1 Welcome Culture in the Crisis of 2015 and Afterwards

During the European asylum crisis of 2015, Germany opened its doors. The country accommodated 890,000 asylum seekers in 2015 alone, and 706,852 people received approval for asylum in 2016 and 2017, out of 1,154,995 in the entire EU. Chancellor Merkel responded to the welcoming attitudes of an engaging majority of the German population and the media, after the agonising reports about smuggled refugees suffocated in an abandoned lorry in Austria, and the iconic picture of a little boy washed up on the Turkish coast. Merkel identified with the opening, and became TIME magazine’s Person of the Year. When she said, “Wir haben so vieles geschafft – wir schaffen das! (We have done so much, we can do that),” she evoked memories of earlier immigration waves, and the country’s economic strength and social cohesion. Support came from all walks of life: church communities, student groups, schools, retirees, business groups, and trade unions. Volunteers spontaneously collected and provided food, blankets, and children’s toys, as well as practical and emotional support. Surveys showed that a record of 46% of the population contributed in some way, and only 18% answered that they would not want to contribute at all (Ahrend, 2017). Elderly women remembered the harsh times after being expelled from their homes in the territories Germany lost in 1945, and wanted to help out of their own experience. Against the ever-present memory of the Nazi past, this was a kind of positive redemption (Freedland, 2015). Despite setbacks, disappointments, and terrorist attacks, the welcoming spirit is still alive among many volunteers. The Russian aggression in Ukraine triggered a new wave of aid in 2022, with hundreds of thousands of Ukrainians finding shelter in private homes.

The arrival of refugees overshadowed all other public issues from August 2015 until 2020 (graph in Fachkommission, 2021, p. 87). This “welcoming spirit” was omnipresent in 2015, but the public discourse soon became polarised, and the xenophobic Alternative für Deutschland (AfD) party has been voted into all state diets (Landtage) as well as into the federal parliament (Bundestag) since 2015. Even though the general public has continually come out in favour of helping refugees to flee from war and oppression, doubts about security – and particularly young male refugees – became more widespread. The Christmas market attack in Berlin in December 2016 and other murderous events, as well as right-wing arson attacks, stoked fears. After the Cologne rape events on New Year’s Eve 2015–2016, the media began to speak about a change in the public climate. Open conflicts between Chancellor Merkel and Horst Seehofer (Leader of the CSU – the CDU’s sister party – and Bavarian Minister-President) about limits on the number of refugees and about border controls affected the government’s reputation from 2016 to 2018. Since Seehofer’s warning about a “reign of injustice” (Herrschaft des Unrechts), a “myth of illegality” was in the air with respect to the decisions Merkel made regarding refugees in 2015 (Detjen & Steinbeis, 2019). Despite this open conflict, Seehofer served as Federal Minister of the Interior from 2018 to 2021, which meant that he was responsible for asylum matters. In March 2020, public attention shifted entirely to the Coronavirus pandemic. Since February 2022, the Ukraine crisis has led to a new nationwide “welcoming spirit,” but this time it has been far less controversial, encompassing all political strata.

2 Quality Problems in the German Asylum Decision System

When Chancellor Merkel concluded in March 2018 that, all in all, the exceptional humanitarian situation of 2015–2016 had been well handled (gut gemeistert), she was right with respect to the work of local governments, state governments, and volunteers. Together, they were able to accommodate the refugees, cooperating effectively with volunteers and charitable organisations. With the exception of a few cases in Berlin, nobody had to live on the streets, and no informal settlements sprang up.

Contrary to public expectations, the Federal Office for Migration and Refugees (BAMF) emerged as the weakest actor in the crisis. It was hampered by a lack of resources and poor organisation, and could not even register half a million applicants in 2015. The failure to decide about asylum applications in time affected all other integration and welcoming activities. “All day waiting” (Christ et al., 2017) frustrated the ability of refugees, volunteers, and employers to be more productive, led to conflicts in refugee centres, and delayed integration. The government reacted by opening language courses and allowing work before an asylum decision for Syrians, Iraqis, Iranians, and Eritreans, and later for Somalis as well (Table 14.1).

