‘You are welcome here’, said Federal Chancellor Olaf Scholz in the Bundestag at the beginning of April 2022. He was referring to the people fleeing the Russian war of aggression in Ukraine. The German authorities registered more than 700,000 refugees within three months of the fighting beginning. And the solidarity is indeed great. For the first time, Germany and the other EU states made use of the ‘mass influx directive’ as an EU-wide instrument to quickly and unbureaucratically offer Ukrainians protection. They do not have to apply for asylum or endure a lengthy approval process. It is clear that anyone fleeing this war, which violates international law, will receive support.
It is exactly what needs to be done in a situation like the war in Ukraine. The fact that it was actually done is remarkable. Whether this willingness to help will last, whether it will ultimately even herald a paradigm shift towards a more humane refugee policy, remains to be seen. For as much as Germany has for decades liked to boast about its humanity towards refugees, and as much as the country likes to emphasise that it always bears the brunt of the burden, it is also true that Germany has in recent decades repeatedly responded to large influxes of refugee by tightening asylum laws.
On 26 May 1993, the Bundestag voted on the amendment to the Basic Law that is succinctly remembered as the ‘asylum compromise’. What the parliamentarians decided upon was a huge blow to fundamental rights in Germany. A blow felt to this very day.
An enforceable fundamental right to asylum
‘The politically personated shall enjoy the right to asylum.’ It was no coincidence that this sentence found its way into the German Basic Law in 1949 as part of Article 16. It was one of the consequences of the human rights violations of National Socialism and the bitter realisation that far too many people who tried to flee at the were stopped by closed border. Upon its founding, the Federal Republic of Germany established an enforceable fundamental right to asylum.
A fundamental right, but one that only lasted until people actually made use of it. In the 1990s, the number of asylum seekers rose sharply. People were fleeing the wars in the Balkans, the civil wars in Congo and Burundi, the collapse of the Soviet Union. In 1992, almost 440,000 people applied for asylum, around twice as many as in the previous year. The local authorities were not prepared to care for and accommodate so many people.
Suddenly there was talk of ‘asylum abuse’. Right-wingers and neo-Nazis repeatedly attacked the asylum seeker and contract worker accommodations. In 1991 in Hoyerswerda, up to 500 people took part in racist riots, and the police did not stop them. In August 1992, more than 1,000 racists and right-wing extremists besieged the central reception centre for asylum seekers and the ‘Sonnenblumenhaus’, a hostel for Vietnamese contract workers, in Rostock-Lichtenhagen for several days. They threw Molotov cocktails and set fire to the building, home to over 100 people. The police left them to it for quite some time, and the fire brigade initially had no access to the building. It was only by luck that no one was killed.
Against ‘asylum abuse’
Politicians and society reacted with horror. They quickly identified the culprits. However, it was not the perpetrators of the violence who they singled out. Berndt Seite, CDU politician and then Minister President of Mecklenburg-Western Pomerania, declared at a press conference during the riots that, ‘The incidents of the past few days make it clear that an amendment to the asylum law is urgently needed because the population is being overwhelmed by the unchecked influx of asylum seekers.’ He received support from his party colleague Rudolf Seiters, then Federal Minister of the Interior. ‘We must take action against abuse of the right of asylum’, he explained. He hoped that the SPD would then finally be prepared to clear the way for an amendment to the Basic Law – which then, as now, required a two-thirds majority in parliament.
And the Social Democrats were indeed ready. Despite massive counter-protests by the civilian population, on 26 May 1993, parliament passed a reform to asylum law by a large majority with votes from the governing CDU/CSU and FDP parliamentary groups, as well as the opposition SPD, to prevent ‘asylum abuse’. 521 MPs voted in favour, just 132 against.
The sentence ‘The politically personated shall enjoy the right to asylum’ was supplemented by so many amendments under Article 16a that hardly anyone now qualifies. Disqualified is anyone travelling from a so-called safe country of origin or fleeing to Germany via a country that is classified as safe, including every single EU country.
For Germany, located in the centre of the EU, this is a convenient solution. Today, less than one percent of asylum seekers receive protection under the provisions of the Basic Law. Instead, it is the Geneva Refugee Convention and EU law which apply.
Carelessness
The German decision on asylum law had consequences. Germany shifted its responsibility to its neighbouring countries, who in turn followed suit. Today, the Dublin Regulation applies in EU asylum law: people must apply for asylum in the country in which they entered the EU. The problem has been pushed to the margins; the EU has long since become ‘Fortress Europe’, with thousands of people seeking protection drowning along its maritime borders every year.
Above all, however, a reversal of blame has repeatedly come to bear in recent years: if Germany has not created the structures necessary to accommodate people seeking protection in a humane manner and process their asylum applications, then it is not the fault of the German politicians or bureaucracy – It is the fault of those seeking protection. And if their lives are threatened by racists and right-wing extremists, then it is also their own fault – because too many of them have dared to flee.
As in relation to the refugees fleeing Ukraine, society was initially very open and willing to help in the years from 2015 onwards, when people were fleeing the cruel civil war in Syria or death and violence in Afghanistan. Yet, think of the former CSU regional group leader Alexander Dobrindt, who soon spoke of ‘asylum tourism’, and former Interior Minister Horst Seehofer, who called migration the ‘mother of all problems’. And think of the countless arson attacks on refugee accommodations, the manhunts in Chemnitz, the ‘Patriotic Europeans against the Islamisation of the Occident’ and the rise of the AfD – and how the German government responded with an asylum law reform that critics rightly coined the ‘Hau-ab-Gesetz’ (‘Get Out Law’) in view of the many restrictions it introduced.
So far, the current improvements only apply to Ukrainians and people with a permanent residence permit in Ukraine. However, the coalition government has promised many improvements in its coalition agreement. It announced a ‘new beginning’ and a ‘paradigm shift’ in migration and integration policy. However, that was before hundreds of thousands of people fleeing war and violence once again sought refuge in Germany.
It is therefore important to remember how carelessly Germany relegated the fundamental right to asylum to insignificance in 1993. Whether the German government keeps its promise of a more humane asylum policy also depends on the vehemence with which civil society demands it.
