physically present in Germany. In examining them, consider the case of an Armenian woman who sought asylum in Germany in October 1993. She had been an officer in the Soviet army and faced persecution in newly independent Armenia for what some said was unforgivable collaboration with the Soviet occupying forces.60 Her precise travel route was unclear; a typical journey from Armenia would have passed first through Russia, then through Ukraine and Poland before arriving in Germany.

A. Safe Third Country Principle

The major instrument of the new German asylum regime is the safe third country principle. In effect, it is Germany's second line of defense. It is applied both at and inside the German border to deny asylum-seekers-at least, the subset of asylum-seekers who somehow overcome the visa requirements and the carrier sanctions and manage to arrive in Germany-access to the asylum procedure. It operates on the premise that asylum-seekers who travel through safe countries before they reach Germany should apply for asylum in the transit countries.

The safe third country policy adopted by Germany may sound like a neutral policy based on a common sense approach to the travel routes of many asylum-seekers. It is not. It is a cynical approach to the thousands of asylum-seekers who request-and sometimes desperately need-protection from persecution. It is an evasion of the international legal requirement that forbids nations from turning away from their borders refugees in need of protection.

Since 1993, the safe third country principle dominated asylum policy in Germany, yet there is nothing in international refugee law that justifies this approach. It effectively bars access to asylum and significantly heightens the chances that refoulement, or return to persecution, will occur. This is not merely a theoretical problem. Many practical consequences of the safe third country rule exist, and they are often dire. Those arriving at the German border from a safe third country will not be allowed to present their asylum claims, no matter how compelling. Instead, they will be immediately returned to the third country. The German approach does not presume that the asylum-seekers lack a wellfounded fear of persecution or are unworthy of protection. Rather, the German law insists that asylum-seekers seek protection in another country that they happened to pass through. Theoretically, they will be allowed to present their asylum claims in those third countries, but in reality, this often does not happen.61

The 1993 constitutional amendment unequivocally states that those who enter Germany from one of the European Union member states are ineligible for asylum in Germany because the EU countries are all safe. This rule applies no matter what country the asylum-seekers originally fled, nor what persecution they fear, nor what family members may already reside in Germany.

In addition, the amendment states that those who enter Germany after traveling through non-EU countries are ineligible for asylum if those countries are safe. Safe third countries are defined as those that guarantee the application of the 1951 Refugee Convention and the European Convention on Human Rights and have been designated as safe by Parliament. In 1993, acting pursuant to the constitutional amendment, Parliament named the Czech Republic, Norway, Poland, and Switzerland as safe countries. Together, the fifteen European Union states and the additional countries designated as safe form a zone that completely surrounds Germany.62 By creating this all-encompassing cordon sanitaire, Germany effectively eliminated access to the grant of asylum still nominally enshrined in its constitution.

The safe third country principle applies to all asylum-seekers in Germany, whether they come by land, air, or sea. Those who come by land are immediately turned back at the border based on the safe third country rule. In 1997, the Federal Administrative Court upheld this rule even for asylum-seekers who have been locked inside a vehicle as they passed through the safe third country, absolutely unable to apply for asylum there.63 Asylum-seekers who reach Germany are presumed to have come by land-and accordingly to have passed through safe countries, thus making them ineligible for asylum-unless they ca nprove they arrived by air or sea without passing through a safe country while in transit.64

As discussed earlier, asylum-seekers who attempt to travel to Germany by air are generally turned back at the point of embarkation by airline employees. If they manage to obtain some form of visa and board an airplane that touches down in a safe country en route, they will be turned away from Germany without any examination of their asylum claim. If the plane did not land in a safe country before arriving in Germany, they will be allowed to enter to face an extremely accelerated asylum procedure at the airport.

It is generally easy for the German authorities to identify whether airplane flights have landed or re-fueled in a safe third country before arriving in Germany, All air passengers on those flights are precluded from applying for asylum and are returned immediately to the third country.65 These departures occur so promptly that the Border Guard does not consider them deportations. The Border Guard denominates them returns, and does not record them in deportation statistics.66

In contrast, it is more difficult for German authorities to determine the route of asylum-seekers who enter clandestinely by land or sea. Many of these asylum-seekers attempt to forestall their return to a third country by destroying or concealing all evidence of the countries through which they traveled. A lack of evidence connecting the asylum-seeker to one of the safe third countries does not allow asylum-seekers to escape the safe third country principle. Since all asylum-seekers who entered by land must have passed through a safe third country, the German authorities have concluded that the 1993 constitutional amendment renders these asylum-seekers ineligible for asylum whether or not they can be linked to a particular safe third country. All asylum-seekers without documents at the border or within the expanded border zone are presumed to have crossed a safe third country. Unless the asylum-seekers can prove they entered by air or sea without having passed through a safe third country, they are not allowed to apply for asylum.67

The Armenian asylum-seeker mentioned earlier falls into this category. If she had presented herself to a border post and requested asylum, German officials would have immediately returned her to Poland, with no examination of her asylum claim. The same would occur even if she had crossed the border clandestinely and then been stopped twenty kilometers inside German territory. If she had tickets or documents indicating she had traveled through Poland, German authorities would have turned her over to the Polish border guards at once. If she had destroyed all evidence that she had passed through Poland, German officials could not return her to Poland. She would face a presumption, though, that she had crossed some safe country and, accordingly, would be ineligible to apply for asylum.

This approach prevents almost all asylum-seekers from obtaining asylum in Germany, but it fails to solve the practical problem of sending them away. Countries bordering Germany generally refuse to admit asylum-seekers without proof that they entered Germany from their particular territory. Consequently, asylum-seekers have a great incentive to lose all evidence concerning the travel route to Germany and to repress all distinct memory of the journey. They will not obtain asylum, but they may prevent immediate expulsion to another country. If they are lucky, they may, as discussed below, gain temporary residence in Germany.

The importance that travel documents assume leads to a major hidden cost of the safe third country principle in Germany: the corrosive atmosphere of deceit and mistrust that has been created in the asylum system. Asylum-seekers who have managed to cross the border have an exceedingly powerful incentive to lie about their travel route. They often view the truth as an instantaneous expulsion order. German authorities know that many asylumseekers lie about their journeys to Germany. Although the basis for the fear of persecution is logically distinct from the details of the journey, the officials begin to question the truth of the other details of the asylum claims that begin with major misstatements or bald-faced lies about the travel route. These asylum-seekers know that the authorities know that they are lying, but the consequences for telling the truth about the travel route are too severe.

Due to the centrality of the safe third country rule and the resulting ineligibility for asylum of those who have transgressed it, the determination of the asylum-seeker's transit route becomes critical in many cases. Though so much rests on this decision, there are no safeguards surrounding it. Three elements of the safe third country practice combine to create serious legal problems: the unreviewable decisionmaking at the border, the expanded border zone, and the difficulties of obtaining access to the asylum procedure in third countries.

