Migrants in Germany suing government in increasing numbers
By ISAAC STANLEY-BECKER | The Washington Post | Published: July 26, 2017
BERLIN — The refugee wave that buffeted Germany in 2015 is now crashing down on the nation's courts, as migrants seeking relief from the Syrian civil war challenge efforts by one of Europe's most welcoming states to limit their rights.
Some 250,000 asylum appeals are pending across Germany, according to estimates from an association of administrative court judges. Nearly 13,500 are ongoing in the capital alone, part of a tenfold increase over the past year.
Stephan Groscurth, a spokesman for Berlin's administrative court, said the appeals — filed by the growing number of migrants who have been denied protection or given less than they were seeking — make up two-thirds of court business. "This will paralyze us for years," a judge told Der Tagesspiegel, a German daily based in Berlin.
The courts are the last bastion of hope for Amira Suleiman, 44. She has not seen her husband or 12-year-old son for two years — not since she fled to Germany from Syria, setting out from the Palestinian refugee camp at Yarmouk, a war-ravaged place in Syria that had once been their home.
The separation was supposed to be temporary, as family reunification is a right owed to refugees under European law. But Suleiman isn't a refugee, according to Germany's Federal Office for Migration and Refugees.
Instead, the migration office assigned her only subsidiary protection status that carries no right of family reunification, recognizing that she may suffer harm in her country of origin but denying her protection as a refugee. Hundreds of thousands are in the same position, as Germany has substantially reduced the rate of refugee claims it accepts.
"I have no other way of making my family whole again," Suleiman said. "I thought this was my right, and when I heard, I thought, 'How could this possibly be?' "
She filed an appeal last December. A half-year later, she is still waiting for a decision.
The conflict over subsidiary protection and family reunification remains in the shadows of an intensifying global debate over the duty of nations to aid refugees. A recent flash point is the situation on the Mediterranean Sea, where a record number of people died last year fleeing war and poverty in North Africa.
But the debate's throbbing heart is still Germany, whose chancellor, Angela Merkel, said last week she would not cap the number of asylum seekers her country would admit.
In 2015, she welcomed more than a million migrants, saying, "We can do this" — a declaration of German resolve tinged with enduring national guilt over the crimes of the Nazi past. But now, thousands of asylum seekers are taking her government to court for denying them protection under the 1951 Geneva Conventions on refugees.
Many have won.
Asylum seekers from Syria have seen a nearly 90 percent success rate on appeal, according to the federal migration office, although higher courts have reversed some of these decisions. The overall success rate for asylum seekers appealing their decisions is lower, but it has also climbed in recent years.
An administrative court judge in Berlin, Kai-Christian Samel, said the task is deciding whether migrants "are as individuals subject to political oppression or if they are just in fear of indiscriminate danger." This is also what the migration office is charged with doing.
"The courts are cleaning up the mess," said Nora Markard, a law professor at the University of Hamburg. "The success rate tells us how important judicial review is — and how important it is for people to have legal representation."
The surge of appeals reveals the precariousness of policies adopted by the European Union's largest state to address the most extreme displacement of people since World War II. It comes as the German government pivots to limit migrants' rights, spurred by public opinion that has turned against an open-door policy following attacks carried out by militants from Muslim-majority countries.
The cases reflect the resistance of asylum seekers to a reinstatement of Europe's old border regime. And they point to the critical link between migration and family reunification, knotted issues also under scrutiny in American courts weighing the legality of the Trump administration's travel ban.
But the backlog in German courts also shows how policy changes geared toward efficiency — the goal pursued by Germany in signing a 2015 contract with McKinsey & Co. to streamline its asylum procedures — can backfire, trading one bureaucratic morass for another, with high stakes for people, such as Amira Suleiman, caught in between.
Suleiman was denied refugee status following an interview in November 2016, more than a year after she had filed for asylum. In the three-hour interview, she explained how she had been born in Yarmouk, how she had seen rapes and torture, how a rebel sniper had threatened to kill her, how she had cancer and was being treated in Berlin.
She expected Germany to recognize her as a refugee - a status hinging, under Geneva guidelines, on "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion."
She had good reason to be confident, according to experts, who said Palestinians should qualify as refugees on leaving U.N. sanctuary.
"For me, that would be a clear-cut refugee case," said Constantin Hruschka, an asylum lawyer formerly with the Office of the U.N. High Commissioner for Refugees in Germany and Geneva.
But the migration office found no evidence of "concrete threats or attacks that are so severe that they are violations of fundamental human rights," it wrote.
Subsidiary protection allows Suleiman a one-year residence permit, instead of the three years for refugees, and imposes more stringent qualifications for obtaining a long-term license to stay in Germany. Otherwise, it affords many of the entitlements granted to refugees, including unrestricted access to the labor market.
But in legislation passed in February 2016, the German Parliament stripped the right of family reunification from migrants with subsidiary status. The restriction is set to remain in effect until at least March 2018. It accompanied a raft of changes, promoted by the conservative wing of the ruling coalition, that included fast-track asylum centers, expedited denial for certain classes of migrants and broader grounds for expulsion.
Simultaneously, the Interior Ministry instructed the federal migration office to abandon written procedures that classified migrants from Syria as refugees. Instead, it required individual interviews, a more discretionary system that enabled officials to grant only subsidiary protection to multitudes of asylum seekers.
Thomas de Maizière, the German interior minister, had broadcast the changes as early as November 2015, saying of Syrian asylum seekers, "We're telling them, 'You will get protection, but only so-called subsidiary protection - that is to say, for a limited period and without family unification.' "
A March 2016 letter from Aydan Özoğuz, Germany's commissioner for immigration, refugees and integration, assured a refugee law clinic in Hamburg that the Interior Ministry had not directed the federal migration office to favor the lower status.
What is now clear, however, is that asylum policy has reversed course.
Just 0.6 percent of migrants from Syria who received asylum decisions in 2015 were granted subsidiary status; 41 percent in 2016; 60 percent so far in 2017.
The federal migration office denies making a policy decision to rely on subsidiary status. The director of the office, Jutta Cordt, said officials "evaluate every individual refugee story very carefully and grant subsidiary protection if a person has not been individually persecuted but fled from civil war."
But for Christoph Strässer, former commissioner for human rights policy and humanitarian aid, this explanation isn't plausible. He sees the extraordinary increase in the use of subsidiary status for asylum seekers from Syria, who are in no less danger today than they were two years ago, as confirmation of the concerns that led him to resign his position when lawmakers adopted the restrictive measures.
"We have been duped," Strässer said. When the rule suspending family reunification was under consideration, he recalled, "the Interior Ministry claimed that a maximum of 1,500 people would be affected by this."
But the asylum center in his Münster constituency, he said, "confirmed that there had been instructions by the Interior Ministry to increasingly give subsidiary protection to Syrians."
Experts said this violates international law.
"If they are really motivated by the desire to avoid family reunification to persons who are in fact refugees," said James C. Hathaway, a professor of refugee law at the University of Michigan, "that's both legally and morally wrong."
That is the gist of Suleiman's appeal. And without a decision from the court, her attorney, Oda Jentsch, said, "every day is torture."
Suleiman's husband tells her to give up and go back to Syria; that way, at least, they would be together. But her lawyer promises there soon will be a verdict.
"I try to forget and live normally," Suleiman said. "But I want a permanent solution."