Afghan Crisis

Afghans evacuated to Germany face legal uncertainty

Published : October 21, 2021 13:39 IST

Photo: Patrick Pleul/dpa-Zentralbild/dpa/picture alliance

After their dangerous evacuation from Kabul, many Afghans in Germany are struggling with bureaucratic hurdles.

There are no words, Abdul says quietly, that adequately describe the worst day of his life. When he recalls the five hours he spent in the throng of men, women and children pressing towards Kabul airport, desperate to flee the Taliban's takeover, he relives the terror, the shots that were fired into the melee, the sense of despair. Even now, weeks later, "I am still carrying the fear in my heart," he says. "I don't know how I survived."

But survive he did. Moreover, Abdul — a meticulously polite young man whose German is nearly flawless — is one of the lucky few who managed to get out of Kabul on a German evacuation flight in mid-August. Thousands of others are still in hiding in Afghanistan, terrified that the Taliban might take revenge for what they consider collaboration with Western forces.

Delays regarding legal status

Shortly before Abdul boarded the flight out of Kabul, he recalls, a German soldier told him that he would soon be flown to safety, "and there you will have some peace." But that didn't quite come to pass. Rather, DW has learned, Abdul and many other Afghans are facing bureaucratic hurdles, which have resulted in uncertainties and delays regarding their legal status.

DW talked to several Afghans who, like Abdul, worked for German institutions, including the army, development ministry and embassy, in Kabul and Mazar-al-Sharif. Some were subcontractors, others directly employed. DW was also given access to work contracts, letters of reference and documents sent by German immigration authorities.

These accounts reveal that there are many reasons for the difficulties facing Afghans like Abdul: last-minute high-level political decisions that further complicated an already chaotic evacuation, a narrow definition of who qualifies as a former employee, possible miscommunication, and German bureaucracy.

Political wrangling caused long delays

The problems began before the Taliban's takeover on August 15 of this year. For months, as the Taliban gathered strength and ground across Afghanistan, back in Berlin a political spat led to an impasse: The defense, interior, foreign and development ministries could not agree on a common definition of who would qualify as a local employee — and thus resettlement.

At first, only those who had worked for a German institution in the last two years qualified, and even those individuals had to organize their own travel to Germany. In June, the defense and interior ministries finally decided to include anyone who had worked for them since 2013. The other two ministries hesitated, fearing that their local staff — on whom diplomats, mostly restricted to their compounds for security reasons, rely for their daily work — would leave, thus making it hard to conduct business in the future.

It is clear that the German government underestimated the speed of the Taliban's takeover, resulting in a dangerous delay that in turn jeopardized local staff and contractors.

Confusion around multiple lists

This was followed by a desperate scramble to evacuate Afghan and German citizens. At first, each ministry compiled a list of former employees and others deemed in need of protection, including human rights defenders, women's rights activists and journalists. This, it seems, led to confusion. Various lists circulated and names were continuously added, as other institutions — such as media outlets, including DW — lobbied hard for their local staff to make it onto the list. It took weeks for a "master list" to be compiled, which is now in the hands of the interior ministry.

Only those on the list, in theory, would qualify for evacuation, even though, in the chaos and confusion, others were allowed to board the evacuation planes out of Kabul. Since the Taliban takeover, more than 5,400 Afghans have arrived in Germany, according to government figures from October 18. They include 477 former employees and their families. Thousands are still stranded in Afghanistan, desperate to leave.

Those who made it out on evacuation flights from Kabul were flown into Germany. At the airport, they were all given an entry visa valid for 90 days. With the end of the airlift, those most likely entitled to German protection who manage to reach neighboring Pakistan are also granted the same visa there.

Shock at hearing

At this point, things begin to get even more complicated. That visa is not, legally speaking, a visa, but rather a special permit. This grants a temporary residency so that the authorities can check the eligibility for a residency permit up to three years on the grounds of "urgent humanitarian reasons." This temporary permit comes with the right to work and receive immediate welfare and housing benefits. However, the temporary nature of the permit was seemingly not communicated clearly to the Afghans who received it, leading to the assumption that they were all automatically entitled to a long-term humanitarian residency permit.

Abdul was convinced of this, given the fact that he had worked for various German institutions in the last years. That is why he was shocked when he was summoned to a hearing four weeks after his arrival in Germany. The official document, which he shared with DW, was titled "No local employee/clarification asylum" and was issued by the local immigration authorities in Hamburg, where he had been sent after his arrival at Frankfurt airport.

Asylum procedures in Germany can drag on for months, even years. During that time, applicants for asylum are not allowed to work or bring their families to Germany, and they are housed in refugee accommodations. In addition, there is currently a moratorium on asylum applications concerning Afghan nationals, due to the situation following the Taliban takeover. There is a backlog of thousands of cases and it remains unclear when the process will once again resume.

Abdul was sure it was all a misunderstanding that would quickly be resolved at the hearing. He took a folder with the documents proving he had worked for the Germans. These documents, including work contracts, were, together with his laptop, the only possessions he had been able to take with him during his flight from Kabul.

