Subsidiary Protection instead of Full Refugee Status Complicates Family Reunification

The legal requirements of the Second Asylum Seekers Package came into force in Germany on 17 March 2016. This legislation brought with it serious consequences in terms of family reunification for both spouses and children of the persons entitled to subsidiary protection, as well as the parents of minors. The protection offered by the asylum legislation covers both international protection – i.e. refugee status¹A foreigner is a refugee if he, owing to a 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, resides outside the country of origin, Section 3 (1) of the Asylum Act (AsylG). – and the right to subsidiary protection in accordance with European Union requirements. Subsidiary protection is granted to refugees under threat resulting from an international or internal armed conflict²Section 4 of the Asylum Act:

(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 be excluded from being eligible for subsidiary protection pursuant to paragraph 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..

Unlike persons entitled to asylum under the Geneva Convention, on the grounds of individual persecution and refugee status, individuals in need of subsidiary protection are initially granted the right of residency for one year. Apart from this, within the framework of the Common European Asylum System, subsidiary protection was widely adjusted to the Geneva Convention in material aspects.

It was just a year ago that Section 29 of the Residence Act (AufenthG) was amended  to give persons under subsidiary protection  the same family reunification rights as those granted to refugees under the Geneva Convention. This meant they were entitled to a subjective claim to family unity³Section 29 (2) of the Residence Act, recast by the Act from 27.7.2015 (BGBl. 2015 I 1386) . However, after eight months, the new Section 104 (13) of the Residence Act⁴Section 104 (13) reads as follows: Family reunification of persons who are in possession of a residence permit issued pursuant to Section 25 (2) sentence 1, second alternative after 17 March 2016 is not to be granted before 17 March 2018. In the case of foreigners who were granted a residence permit pursuant to Section 25 (2) sentence 1, second alternative after 17 March 2016, the period given by Section 29 (2) sentence 1, no. 1 begins from 16 March 2018. Sections 22 and 23 remain unaffected. withdrew family reunification for individuals under subsidiary protection. Now, an application to reunite the family can  be submitted only after a two-year period of residence in Germany. If procedural times are to be taken into account, this may result in several years of family separation or a failure to reunite, e.g. in the case of a minor reaching adolescence during this period. It is not a rare occurrence for such proceedings to take up to five years. Refugee support initiatives report that since the changes were introduced, Syrian refugees have been increasingly granted subsidiary protection only. Such claims are supported by statistics. As of August 2016, around 225,000 Syrian citizens have submitted political asylum applications or applied for refugee status under the Geneva Convention. Around 51,000 of them were granted subsidiary protection only. Comparatively, during the whole period of 2015, only 61 Syrian citizens were recognised as beneficiaries of subsidiary protection⁵Out of 158,657 primary applications by Syrian citizens submitted in 2015, 132,846 were granted refugee status. As of August 2016, 78,426 Iraqi citizens have submitted their primary applications. 17,661 of them were recognised as refugees, while 3,277 received a subsidiary protection status (see Bundesamt für Migration und Flüchtlinge (BAMF), Asylgeschäftsstatistik 2015 und August 2016). See also: European Asylum Support Office, Annual Report, July 2015, p. 24-28, for a EU-wide survey..

Putting family reunification on halt for two years, disguised as a transitional regulation, turns out to be a central element of refugee control. Both refugee support initiatives and humanitarian organisations such as the German Institute of Human Rights and Diakonie, supported by the lawyer associations see this as a threat to the protection of family unity guaranteed by the fundamental human rights. Suspending family reunification for two years with no exceptions may also result in women and children feeling forced to risk a dangerous crossing of the Mediterranean, as there would be no secure way to follow their families to their new countries of residence. The business of people smuggling would further increase.

A violation of human rights?

The new regulation is obviously motivated by the wish to restrict the reception of refugees. It has been criticised for lacking in justification, both in constitutional terms and at the European and international level, against the background of highly held value of family unity. The right to family life is not only enshrined in the Basic Law for the Federal Republic of Germany (Article 6), but also in the European Convention on Human Rights (Article 8) and not least in international legislation, as in the UN Convention on the Rights of the Child. Although the Federal Constitutional Court – as well as the European Court of Human Rights – has denied deriving the claim to enter the country by foreign nationals from Article 6 of the Basic Law, they support the view that the essential right to the unity of a family is relevant for family reunification. They have stated that the wish to maintain the unity of a family can be rejected for “a limited period” only. However, the case in question did allow for maintaining the unity of the family in the country of origin; a situation that is impossible with the refugees escaping civil war. Pointing out the option of living together in a third country is, as a rule, not sustainable. This is why suspending the right to family reunification is an impermissible intervention in a basic right as provided by the Article 6 of the Basic Law.