Table 14.1 Average duration of asylum procedure in months, 2015–2020
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The BAMF President, Manfred Schmidt, resigned in September 2015. The new BAMF leadership accelerated the decision-making process, and tripled the agency’s personnel between 2015 and 2020. The BAMF became the largest asylum agency in the world, and was lauded as the “asylum world capital” by Gerald Knaus, the mastermind of the EU-Turkey Agreement of 2016 (Knaus, 2020, p. 156). Its bureaucratic coherence has been re-established since 2018. However, the quality problems did not disappear, despite lower numbers of incoming refugees.

Judges became critical about the inefficiency of the asylum decision process. In a parliamentary hearing in 2019, Stefanie Killinger, the president of an administrative court in Lower Saxony, complained about the “inferior quality” of asylum decisions in Germany. Sending “unclear signals of an asylum lottery”, German authorities “play with the hopes and expectancies and in extreme cases even with the life of people who take part in the lottery,” she testified. Together with the good chances to remain in the country even after a negative asylum decision, this creates, she argued, a “pull factor” – “everybody who comes here sees himself as a potential winner in the lottery.” Backlogs at the BAMF and at the courts lead to long years of waiting, resulting in good chances to stay in the country even if all legal means are exhausted. Thus, Killinger summarised, “we are situated in the worst of all worlds” (Innenausschuss, 2019, p. 10).

In the same hearing, a renowned lawyer with 40 years of experience told the Bundestag that in more than half of his cases, the applicant had not been presented with the objections that had led to the negative verdict, so that they could have been clarified. This had been a systemic fault for decades, he argued. Improvement was not in sight, and the agency should not hand down such poor decisions (Innenausschuss, 2019, p. 19). He added that BAMF decision-makers often apologised to him for not being sufficiently prepared and not having read the files. Hearings were scheduled shortly after asylum applications, without appropriate preparation. As a consequence, lawyers could not adequately represent the applicants. Asylum officials often had to decide on applications from many countries of origin, rendering them unable to obtain country-specific expertise.

Statistical evidence supports the criticism concerning the malfunctioning of the German asylum system. In 2020, judges invalidated 31.2% of administrative asylum decisions. This was up from 26.4% in 2019, 31.4% in 2018, and 8.0% in 2017 (BT-Drs. 19/28109). On average, asylum decisions took 8.3 months in 2020, and court decisions 24.3 months (BT-Drs. 19/28109). At the end of 2020, 129,320 people were still waiting for a final court decision. In the end, most asylum seekers stay, and the number of deportations to non-European countries is low. In 2020, only 755 people were deported to African countries and another 675 to Asian countries (BT-Drs. 27,007, pp. 3–4). The long administrative and judicial processing times hampered integration, and the country spent €4.2 billion on accommodation and welfare benefits for people with an undecided status in 2020.

The problematic quality of asylum decisions was also obvious regarding the profound discrepancies between local BAMF organisation units. The results differed astoundingly for people with the same nationalities (see Table 14.2).

Table 14.2 Recognition rates in local BAMF organisation units in 2020 (%)
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These discrepancies have been brought to public attention by parliamentary scrutiny in the last few years. The BAMF claimed that they had introduced oversight and quality control, but the discrepancies did not disappear. Understandably, three-quarters of asylum seekers who were denied asylum appealed to the courts (see Table 14.3). Even those with poor chances had reason to appeal, since they could remain in the country as long as court proceedings continued.

Table 14.3 Asylum seekers appealing against rejection (%)
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3 British and Italian Parallels and the Common Tension Between Asylum Principles and the Political Will to Reject Asylum Claims

Looking into media reports about procedures in the United Kingdom, we find similar or worse problems. Again, the term “lottery” has been used to characterise the outcomes. And again, the reason given is the low quality of asylum decisions, due to the pressure to decide cases under time constraints. One BBC reporter at the evaluation units was reminded of the “atmosphere of a call centre” (Brewer, 2018). Officials relied on “copy-paste” methods, and decided on cases having only limited knowledge of the specific circumstances (Brewer, 2018; Lyons & Brewer, 2018). The Home Office itself spoke of the need “to fix the broken asylum system so that it is firm and fair” (The Guardian, 12 November 2020). Similarly, limited administrative capacities have led to a backlog. Since the UK has had to deal with a rather low number of asylum requests, the shortage of personnel cannot be attributed to overburdening, but is a result of political decisions. British authorities decided 28,460 cases in 2019, while 60,548 applicants were still waiting for a decision in 2020. Thus, the waiting time is more than 2 years on average (Eurostat, 2021; Taylor, 2020).