But at the hearing, he recalls, no one seemed to care about his documents or even his status as former employee. Instead, he says, he was informed that he was not a former employee and would have to apply for asylum. "This is not a consultation," the official told Abdul as he tried to show his documents. "No one would listen to me."

Refugee: 'I just didn't expect this from Germany'

Abdul told DW that not only did immigration authorities dismiss his statements and documents — he was pressured to apply for asylum. He says that he was told if he did not, he would no longer be entitled to stay in the refugee center.

In the end, he called his former employer, who in turn made some calls to high-level political contacts in Berlin. The next day, he was suddenly told that he did indeed qualify for the humanitarian residency. The fact that he had to rely on his perfect German and good contacts to avoid applying for asylum made him angry. "I just didn't expect this from Germany," he said — sounding sad, wounded even, by the country he had long admired.

DW is also aware of other cases of Afghans who were instructed to apply for asylum, even though they were local employees according to the German government's definition. They include employees of a German political foundation and their family members.

Cases of coercion?

In some cases, it seems, Afghans were even coerced to apply for asylum. DW has seen a video recorded in mid-September that shows a German official in the small eastern city of Eisenhüttenstadt speaking to a group of Afghans. "You have not been 100 per cent accepted as local employees," the official tells the group, including a woman cradling a baby. "If you say 'I will not apply for asylum today,' the following will happen: [...] We will, in plain German, throw you out into the street."

The German Federal Office for Migration and Refugees (BAMF), which is under the jurisdiction of the interior ministry, refuted all claims that Afghans were being forced to apply for asylum. No one has been "pressured, coerced or even forced," according to the office. In a written response to DW, a spokesperson for BAMF acknowledged that official letters had been sent to Afghans, requesting that they apply for asylum. "The Federal Office merely pointed to the option of applying for asylum," according to the written response. This was a "voluntary" option.

According to the Federal Office for Migration and Refugees, every Afghan's eligibility for humanitarian residency is currently being re-evaluated. Those who do not meet the criteria have no other option than to apply for asylum if they want to stay in Germany. Otherwise, they are not legally entitled to remain in the country.

Lack of communication

But in some cases, the re-evaluation is not running as smoothly as hoped: DW is aware of cases in which local employees were first told to apply for asylum, only to then be informed that they did in fact qualify for a humanitarian visa. It is unclear who exactly is responsible for the confusion. One reason is most likely a lack of clear communication: names were added to the evacuation lists that already encompassed thousands of names, even as the chaotic airlift was ongoing, and for a while several lists circulated among ministries.

In Germany, local migration agencies communicate names to the Federal Office for Migration and Refugees, who in turn check if they are on the list and eligible for a humanitarian residency permit. In some cases, this involves double-checking with the involved ministries. And, as in the case of Abdul, political connections may be able to sway the case for individuals.

Uncertainty around subcontractors' status

On top of that, many Afghans who are sure they qualify as local employees may in fact not be entitled to a humanitarian residency permit, given the government's narrow definition: Many worked as contractors, employed by Afghan companies. But it is unclear if subcontractors qualify. DW is aware of several cases of contractors who were first told they did not qualify, only to then learn, while the airlift was ongoing, that they had indeed made it onto the list.

For others, it came as a shock when they were told that they did not qualify for residency. One man, who chose to go by the name of Mohamed, was sure he would be given a humanitarian permit, given that he had worked for the German Development Agency (GIZ) from 2019 to 2021. But he was not directly employed by a German institution; rather, he worked through a subcontractor.

Now he is worried and unsure how to proceed. Should he apply for asylum, given that his 90-day permit is set to expire in mid-November? So far, no one has been able to give him a clear answer, Mohamed, who was evacuated to Germany in August, told DW.

Lawyers: Hold off applying for asylum

According to several asylum lawyers and human rights activists DW contacted, the answer is: probably not, at least not for now. Applying for asylum would automatically invalidate the temporary permit. While the Federal Office for Migration and Refugees has said that Afghans could halt their asylum application and reapply for a humanitarian permit later on, it is not clear if the process would really be that straightforward.

Should Afghans want to withdraw their asylum application and switch back to the humanitarian track, they would no longer be legally entitled to stay in Germany, Peter von Auer from the German human rights organization Pro Asyl told DW. In other words, their stay in Germany would be illegal. DW spoke to one official from a local migration office, who was unable to comment — even off-the-record — whether that was indeed the case.

The ongoing uncertainty is weighing heavily on the Afghans in Germany. Abdul, the young man with the almost flawless German, told DW he couldn’t sleep and was constantly worried. So far, he has only been informed that he can stay in Germany until his status has been decided. “That is something I have to live with," he wrote in a Whatsapp message. Then, he told DW his unexpected good news: He had just received confirmation that his family, including his young child, would be flown to Germany the next day. And that, he says, is all that counts.