1. Decision-making at the Borders

There are no procedural safeguards and there is no transparency surrounding the decisions to return asylum-seekers to safe third countries. The potential consequences of the safe third country principle can be exceedingly harsh. The overwhelming majority of asylum-seekers who come to Germany run afoul of this provision. It is, therefore, crucial that the conclusion that an asylum-seeker traveled through certain countries is well-founded and accurate.

In fact, though, a guard at the border checkpoint makes this critical decision. There is no appeal. There is no opportunity to seek administrative reconsideration. There is no chance to obtain judicial review before the border guard acts. The individual border guard has absolute authority.

Concerns about fair and accurate decision-making in this setting are intensified by the difficulties in establishing sustained monitoring of the border guards' decision-making. The border area is closely guarded, and the inner workings of the border guard stations are not visible to the ordinary public. By and large, border guards exercise their absolute authority outside the public view. Decisions of such great importance to human life and liberty should not be consigned to unreviewable government action.

2. Expanded Border Zone

Concerns about the integrity of decisions at the border assume even greater importance because they apply to many decisions that are made a significant distance from the border. An expanded border zone stretching thirty kilometers from the border is treated as the functional equivalent of the border. 68 Anyone stopped within this sizable, expanded border zone is deemed to be at the border. The procedural protections that apply to government decisions made in other circumstances within Germany do not apply. Border guards can stop asylum-seekers anywhere in this large area, decide they came through a safe third country, and return them immediately to that country. Again, there is no appeal. The practice within the expanded border zone magnifies concerns about the potential for abuse.

3. Safety in Third Countries

Most fundamentally, the safe third country rule can lead to terrible consequences because it is based on a flawed premise. German law presumes asylum-seekers will be able to present their asylum claims in a legitimate and well-functioning asylum procedure when they are returned to the safe country. This presumption allows Germany to turn away asylum-seekers who have passed through safe third countries no matter how compelling their fears of persecution. As a practical matter, this presumption is often incorrect. Despite the possibilities of mistreatment that may accompany the return, the German authorities do not determine whether individual asylum-seekers will be admitted to the asylum process in the safe third country; they simply return them to that country. Although German government officials say that asylum-seekers returned to third countries are provided with written documentation that informs them they must apply for asylum in the third country and that notifies third country officials that asylum-seekers have not received full consideration of their asylum claims in Germany,69 refugee advocates in Germany assert that, in practice, this does not occur.70

The situations in Poland and the Czech Republic, Germany's eastern neighbors and designated safe third countries, raise particular concern. Newly emerging from communist rule and struggling to transform themselves into market economies, Poland and the Czech Republic receive many of the asylum-seekers returned by Germany due to the safe third country rule. Only recently has either country even begun to receive and recognize refugees officially. Poland did not accede to the 1951 Refugee Convention until the last week of 1991. The Czech Republic acceded to the Convention one month earlier. This was only eighteen months before Germany amended its constitution to exclude from asylum all those who had passed through a safe third country-including Poland and the Czech Republicprior to entering Germany.

The recent accessions to the 1951 Refugee Convention are emblematic of the newly developing refugee policy in Poland and the Czech Republic. A little more than a decade ago, when both countries were still ruled by communist regimes, there was no need for refugee policy and refugee law. Few asylum-seekers sought refuge in those societies. During the past decade the early beginnings of a refugee policy have become visible, but there has been insufficient time and support for a mature refugee system with substantial legal protection to develop.

For example, the Ministry of Interior in Poland established an Office for Immigration and Refugee Affairs in 1993.71 Until the last week of 1997, there was no Polish legislation setting forth the framework for a refugee system and delineating the legal protections provided to refugees.72 The Office was forced to rely on the general Administrative Code73 and the thirty year old Aliens Law. The new law, while an improvement over the past, has been described by experts in Poland as unclear and easily misconstrued. In late 1999, concerns about the safety of asylum-seekers, particularly unaccompanied minor asylumseekers, returned to Poland from third countries, led the UNHCR to call for a halt in returns until the situation in Poland could be substantially improved. It is fair to say that the Polish refugee policy is in a preliminary stage and these beginning efforts are seriously underfunded.

Until 2000, the legislation specifically addressed to refugees in the Czech Republic was a relatively rudimentary law. Enacted as a quick response to burgeoning numbers of refugees, the refugee law went into effect in 1991.77 A short amendment went into effect in 1994.78 These early legislative efforts were supplemented by more thorough statutory development in the asylum law that took effect at the beginning of 2000.79

Although the details differ, the overall picture for refugees in Poland and the Czech Republic is similar. In both countries the infrastructure is underdeveloped, and refugee law and policy are nascent. Each country now can only provide housing to a few thousand refugees and asylum-seekers, far fewer than the tens of thousands sent back by Germany each year. Furthermore, both countries have devoted a substantial portion of their refugee resources to temporarily protected persons who have fled wars in the Balkans. While this is clearly admirable, asylum-seekers from elsewhere get lost in the shuffle.

Thus, despite the minimal legal framework for refugees and the paucity of resources available for asylum-seekers, Germany returns many thousands of individuals to Poland and the Czech Republic each year. Statistics provided by the German Border Guard for a recent year are representative.80 In 1997, German authorities arrested 35,205 undocumented individuals at their borders. Of these, 23,089 were arrested at Germany's eastern borders: 8,699 at the Polish border and 14,390 at the Czech border. In addition, the German Border Guard refused entry to 16,080 at the Polish border and 16,730 at the Czech border.81 Further, German authorities stopped 5,589 individuals inside Germany and returned them to Poland within forty-eight hours pursuant to the German-Polish readmission agreement. The number stopped inside Germany and promptly sent to the Czech Republic for readmission reached 10,254. The Border Guard reported that they arrested 40,201 foreigners at the borders for illegal entry in 1998. Of these, more than 19,000 were arrested at the Czech border and approximately 5,000 at the Polish border. In addition, the Border Guard turned back 60,000 foreigners at the borders.82 The number of illegal border crossings reported in 1999 decreased to 37,789.83 Approximately 13,000 were apprehended at the German-Czech border and roughly 3,000 were arrested at the German-Polish border.84

The Border Guard statistics do not separate asylum-seekers from other would-be migrants, so it is impossible to know the precise percentage of asylum-seekers in these figures. It is obvious, though, that many asylum-seekers must be included in the tens of thousands whom Germany turns back to Poland and the Czech Republic each year because many asylum-seekers pass through these countries each year en route to Germany. In a real sense, the safe third country principle in Germany obliterates legal protection for asylumseekers and treats them like all other migrants.

The situation for asylum-seekers returned to Poland is particularly worrisome. The legal provisions protecting asylum-seekers are even sparser than in the Czech Republic, and the infrastructure is minimal. Moreover, because there are accommodations for only a tiny percentage of those applying for asylum in Poland, almost all those returned by Germany must rely on their survival skills to find food and shelter during the asylum process.

