Regular procedure

Germany

Author

Informationsverbund Asyl und Migration

General

The competent authority for the decision-making in asylum procedures is the BAMF. Until 2004, the processing of asylum applications was the main task of the Federal Office (then under a different name), but since then its functions and duties have expanded in the field of migration to include coordination of integration courses or research on general migration issues. The Federal Office also acts as national administration office for European Funds in the areas of refugees, integration and return.

The law does not set a time limit for the Federal Office to decide on an application. If no decision has been taken within 6 months, the Federal Office has to notify asylum seekers upon request about when the decision is likely to be taken.1

The overall number of pending applications at the Federal Office was at 433,719 as at 31 December 2016. This represents an increase of 18.9% in comparison with the end of 2015, when 364,664 applications were pending.2

According to the German government, the average time of asylum procedures up to a legally binding decision was at 7.1 months in 2016.3 The average length of asylum procedure has ranged from 5 to 7 months in recent years.

 

Prioritised examination and fast-track processing

The average length of asylum procedures at the authorities’ level (BAMF) was at 5-7 months in recent years. For the years 2013 to 2016, statistics show significant variation in length of procedures, depending on the countries of origin of asylum seekers:












Average duration of the procedure (in months) per country of origin

 

2013

2014

2015

2016

All countries

7.2

7.1

5.2

7.1

Serbia

2.1

4

4.2

8.9

Afghanistan

14.1

13.9

14.0

8.7

Syria

4.6

4.2

3.2

3.8

Iraq

9.5

9.6

6.8

5.9

FYROM

2.4

5.3

4.5

:

Iran

13

14.5

17.1

12.3

Pakistan

15

15.7

15.3

15.5

Russia

5.6

10

11.8

15.6

Source: Federal Government, Response to parliamentary questions by The Left:  18/705, 5 March 2014; 18/3580, 28 January 2015; 18/7625, 22 February 2016; 18/11262, 21 February 2017: http://dipbt.bundestag.de/dip21/btd/18/112/1811262.pdf.

Some of these differences result mainly from a prioritisation of certain caseloads which has taken place since the second half of 2012. Prioritisation had no basis in law at the time and all the rules and guarantees of the regular procedures were still in place technically. However, administrative measures were established with a view to conducting the interview on the day of registration and issuing a decision within 1 week, especially for cases which allegedly had low chances of success.4 NGOs called this into question and claimed that the fast-tracking of procedures on the assumption that claims were abusive amounted to “summary procedures”, in which an unbiased and thorough examination of asylum claims was not possible.

In 2015, applications from the following countries of origin were prioritised: Syria, Serbia, FYROM, Bosnia-Herzegovina, Albania, Kosovo and Eritrea. In addition, applications from members of religious minorities from Iraq (Christians, Yazidi, Mandaeans) were also included in the prioritised caseloads.5 According to the government, prioritisation of applications from certain countries was revoked in the second quarter of 2016.

Since then, branch offices of the BAMF are entitled to set their own priorities in dealing with caseloads, in order to respond effectively to the local situation.6 Furthermore, prioritisation has partially been replaced by “clustering” of cases in the newly established “arrival centres” (Ankunftszentren). These arrival centres were introduced in December 2015 with the aim of fast-tracking procedures. 24 out of approximately 65 branch offices of the BAMF were functioning as arrival centres at the end of 2016.7 The concept of arrival centres is not based in law but has been developed by business consultants under the heading “integrated refugee management”.8 Accordingly, this method for fast-tracking of procedures must not be confused with the Accelerated Procedure introduced into law in March 2016.

