In recent years, Germany has taken a leading role in what is often referred to as Europe’s ‘refugee crisis’, processing more asylum claims than any of the other 27 EU member states. In September 2015, Angela Merkel, the Chancellor of Germany, made a decision that will be remembered for years to come. She decided against protecting the country’s borders with Austria and preventing hundreds of thousands of refugees coming into the country, and instead insisted in ‘letting them in’. Her slogan ‘we can do it’ (‘wir schaffen das’), that she first used at a press conference on 31 August 2015, has since been referred to as the guiding principle for her immigration policies. However, Merkel has had to defend her historical decision and immigration politics, especially after the terror attack on the Christmas market in Berlin on 19 December 2016, when demands for stricter asylum and security policies became louder and louder.
Like all asylum seekers and refugees in Germany, SOGI claimants find themselves in a country full of contradictions: a generous border politic and welcome culture (‘Willkommenskultur’), but also a not so generous asylum process and often inadequate living conditions, combined with an increasingly hostile environment (indicated, for instance, by the weekly demonstrations by PEGIDA and numerous arson attacks on asylum seeker reception and accommodation centres). For SOGI claimants, their asylum seeker status intersects with gender, ‘race’, sexuality and religion in complex ways that shape their experience.
SOGI asylum claimants often do not find a ‘safe haven’ in Germany: their experience is shaped by a difficult asylum process and missing support structures. Administrative staff are often not considerate towards the special needs of this group. For instance, being put in large accommodation centres (‘Wohnheime’), where they have to share a room with other asylum seekers and lack privacy, can be extremely difficult for SOGI asylum seekers. They often experience discrimination and verbal and physical violence not only from other asylum seekers, but also from security personnel, administrative staff and interpreters. Specialised support is rarely available. Voluntary organisations are campaigning for the state to meet the increasing need for support of SOGI asylum seekers, for instance, by establishing safe residences for them (two accommodation centres for SOGI asylum seekers exist so far – in Berlin and Nuernberg).
The right to asylum is enshrined in Art. 16a (paragraph 1) of Germany’s constitution, and implemented through § 3 (paragraph 1) of the Asylum Act (Asylgesetz – AsylG) and § 60 (paragraph 1) of the Residence Act (Aufenthaltsgesetz – AufenthG). In the two latter acts, the definition of a refugee according to the 1951 Geneva Convention on Refugees has been incorporated literally into the national law.
In 2005, Article 10 (paragraph 1) of the EU Qualification Directive 2004/83/EC was implemented into the Residence Act, recognising claims of persecution on grounds of gender identity and sexual orientation. Since then, the fear of persecution by non-state actors has been accepted in refugee claims, and the granting of refugee status on the Convention ground of ‘particular social group’ has gained significance. There seem to be discrepancies, however, in the ways in which the Federal Office and administrative courts deal with SOGI claims.
The administration of asylum is not homogeneous across Germany. The federal structure of the political system influences how asylum policies are implemented, and differences in the implementation seem to exist between the 16 federal states (especially with regard to living conditions). A particular question SOGICA will look at is how this federal structure might impact on the legal experiences and social welfare of SOGI asylum seekers and refugees.
More on Germany? Please, consult the SOGICA Database, where you will also find the table ‘German SOGI asylum case law’. You may also wish to consult our final recommendations as well: SOGICA project, ‘30 Empfehlungen zur Verbesserung des Lebens von Menschen, die aufgrund von ihrer sexuellen Orientierung oder Geschlechtsidentität (SOGI) in Deutschland Asyl beantragen‘, University of Sussex, July 2020.