Lack of data as an obstacle to addressing statelessness in the context of the refugee crisis in Germany

Helena-Ulrike Marambio, Postgraduate Researcher - University of Essex
/ 6 mins read

Getting a clear picture of the situation of stateless people in Germany is tricky because information provided by the authorities is scattered and incomplete. Moreover, the complexity of the domestic law, the absence of a dedicated statelessness determination procedure, and the German language pose several barriers for those wishing to navigate and/or understand the legal and administrative system.

Against the background of the highest refugee influx into the country, in particular from Syria which includes stateless Kurds and Palestinians, the lack of attention or understanding of statelessness appears surprising. Actual data indicate an increasing number of stateless people entering Germany over the past years. Thus, the question arises why the matter of statelessness and the protection of the individual have not been given more attention? Simple accessible materials on what it means to be stateless and what measures have to be taken that allow a stay in Germany, remain missing. While there exist numerous simplified, easy accessible orientation materials, including in various translations, on the asylum procedure to obtain refugee status, clear guidance for a temporary residence permit or naturalization of stateless people is rare.

This gap may be due to the following two reasons. Firstly, statelessness status does not lead to a specific protection ground despite Germany’s ratification of the 1954 Convention relating to the Status of Stateless Persons in 1977. There does not exist any specific procedure to determine statelessness. Secondly, the high number of people entering Germany requires short processing periods of asylum applications and quick integration of refugees into society. Therefore, actual statistics give reason to believe that German authorities may circumvent the problematic and time consuming procedure to gather evidence to establish statelessness, by instead simply granting refugee status to the majority of categorized stateless people. This also seems to apply to individuals with unclear or undetermined nationality. However, such observation is largely anecdotal and can only be made with care due to the lack of statistics provided by the authorities who do not distinguish between stateless people whose responsible authority has determined them as such, and those who await official recognition.

In Germany, there are two overall administrative and legal procedures to deal with stateless people: Firstly, according to the Qualification Directive 2011/95/EU, stateless people can seek international refugee protection (section 3(1) of the Asylum Act) and subsidiary protection (section 4(1) of the Asylum Act) (Asylgesetz). Both statuses can be granted in a fast track procedure. Alternatively, stateless persons can obtain a temporary permit to stay by appealing for a temporary toleration (Duldung) based upon the impossibility to leave the country (section 60a of the Residence Act) or factual grounds. Factual grounds refer to the status of undetermined nationality, and the lack of cooperation of the State of origin. From the perspective of the individual, a lack of cooperation to receive any possible documents and information is not a bar from obtaining a toleration certificate. However, it may be an obstacle to receive a temporary residence permit (Aufenthaltserlaubnis) which can be issued after 18 months based upon humanitarian reasons when the departure is impossible in fact or in law, and the obstacle to deportation is not likely to be removed in the foreseeable future (section 25(5) Residence Act). Nevertheless, in practice, the administration does not always grant a temporary residence permit after a period of 18 months on toleration, and many cases are resolved by the courts in the end.

Data on the number of people applying under either of these routes, and their administrative results, are puzzling as well as lack detail and transparency. Beyond that, information is not easily discoverable and accessible. Besides the publications by the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF), researchers can try to fill information gaps through additional evidence provided by the European Migration Network (EMN) and the parliamentary enquiries (Anfragen) of MPs to the German government. In both cases, data are solely provided upon request to the authorities, either through ad-hoc enquiries, or a brief or a large parliamentary enquiry (Kleine oder Groβe Anfrage). Overall, solid data on stateless people and stateless refugees in Germany remain rare despite a slowly growing incorporation into statistics.

Asylum-seekers are categorized in four different clusters before the application procedure is started in order to speed up the processing time. Stateless people fall under cluster C labelled as ‘complex cases’. There appear no data on the number of people who were identified as stateless, except for the numbers of travel documents issued under article 28 of the 1954 Convention which requires contracting parties to issue travel document to legally residing stateless persons. Thus, between 2010 and 2014, the number of travel documents issued raised from 470 to 2,319 (2010:470; 2011: 664; 2012: 1,720; 2013: 1,990; 2014: 2,319). In turn, in line with section 3.1 of the Asylum Act, 1,939 stateless people were granted refugee protection in 2015. Most of the decisions were taken in a fast-track procedure (1,297) without further clarifications, while 508 were given protection due to state, and 134 due to non-state persecution.

Concerning the period of time an asylum application requires, current numbers indicate that as of 1 March 2016, out of 393,155 asylum applications, 15,659 remained not clarified. Among these applications, 3,115 were made by stateless people, only some of which 302 had a first interview with an immigration officer. In the case of unclear nationality, 1,052 already had a first interview.

The average processing period for an asylum application (as of February 2016) was 5.8 months for all applicants. For stateless people in particular, it took 5 months on an average (the timeline ranges between 26.4 and 0.4 months). Cases with unclear nationality took 3.6 months (ranging between 21.9 and 1.3 months). In comparison, in August 2015, the average time for all asylum seekers was 4.9 months, and for stateless people 4.3 months (ranging between 13.5 and 0.3 months). Unclear cases took 4.6 months (ranging between 11.3 and 1.1 months).

Evidence on decided cases varies in timelines and numbers according to the federal regions. In the case of the decision centre south, for example, and its first processed asylum applications, 5,888 cases were finished in January 2016. Among those, out of 111 stateless people, 110 were granted refugee status on the grounds of ‘fear of persecution in his country of origin on account of his race, religion, nationality, political opinion or membership of a particular social group’ (section 3(1) of the Asylum Act), and one under other procedures without Dublin. In the case of unclear nationality, out of 48, 47 were granted the same status, and one individual was recognized under subsidiary protection due to death penalty or execution (section 4(1) of the Asylum Act). In February 2016, all 73 stateless people were granted refugee status based upon fear of persecution, and out of 19 cases with unclear nationality, 16 people passed through other procedures, other than Dublin.

By the 30 June 2016, 49,272 people were staying on a tolerated basis. Out of them, 1,168 were recorded as stateless and 2, 670 with unclear nationality.

Enforced removals between January and June 2016 were applied in 34 cases of unclear nationalities and 6 in case of statelessness via airplane. However, the data does not indicate the country of destination. Rejection/ refusal (Zurückweisung) at airports happened in 3 cases of stateless people. On the sea route, 1 stateless and individual with unclear nationality were expelled (Zurückschiebung). In the case of land routes, 11 stateless people were rejected and 3 expelled. In the case of people with unclear nationality, out of 42, 39 were rejected and 3 expelled. 9 removals were not successful as receiving States rejected to take the people in. However, statistics do not name these States.

The position in Germany shows the importance of solid data and transparent access to information. The above outlined situation is based upon incomplete and confusing information and does not represent the whole picture. German authorities should work towards gathering comprehensive, compiled information and rigorous data to help ensure the protection and registration of individuals under the correctly defined category, whether the person is simply stateless or alternatively a stateless refugee. Providing such comprehensive and transparent information would be a crucial first step towards better identifying and providing an effective situation to those afflicted by and stuck in a limbo of statelessness.

Related topics
Related topics