In the arrival centres, tasks of various authorities are “streamlined”, such as the recording of personal data, medical examinations, registration of the asylum applications, interviews and decision-making. Part of the streamlining process is the clustering of asylum cases into the following four groups:9

Cluster A          Countries of origin with a high protection rate (from 50 % upwards)

Cluster B          Countries of origin with a low protection rate (up to 20 %)

Cluster C          “Complex cases”

Cluster D          Dublin cases

Under the concept of the arrival centres and the “cluster procedure”, asylum seekers belonging to the Clusters “A” and “B” should usually be interviewed within a few days after the registration of their asylum applications. If capacities are available, interviews of asylum seekers from “Cluster C” can also take place in the arrival centres, otherwise they leave the arrival centres and have to wait for an appointment for the interview at an accommodation centre elsewhere. Interviews for Dublin cases are not scheduled until it has been clarified which state is responsible for the asylum procedure.10

 

 

Personal interview

In the regular procedure, the BAMF conducts an interview with each asylum applicant.11 Only in exceptional cases may the interview be dispensed with, where:

  1. The Federal Office intends to recognise the entitlement to asylum on the basis of available evidence;


  2. The applicant claims to have entered the territory from a safe third country;12


  3. An asylum application has been filed for children under 6 years who were born in Germany “and if the facts of the case have been sufficiently clarified based on the case files of one or both parents;13 or


  4. The applicant fails to appear at the interview without an adequate excuse.14

Between November 2014 and throughout 2015, written procedures, in which the interview was omitted, regularly took place for groups of asylum seekers with good prospects of being recognised as refugees. However, the written procedures were abandoned during 2016. From January 2016 onwards, only asylum seekers whose applications had been filed in 2015 were allowed to participate in the written procedure, while newly arriving asylum seekers were referred to the ‘normal’ asylum procedure. The main reason for the abandonment was a change in the decision-making practice of the BAMF, which increasingly granted subsidiary protection status instead of refugee status to asylum seekers from Syria, in the context of a new law suspending family reunification for people with subsidiary protection status for the duration of two years (see Chapter on Content of Protection). Since it was not possible to differentiate between refugee status and subsidiary protection status in the written procedures, this practice was cancelled in 2016.15

 

Quality of interpretation

The presence of an interpreter at the interview is required by law.16 The BAMF recruits its own interpreters on a freelance basis.

According to a newspaper report from August 2016, interpreters at the BAMF were accused of manipulating asylum procedures to the detriment of asylum seekers. In particular, reference was made to the case of an Eritrean interpreter, allegedly supporting the Eritrean government. Several asylum seekers alleged that he had distorted statements which resulted in Eritreans being registered as “persons with unknown nationality”. In the same report, it was alleged that quality control of interpreters was virtually non-existent at the time, but that the BAMF was planning to introduce in-house training for interpreters on “neutrality and professionalism”.17

 

Transcript of the interview

The transcript of the interview consists of a summary of questions and answers (i.e. it is not a verbatim transcript). It is usually taken from a tape recording of the interview and it is only available in German. The interpreter present during the personal interview will also be responsible for translations of the transcript. The applicant has the right to correct mistakes or misunderstandings. By signing the transcript the applicant confirms that he or she has had the opportunity to present all the important details of the case, that there were no communication problems and that the transcript was read back in the applicant's language.

In spite of this, alleged mistakes in the transcript frequently give rise to disputes at later stages of the asylum procedure. For instance, doubts about the credibility of asylum seekers are often based on their statements as they appear in the transcript. However, it is possible that the German wording of the transcript reflects mistakes or misunderstandings which were caused by the translation. For example, the transcript is usually translated (orally) once more at the end of the session by the same interpreter who has been present during the interview as well. On this occasion, it is more than likely that interpreters repeat the mistakes they made during the interview and it is thus impossible for the asylum seeker to identify errors in the German transcript which result from the interpreters' misunderstandings or mistakes. It is very difficult to correct such mistakes afterwards, since the transcript is the only record of the interview. The tape recording of the interview is deleted.

Furthermore, asylum seekers are frequently asked if the retranslation of the transcript may be dispensed with. Few asylum seekers insist on the retranslation, therefore mistakes in the transcript go unnoticed, as reported in recent observations from a network of 12 German NGOs (“Memorandum Alliance”).18

In November 2016, an alliance of 12 German NGOs published a “Memorandum to enhance fair and diligent asylum procedures in Germany”. Based on an analysis of transcripts, decisions and reports from lawyers and NGOs, several recurring deficiencies were identified and observed in the interviews in asylum procedures at the BAMF:19

  • Asylum seekers are not sufficiently informed about their rights and obligations during the interview; they often have no access to lawyers and/or advice centres before the interview;


  • BAMF staff uses inadequate communication techniques e.g. biased, ‘interrogation-like’ questioning of asylum seekers;


  • Asylum seekers are not given an opportunity to fully substantiate their applications or to clarify alleged inconsistencies or contradictions in their statements;


  • Mistakes occurring during translation or in the transcripts lead to credibility of asylum seekers’ statements being cast into doubt.