Insofar as the UK and Germany both rank high in the World Bank Government Effectiveness Index, systemic deficits over decades cannot be explained by an inability to organise proper governance. Instead, the problem lies in the ambivalence between the legal principles of asylum and the political desire to contain inflows. This is widely expressed in the political discourse in most European countries, and is a source of motivation for many governments (Thränhardt, 2019). Asylum agencies then come under pressure to produce a low percentage of positive asylum decisions. This pressure cannot be formulated in official texts, because this would be illegal and invalidated by the courts. The ambivalence is then present within the agencies, as it would be illegal to order agents to break the law. As a result, politicians like Austria’s former Chancellor, Sebastian Kurz, can praise the Australian model of incarcerating and deterring refugees, but they cannot implement it. Contradictory signals about acting according to the law and simultaneously reducing numbers leave asylum officials in limbo, and these officials react with a broad range of different decisions. The authorities then turn a blind eye to the quality of the decisions. In the end, it is the courts that have to deal with the mess.

While the deciding bodies or individuals are theoretically free in their decision, bound only to the law, in practice we find pressure from the interior ministries of these countries. In Germany, we can follow this policy with respect to refugees from Afghanistan. In 2015, Minister of the Interior Thomas de Maizière was concerned with the high numbers of asylum seekers from Afghanistan. He wanted to “send a signal”: “Stay put. We will repatriate you” (Lehnert, 2021). He added that only a few Afghans had the right to asylum, in contrast to the fact that 86.1% had actually received asylum in the third quarter of 2015 (BT-Drs. 18/6860, Question 1b). In turn, the coalition parties concluded that they wanted to create and improve intra-Afghan possibilities of refuge, and revise and adjust the BAMF’s decision principles to follow this line. BAMF guidelines were adapted, and young men were expected to look for internal protection in Afghan cities. The courts were divided concerning the cases, but they granted asylum more and more frequently (Lehnert, 2021). In 2020, the BAMF lost 60% of the Afghani cases decided by the courts – a record percentage (BT-Drs. 19/28109, Question 22e). The BAMF, however, stuck to its line, even though it had lost a majority of court cases. As a law-abiding institution, it should be expected to follow the arguments laid down by the courts, and change its practices. However, the conflict continued, at the expense of the taxpayer. In the end, most Afghans got asylum through the courts, including via judgements of the German Constitutional Court and the European Court of Justice.

The Territorial Asylum Commissions in Italy serve as a parallel example. The European Council on Refugees and Exiles (ECRE) has described the relationship as follows: “These bodies should be independent in taking individual decisions on asylum applications but, due to their belonging to the Department of Civil Liberties and Immigration of the Ministry of Interior, in more cases, they received instructions from the Ministry of Interior. Some examples are the instructions given for the grounds of inadmissibility, manifestly unfoundedness, border procedure” (AIDA, 2020, p. 32). In 2017, Italy was the last country to discontinue the tradition of having a UNHCR representative prepare asylum filings for the asylum commission. Now, this task has been assigned to an officer of the Ministry of the Interior.

Such institutional ambiguity explains how the decision lottery exists not only in countries with weak government effectiveness, but also in those with strong ones. We can demonstrate these effects using Germany’s BAMF. Between 2015 and 2019, the BAMF was technologically upgraded and personnel was tripled. Asylum decisions, however, were still ill-organised, and personnel was shifted to reviewing procedures against accepted refugees. All cases were checked again after 3 years, with very few negative decisions that again are challenged in court.

