There is no special procedure at land borders. For the situation of asylum seekers apprehended at the border, see the section on Registration. The following section refers to the airport procedure.
The “procedure in case of entry by air” is legally defined as an “asylum procedure that shall be conducted prior to the decision on entry” to the territory.1 Accordingly, it can only be carried out if the asylum seekers can be accommodated on the airport premises during the procedure (with the sole exception that an asylum seeker has to be sent to hospital and therefore cannot be accommodated on the airport premises) and if a branch office of the BAMF is assigned to the border checkpoint. The necessary facilities exist in the airports of Berlin (Schönefeld), Düsseldorf, Frankfurt/Main, Hamburg and Munich.
Significant numbers of procedures only took place at the airport of Frankfurt/Main: 258 procedures in 2016, 627 procedures in 2015, 569 procedures in 2014 and 841 procedures in 2013. At the four other airports, only between 3 and 5 airport procedures were initiated in 2016.2
The airport procedure usually applies to applicants who do not have valid documents upon arrival at the airport, but it may also apply to applicants who ask for asylum at the border authorities in the transit area and to those who come from a “safe country of origin”.
Potential outcomes of airport procedures are as follows:
The Federal Office decides within 2 calendar days that the application is “manifestly unfounded”: Entry to the territory is denied. A copy of the decision is sent to the competent administrative court.3 The applicant may ask the court for an interim measure against deportation within three calendar days;
In theory, the Federal Office can decide within the 2 calendar days that the application is successful or it can reject the application as “unfounded” (unqualified rejection). In these cases, entry to the territory and, if necessary, access to the legal remedies of the regular procedure would have to be granted. However, this option seems to be irrelevant in practice since the Federal Office always grants entry to the territory for the asylum procedure to be carried out in a regular procedure if an application is not rejected as manifestly unfounded;
The Federal Office declares within the first 2 calendar days following the application that it will not be able to decide upon the application at short notice. Entry to the territory and access to the regular procedure are granted; or
The Federal Office has not taken a decision within 2 calendar days following the application: Entry to the territory (and to the regular procedure) is granted.
In practice, the third option is the most common outcome: In 2016, 191 out of 273 potential airport procedures were halted because the BAMF notified the border police that no decision would be taken within the time-frame required by law (2015: 549 out of 627, 2014: 539 out of 643; 2013, 899 out of 972; 2012: 720 out of 787). Only in 68 cases in 2016 a decision was taken within the 2-day period, all of which were rejections classified as “manifestly unfounded”.4 This implies that in practice only applications are dealt with in the airport procedure which the authorities have already earmarked as “manifestly unfounded”.
Nevertheless, concerns have been expressed regarding the quality of decision-making in the airport procedure in a recent Memorandum by German NGOs. Four of the cases reviewed showed lack of a substantive examination of the applications concerned, leading in one case concerning an Afghan national to rejection as “manifestly unfounded”.5
In the airport procedure, the border police may conduct a preliminary interview which includes questions on the travel route and on the reasons for leaving the country of origin. However, the relevant interview is carried out by the BAMF with the presence of an interpreter. The standards for this interview are identical to those described in the context of the regular procedure (see Regular Procedure: Personal Interview).
Recent monitoring of airport procedures has noted problems with interviews held at the airport, suggesting that an examination of applications cannot be effectively conducted within such short time limits. In some cases, asylum seekers have been interrupted systematically during their submissions.6
“Manifestly unfounded” decisions are generally subject to restrictions in legal remedy, but in the airport procedure the law has placed even stricter time-frames on the procedure. Thus, if an application is rejected as “manifestly unfounded” in the airport procedure, a request for an interim measure must be filed with an administrative court within 3 calendar days. The necessary application to the court can be submitted at the border authorities.7
The administrative court shall decide upon the application for an interim measure in a written procedure, i.e. without an oral hearing of the applicant.8 The denial of entry, including possible measures to enforce a deportation, is suspended as long as the request for an interim measure is pending at an administrative court. If the court does not decide on this request within 14 calendar days, the asylum seeker has to be granted entry to the territory.9
The airport procedure is the only procedure in Germany in which asylum seekers are entitled to free legal assistance. This requirement does not have a basis in legislation but results from a decision of the Federal Constitutional Court.10 According to this decision, assistance can be provided by any available person or institution sufficiently qualified in asylum law.
In practice, the association of lawyers of the airport's region coordinates a consultation service with fully qualified lawyers. If an applicant wants to speak to a lawyer, the border police contacts one of the lawyers named by the association of lawyers as soon as a formal denial of entry is issued, which includes the rejection of the asylum application. However, it has been pointed out by NGOs that the short timeframe foreseen in the airport procedure hinders effective access to a lawyer, leading to unsatisfactory implementation of Article 22 of the recast Asylum Procedures Directive.11
Consultation with the lawyer is free of charge for the applicant as far as it concerns the possibilities of legal remedy. The lawyer may also assist with the drafting of the request to the administrative court.12 Any other actions undertaken by the lawyer are not included in the free assistance. In particular, representation before the court is not part of this free legal assistance.
In the appeal procedure following an airport procedure, the preconditions for legal assistance are identical to those of the regular procedure.
- 1. Section 18a Asylum Act.
- 2. Federal Government, Reply to parliamentary question by The Left, 18/11262, 21 February 2017, 62; 18-7625 22 February 2016; 18/3850, 28 January 2015, 52, 18/705, 5 March 2014, 29. Cf. Flüchtlingsrat Brandenburg et al, Gemeinsame Stellungnahme gegen die Inhaftierung von Asylsuchenden auf dem neuen Großflughafen BER Willy Brandt und gegen die Durchführung von Asyl-Schnellverfahren, January 2012: The reason why airport procedures are not carried out more often at the other airports is because authorities may decide upon an applicant's arrival that an airport procedure cannot be carried out for practical reasons (e.g. non-availability of decision-makers or of translators). In such cases entry to the territory and to the regular asylum procedure is granted immediately.
- 3. Section 18a(2)-(4) Asylum Act.
- 4. Federal Government, Reply to parliamentary question by The Left, 21 February 2017; 22 February 2016; 18 August 2015, No. 18/5785; 38-39; 28 January 2015, No. 18/3850, 52; BAMF, Das Bundesamt in Zahlen 2013 – Asyl (The Federal Office in numbers 2013 – Asylum matters), February 2014, 36.
- 5. Memorandum Alliance, Memorandum für faire und sorgfältige Asylverfahren in Deutschland: Standards zur Gewährleistung der asylrechtlichen Verfahrensgarantien, November 2016, available in German at: http://bit.ly/2gZGhBq, 28.
- 6. Memorandum Alliance, Memorandum für faire und sorgfältige Asylverfahren in Deutschland: Standards zur Gewährleistung der asylrechtlichen Verfahrensgarantien, November 2016, 28.
- 7. Section 18a(4) Asylum Act.
- 8. Section 18a(4) Asylum Act.
- 9. Section 18a(6) Asylum Act.
- 10. Federal Constitutional Court, Decision of 14 May 1996, 2 BvR 1516/93, cf. Reinhard Marx. AsylVfG – Kommentar zum Asylverfahrensgesetz (Asylum Procedures Act – Commentary), 7th edition, 2009, 432.
- 11. Memorandum Alliance, Memorandum für faire und sorgfältige Asylverfahren in Deutschland: Standards zur Gewährleistung der asylrechtlichen Verfahrensgarantien, 27.
- 12. Federal Constitutional Court, Decision of 14 May 1996, 2 BvR 1516/93.