The Memorandum concludes that these problems cannot only be attributed to the high number of applications that the BAMF had to deal with since 2014, as many of the flaws have been criticised by NGOs for many years. However, the report states that the quality of procedures has deteriorated considerably in recent years, partially due to a large number of new staff members at the BAMF who were deployed with insufficient training.20 These new staff members often do not decide on applications, but only carry out the interviews. The protocols of their interviews are sent to decision-makers who decide on a large number of cases without having met the applicants in person.21 In such cases, deficiencies during the interview and mistakes in the transcripts might have particularly severe consequences for the outcome of the asylum procedure. 22

Other reports suggest that the increasing number of asylum applications has also led to lower standards in the quality of interviews, since staff members of the BAMF are under increasing pressure to process as many applications as possible within short timeframes.23

Video recordings of interviews do not take place. Video conferencing was used, albeit rarely,24 until 2013, but its use seems to have been abandoned completely since then. Audio or video recording or video conferencing is not used in appeal procedures either.

 

Appeal

Appeals against rejections of asylum applications have to be lodged at a regular Administrative Court. There are 51 Administrative Courts competent to deal with asylum matters. The responsible court is the one with regional competence for the asylum seeker's place of residence. Procedures at the administrative court generally fall into 2 categories, depending on the type of rejection of the application:

Simple rejection: An appeal to the Administrative Court has to be submitted within 2 weeks (i.e. 14 calendar days). This appeal has suspensive effect. It does not necessarily have to be substantiated at once, since the appellant has 1 month to submit reasons and evidence. Furthermore, it is common practice that the courts either set another deadline for the submission of evidence at a later stage (e.g. a few weeks before the hearing at the court) or that further evidence is accepted up to the moment of the hearing at the court.

Rejection as “manifestly unfounded” (offensichtlich unbegründet) or as “inadmissible” (unzulässig): Section 30 of the Asylum Act lists several grounds for rejecting an application as “manifestly unfounded”. These include among others unsubstantiated or contradictory statements by the asylum seeker, as well as misrepresentation or failure to state one’s identity. For inadmissibility decisions, see Admissibility Procedure.

If asylum applications are rejected as “manifestly unfounded” or as “inadmissible”, the timeframe for submitting appeals is reduced to one week. Since appeals do not have (automatic) suspensive effect in these cases, both the appeal and a request to restore suspensive effect have to be submitted to the court within 1 week (7 calendar days). The request to restore suspensive effect has to be substantiated.

The short deadlines in these rejections are often difficult to meet for asylum seekers and it might be impossible to make an appointment with lawyers or counsellors within this timeframe. Therefore it has been argued that the 1-week period does not provide for an effective remedy and might constitute a violation of the German Constitution.25 In any case, suspensive effect is only granted in exceptional circumstances.

The Administrative Court investigates the facts of the case. This includes a personal hearing of the asylum seeker (usually not when deciding on applications for suspensive effect, though). Courts are required to gather relevant evidence at their own initiative. As part of the civil law system principle, judges are not bound by precedent. Court decisions are generally available to the public (upon request and in anonymous versions if not published on the court's own initiative).

In 2016, the average processing period for appeals was 7.5 months,26 but it has to be taken into account that a high number of appeal procedures (45.4%) were terminated without an examination of the substance of the case, and accordingly, without a hearing at the court; e.g. if the appeal was withdrawn by the asylum seeker or if an out-of-court settlement is reached between the asylum seeker and the BAMF. Therefore, it has to be assumed that the average period for appeals is considerably longer than 7.5 months, if the court decides on the merits of the case.

If the appeal to the Administrative Court is successful (or partly successful), the court obliges the authorities to grant asylum and/or refugee status or to declare that deportation is prohibited. The decision of the Administrative Court is usually the final one in an asylum procedure. Only in exceptional cases is it possible to lodge further appeals to higher instances.