In this contentious atmosphere, ministries and asylum agencies often operate in a secretive style, and it is then up to journalists, parliamentarians, and researchers to shed light on the black box. In Germany, regular detailed parliamentary inquiries force the government to present information, often over several hundred pages long (for Austria, Diakonie, 2019; for Britain, Grierson, 2020; for Spain, Janker, 2020). All in all, these patterns and attitudes create a common regime in most Western European countries concerning the ambiguity of asylum decisions. In the UK, the problems were more intense because of a radical reduction of administrative capacities. In the last Eurostat statistical summaries that included the UK (in 2019), the country had a record success rate of 70% of court cases won by asylum applicants.

4 The Policies of Backlog and Encampment

Backlogs in asylum processes are as ubiquitous as government proclamations about speedy trials. At the height of the asylum crisis in 2016, the German government made a systematic and illuminating argument for speedy decisions:

The asylum procedures are too long, lasting six months on average. Therefore, persons affected live in insecurity about their further fate for too long. Those whose applications are decided positively in the end and are allowed to stay in Germany are offered integration activities relatively late. They then need a fairly long time until they can join the labour market. But even for those who have to wait long for a negative decision, the duration of the procedures hinders a return to their countries of origin. Particularly children, who integrate faster, participating in school education, can then be cut off from an environment with which they just have become familiar. Not least because of this, after a negative decision, the likelihood of exceptional leave to remain (Duldung) increases with the length of stay. This then requires resources that are needed for accepted people in need of protection. (BT-Drs. 18/7203).

The EU has set the same tone for years: in 2010, the Commissioner for Home Affairs, Cecilia Malmström, argued that “the best way to ensure efficiency and fight against so-called abuses is to invest in an asylum process which provides robust and qualitative decisions in a rapid manner” (European Commission, 2010). Three years later, Article 31(2) of the Directive on Common Procedures for granting and withdrawing international protection (2013/32/EU) stated: “Member States shall ensure that the examination procedure is concluded as soon as possible, without prejudice to an adequate and complete examination.” In the introduction to the European Commission’s “New Pact on Migration and Asylum” in 2020, the Commission declared that “The first pillar of the Commission’s approach to building confidence consists of more efficient and faster procedures” (European Commission, 2020).

Thus, procedures should have been processed more quickly when the number of asylum applications declined and personnel tripled in Germany. However, procedures became even slower. As explained above, the average processing time in Germany was 8.3 months in 2020 (BT-Drs. 19/28109). Governments of wealthy countries with well-functioning bureaucracies still allow drawn-out, poorly handled procedures to occur, while at the same time arguing for faster processing.

Over the last few years, the character of many asylum centres has changed, from an admission site to a long-time encampment, and an environment of repatriation pressure. EU rules for the length of holding people in centres have been loosened. In Germany, the length has been extended sixfold, from 3 months to 18 months, and even to 24 months in some states. In the end, however, most occupants stay in the country, and are transferred to normal local accommodation. Some are accepted via court decision after years of waiting; others are unable or unwilling to return to their home countries and receive exceptional leave to remain (Duldung) (González Méndez de Vigo et al., 2020).

Waiting, uncertainty, backlogs, and overcrowding of admission facilities are not limited to Germany, but are a frequent feature of asylum reality in Europe – not only in countries and situations of sudden inflows, but also in environments where planning and organising is possible. At the end of 2020, Eurostat counted 765,700 unresolved asylum applications in the EU, with 257,200 or 33.6% of them in Germany (Eurostat, 2021). Whether such inadequacies are the result of deliberate inaction, neglect, or incompetence is often not easy to investigate. In Germany, the 2018 coalition agreement envisaged large “AnkER” centres (arrival, decision, repatriation – Ankunft, Entscheidung, Rückführung) with the aim of speedy decision-making and direct departure of those who were not granted asylum. In the end, however, the decisions in the new centres took even longer than those in traditional settings (BT-Drs. 19/25435, p. 56), and people had to stay in the AnkER centres for increasingly long periods. Most of the centres are former military barracks, fenced in and monitored. The new 2021 coalition agreement stated that the AnkER concept would be discontinued.