More troubling, though, are reports that asylum-seekers turned back to Poland from Germany are effectively prevented from applying for asylum in Poland. German government officials assert that they see no indication that asylum-seekers returned to Poland are denied access to the asylum procedure there.85 Nonetheless, credible reports give cause for concern. For example, the Research Center on Refugees and Migration notes that the German Border Guard arrested 14,000 foreigners within the thirty kilometer expanded border zone along the Polish border in 1995.86 Of these, 7000 were citizens of Romania. They were flown from Germany to Romania.87 The other 7000 individuals were detained in German Border Guard camps for up to forty-eight hours and then delivered to Polish officials, who detained them for up to another forty-eight hours.88 The Polish Border Guard transported 2000 or more by bus to Ukraine, which signed a readmission agreement with Poland. These individuals had no access to the asylum process in Poland. Indeed, they had no access to lawyers, judges, doctors, or other advocates while detained in Germany, and no access to representatives of government organizations while detained in Poland.

The story of the former Soviet army officer from Armenia illustrates the bleak situation awaiting asylum-seekers returned to Poland. After entering Germany and requesting asylum, she was assigned to an asylum shelter in the eastern region of Mecklenberg-Western Pomerania. While waiting for a decision on her asylum application, she was awakened one night.90

At 3:00 a.m. on January 3, 1994, police came to my room. They unlocked my door and told me I had five minutes to get ready to leave. They told me to sign a paper, but I refused because I couldn't read it. They yelled at me in German. They wouldn't let me borrow a coat. I only had light clothes. They put me into a car and we drove a long time. I begged them to stop to let me relieve myself, but they wouldn't. They drove me to the border. They made me stand outside in the cold for forty minutes while they talked to the Polish border guards. Then they left.

The Polish border guards gave me a pass to remain for three days. I asked what I should do without food, warm clothes, or money. The Polish border guards told me that was my problem. They said I could stay in the reception area for three days and then would have to leave Poland. They said I could not file an asylum application in Poland.

While I was in the Polish camp, I saw Polish ladies go back and forth across the border every day to buy and sell things. I had some plastic bags with me, and I pretended they were for shopping. On January 6, I managed to cross the border back into Germany. I stood in a crowd of Polish ladies and walked with them across the border into Germany. I went to the police in the border town and spoke to them in Russian and broken German. I told them there had been a mistake. I said I needed to return to the asylum center. I asked for a lawyer.91

Although it did not happen to this asylum-seeker, there are reports that Poland has begun detaining as illegal immigrants many of those turned back from Germany and that detention in Poland is sometimes accompanied by criminal prosecution for violating border controls. Reliable information on the fate of those returned to other countries is notoriously difficult to obtain. If some of these reports are true, however, this is particularly troubling treatment for those precluded from seeking asylum in Germany based on the premise that they could request asylum in Poland.

B. Readmission Agreements

The pernicious effect of the safe country rule is compounded by the multitude of readmission agreements that Germany and other European states have entered. Germany has negotiated readmission agreements with more than twenty countries, including Algeria, Bosnia, Bulgaria, Croatia, Georgia, Latvia, Romania, Vietnam, and the Federal Republic of Yugoslavia, as well as Poland and the Czech Republic.92 In addition, many of these countries have negotiated readmission agreements with other nations. For example, Poland has readmission agreements with many countries to its east and south, including Ukraine, the Slovak Republic, Hungary, and Moldova, with which Germany has not concluded readmission agreements.93 This elaborate and interlocking network of agreements, combined with the safe third country principle and the accelerated procedures applied to claims deemed manifestly unfounded,94 heightens the risk that asylum-seekers may be sent back to conditions of danger without ever undergoing a thorough examination of their claims.

The provisions of these agreements vary, but they generally permit the receiving state to send asylum-seekers and others back to another state that they either fled or passed through en route to the receiving state. The receiving state sends all those without authorization to be in the receiving state back to the readmitting country. If the individuals are asylum-seekers, the receiving state generally refuses to hear the asylum claims, but rather, sends the asylum-seekers to the readmitting country for any determination as to whether there are well-founded claims for asylum. The conditions in some of the countries that signed readmission agreements with Germany and its eastern neighbors are extremely unstable. In others, the human rights situation is tenuous, and the asylum policy, for all practical purposes, is non-existent. As a consequence, these readmission agreements raise serious concerns for the ultimate safety of asylum-seekers turned away without a thorough hearing of their asylum claims: those rejected without a hearing due to the safe third country rule or those rejected in short-circuited proceedings because their claims were perceived to be manifestly unfounded.

Because there are multiple layers of readmission agreements, the first invocation of a readmission agreement may have far-reaching and unforeseen consequences. Although German law only permits German border guards to return asylum-seekers to safe third countries that adhere to the 1951 Refugee Convention and the European Human Rights Convention, German law is silent regarding the standards that other countries may later apply to asylum-seekers rejected at Germany's borders. Some German government officials have said that they annually scrutinize the safe third country policies of countries that Germany treats as safe third countries, to ensure that they protect returned asylum-seekers from refoulement, or eventual return to the country where they fear persecution. This review does not apply to EU member states, which are deemed categorically safe under the German constitution.95

In practice, the countries Germany treats as safe third countries may well have readmission agreements with countries that have not put into effect the Refugee Convention and the European Convention on Human Rights, and thus would not be considered safe under German law. By ignoring the reality of the web of readmission agreements that bind its neighbors, Germany is complicit in a flawed process. With no examination of the merits of their claims, asylum-seekers are shunted from Germany to safe third countries, then from safe third countries to countries that may not be and that Germany may not view as safe.

Returning for a moment to the case of the Soviet military officer from Armenia, if the German authorities had evidence that she passed through Poland, they would have refused to provide her any asylum hearing whatsoever. German law designates Poland, a country that has ratified the Refugee Convention and the European Human Rights Convention, as a safe third country, so the German Border Guard would have returned her directly to the Polish authorities. If Polish officials had learned that the Armenian asylum-seeker had entered Poland via Ukraine, they would have relied on the readmission agreement to return her promptly to Ukraine. Denied access to the asylum process in both Germany and Poland, the Armenian asylum-seeker would theoretically be able to seek refuge in Ukraine, but Ukraine is not a party to the 1951 Refugee Convention. The refugee legislation enacted in 1993 is relatively untested. The thrust of Ukrainian refugee policy is directed toward Afghanistan. Roughly seventy-six percent of the 3,000 recognized refugees are Afghans.96 Ukrainian authorities have not provided housing for refugees; asylum-seekers must fend for themselves.97 The economic crisis in Ukraine severely undercuts even minimal refugee protection and assistance efforts.

Perhaps Ukraine would seek to push the asylum-seeker back to another country, such as Russia, an earlier stop on her journey. Whether Russia, the fourth country in the chain, or a subsequent fifth country, has a functioning asylum process and the ability to extend protection to those fleeing persecution would be questionable. For example, although Russia became a party to the 1951 Refugee Convention in 1993, it had no international refugee law during most of the 1990s.98 Refugee legislation was enacted in 1993, but it applied only to those fleeing violence within the former Soviet territory.99 A decree on political asylum was adopted in 1995, but it was never put into effect.100 More recently, in mid-1997, new refugee legislation was enacted; this law is short, has internally contradictory provisions, and leaves large areas to administrative discretion.101

Moreover, even if a functioning asylum procedure is in place, many reports indicate that government officials who receive asylum-seekers already rejected by several other countries conclude that their case lacks substance. Officials in these receiving countries often ignore the distinction between refusals to allow access to the asylum process based on the safe third country principle or readmission agreements and rejection of the merits of the asylum claim.102

As a result of the spiderweb of readmission agreements, many asylum-seekers rejected by Germany on the theory they should apply for asylum in a country that they had passed through earlier may find themselves caught in a chain of events that allows neither escape nor an asylum hearing. Often, countries later in the chain lack an effective refugee policy and have not fully implemented the 1951 Refugee Convention and international human rights treaties.

