There is no separate procedure preceding the regular procedure in which decisions on admissibility of asylum applications are taken. However, it is possible that applications are declared inadmissible in the course of the regular procedure. Following an amendment to the Asylum Act entering into force on 6 August 2016, the reasons for inadmissibility of applications have been redefined in Section 29 of the Asylum Act.
According to the new section applications are deemed inadmissible in the following cases:1
Another country is responsible for carrying out the asylum procedure, according to the Dublin Regulation or based on other European or international treaties;
Another EU Member State has already granted the applicant international protection;
A country that is willing to readmit the foreigner is regarded as a “safe third country” for the asylum seeker;2
A country that is not an EU Member State and is willing to readmit the foreigner is regarded as “another third country”;3
Between August and December 2016, the new provision has mainly been applied with regard to Dublin cases (10,121 decisions) and in cases of subsequent and secondary applications (6,721 and 1,476 decisions respectively).6
In the same period, a further 1,281 applications were rejected as inadmissible on the grounds that another EU Member State had already granted international protection. In some of these cases persons concerned appealed the decisions and courts decided that they had the right to a new asylum procedure in Germany, In particular in cases of persons who had been granted international protection in Bulgaria, the courts cited deficiencies in the Bulgarian asylum system and risks of inhuman or degrading living conditions as reasons for their decisions.7
The provision that asylum applications may be considered inadmissible in case of safety in “another third country” (sonstiger Drittstaat) has been based on the concept of First Country of Asylum of Article 35 of the recast Asylum Procedures Directive.8 “Another third country” may refer to any country which is not defined a Safe Third Country under German law.9 This concept replaces the former notion, according to which asylum applications were “to be disregarded” (unbeachtlich) if return to “another third country” was possible. In the process, important restrictions have been removed. In particular, the former provision could only be applied if return to the safe “other third country” was possible within three months. Although this qualification has been removed, the provision has only been applied rarely, only 7 times, in the period between August and December 2016.10
The examination of whether an application may be considered as “to be disregarded” is part of the regular procedure; therefore the same standards are applied (see Regular Procedure: Personal Interview). See also Dublin: Personal Interview, as the majority of inadmissibility decisions concern Dublin cases.
The appeal procedure in cases of “inadmissible” applications (i.e. “Dublin cases”) has been described in the section on Dublin: Appeal.
Appeals have to be submitted to the court within 1 week (7 calendar days) together with a request to the court to restore suspensive effect. The latter request has to be substantiated.
As in the regular procedure, asylum seekers can be represented by lawyers at the first instance (at the BAMF), but they have to pay for legal representation themselves and it may be difficult to find a lawyer for practical reasons.
The appeal procedure in cases of applications which are found inadmissible is identical to the procedure in “manifestly unfounded” cases. It is possible to apply for legal aid for the appeal procedure. However, because of time constraints and because many of these cases are likely to fail the “merits test”, it is unusual for legal aid to be granted, with the exception of some Dublin cases (see Dublin: Legal Assistance).
- 1. Section 29(1) Asylum Act, available at: http://bit.ly/2kv7cpy.
- 2. Section 29(1)(3) Asylum Act, citing Section 26a Asylum Act.
- 3. Section 29(1)(4) Asylum Act, citing Section 27 Asylum Act.
- 4. Section 29(1)(5) Asylum Act, citing Section 71 Asylum Act.
- 5. Section 29(1)(5) Asylum Act, citing Section 71a Asylum Act.
- 6. Federal Government, Response to parliamentary question by Member of Parliament Volker Beck, 1/6, 10 January 2017.
- 7. High Administrative Court of Hessen, decision 3 A 1322/16.A of 6 November 2016; Administrative Court of Aachen, Decision 8 L 991/16.A of 5 December 2016; Administrative Court of Stuttgart, Decision A 5 K 8144/16 of 28 December 2016.
- 8. Maria Bethke und Stephan Hocks, Neue „Unzulässigkeits“-Ablehnungen nach § 29 AsylG, Asylmagazin 10/2016, 336-346 (343).
- 9. Safe third countries” are all member states of the European Union plus Norway and Switzerland (Section 26a Asylum Act and addendum to Asylum Act).
- 10. Federal Government of Germany, Response to a written question by Member of Parliament Volker Beck, No.1/6, 10 January 2017.