These long delays in crowded camps are harmful for the physical and mental health of refugees as well as for their trust in the system, and for their integration. This is particularly true for children who are held there; they do not live in an appropriate environment and are denied a standard school education (González Méndez de Vigo et al., 2020). Employment bans linked to encampment also delay the economic integration of refugees. One empirical study found that “longer employment bans considerably slowed down the economic integration of refugees and reduced their motivation to integrate early on after arrival”.

The media and activists in Germany, however, were much more concerned with the deplorable conditions on the Greek islands. The EU-Turkey Agreement did not work, largely due to the failure of the Greek government to carry out asylum procedures (Knaus, 2020, 190–199). Centres developed into long-term detention camps, which were overcrowded and degrading (see the contribution on Greece in this volume).

All in all, there is a broad consensus that the current asylum regime is deficient. It is expensive, but delivers poor results; it spoils the good will of the population and saps the energy of millions of volunteers who want to assist refugees. Most importantly, it holds millions of refugees in limbo and forces them to concentrate their activities not on integration and success in the host societies, but on ways to get past the hurdles that states build up to keep them out. Not only are the camps on the Greek islands expensive for taxpayers, but the long duration of camp life in Germany and other European countries is as well; it is demotivating and sometimes dehumanising for refugees, it delays the integration process, and it is ultimately futile for the asylum procedure. Large, permanent camps are public displays of crisis, incompetence, and unwillingness.

5 Best Practices in Europe and the Reluctance to Optimise

In 2015, while Germany was discussing the shortcomings of the asylum system, EU Vice-President Frans Timmermans told a German television station on 9 September that asylum procedures took 8 days in the Netherlands and 8 months in Germany, and this explained why so many Balkan refugees– a group with slim chances of getting asylum – came to Germany rather than to the Netherlands (Thränhardt, 2016a, b). In a search for solutions, the Bertelsmann Stiftung then published reports about the Swedish, Dutch, and Swiss asylum procedures (Parusel, 2016; Thränhardt, 2016a, b). Bertelsmann wanted to explore if Germany could learn from efficient practices in other countries. This next section takes up this question as well, and discusses the results.

In 2010, the Netherlands had found a way to organise fast, high-quality asylum decisions: the “improved procedure”. A strict timetable is set, combined with state-funded legal representation, so that the applicant’s asylum plea can be fully presented by a legal expert. Lawyers apply for each client. The assigned lawyer meets the asylum seeker before the hearing, prepares the client, and advises him or her, takes part in the hearing, comments if necessary on the draft opinion before the asylum decision, and can appeal to the courts in case of a negative verdict (Thränhardt, 2016a, b). The system worked speedily, and experts presented the system as a successful model to the outside world.

Later, however, the Dutch government cut administration personnel, so asylum seekers now face long waiting times before the “improved procedure” begins. The 2017 Dutch coalition agreement called for the provision of legal assistance only “after notification of intent to deny an asylum application has been issued.” The coalition wanted to “eliminate gold-plating” and reduce the level of asylum standards. It is, however, doubtful that eliminating the “improved procedure” would “reliev[e] pressure on the justice system,” as the coalition agreement (p. 52) asserts. Clearly, the 2017 Dutch coalition government mistrusted their efficient asylum system, and chose to focus on “detention” – a catchword in the coalition agreement.

Switzerland adopted the Dutch combination of speedy procedures and quality decision-making as well. Their “structured model” was discussed intensely among all levels of government and the public, and tested in Zürich from 2014 on. In a referendum on 5 June 2016, 66.8% of Swiss voters accepted the new system, and it was introduced across the country on 1 March 2019. After decades of strife, the new asylum procedure has been accepted by the public and has moved out of the headlines. Switzerland invests in the quality system. Charitable organisations provide legal representation, and receive a fixed remuneration for each client, with contracts over 5 years. Switzerland provides 5000 places in six federal asylum centres, even when the number of asylum seekers is low.