The actual treatment of a Kosovar Albanian family in 1998 furnishes another powerful demonstration of the actual danger inherent in the safe third country rule and the system of readmission agreements.103 A man and his family had fled Kosovo because he took part in a hunger strike of miners; he had been hiding from the Serb police since then. When the family arrived in Germany, they were immediately sent back to Austria, the safe third country they crossed to come to Germany. Austria expelled them to Hungary, and the Hungarian authorities accompanied them to the Yugoslav border. Back in Yugoslavia, the entire family was seriously mistreated by the police. They then fled a second time to Germany, where they received a negative decision on their asylum claim. The head of the family then tried to flee alone to Sweden but was caught by the police and brought back to Germany and imprisoned for more than thirty days while awaiting deportation. On April 29, 1998, he was deported for a second time to Kosovo, where he says Serb police interrogated and beat him upon arrival. His family remains illegally in Germany, where his children are in special therapy for trauma cases and victims of torture.

The responsibility for such cases lies heavily-although not solely-on Germany. The safe third country list promulgated by Germany and other EU member states has encouraged other countries to formulate similar lists of countries asylum-seekers may have crossed earlier on their journey.104 The resulting chain deportation process pushes asylum-seekers closer and closer to the land they fled. The possibility that they might be returned to persecution is real. Although each state claims it is only responsible for the sole decision it makes, all the states are implicated in the final result because they know that returning asylum-seekers to a neighboring state is likely to be only one step in a long process. Germany and other states that begin the chain of deportation orders cannot escape responsibility for the ultimate fate of asylum-seekers they turn away at their borders.

Indeed, the German Constitutional Court has recognized that international law prohibits both direct and indirect return to the country where persecution is feared.105 It remains for German officials to take this ruling to heart. They must consider seriously the possibility that the deportation or "return" under consideration may be the first link in a dangerous chain. They must limit application of the safe third country concept to those cases in which there has been an individualized determination that the state to which the asylum-seeker will be readmitted has a fall asylum procedure comporting with UNHCR standards.106

The readmission agreements significantly exacerbate the safe third country rule that Germany has adopted. They also heighten the difficulties created by curtailed procedures applied to claims deemed manifestly unfounded. As explained below at greater length, the streamlined procedures for these disfavored claims significantly limit the opportunities for judicial review. As a consequence, asylum-seekers whose claims are rejected as manifestly unfounded are more likely to be deported quickly. If they fall within the scope of one of the more than twenty readmission agreements Germany has negotiated, they may be sent back to a country with tenuous human rights policies, which may rely in turn on readmission agreements it has negotiated with other states and send them back to another state with even fewer established protections of human rights. Their ultimate refoulement is a major concern. This system sends asylum-seekers to situations where they face danger due to their nationality, religion, race, social group, or political opinion. In doing so, it violates both the 1951 Refugee Convention and the European Human Rights Convention.

VII. MANIFESTLY UNFOUNDED APPLICATIONS AND ACCELERATED PROCEDURES

The visa policy and carrier sanctions prevent asylum-seekers from reaching Germany. Those who somehow arrive at the German borders face the safe third country principle, which, coupled with the extensive network of readmission agreements, prevents many asylum-seekers from gaining access to the asylum procedure. The relatively few who do enter the asylum system may face substantially truncated and accelerated procedures. The constitutional restrictions adopted in 1993 expressly reduce procedural protections formerly accorded asylum-seekers. The lack of safeguards in the system that renders decisions about applicants' fear of persecution increases the odds that the international law forbidding refoulement will be violated.

The case of an Algerian asylum-seeker who arrived in Germany in October 1995 highlights some of the difficulties caused by the streamlined procedures. This asylumseeker reported that the Algerian military forces, thinking that he supported Islamic fundamentalist groups in Algeria, administered electric shocks to torture him.107 His need for protection collided with the new German asylum law.

A. Manifestly Unfounded Applications

The 1993 amendment to the Constitution refers to asylum requests that are clearly unjustified. The amendment states that deportation shall generally not be suspended pending appeal in these manifestly unfounded cases. It also limits the scope of judicial review available for these claims. The constitutional amendment does not, however, define the operative term.108

Earlier legislation indicated that an extremely broad range of circumstances would lead an asylum application to be deemed "manifestly unfounded."109 For example, the statutory term includes an asylum application based on flight from war or based on a general emergency situation.110 It also includes an asylum application contradictory in several important respects or one deemed to be inconsistent with well-known facts.111 German courts appear to be grafting the expansive statutory definition onto the constitutional restriction. This has resulted in substantially fewer procedural protections for a large number of asylum applicants.112 Because the Algerian asylum-seeker arrived in Germany at a time when there were outbursts of violence in certain areas in Algeria, refugee authorities in Germany viewed him as someone fleeing from warfare or an emergency situation in parts of his homeland. They did not believe his allegations of torture, so his case was deemed manifestly unfounded.

Legislation implementing the constitutional amendment provides that asylum-seekers whose claims have been rejected as manifestly unfounded must leave Germany within one week.113 They may challenge the government decision by filing a notice of appeal with the Administrative Court within one week of the decision.114 This is a significant acceleration of the standard four-week period in which German litigants are generally allowed to prepare their appeals.115

Moreover, in contrast to the ordinary appellate practice in Germany, filing a notice of appeal does not provide an automatic stay of deportation in manifestly unfounded cases.116 In order to suspend the effect of the deportation order, asylum-seekers must file two separate applications with the court: an appeal on the merits of the asylum claim and a request for a stay of the deportation order pending the appeal. Only those who obtain a court order specifically delaying their deportation are permitted to remain.117 Many asylumseekers are baffled by this procedure, fail to file two separate applications, and are unable to achieve the stay of deportation that the law, in theory, provides.

Those who file the correct documents within one week of being rejected as manifestly unfounded receive a hearing based solely on the written record. In reviewing challenges to claims rejected as manifestly unfounded, the Administrative Court considers first the accompanying request for suspensive effect. If the Court decides that there are no "serious doubts as to the legality" of the negative decision, it will deny suspensive effect.118 The Court has one week to render its decision on suspensive effect.119 If the Court denies suspensive effect, it will no longer consider the case, and no further appeals are possible. If the Court concludes that the request may be simply unfounded rather than "manifestly unfounded," it will grant suspensive effect.120 It will then consider the merits of the case at a later time.

