Admissibility procedure

General (scope, criteria, time limits)

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, based on the grounds set out in Section 29 of the Asylum Act.

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]
• The applicant has made a subsequent,[4] or secondary,[5] application (see Subsequent applications).

The BAMF took the following inadmissibility decisions in 2022:

Source:  Statistics on ‘abandonment of procedures for other reasons’ (‘sonstige Verfahrenserledigungen’) by the Federal Government, Response to parliamentary question by The Left, 20/5709, 17 February 2023, available in German at: https://bit.ly/3K3w3MX, 6.

Of practical importance is the situation of persons who have been granted international protection in another EU Member State and then move to Germany to apply for international protection there. This often concerns persons with a status in Greece, or other EU Member States where it is difficult for beneficiaries of protection to access certain services and secure adequate living standards. In such cases, in previous years the BAMF usually decided that the asylum application is inadmissible. Depending on the situation in the Member State which first granted protection, it might issue a removal ban for said Member State, however. The Federal Administrative Court, in a decision of 20 May 2020, ruled that in line with a CJEU ruling, an application for asylum cannot be deemed inadmissible on the grounds that another Member State has already granted protection if the situation the application would face in this Member State amounts amount to inhuman or degrading treatment, and thus be in violation of Art. 4 of the EU Charter on Fundamental Rights.[6] In these cases, the BAMF would have to carry out a regular asylum procedure. After stopping the processing of applications from persons with a protection status in Greece since 2019 (meaning that the concerned persons retain the status of asylum applicant), the BAMF took up the processing of applications again on 1 April 2022 (see Suspension of transfers for beneficiaries of international protection in other Member States). The BAMF stated that it planned to assess each case again on its merits, instead of accepting the decision to grant international protection from another Member State, and to only deem applications inadmissible “in justified individual cases” where no threat of violation of Art. 3 or 4 ECHR exists.[7] Nonetheless, the statistics show an increase in inadmissibility decisions based on protection in another Member State in 2022 (4,637 cases) compared to 2021 (2,489 cases).

The provision that asylum applications may be considered inadmissible in case of safety in ‘another third country’ (sonstiger Drittstaat) is based on the concept of First country of asylum of Article 35 of the recast APD.^[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 (6 cases in 2022, 4 cases in 2021).[10]

Personal interview

The examination of whether an application may be considered as inadmissible 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.

Appeal

The appeal procedure in cases of inadmissible applications (i.e. mostly Dublin cases and cases of persons granted protection in another EU country) 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 grant suspensive effect to the appeal. The latter request has to be substantiated.

Legal assistance

As in the regular procedure, asylum seekers can be represented by lawyers at first instance (at the BAMF), but they must 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.

[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 Administrative Court, Decision 1 C 34.19 of 20 May 2020, available in German at: https://bit.ly/3hvFzsN. The CJEU decisions to which the BverG refers are decisions C-297/17 and C-540/17.

[7] BAMF, Letter to the Presidents of Higher Administrative Courts and Administrative Courts, 31 March 2022, available in German at https://bit.ly/3ksC5Mq.

[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, Response to parliamentary question by The Left, 20/432, 14 January 2022, 6, and 20/5709, 17 February 2023, available in German at: https://bit.ly/3K3w3MX, 6.