The “Taktphase” is organised like Swiss clockwork. After the asylum seeker has gone through medical and security tests, and Switzerland has been identified as the country responsible, the legal representative meets the client to discuss the case. This representative is present at the hearing, can assist the client, and can make representations. Next comes “triage”: the decision either to follow the structured model, or to switch to the extended procedure if the case is complex and further evidence is required. In the structured model, the asylum official then produces a draft asylum decision, and the legal representative has 1 day to comment. The official then writes the definitive verdict. In case of a negative decision, the representative has 7 days to appeal to the Federal Administrative Court. The Court announces its judgement in 20 days, or it returns the case to the asylum administration if it identifies shortcomings.

The legal representative can bring the client’s individual story into legal arguments. Through the whole process, the presence of a representative challenges the asylum official to pursue the case carefully and provide a well-founded decision. Both the official and the legal representative have access to training, data systems, and exchanges with colleagues. Legal counselling offers asylum seekers information and orientation, instead of rumours and fear. The system is designed to investigate thoroughly, and to come to a well-founded decision.

After a year’s experience with the new system, there was a broad consensus that it worked well. The average asylum procedure took 50 days; 35 for Dublin cases, 50 in the structured model, and one hundred days in the extended procedure (SEM, 2020). Charitable organisations wanted some more time and flexibility, particularly for vulnerable clients, and ten instead of 7 days to prepare the appeal. An external review by the Swiss Center of Expertise in Human Rights was positive (Evaluation PERU, 2021). The state secretary argued that the new system offers asylum speedily for those with good cause, and discourages those without. The acceptance rate is high, but the quick process discourages those who stand little chance of getting asylum. The Swiss example demonstrates that a fast and fair asylum procedure can be organised, and that growth in public trust corresponds with effectiveness and open communication.

In 2017, Germany’s BAMF organised a pilot project, imitating the Swiss procedure, in cooperation with Caritas, Diakonie, and the German Red Cross. The BAMF’s internal evaluation was extremely positive, with respect to “improved administrative efficiency”, “better clarification of the facts”, “asylum applicants’ improved understanding”, and a “better quality of asylum decisions”. The “efficiency of the agency’s procedure” had also been improved. Five applicants had withdrawn their applications when advisers explained to them at an early stage that they had no chance of getting asylum. Deciders reported that planning became easier. The clear advice helped asylum seekers to understand the asylum system, and made them less dependent on rumours and smugglers.

In a “political decision”, however, the Federal Ministry of the Interior overruled the BAMF specialists, and ordered the BAMF to keep the report secret (BT-Drs. 19/19535, p. 12). Later, it was leaked and published by the Refugee Council of Lower Saxony (Flüchtlingsrat Niedersachsen), an NGO (Evaluation, 2018). The coalition of Germany’s major charities commented: “When refugees are able to access independent and free asylum procedure counselling, this improves the due process, fairness, quality, and efficiency of the asylum procedure. Counselling does not decelerate it and helps the BAMF to identify persons with special protection needs (such as traumatised, sick, and disabled persons). This is our experience from the pilot project” (BAGFW, 2019).

Instead of working with charity advisers, the BAMF organised an internal counselling system, with a number of asylum officials put in a new BAMF division, rotating with their colleagues. Charities can also offer counselling in parallel if there is state funding for it. However, the counselling is not comprehensive, differs among states, and does not include legal assistance, the core of the Swiss improvement (Thränhardt, 2020). It is an expensive but inefficient arrangement. The new coalition agreed in 2021 to reintroduce independent asylum counselling, but it has not yet been formalised in law and implemented.

In Austria, all NGO counselling has been terminated, and the government has established a special “Federal Agency for Assistance and Support Services” (Bundesagentur für Betreuungs- und Unterstützungsleistungen). The intention was to cut off any civil society influence, and – in the words of the former Minister of the Interior – “to tell many people: that you have no chance” (Kickl OE 24). Shortly after the legislation passed, the minister and his party, the FPÖ, were ousted due to a scandal, and the implementation was modified under the subsequent conservative-green coalition. From 1 January 2021 on, all counselling has been provided by the new state agency, independent in its work and bound to confidentiality (Diakonie, 2019; Die neue Volkspartei, 2020; Gahleitner-Gertz, 2020). In Austria as well as in Germany, asylum procedures still take a very long time, and the decision quality is insufficient (Lahner, 2020, Table 14.2). Clearly, both governments, like many others, were more concerned with reducing the number of asylum seekers than with optimising the quality of the procedure. However, as long as there is an independent judiciary, these measures will fail to bring down numbers, but will continue to generate enormous costs, not only financially, but also in terms of public trust and refugees’ quality of life.