The strictures on claims rejected as manifestly unfounded affect a large number of asylum-seekers, approximately 26,000 applications in 1995; 25,000 in 1996; 27,000 in 1997; close to 25,000 in 1998; 22,000 in 1999; and more than 18,000 in 2000.121 Because the route to judicial review is complicated and the chances of success limited, most asylumseekers rejected for having "manifestly unfounded" claims fail to appeal. Thus, tens of thousands of asylum-seekers are turned away each year without any serious oversight by the courts.

It is not only the large numbers that are troubling. Because the German definition of manifestly unfounded claims includes those fleeing civil war or situations of general violence,122 many claims are rejected as manifestly unfounded even though the authorities concede that the asylum-seekers might face serious generalized violence if they return to their homes. In practice, this means that asylum-seekers from regions suffering horrifying violence, war, and persecution, such as Algeria in 1995 or Sierra Leone in 2000, can be summarily rejected for presenting claims deemed manifestly unfounded. If they traveled through countries that have readmission agreements with Germany, they may soon find themselves sent to countries whose human rights and asylum policies are uncertain or worse. Under the German approach to manifestly unfounded claims, many individuals will be returned to situations of danger in violation of international law.

B. Accelerated Airport Procedure

In addition to disfavoring manifestly unfounded claims, the 1993 constitutional amendment mandates an accelerated asylum procedure for those viewed as fleeing a safe homeland.123 This aspect of the new legal restrictions tends to come into play at the international airports in Germany where arriving asylum-seekers may face an asylum procedure even more accelerated than the quick pace prescribed for manifestly unfounded claims.124 Asylum-seekers who arrive at Germany's airports and who traveled through safe third countries, originated from safe countries of origin, or lack valid travel documents are subject to an expedited procedure at the airport.125 The nature of the accelerated procedure varies depending on which of these factors triggers the procedure for the asylum-seeker.

The 1993 constitutional amendment authorizes Parliament to certify countries where persecution generally does not occur.126 Parliament acted promptly to create a list of "safe countries of origin": Bulgaria, the Czech Republic, Gambia, Ghana, Hungary, Poland, Romania, Senegal, and the Slovak Republic.127 Those who arrive at the airport from a designated safe country of origin are granted access to the accelerated proceeding, but they face a presumption that they are not fleeing persecution. There is only a negligible chance that asylum-seekers from the lands considered safe countries of origin will be able to rebut the presumption.128

Those who arrive without a valid passport or other travel document also face the accelerated airport procedure. This group is largely composed of individuals apprehended at passport control by officials who suspect they are using passports that have been counterfeited or altered in some way. In some instances those possessing invalid passports obtained them in a desperate attempt to escape persecution; in others they acquired them to facilitate a trip motivated by reasons unrelated to persecution. All are subject to the expedited airport procedure.129

As soon as a member of the Border Guard identifies asylum-seekers who come from a safe country of origin or lack a valid passport,130 the Border Guard detains them at the airport and questions them. The Border Guard interviews often take place on the day of arrival when asylum-seekers may be seriously disoriented. Scenes are common of recently arrived asylum-seekers sound asleep in broad daylight in noisy rooms while other asylumseekers who arrived within the past twenty-four hours mill around waiting for instructions from the Border Guard staff.131 The interviews by the Border Guard focus on the identities of the asylum-seekers and the routes by which they entered Germany, but often also include information relevant to the asylum claim.

Employees of the Federal Office for the Recognition of Foreign Refugees (Federal Refugee Office) stationed at the airport review the Border Guard files and then conduct a second interview focused on the request for asylum. Contradictions with statements made to the Border Guard upon arrival, when disoriented and perhaps frightened, may be used to discredit the applicants,132 The Federal Refugee Office staff then must reach a decision on the merits of the asylum claim within two days of the application for asylum.133 Under these circumstances it seems unwise to rely on interviews of tired and disoriented individuals to make what may be life and death decisions.

The few asylum-seekers whose applications receive a favorable decision may leave the airport promptly. Those who are neither granted refugee status at the airport nor viewed as having manifestly unfounded claims are taken to an initial reception center where they are eligible to seek asylum pursuant to the standard asylum process.134

Those whose applications are denied as manifestly unfounded must remain in the locked facility at the airport.135 They have three days in which to file a petition with the court to overturn the agency decision.136 Within four more days they must provide the court with their reasons for seeking a reversal of the decision. The court must review the petition and accompanying file and issue a decision within two weeks, during which time the asylum-seeker must remain in airport detention.137

This is the precise situation the Algerian asylum-seeker faced. Arriving at the Frankfurt airport in October 1995, he immediately applied for asylum based on the torture he had suffered from the government military forces that had viewed him as a political opponent. The Federal Refugee Office interviewed him in the accelerated airport procedure and rejected his claim, as did the Frankfurt Administrative Court. Only after the administrative decision and the first level of judicial review were over, which together took less than two weeks, was the asylum-seeker able to obtain medical evidence that he had been tortured. Subsequent applications to the Frankfurt Administrative Court were nonetheless denied. Finally, a refugee organization agreed to represent him and filed a claim with the Federal Constitutional Court, which overruled the lower court and ordered a reexamination of the case.138 After more than one year in the airport holding area, he was allowed to leave the airport for a refugee center.139

The accelerated procedure at the airport has, to date, precluded effective counseling or legal assistance in almost all cases. There is not enough time to locate attorneys competent in asylum law,140 nor enough time for attorneys to interview asylum-seekers and prepare substantial asylum applications or court petitions.141 Moreover, the problems that generally hinder asylum-seekers from preparing a compelling presentation of their cases on short notice-such as the difficulty of recounting a fully fleshed out description of the circumstances that impelled the flight and the near impossibility of obtaining corroborating medical evidence-are intensified by the accelerated pace of the special airport procedure.

Even if the attorney could intervene in a timely manner, generally there are no funds to pay the attorney. Recently, the Federal Ministry of the Interior agreed that the German Federation of Lawyers could provide legal counseling for asylum-seekers at five international airports.142 The state-subsidized legal counseling is limited to those asylumseekers in the accelerated airport procedure whose applications have been rejected as manifestly unfounded. This legal counseling is not available before and during the first hearing with the Federal Refugee Office staff members at the airport.143

While this is a step in the right direction, it is still inadequate. Without effective legal counseling for those in the accelerated airport procedure, thousands of asylum applicants there each year are doomed. Even with much greater support for legal counseling, the extremely short deadlines will continue to impose an enormous burden on those preparing asylum applications.

The Algerian asylum-seeker's detention for over a year in locked facilities at the airport with minimal opportunities for exercise was itself a grim ordeal. 144 Much grimmer is the fate of all those others who have a well-founded fear of persecution back home, but who lack the resources to obtain a lawyer and to gather corroborating evidence in two days or two weeks. The vast majority of asylum-seekers in the accelerated airport procedure and in the truncated procedure applied to manifestly unfounded claims at the reception centers are unable to attract organizational backing for their asylum requests.145 They obtain limited or no legal assistance and the expedited process makes it almost impossible to gather medical reports or other evidence crucial to their asylum claims. The opportunities for errors are great in the accelerated procedures, and the consequences are severe.

