Refugee Law: Hyperactive legislator fragments protection system
In order to deal with the so-called "refugee crisis", the German legislator has enacted over 35 amending laws since 2014. This legislative hyperactivity did not only have negative consequences for the functioning of the protection system as a whole, but also for the rights of people seeking protection. This is the result of an in-depth legal analysis by Dr Constantin Hruschka and Tim Rohmann, which was conducted at the Max Planck Institute for Social Law and Social Policy. It has now been published open access in the journal International Migration.
With the multitude of legislative changes, the German state, acting in "crisis mode", increasingly brought exclusionary mechanisms to the fore. Instead of measures for integration, the legislator focused on fast-track asylum procedures and deportations, and also created new possibilities to impede social participation, for example by denying access to social rights. The crisis mode, fuelled by singular events such as “Cologne new years eve” or the terrorist attack in Berlin in 2016, resulted in the fragmentation of asylum and migration law that poses considerable difficulties in its application, limits integration opportunities and risks undermining basic human rights protection standards.
For example, the formerly unified legal status as "asylum seeker" has been subdivided by using the country of origin as a justification for differential treatment, which is not only in conflict with the principle of equal treatment but also detrimental to the overall coherence of the legal framework. Likewise, the legislator has further fragmented the formerly largely unified rules for the provision of a toleration status ("Duldung") by introducing ambiguous legal requirements that can hardly be met by asylum seekers.
Since return decisions of persons with a toleration status are not enforceable, the legislator, having no concepts to end this legal limbo situation, moved forward and limited the access to social rights, to residence permits and to freedom of movement. Furthermore, the threshold for the expulsion of persons that are alleged to constitute a security threat has been significantly lowered.
In order to reduce so-called pull factors, the legislator took back many of the previously granted reliefs. In addition, it classified further states as safe countries of origin (Albania, Montenegro, Kosovo) and imposed, among others, a general employment ban on persons from these states.
In sum, the hyperactivity of the German legislator leads to violations of the norms laid down in EU law and international law as well as national law. In their contribution, the authors therefore call on the legislator to live up to its responsibility to regulate essential societal issues that potentially interfere with fundamental rights and to provide for a coherent legal framework that safeguards fundamental rights.
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