6 Conclusion: Administrative Ambiguity in an Integrative Asylum Regime

In Europe, we find stronger and weaker regulators, and small and large asylum bureaucracies. What is in common, however, is the organised ambiguity towards the acceptance of refugees. This can be as simple as in Greece, where the Mitsotakis government attempted to abolish the Migration Ministry in July 2019, but then reinstated it after 6 months; this slowed and then spurred asylum procedures, all the while holding people in inhuman environments (ANSA, 2020). In Germany, with the largest asylum agency in the world, bureaucratic arrangements are organised in such a way that people wait for a decision in centres, hearings are organised in a fuzzy way, counselling is disorganised, and the courts have to resolve and correct a vast number of cases. In both countries, and in many others, the procedures are characterised by inefficiency, deliberately holding asylum applicants in limbo. On the other hand, the EU itself – as well as many European governments, including Germany – fund the humanitarian organisations and activists who support refugees and often distrust these agencies. Both sides frequently argue that the system is broken.

Partially an element of Cold War hypocrisy (Martin, 1989), showing the moral superiority of Western democracies against the Communist foe, the principles of asylum and particularly non-refoulement became part of an established international treaty system, nominally accepted by most countries in the world. In the European Union, these principles were codified in an elaborate system of EU directives, to create an “area of freedom, security, and justice” for refugees. In her seminal work, Natascha Zaun (2018) has shown how “strong regulating states” were successful in transferring their level of asylum administration into EU directives, while “weak regulators” cared little. Strong regulators were careful to include a right to legal representation, but no provision to fund and organise it. Thus, many asylum seekers are unable to present their case convincingly, and states allow for a flawed asylum decision process.

However, the asylum regime is much more than its bureaucratic practice. Eurostat’s data on “final decisions” show that the courts grant asylum for an impressive percentage of the claimants that had been previously turned down by the asylum administrations. In Germany and Austria, the absolute numbers of these “final decisions” are almost as high as first instance decisions: 100,100 against 128,600 in Germany, and 10,000 against 10,500 in Austria. In the EU as a whole, it is 232,800 against 521,000 cases. Eurostat (2021) reported that in 2020, 61.7% of asylum appeal court cases in Austria and 35.5% in Germany were decided in favour of the refugees. A system of judicial expertise has also developed at national and transnational level. This judicial system is complemented by a network of civil society organisations that had become energised and expanded during the 2015 asylum crisis, and organised into NGO structures, with links throughout various sectors of society. Public opinion is divided, moving in this or that direction after revelations and scandals, but in principle supportive of asylum. All in all, we can conclude that Germany has a receptive asylum regime, even if the practice of the responsible ministerial and administrative agencies remains ambivalent. The welcoming parts of the regime, however, are largely reactive, against the restrictive tendencies of the Ministry of the Interior. This makes it protracted, confrontational, and expensive, and hinders a proactive and coherent asylum policy.

7 Postscript: The New Regime for Displaced Ukrainians – A Blueprint?

Reacting against the Russian aggression in Ukraine, the EU activated the Temporary Protection Directive for displaced persons. In doing so, they introduced a second refugee regime alongside the existing one. Ukrainians are free to choose the country of refuge, they can return to Ukraine and come back again, and they can work and study. Temporary protection functions smoothly and without the toxic conflicts between EU governments and within countries that had erupted in 2015 (Thränhardt, 2022). Ukrainians do not go through the asylum bureaucracy, and most are housed by ordinary citizens, relieving the burden on the states. It is an open question if the experience of an alternative regime in the same area will lead to reforms of the asylum system, thus making it more efficient, more humane, and more productive. Reem Alabali-Radovan, Minister of State at the Chancellery and Federal Commissioner for Migration, Refugees and Integration, has called it a “blueprint for what is possible if everyone cooperates” (FAZ, 2022).