Whoever is granted protection can stay in Germany after completion of the process to seek political asylum. There are different protection grounds upon which a person can be granted asylum. The different forms of protection have different prerequisites and rights associated with them. If you apply for asylum in Germany, the Federal Office for Migration and Refugees (BAMF) determines, in a fixed order, whether one of these forms of protection apply to you. The decision is based on the reasons of why you cannot return to your home country.
Refugee recognition according to the 1951 Geneva Refugee Convention
A refugee is a person who is located outside his/her home country, because he/she is threatened by serious human rights violations that are linked to race, religion, nationality, political conviction or because he/she belongs to a particular social group. A refugee is thus somebody who is persecuted due to his/her convictions or identity and who can therefore not live in his/her home country. As the native country of said persons does not protect them from this threat, they need (to seek) protection in another country.
There is not a big difference between refugees and those with a right to asylum. The two forms of protection are mainly based on different legal foundations. The protection of refugees is anchored in the 1951 Geneva Refugee Convention and the Protocol of 1967; the protection of those entitled to asylum is defined in the German constitution, the German Basic Law. Yet the reasons for recognition are essentially the same. As in asylum law, you cannot be recognised as a refugee if there is a secure region in your country of origin where you could seek safety and secure your livelihood.
If you have been recognised as a refugee, you are entitled to a residence permit that will initially be issued for three years. If the situation in your home country has not improved within this period of time, the residence permit will be extended.
Right to asylum according to the Constitution
The German constitution grants asylum to those who are victims of political persecution. However, this only applies if you did not travel to Germany from a so-called safe third country. All member states of the EU as well as Norway and Switzerland are considered safe third countries, thus including all neighbouring countries of Germany. Consequently, asylum as defined by the Constitution will not be granted to persons who access Germany via an overland route. For this reason only a relatively small number of people receive asylum according to Article 16a of the Constitution.
If you entered Germany by plane, you will be recognised as a person entitled to asylum if you would be threatened by political persecution (in the event of a) upon return to your home country. Political persecution is usually assumed to mean danger to life and limb, imprisonment or other violations of human dignity on the basis of race, religion, nationality, political convictions or belonging to a particular social group. In principle, the political persecution has to be coming from the state. Persecution by another group will only be recognised as a reason for flight if this group is suppressing the state or the state does not adequately protect its citizens. In addition, the persecution has to specifically and systematically target a person or group. It is not a case of political persecution if you are suffering the general consequences of war or natural disasters. Status as a person entitled to asylum will also not be granted if there is a secure region in your country of origin where you could seek safety and secure your livelihood.
When you have been recognised as entitled to asylum, you will receive a residence permit, which allows you to live in Germany for three years. If the situation in your country of origin does not change within this time, your residence permit will be renewed.
A person receives subsidiary protection if he/she is not individually threatened by political persecution but is nevertheless threatened with serious harm caused by human rights violations in his/her home country. This is the case if a person faces the threat of a death penalty, torture, inhumane or demeaning treatment or punishment. Another serious threat is the endangerment of a civilian’s life or bodily integrity due to armed conflict. The subsidiary protection can also apply to situations of general dangers to which civilians could be exposed during war; however, according to German practice this only applies if there is a high risk that violence against civilians may cause death or serious injury.
If you receive subsidiary protection, you have the right to a residence permit, which allows you to live in Germany for at least one year. If the situation in your home country has not improved within this time, your residence permit will be extended for another two years.
National ban on forced return
If you do not fall in the categories of refugees, persons entitled to asylum, or persons entitled to subsidiary protection, the Federal Office checks in a last step if there are other reasons why you should not be returned to your home country. For instance, this may be the case if you are suffering from a serious illness that cannot be treated in your country of origin. You would then receive a residence permit for at least one year with the possibility for renewal.
If you are physically not in the position to travel or do not have a passport, this will not grant you protection from forced return. In such cases the Immigration Office merely examines whether you may stay in Germany temporarily.