The ECtHR has approved a subjective right to join the family from abroad, at least in a few individual cases, where claimants were facing  extreme hardship. In individual cases, it is especially important to consider whether family unity could be maintained elsewhere and / or if it was given up deliberately. In case of unaccompanied minors there is a differentiation based on their age. The European Court of Justice has ruled against reuniting children over the age of  12 in one of its verdicts; however, it has pointed out that according to European fundamental rights, a different verdict could be possible in an individual case. In the European Parliament case considering the directive on the right to family reunification, the European Court of Justice has found the two-year waiting period lawful. Nevertheless, it has also suggested that in individual cases, a different consideration might be necessary. As long as there is no other possibility to restore the unity of the family and the separation had happened due to a situation akin to civil war, there is also a right to receive a residence permit for family members derived from Article 8 of the European Convention on Human Rights⁶Huber, AufenthaltsG, Kommentar 2016, § 29 AufenthG, Rdnr. 7. Such decision is also supported by  Article 3 of the German Basic Law, particularly the equality principle. Based on the fact that neither the individuals entitled to asylum nor refugees under the Geneva Convention nor persons under subsidiary protection can maintain their family unity in their country of origin or in a third country, the only difference between these groups is that those under subsidiary protection are initially granted the right of residence for one year. It does not suffice as a factual reason for unequal treatment in terms of family reunification.

The Common European Asylum System

Moreover, the suspension of family reunification for two years violates the extended refugee definition provided by the Common European Asylum System⁷Qualification Directive 2011/95/EU. The national legislation on asylum usually grants the same refugee status as the Geneva Convention. The EU Qualification Directive, in turn, lays out an extensively equal treatment of those under subsidiary protection and those with the same refugee status as provided by the Geneva Convention. Here, international protection not only applies to the refugees, but also to the beneficiaries of subsidiary protection⁸Article 15 of the Directive 2011/95/EU was implemented in the domestic legal system as Section 4 of the Asylum Act. Many authors derive the right to receive a residence permit for the purpose of family reunification from the Article 23 and Article 24 (2) of the Directive. According to Article 23, the Member States shall ensure that the family unity is maintained⁹See also: Administrative Court Frankfurt (Verwaltungsgericht Frankfurt), verdict from 30.5.2007, NVwZ-RR 2007,634. It is debatable whether this rule applies only to the family members present in the recipient country or includes the spouses and children still living abroad. The Qualification Directive was recast in 2011, whereby a following phrase was removed: “in so far as the family members of beneficiaries of subsidiary protection status are concerned, Member States may define the conditions applicable to such benefits”. As a result, many have seen this as confirmation of the legal view that the beneficiaries of subsidiary protection need to receive treatment equal to the refugees under the Geneva Convention with regards to family reunification.

Individuals entitled to subsidiary protection are granted the right to stay in Germany if there is, e.g. a threat of torture or war in their country of origin. However, their core families, including their spouses and minor children, need the same amount of protection.

Minor children

Family reunification is also suspended for parents who wish to be reunited with their minor children. It was not before the start of the legislative process that a sentence was added stating that Sections 22 and 23 of the Residence Act, according to which a residence permit might be granted on the grounds of humanitarian urgency, “remain unaffected”¹⁰Section 22 reads as follows: A foreigner may be granted a residence permit for the purpose of admission from abroad in accordance with international law or on urgent humanitarian grounds. A residence permit shall be granted if the Federal Ministry of the Interior or the body designated by the Federal Ministry of the Interior to uphold the political interests of the Federal Republic of Germany has declared that the foreigner is to be admitted. In the case of sentence 2, the residence permit shall entitle the holder to pursue an economic activity.. This “hardship case rule” cannot be considered an adequate solution, because it only points at the legal reception options for urgent humanitarian reasons. It is not meant to serve as a basis or construct for family reunification or the parents following their children.

The separation of parents and children violates Articles 9 and 10 of the UN Convention on the Rights of  the Child (CRC). In accordance with Article 10 of the CRC, applications made by a child or their parents for the purpose of family reunification shall be dealt with by the States Parties “in a positive, humane and expeditious manner”. With regards to its content, Article 10 does not provide any rules of family reunification, however, there is a requirement to act positively within the framework of the domestic sphere of competence.

While interpreting Article 10 of the CRC, Article 3 of the CRC should also be taken into consideration. It states that in all decisions by the State concerning children, the best interests of the child should be of primary consideration. This means that not only should the applications be dealt with in a positive and expeditious manner, but also the child’s best interests should be considered. Article 4 of the CRC requires the States Parties to undertake measures to implement the rights as recognised in the Convention at the domestic level. Yet if the new Section 104 (13) of the Residence Act is to follow, then as a rule, the applications made by minors or their parents should be refused without examining the child’s best interests. The requirements of the Convention on the Rights of  the Child can  be met only if in such cases, as a rule, the humanitarian reasons according to Section 22 of the Residence Act are examined. This is why a literal application of the Section 104 (13) of the Residence Law contradicts the provisions of the Convention on the Rights of  the Child and is unlawful. An interpretation of the CRC, that would follow the international law, would result in a regular examination of whether the child’s best interests would demand family reunification. Then Section 104 (13) of the Residence Law would be rendered obsolete to the benefit of the provisions of the CRC regarding minors.

It is yet to be seen, how the courts will rule. However, suspended family reunification has proven a failure in terms of integration policies. It creates new legal uncertainties and contradicts the reality of life where reunited families and their children put a greater effort into adapting to their receiving country both in terms of profession and of culture and language, as compared to those whose worries and fears are anchored to the war-torn country where their family members still live.

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