Without confidence in the ability of the system to determine accurately those who fear threats to their life and freedom, it is impossible to conclude that Germany is adhering to its obligations under international law. If the German authorities do not take steps to make this procedure one in which asylum-seekers have the time to tell their story in a comprehensible manner and to develop corroborating evidence, the threat of incorrect decisions increases. Erroneous decisions will result in asylum-seekers being returned to danger in violation of the 1951 Refugee Convention and the European Human Rights Convention. The pace and the circumstances of the expedited processing threaten Germany's ability to comply with its international law obligations.

This is not a small concern. Substantial numbers of asylum-seekers' claims are heard in the accelerated airport procedure. In 1994, close to 2600 asylum-seekers passed through this procedure, and the numbers increased in 1995 to almost 4600.146 In 1996 there were 4300 asylum-seekers in the accelerated airport procedure,147 including 290 unaccompanied minors.148 In 1997 approximately 2300 asylum-seekers faced the accelerated airport procedure, followed by 1700 in 1998, 1300 in 1999, and almost 1100 in 2000.149

VIII. THE REGULAR ASYLUM PROCEDURE

The constitutional changes mandating the accelerated proceedings, the presumptions against safe countries of origin, and the safe third country rule all build upon and affect the basic asylum procedure that has developed in Germany over the past few decades. Certain non-constitutional aspects of the basic asylum procedure raise further questions about the accuracy and the reliability of the decisionmaking. It is important, therefore, to examine the basic asylum system. Doing so in light of the application of a woman from the Democratic Republic of the Congo (formerly Zaire) whose asylum claim involved accusations of rape by government soldiers will highlight some of the troublesome issues.150

A. The Federal Refugee Office Hearing

Most asylum-seekers who actually enter Germany do so by crossing the border clandestinely, thus escaping immediate deportation on safe third country grounds. When they request asylum, they enter the standard asylum procedure. The system first distributes asylum-seekers among the states in Germany according to a statutory formula,151 and transports them to one of the initial reception centers located in each state. Asylum-seekers have no say in their assigned location. Asylum-seekers with relatives residing in Germany are directed to reception centers based on a centralized database concerning available beds, irrespective of the location of their relatives. Similarly, asylum-seekers who may have resided in Germany in the past are assigned to states without consideration of their place of former residence.152

Insufficient Preparation Time

Once the asylum-seekers arrive at their initial reception center, they promptly have an asylum hearing before the Federal Refugee Office, the agency that decides which asylumseekers are entitled to protection under German law. The Federal Refugee Office has branch outposts at each of the initial reception centers. The branches typically schedule asylum hearings within four days of the asylum-seekers' arrival.153

Scheduling the major assessment of the asylum claim in such a short time makes it practically impossible for asylum-seekers to seek counsel or to prepare themselves mentally and physically for their hearings. Preparation is crucial because the hearing is the only opportunity for asylum-seekers to describe the basis of their claim. Asylum-seekers can, in theory, present additional testimony at a subsequent judicial hearing, but contradictions or inconsistencies will reflect badly on the asylum-seeker's credibility, a factor that is crucial in asylum cases.154

The quick pace of the asylum procedure makes it difficult to obtain on such short notice medical testimony concerning evidence of past persecution or torture. The Congolese asylum-seeker mentioned earlier might have relevant hospital records in Lubumbashi, Democratic Republic of the Congo. It is unlikely, though, that she could obtain either hospital or police reports within a few days.155 In addition to the difficulties of obtaining corroboration, the swift pace has a particularly negative impact on victims of rape or torture; many find it impossible to discuss their harrowing experiences so soon, before psychological rehabilitation has taken place.156

Although asylum claims should be decided expeditiously, the German system proceeds so quickly that evidentiary support for the asylum claim may not be developed. This throws into question the adequacy of the decisions reached concerning asylum. The more inadequate the fact-finding, the more likely that some refugees will not be recognized and granted protection in Germany. Their deportation will violate international law.

2. Inadequate Interpreters

Scheduling hearings on such short notice also has a negative impact on obtaining competent legal counseling and qualified interpreters. The law provides that interpreters shall be provided by the government when needed; asylum-seekers may select interpreters of their own choice so long as they bear the expense.157 The law also provides that the asylum-seeker's legal representative may appear, as well as a representative from the UNHCR, and others permitted by the Federal Refugee Office.158 In practice, only three people are present at most asylum hearings: the hearing officer, the interpreter, and the asylum-seeker.159 Most of the questions and responses are relayed through the interpreter, who often becomes a key participant in the hearing. As a consequence, the interpreter's skill is crucial.

Questions have been raised about the qualifications and competence of the interpreters. Many asylum-seekers bring their own interpreter to the hearing; these interpreters most frequently are other asylum-seekers who happen to live in the reception center. Our Congolese asylum-seeker might or might not speak French in addition to her native Lingala (one of the more than 400 Sudanese and Bantu languages spoken in the Democratic Republic of the Congo). If she does, it is likely that she might appear for her hearing with a French speaker as her interpreter, because Lingala is not commonly spoken among asylum-seekers in Germany. The degree to which her French dialect might diverge from that of an asylum-seeker from a different country could be substantial.

The Federal Refugee Office obtains interpreters if the asylum-seeker does not provide one. Arranging for competent interpreters in many different languages is a difficult task and is exacerbated by the speedy schedule. The asylum-seekers' ability to assess the competence of their interpreters, whether selected by the asylum-seekers themselves or by the Federal Refugee Office, is questionable. Lack of competent interpreters substantially undermines the ability of the asylum-seekers to set forth a compelling account of the circumstances that impelled them to flee to Germany.

The speed with which the hearings are scheduled is exceeded only by the speed with which the decisions are made. In the agency branch office in NUmberg, decisions on an asylum-seeker's application are often reached on the same day as the hearing.160 Written decisions are generally delivered soon thereafter. The decisions are in German; neither translations nor interpreters are provided to explain the contents of the decisions. While asylum-seekers quickly understand the results, they often fail to understand the reasoning behind the decisions. Their lack of comprehension of the rationales for negative decisions poses serious impediments to preparing successful appeals. Under international law, asylum-seekers should receive decisions in writing and in a language they understand. The failure to provide written decisions that asylum-seekers can read and understand violates the applicable legal standard.161

3. Insensitivity to Female Asylum-seekers

Language barriers are not the only substantial obstacle to asylum-seekers being able to convey accurately and fully their claims. The hearings often pose special difficulties for female asylum-seekers when the hearing officer is a man. Cultural traditions that circumscribe meetings and conversations that women may have with men who are not members of the women's families can be a serious impediment.162 These problems are, of course, compounded when the fear of persecution involves rape or sexual abuse. It is notoriously difficult for women from many cultures to discuss with men incidents of sexual assault, a common persecution tactic, as the wars in the Balkans and elsewhere have demonstrated.163

There is no uniform practice concerning Federal Refugee Office hearings of female asylum-seekers. At least one branch office has indicated that it tries to provide a female decision maker when a female asylum-seeker requests one. This office does not routinely inquire whether a woman applicant would prefer to describe her case to a female decisionmaker; only those women assertive enough to make a special request will benefit from the office's sensitivity to women asylum-seekers. Many women may be very uncomfortable in a hearing conducted by a man, but too overwhelmed and intimidated by the process to ask for a female interviewer. Sporadic, well-meaning gestures, such as allowing husbands to accompany their wives to hearings, have sometimes inadvertently made the situation worse.164

The UNHCR has had long experience with female refugees and asylum-seekers and has observed some of the special difficulties that they face. Reflecting this experience, UNHCR has written guidelines for decision makers assigned to interview refugee women and asylum-seekers who request protection.