 

Onward appeal

The second appeal stage is the High Administrative Court (Oberverwaltungsgericht or Verwaltungsgerichtshof); the latter term is used in the Federal States of Bavaria (Bayern), Hessen, and Baden-Württemberg. There are 15 High Administrative Courts in Germany, one for each of Germany's 16 Federal States, with the exception of the States of Berlin and Brandenburg which merged their High Administrative Courts in 2005. High Administrative Courts review the decisions rendered by the Administrative Court both on points of law and of facts.

In cases of “fundamental significance” the Administrative Court itself may pave the way for a further appeal (Berufung) to the High Administrative Court, but usually it is either the authorities or the applicant who apply to the High Administrative Court to be granted leave for a further appeal. In contrast to the general Code of Administrative Court Procedure (Verwaltungsgerichtsordnung) the criterion of “serious doubts as to the accuracy of a decision” is not a reason for a further appeal in asylum procedures. It is therefore more difficult to access this second appeal stage in asylum procedures than it is in other areas of administrative law. According to Section 78 of the Asylum Act, a further appeal against an asylum decision of an Administrative Court is only admissible if:

  1. The case is of fundamental importance;


  2. The Administrative Court’s decision deviates from a decision of a higher court; or


  3. The decision violates basic principles of jurisprudence.

Decisions by the High Administrative Court may be contested at a third stage, the Federal Administrative Court, in exceptional circumstances. The Federal Administrative Court only reviews the decisions rendered by the lower courts on points of law. The respective proceeding is called “revision” (Revision). High Administrative Courts may grant leave for a revision if the case itself or a point of law is of fundamental significance, otherwise the authorities or the asylum seekers have to apply for leave for such a further appeal to the Federal Administrative Court. Possible reasons for the admissibility of a revision are similar to the criteria for an appeal to a High Administrative Court as mentioned above.

Judgments of the Federal Administrative Court are always legally valid since there is no further legal remedy against them. However, as the Federal Administrative Court only decides on points of law and does not investigate the facts, it often sends back cases to the High Administrative Courts for further investigation.

Outside the administrative court system, there is also the possibility to lodge a so-called constitutional complaint at the Federal Constitutional Court (Bundesverfassungsgericht). Such complaints are admissible in cases of violations of basic (i.e. constitutional) rights. In the context of asylum procedures this can be the right to political asylum as well as the right to a hearing in accordance with the law, but standards for admissibility of constitutional complaints are difficult to meet. Therefore, only few asylum cases are accepted by the Federal Constitutional Court.

 

Legal assistance

Legal assistance is not systematically available to asylum seekers in Germany. Welfare organisations and other NGOs offer free advice services which include basic legal advice. In some initial reception centres welfare organisations or refugee councils have regular office hours or asylum seekers can easily access the offices of such organisations close to the centres. However, such advice services are not available in all centres and not all of the time, so very often interviews take place before asylum seekers have had a chance to contact an NGO or a lawyer. There is no mechanism which ensures that asylum seekers are getting access to legal advice from an independent institution before the interview. Once asylum seekers have left the initial reception centres and have been transferred to other accommodation, the accessibility of legal advice depends strongly on the place of residence. For instance, asylum seekers accommodated in rural areas might have to travel long distances to reach advice centres or lawyers with special expertise in asylum law.

NGOs are not entitled to legally represent their clients in the course of the asylum procedure. During the first instance procedure at the BAMF, asylum seekers may be represented by a lawyer but they are not entitled to free legal aid, so they have to pay their lawyers' fees themselves at this stage.

During court proceedings, asylum seekers can apply for legal aid to pay for a lawyer. The granting of legal aid is dependent on how the court rates the chances of success. This “merits test” is carried out by the same judge who has to decide on the case itself. Therefore some lawyers do not always recommend to apply for legal aid, since they are concerned that a negative decision in the legal aid procedure may have a negative impact on the main proceedings. Furthermore, decision-making in the legal aid procedure may take considerable time so lawyers regularly have to accept a case before they know whether legal aid is granted or not. Lawyers often argue that fees based on the legal aid system do not always cover their expenses. As a consequence, specialising only on asylum cases is generally supposed to be difficult for law firms. Most lawyers specialising in this area have additional areas of specialisation while a few also charge higher fees on the basis of individual agreements with their clients.

