Last Updated on June 1, 2021 by LawEuro
Asylum Act (Germany)
Chapter 2
Granting protection
Sub-Chapter 1
Asylum
Section 2
Legal status of persons granted asylum status
(1) In the federal territory, persons granted asylum status shall enjoy the legal status pursuant to the Convention relating to the status of refugees.
(2) Provisions granting a more favourable legal status to persons granted asylum status shall remain unaffected.
(3) Foreigners who were granted asylum status in the territory defined in Article 3 of the Unification Treaty before the accession of this territory to the Federal Republic of Germany became effective shall be regarded as persons granted asylum status.
Sub-Chapter 2
International protection
Section 3
Recognition of refugee status
(1) A foreigner is a refugee as defined in the Convention of 28 July 1951 on the legal status of refugees (Federal Law Gazette II, pp. 559, 560) if he,
1. owing to well-founded fear of persecution in his country of origin on account of his race, religion, nationality, political opinion or membership of a particular social group,
2. resides outside the country (country of origin)
a) whose nationality he possesses and the protection of which he cannot, or, owing to such fear does not want to avail himself of, or
b) where he used to have his habitual residence as a stateless person and where he cannot, or, owing to said fear, does not want to return.
(2) A foreigner shall not qualify as a refugee under subsection 1 where there are serious reasons to believe that he
1. has committed a crime against peace, a war crime or a crime against humanity within the meaning of the international instruments drawn up for the purpose of establishing provisions regarding such crimes,
2. committed a serious non-political crime outside the federal territory before being admitted as a refugee, in particular a brutal act, even if it was supposedly intended to pursue political aims, or
3. acted in violation of the aims and principles of the United Nations.
Sentence 1 shall apply also to foreigners who have incited others to commit the crimes or acts listed there or otherwise been involved in such crimes or acts.
(3) Nor shall a foreigner be a refugee under subsection 1 if he enjoys the protection or assistance of an organization or institution of the United Nations, with the exception of the United Nations High Commissioner for Refugees under Article 1, Section D of the Convention relating to the status of refugees. Subsections (1) and (2) shall apply if such protection or assistance is no longer provided, without having finally clarified the situation of those affected in accordance with the relevant resolutions of the General Assembly of the United Nations.
(4) A foreigner who is a refugee under subsection 1 shall be granted refugee status unless he meets the requirements of Section 60 (8), first sentence, of the Residence Act or the Federal Office has decided not to apply Section 60 (1) of the Residence Act pursuant to Section 60 (8), third sentence, of the Residence Act.
Section 3a
Acts of persecution
(1) Acts of persecution within the meaning of Section 3 (1) must
1. be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
2. be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in no. 1.
(2) Acts of persecution as referred to in subsection 1 may among others take the form of:
1. acts of physical or mental violence, including acts of sexual violence;
2. legal, administrative, police or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
3. disproportionate or discriminatory prosecution or punishment;
4. denial of judicial redress resulting in a disproportionate or discriminatory punishment;
5. prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Section 3(2);
6. acts which are of a gender-specific nature or are directed against children.
(3) There must be a connection between the grounds for persecution listed in Section 3 (1) no. 1 in conjunction with the grounds for persecution listed in Section 3b and the acts defined as persecution in subsections 1 and 2 or the lack of protection against such acts.
Section 3b
Grounds for persecution
(1) When examining the grounds for persecution as defined in Section 3 (1) no. 1, the following shall be taken into account:
1. the concept of race shall in particular include considerations of skin colour, descent, or membership of a particular ethnic group;
2. the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of views, or forms of personal or communal conduct based on or mandated by any religious belief;
3. the concept of nationality shall not be confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another state;
4. a group shall be considered to form a particular social group where in particular:
a) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
b) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;
a particular social group may include a group based on a common characteristic of sexual orientation; this shall not include acts punishable under German law; if a person is persecuted solely on account of their sex or sexual identity, this may also constitute persecution due to membership of a certain social group.
5. the concept of political opinion shall in particular include the holding of an opinion, thought or belief on a matter related to the potential agents of persecution mentioned in Section 3c and to their policies or methods, irrespective of whether or not the foreigner has acted upon that opinion, thought or belief.
(2) When assessing whether an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic leading to persecution, provided that the agent of persecution attributes such a characteristic to the applicant.
Section 3c
Agents of persecution
Agents of persecution may include:
1. the state,
2. parties or organizations which control the state or substantial parts of the national territory, or
3. non-state agents, if the agents referred to under nos. 1 and 2, including international organizations, are demonstrably unable or unwilling to offer protection from the persecution within the meaning of Section 3d, irrespective of whether a power exercising state rule exists in the country.
Section 3d
Agents of protection
(1) Protection against persecution can only be provided by
1. the state or
2. parties or organizations, including international organizations, controlling the state or a substantial part of the territory of the state,
to the extent that they are willing and able to provide protection as defined in subsection 2.
(2) The protection against persecution must be effective and not of a temporary nature. Protection is generally provided when the agents mentioned in subsection 1 take reasonable steps to prevent the persecution, for instance by operating an effective legal system for the investigation, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.
(3) When assessing whether an international organization controls a state or a substantial part of its territory and provides protection as described in subsection 2, any guidance which may be provided in relevant legal acts adopted by the European Union are to be taken into account.
Section 3e
Internal protection
(1) A foreigner shall not be granted refugee status
1. if he does not have a well-founded fear of persecution or has access to protection against persecution under Section 3d in a part of his country of origin and
2. if he can safely and lawfully travel to this part of the country, will be admitted there and can reasonably be expected to settle there.
(2) In examining whether a part of the country of origin meets the conditions in subsection 1, the authorities shall, when deciding on the application, take into account the general circumstances prevailing in that part of the country and the personal circumstances of the applicant in accordance with Article 4 of Directive 2011/95/EU. To this end, detailed and accurate information from relevant sources such as the United Nations High Commissioner for Refugees or the European Asylum Support Office shall be obtained.
Section 4
Subsidiary protection
(1) A foreigner shall be eligible for subsidiary protection if he has shown substantial grounds for believing that he would face a real risk of suffering serious harm in his country of origin. Serious harm consists of:
1. death penalty or execution,
2. torture or inhuman or degrading treatment or punishment, or
3. serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
(2) A foreigner shall not be eligible for subsidiary protection pursuant to subsection 1, if there are serious grounds to believe that he
1. has committed a crime against peace, a war crime or a crime against humanity within the meaning of the international instruments which have been drawn up for the purpose of establishing provisions regarding such crimes,
2. has committed a serious crime,
3. is guilty of acts contrary to the objectives and principles of the United Nations, as enshrined in the Preamble and Articles 1 and 2 of the Charter of the United Nations (Federal Law Gazette 1973 II, pp. 430, 431), or
4. represents a risk to the general public or to the security of the Federal Republic of Germany.
These grounds for exclusion shall apply also to foreigners who incite others to commit the crimes or acts listed above or are otherwise involved in such crimes or acts.
(3) Sections 3c to 3e shall apply accordingly. Persecution, fear of persecution or the well-founded fear of persecution shall be replaced by the fear of serious harm, the protection against serious harm or the real risk of serious harm; the refugee status shall be replaced by subsidiary protection.
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