Women face special problems in making their case to the authorities, particularly when they have had experiences which are difficult and painful to describe. Persecution of women often takes the form of sexual assault ....

The female victim of such sexual torture obviously may be reluctant or find it very difficult to speak about it, particularly to a male interviewer. Rape, even in the context of torture, is seen in some cultures as a failure on the part of the woman to preserve her virginity or marital dignity. She may be shunned by her family and isolated from other members of the community. Discussing her experience becomes a fin-ther source of alienation.165

Sometimes, women who arrive as part of a family unit are not interviewed or are cursorily interviewed about their experiences, even when it is possible that they, rather than their husband, have been the targets of persecution. Their male relatives may not raise the relevant issues because they are unaware of the details or are ashamed to report them.166

Many of the concerns raised by the UNHCR guidelines concerning refugee women appear to be exacerbated by the German asylum procedure. The dizzying pace of the Federal Refugee Office hearings and decisions as well as the unevenness of the interpreters pressed into service likely compound the cultural dislocation experienced by many women who have suffered persecution in other parts of the world when they try to obtain asylum in Germany. The lack of support necessary to transcend logistical, language, and other cultural barriers is a problem for refugee women in particular. These types of problems undermine the reliability of the decisions reached by the government refugee officials.

B. Judicial Review

The German asylum procedure provides for judicial review of both positive and negative decisions. Negative decisions on asylum are accompanied by orders to leave Germany within one month.167 They are also accompanied by notices that the rejected asylum-seekers have two weeks in which to seek judicial review.168 All those denied asylum-roughly ninety-five percent-have the right to challenge the decision in court.169

The Administrative Court reviews both the law and the facts. Appeals from the Administrative Court to the Administrative Court of Appeals are permitted only if the challenge raises fundamental questions of law, the appeal specifies serious procedural errors, or the first judicial decision is in conflict with the jurisprudence of the Administrative Court of Appeals.170

Ironically, the ability to seek correction of errors by the Federal Refugee Office furnishes the government with another tool to restrict the grant of asylum. The asylum law permits a government official, the Federal Commissioner for Asylum Affairs, to appeal Federal Refugee Office decisions granting asylum.171 The Commissioner does so frequently and is quite successful. For example, the Federal Refugee Office granted asylum or lesser forms of protection to approximately 21,000 asylum-seekers in 1997. The Federal Commissioner for Asylum Affairs challenged close to 4000 of those decisions in court and prevailed in roughly seventy percent of the challenges.172 Recent proposals to amend the regulation to permit the Federal Commissioner to challenge negative decisions by the Federal Refugee Office have been opposed by the Federal Refugee Office. They have not been enacted.173

There is no doubt that Germany has devoted significant resources to creating and staffing an elaborate asylum procedure that includes a possibility of judicial review. Nonetheless, three features of the system-the speed with which the initial decisions are made, the lack of reliable interpreters, and the lack of state-subsidized legal counselcombine to cast serious doubt on the accuracy of the decisions and on the likelihood that the courts will provide significant oversight of most of the agency's decisions. Moreover, the language barriers are often only one aspect of more profound cultural differences, such as the inhibitions on conversations between unrelated men and women, which raise further questions about the ability of the Federal Refugee Office's asylum procedures to recognize adequately which applicants are fleeing persecution. In addition, the failure to provide the agency decisions in languages the asylum-seekers understand seriously undercuts their ability to seek effective corrective measures via judicial review.

Germany faces many cases in which individuals who do not satisfy the legal requirements apply for asylum. The skepticism this produces seems to create a negative presumption in practice, though not in theory. When added to the flaws described earlier, this leads to overwhelming numbers of negative decisions. Many refusals to provide protection may be warranted. The risks to those asylum-seekers who receive an unwarranted rejection of their asylum claim is so great, however, that it raises concern. Germany's international law obligation to refrain from returning a refugee to persecution is compromised by the combined weaknesses in the system.

IX. CRITERIA FOR AsyLum

A. Constitutional Guarantee of Asylum

In addition to restricting access to Germany and access to the basic asylum procedure, Germany applies very restrictive substantive law to the relatively few asylum-seekers who manage to enter the procedure. These restrictive interpretations run counter to the purpose behind international refugee law and disqualify many asylum-seekers who fear stark persecution.

1. State-sponsored Persecution

The German courts have generally required that all asylum-seekers demonstrate that they fear persecution by the state. 174 On its face, this requirement seems reasonable, even unexceptional. In practice, it means that persecution by powerful insurrectionary groups has been disregarded if state authority still exists. If the Algerian asylum-seeker had been tortured in Algeria not by the military, but by the Armed Islamic Group because he is a Christian, it is unlikely he would have been granted asylum in Germany so long as the government controlled a portion of Algeria. Even if the government had effectively ceded control of the region where the asylum-seeker lived to the Armed Islamic Group, the asylum-seeker would have been ineligible for asylum.

This is a narrow approach in the face of the 1951 Refugee Convention, which defines refugees as those who have a well-founded fear of persecution based on race, religion, nationality, political opinion, or social group.175 It conflicted simultaneously with the European Human Rights Convention's prohibition against sending individuals to countries where they will face torture or inhuman or degrading treatment.176 It ignored the reality that internal armed conflict within a state has been a major source of persecution and human rights violations in the last decades of the twentieth century. As current news reports from Sierra Leone have continued to depict ferocious and mutilating persecution inflicted by rebel forces who control substantial portions of the country177, it has been worse than ironic that persecution by non-state actors has been excluded from the types of persecution that entitle victims to asylum in Germany.

Recently, the German Constitutional Court indicated that this interpretation has been too narrow.178 The Constitutional Court instructed lower courts to give more weight to the acts that constitute the persecution and to focus less on the nature of the agent of persecution. It concluded that in some circumstances, a non-state actor could engage in political persecution if it effectively controlled a significant portion of territory. Although the Constitutional Court did not rule that the Afgahani asylum-seekers before it have established political persecution, instead remanding the case to the lower courts to define those circumstances that give rise to political persecution, this ruling may affect many Afghani, Somali, and Sri Lankan asylum-seekers whose asylum claims have been previously rejected.179

Regrettably, the Constitutional Court affirmed the earlier judicial ruling that those fleeing persecution by one of several rival groups, none of which controls the country, are not entitled to asylum under German law.180 In essence, Germany denies asylum to those who flee persecution if there is too much of it! No matter how credible the reports of persecution, if there are multiple sources of persecution and the situation is too anarchic, German courts will conclude that state authority has disintegrated and that, as a consequence, the asylum-seekers are ineligible for asylum.181

This interpretation is unnecessarily restrictive. It has been criticized by the UNHCR and other refugee advocates as an incorrect interpretation of the 1951 Refugee Convention.182 It defies reason to deny asylum to those who face persecution because they oppose the political stance of one or more warring groups that has not yet consolidated control over substantial portions of the territory. It violates international law to turn these asylum-seekers back to face threats to their life and liberty.

