Should Germany Protect Edward Snowden?
The asylum procedure is an assessment of whether an asylum seeker is entitled to asylum in terms of Article 16a of the Basic Law (Grundgesetz), to refugee status in terms of the 1951 Refugee Convention or to subsidiary protection in terms of the German Residence Law (Aufenthaltsgesetz).
As Snowden is clearly not persecuted for reasons of “race”, religion and nationality or as a member of a particular social group, his claim for constitutional asylum would be assessed according to the same criteria as his claim for refugee status. In both cases, his application may be successful if he is persecuted for reasons of his political opinion or if his fear of being persecuted for such reasons is well-founded.
There is widespread misconception that the German executive has an almost unlimited discretion in assessing whether an individual is persecuted for reasons of his/her political opinion. This seems to be the view of those who invoke the transatlantic relationship as an obstacle to Snowden’s protection. In a distant past, this might have been a valid argument. Modern refugee law, however, has withdrawn asylum claims from the pure realm of arbitrary exercise of power and the outcome of the asylum procedure is subject to judicial review.