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ABSTRACT
Refugee migration to Europe reached peak levels in 2015. During this time, more than 260,000 children applied for asylum in Germany; over 40,000 of whom arrived without parents or other legal guardians. This article takes a broadly descriptive legal approach to focus on the resulting legal and ethical problems in Germany, and to highlight a variety of ethically relevant issues within the legal system. In particular, refugee children below the legal age of 18, have special needs with regard to health care, guardianship and appropriate custody, but the legal framework produces questionable inequalities that require further research.
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Acknowledgements
We would like to thank Shillah Memusi and Su Lyn Corcoran for their spontaneous support and helpful recommendations.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. We are using the term ‘children’ and ‘minors’ for everybody below the legal age of 18 years, although German Law differentiates between ‘children’, who are below the age of 14 (‘Kinder’) and ‘adolescents’, who are between 14 and 18 years old (‘Jugendliche’).
2. Compare the definitions in Directive 2011/95/EU Article 2 (d) and (f).
3. The German Residence Act provides a variety of residence permits for humanitarian reasons.
4. Especially: Directive 2011/95/EU (Qualification Directive), Directive 2013/33/EU (Reception Directive), Regulation No 604/2013 (Dublin-III-Regulation).
5. This system has recently been established by amending law in October 2015, (see BGBl. I. p. 1802).
6. § 42 (3) and § 42a (3) Social Code VIII.
7. § 14 (1) Asylum Act.
8. § 12 (1) Asylum Act.
9. § 13 (1) Asylum Act.
10. § 55 Asylum Act.
11. § 25 (3) and § 26 (1) Residence Act.
12. § 1773, § 1789 and § 1791b Civil Code.
13. § 42a (1) Social Code VIII.
14. § 42b, and § 42c Social Code VIII.
15. Amending Law of October 28, 2015 (see BGBl. I. p. 1802).
16. § 42a (2) No. 1 Social Code VIII.
17. § 27 (1), (2), and § 34 Social Code VIII.
18. § 45 (2) sentence 2.
19. § 45 (7) Social Code VIII.
20. Lars Hillmann and colleagues visited many reception centres in Bavaria during a study on refugee health care.
21. See: to § 1 (1) No. 1 Asylum Seekers Benefits Act. For this article, No. 2 to 7 will be left out of consideration.
22. Wendtland (Citation2007) argues that in individual cases, when the consequences of PTSD are comparable to pain, there might be a claim for health care according to § 4 Asylum Seekers Benefits Act.
23. See: § 2 (2) Asylum Seekers Benefits Act. The idea behind this law was to reduce benefits for asylum seekers, because their residence in Germany is ‘uncertain’ (Bundestag Citation2016). This logic is questionable because people who have a right to claim a status of protection must be granted a permission to stay anyway (Rixen Citation2016). According to actual statistics, 98% of the Syrian asylum seekers have this right to claim protection (Bundesamt für Migration und Flüchtlinge Citation2016). It is remains unclear, why this is an ‘uncertain’ situation to these 98% of Syrians.
24. See: § 47 and § 53 of the Asylum Act.
25. Compare: Federal Constitutional Court Citation2007, 2 BvM 1/03 (Argentina’s state of necessity).
26. See: Art. 288, 291 TFEU and Art. 4 (3) TEU.
27. §§ 42a–42f Social Code VIII where added to the youth care law.
28. However, the principles of the Convention and other international treaties do not grant individuals claims against their states. International law is in the very most cases still restricted to apply between states but not between states and individuals. A prominent exception is the so-called European Convention on Human Rights, which applies between individuals and member states.
29. The Federal Constitutional Court uses the term ‘right to a guarantee’ (‘Recht auf die Gewährleistung’), which clarifies that the constitution does not constitute a certain minimum amount of money, but guarantees that the state must establish a transparent and plausible procedure to determine what is necessary for a dignified life.
30. Directive 2013/33/EU.
31. An exception might be a right-libertarian position based on natural law considerations (Narveson Citation1999).
32. Sweden has even included patients with severe chronic diseases in the priority groups, rather than the posteriorised groups. The only criterion for inclusion of chronic conditions in the priority groups was severity of the condition. An additional criterion of ‘unexpectedness’ as required by the German Asylum act did not play any role. For further details, as well as an overview of available policy experience in various countries consult Sabik and Lie (Citation2008).
33. For example, the introduction to a recent German anthology, documenting the results of a particularly large multi-disciplinary research group on the matter, states that in Germany, interest in the topic has not increased until the last ‘few’ years (Schmitz-Luhn and Bohmeier Citation2013).
34. See Menjívar and Perreira (Citation2017) for information and further references about the situation in the US and other EU-member states.