2. Internal Flight Alternative

German asylum law includes another unwarranted restrictive notion, the "internal flight alternative," which disqualifies asylum-seekers from protection in Germany if there is a safe area in their homeland to which they might have fled. On the surface, again, it may appear eminently reasonable to suggest that asylum-seekers first attempt to find a safe haven in their homeland before they flee to another country. The reality, though, is that many times it is more difficult to reach a safe area in the same country than it is to leave the country altogether. In other situations asylum-seekers might be able to reach safe regions in their homeland but are unable to speak the predominant language. In some circumstances, asylum-seekers can speak the language but find it impossible to obtain work in the safe area; without family or other support networks, life becomes impossible. In these and other situations, the practical need to survive contradicts the theoretical availability of internal flight alternatives. These legalistic approaches to the refugee definition thwart the very purpose of the 1951 Refugee Convention.183

B. Statutory Protection Against Persecution

1. "Lesser" Asylum

Implicitly acknowledging the unacceptability of denying asylum to those who face persecution but do not meet the narrow standards enunciated by the courts, German law provides several avenues of lesser protection. Section 51 of the Aliens Law forbids deportation to states where asylum-seekers' lives or freedom would be threatened on account of their race, religion, nationality, political opinion, or membership in a particular social group.14 Colloquially known as "lesser asylum," this legal provision prevents refoulement but does not provide the asylum-seeker with refugee status.

In practice, it provides a degree of protection, less than that accorded to those granted asylum, to two groups of asylum-seekers. It protects those who prove they fear persecution from groups acting without state authority. For example, the Algerian fearing persecution from the Armed Islamic Group on account of his political opinion would be eligible for "lesser asylum." Similarly, before the Taliban consolidated its control over vast portions of Afghanistan, an Afghani who feared persecution in a land where no state authority existed would have been eligible for "lesser asylum."

"Lesser asylum" also protects asylum-seekers who satisfy German authorities that they have a well-founded fear of persecution, but no longer have evidence of their particular travel route. German authorities presume these asylum-seekers came by land, passed through a safe third country, and consequently are ineligible for asylum.'85 German officials cannot send asylum-seekers back to unidentified safe third countries, however, so they stay in Germany, but without refugee status.

The former Soviet military officer with a well-founded fear of persecution in Armenia would at most be eligible for "lesser asylum" if she had no travel documents or other evidence of her route to Germany. The Congolese asylum-seeker and rape victim who entered Germany without travel documents would be in the same situation. Despite undisputed claims of persecution by government authorities, they would not be eligible for asylum in Germany and would not be guaranteed the protections afforded refugees under the 1951 Refugee Convention. They would instead be granted renewable two-year residence permits and work permits.

The Federal Refugee Office granted "lesser asylum" in 5.73% of the cases it decided in 1997.116 In 1998, only 3.69% of the applicants received "lesser asylum," but the number of cases awarding "lesser asylum" increased to 4.54% in 1999 and to 7.88% in 2000.187 "Lesser asylum" offers asylum-seekers a measure of protection from persecution. It is a mechanism by which Germany can comply with its non-refoulement obligation. At the same time, it is a mechanism by which Germany avoids affording refugees all the rights that the 1951 Refugee Convention mandates for recognized refugees. Since all those granted "lesser asylum" must demonstrate the well-founded fear of persecution required by the Convention, they should be accorded the benefits of its terms. Only the restrictive German interpretations of state persecution and the safe third country rule prevent those in "lesser asylum" status from the full protection of international law.

2. Prohibition Against Deportation

Those denied asylum and denied "lesser asylum" may apply for a less desirable status under Section 53 of the Aliens Law.188 If deportation would subject them to torture,' 89 lead to serious threats to physical safety, life, or liberty,190 or otherwise violate the European Convention on Human Rights,191 they may qualify for yet another form of protection against refoulement. They may fall into the category known as "prohibition of deportation." Those who satisfy the criteria for this protection, nevertheless, receive official deportation orders. Although deportation to their homeland is prohibited, Germany can theoretically deport them to any other country. As a practical matter, no other country will admit them, so the deportation order will not be enforced.

If the Congolese asylum-seeker mentioned earlier were denied "lesser asylum" because she presented insufficient proof that she would be singled out for persecution in the future, she might still seek an order prohibiting her deportation to the Democratic Republic of the Congo. If the German authorities concluded that the violence in her homeland is so widespread that she would face serious threats to her physical safety there, they might order this lesser degree of protection.

The German authorities typically grant asylum-seekers whose deportation is prohibited "tolerated" residence permits, known as Duldung. These permits allow them to stay in Germany for up to six months. At the end of the term, government officials may extend the permits for another short period if the conditions in the homeland have not changed. The Federal Refugee Office granted protection under this provision in 1.6% of the decisions in 1997 and 1.7% of the decisions in 1998. The numbers dropped further in 1999 and 2000 to 1.55% and 1.51%, respectively.192

3. Rejected Asylum-seekers Who Cannot Be Deported

Many asylum-seekers denied asylum, "lesser asylum," and protection from deportation under Section 53 of the Aliens Law nonetheless remain in Germany because there is no practical way to deport them. For example, over 100,000 Albanians from the province of Kosovo in Yugoslavia sought asylum in Germany in the early 1990s.193 Most had applied for asylum and had been rejected. Until 1996 the Federal Republic of Yugoslavia refused to take them back, so they remained in Germany. In late 1996 Yugoslavia agreed to readmit Yugoslav citizens according to detailed procedures.194 The repatriation moved very slowly and then stopped in the summer of 1998 due to the flight ban imposed by the EU on the Yugoslav national airline in response to violence in Kosovo.195 The Kosovar Albanians remained in Germany.

This situation is not unique to Kosovar Albanians. Smaller numbers of asylum-seekers from other countries are in the same situation. The mayor of Hamburg, for example, has complained about the inability to return approximately 3,000 foreigners to various African nations. 196

These rejected asylum-seekers who cannot be repatriated remain in Germany. They generally receive "tolerated" residence permits, or Duldung, which need to be renewed every few months. 197

4. The Duldung Dilemma

The situation of those granted short-term Duldung residence permits-both those whose outstanding deportation orders cannot be enforced because they would face serious threats to their life if returned to their homeland, and those whose countries will not readmit them-is dismal. They are allowed to work,198 but few employers will hire workers with short-term residence permission and uncertain prospects of extension.199 Even if an employer is willing to take a chance, the asylum-seeker can obtain a job permit only if the job has already been offered to and rejected by German citizens and citizens from the European Union countries.200 In practice, these asylum-seekers can remain in Germany for renewable six-month intervals but cannot obtain legal employment.

Employment obstacles exa