Although the numbers are disputed, South Africa and Germany are among the States Parties to the 1951 Refugee Convention that receive the most asylum applications in the world. It is interesting, then, to compare the legal frameworks that both countries apply to asylum seekers.

The most striking difference is that, in South Africa, asylum seekers are allowed to work while in Germany they are denied access to the labour market for the first nine months of their stay. Even after this period, they can only work if the Federal Employment Agency considers that no European Union citizen or third country national with an employment permit is available for the job. Germany’s prospective government plans to shorten the employment ban to three months but it is unclear whether it would then grant full or restricted access to employment.

Does this mean that South Africa is more humane in its approach? Not necessarily. It may be more liberal but it is not adequately conscious of social rights since asylum seekers are not eligible for grants. By contrast, in Germany, asylum seekers without financial resources are entitled to benefits. So, then, is Germany’s system more humane? Again, not necessarily because part of the benefits may be granted in kind, not in cash, and this does not duly take the individual needs of asylum seekers into account. As a result, asylum seekers must eat what the state puts on their tables, wear what is put in their wardrobes and live where the state decides. Asylum seekers must live in shelters that accommodate up to several hundred people at a time and who may not share a common language or religion. In parts of Germany, the obligation to live in shelters ends only with the recognition as a refugee — or deportation. Even where asylum seekers may choose private accommodation after a while (and such accommodation is hard to find), their freedom of movement is severely restricted: Unlike in South Africa, asylum seekers may not freely choose where to take residence. Under a law unique in Europe, it is a criminal offence for asylum seekers to leave the region to which they are assigned without permission from immigration authorities and such permission is seldom granted.

In Germany, an asylum application must be submitted to the Federal Agency for Migration and Refugees. Asylum seekers may not approach the agency directly. Instead, they must register with a local Refugee Reception Office which notifies them of their hearing dates. Unlike in South Africa, the hearing never takes place on the day of the application. The procedure may take some weeks or several months but the prospective government intends to complete asylum procedures within three months of the application. This is much shorter than the procedure following an appeal against a first rejection in South Africa.

Rejection rates seem to be quite comparable, roughly 15% of the applicants are granted refugee status in either country (South Africa and Germany). But the comparison is not quite accurate. Unlike in Germany, persons compelled to leave their country of origin owing to external aggression, occupation, foreign domination or events seriously disturbing public order qualify for refugee status in terms of Section 3(b) of the South African Refugees Act — although South African authorities tend to ignore this. The provision is comparable to subsidiary protection under European law. German asylum statistics show that around 10% of the applicants are granted subsidiary protection. The overall protection rate in Germany thus amounts to around 25%.

There is also no Refugee Appeals Board (RAB) in Germany. Instead, asylum seekers must lodge an application for judicial review within a week — whereas lawyers may take 180 days to oppose a RAB decision in South Africa. Concurrently, an urgent application must be made to suspend deportation from Germany because judicial review does not hinder deportation. This application should be considered within two weeks after rejection of the asylum application while the main application takes much longer to be considered. Asylum seekers may theoretically appeal the decision in higher courts but this rarely happens in practice.

It is up to the reader to decide which system, if either, is more humane and just. But it should be borne in mind that both Germany and South Africa reject more applications for asylum than they approve and this includes applications submitted by people who have fled countries where conflict and severe human-rights violations are still widespread. Can any of the systems be considered humane and just under such circumstances? I doubt it.

Christoph Tometten is a legal intern with Lawyers for Human Rights’ Refugee and Migrant Rights Programme.


  • Lawyers for Human Rights is an independent human rights organisation with a 37-year track record of human rights activism and public interest litigation in South Africa. LHR uses the law as a positive instrument for change and to deepen the democratisation of South African society. To this end, it provides free legal services to vulnerable, marginalised and indigent individuals and communities, both non-national and South African, who are victims of unlawful infringements of their constitutional rights. LHR's work is instrumental through its key programmes including the Land and Housing Unit, the Refugee and Migrant Rights Programme, the Environmental Rights Project, Strategic Litigation Unit and Security of Farm Workers Project.


Lawyers for Human Rights

Lawyers for Human Rights is an independent human rights organisation with a 37-year track record of human rights activism and public interest litigation in South Africa. LHR uses the law as a positive...

Leave a comment