 

It is possible to appeal against the rejection of an asylum application at an Administrative Court without being represented by a lawyer, but from the second appeal stage onwards representation is mandatory.

  • 1. Section 24(4) Asylum Act.
  • 2. BAMF, Schulussenzahlen Asyl 2016, January 2017, available in German at: http://bit.ly/2lllpqJ.
  • 3. Federal Government, Response to parliamentary question by The Left, 18/11262, 21 February 2017, 13.
  • 4. Ibid.
  • 5. Federal Government, Response to parliamentary question by The Left, 18/5785, 18 August 2015, 46.
  • 6. Federal Government, Response to parliamentary question by The Left, 18/9415, 17 August 2016, 23.
  • 7. Cf. list of offices of the BAMF at www.bamf.de under ‘Federal Office/Structure/Locations’ (as at 11 January 2017) which lists about 40 ‘branch offices’ or ‘regional offices’ in addition to the arrival centres, with some offices having both functions. In total, there are about 110 offices of the BAMF. However, this number includes so-called ‘interview centres’ and ‘decision-making centres’ as well as ‘processing lines’ and ‘waiting rooms’ at the border.
  • 8. These include McKinsey, Roland Berger and Ernst & Young: BAMF, ‘Viele helfende Hände – für den gemeinsamen Erfolg’, 22 March 2016, available in German at: http://bit.ly/2llkWoc.
  • 9. BAMF, The stages of the German asylum procedure: An overview of the individual procedural steps and the legal basis, October 2016, available at: http://bit.ly/2llmb6R, 29.
  • 10. Johannes Moll, “Das verkürzte Asylverfahren im Ankunftszentrum Heidelberg. Ein Modell im Spannungsfeld von effizientem Verfahren und effektiven Rechtsschutz” (“The abridged asylum procedure in the arrival centre at Heidelberg. A concept caught between efficient procedures and effective legal protection”), Asylmagazin 12/2016, 412-420 (414).
  • 11. Sections 24 and 25 Asylum Act.
  • 12. This provision is rarely applied in the regular procedure since it has usually not been established at the time of the interview whether Germany or a safe third country is responsible for the handling of the asylum claim.
  • 13. Section 24(1) Asylum Act.
  • 14. Section 25 Asylum Act.
  • 15. Asylmagazin, ‘Änderungen in der Entscheidungspraxis des BAMF’, No 4-5/2016, 97.
  • 16. Section 17 Asylum Act.
  • 17. Südddeutsche Zeitung, ‘Wenn das Schicksal von Flüchtlingen in der Hand des Dolmetschers liegt’, 31 August 2016, availablein German at: http://bit.ly/2lpvMp5.
  • 18. 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, 18-19.
  • 19. Ibid, 15-19.
  • 20. Ibid, 5.
  • 21. No exact statistics are available on procedures, in which interviews and decision-making are not carried out by the same person. However, according to government figures, more than 66% of decisions were taken in so-called “decision-making centres” in 2016. Transcripts of interviews are sent to these centres, in which more experienced staff members usually decide on the application only on the basis of the transcript: Federal Government, Response to parliamentary question by The Left, 18/11262, 21 February 2017, 77-78.
  • 22. Frankfurter Rundschau, ‘Da wird nicht nachgefragt’, Interview with lawyer Reinhard Marx, 26 May 2015.
  • 23. The government estimates that in 25% of asylum cases the staff member conducting the interview is not the staff member deciding on the application: Federal Government, Reply to parliamentary question by The Left, 18/5785, 18 August 2015, 47.
  • 24. Katharina Stamm, ‘Videokonferenztechnik im Asylverfahren – warum sie unzulässig ist’, Asylmagazin 3/2012, 70; Federal Government, Response to parliamentary question by The Left, 17/8577, 10 February 2012, 22.
  • 25. See more references in Dominik Bender and Maria Bethke. “'Dublin III', Eilrechtsschutz und das Comeback der Drittstaatenregelung.”, Asylmagazin 11/2013, 362.
  • 26. Federal Government, Response to parliamentary question by The Left, No 18/11262, 21 February 2017, 64.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti