Access to the territory and registration
If migrants report at the border while trying to enter Germany without the necessary documents, entry into the territory may be refused on the grounds that the migrant has travelled through a “safe third country”, which notably include other EU Member States and Switzerland. However, if they apply for asylum, they would in most cases have to be referred to the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF, see Access to the territory and push backs).
Asylum seekers who arrive at an international airport without the necessary documents may be subject to the airport procedure (Flughafenverfahren), dependent on whether the necessary facilities exist at the airport. It is then decided in an accelerated procedure whether they will be allowed to enter the territory or not (for details see Border procedure).
Once persons seeking protection are on the territory, the law obliges asylum seekers to ‘‘immediately’’ report to a ‘reception facility’ (Aufnahmeeinrichtung). Alternatively, they can report to a police station or to an office of the foreigners’ authorities.[1] Once asylum seekers have reported to the reception facility, they must be issued an ‘arrival certificate’ (Ankunftsnachweis). Afterwards, the responsible branch office of the BAMF is determined with the help of a distribution system known as Initial Distribution of Asylum Seekers (Erstverteilung der Asylbegehrenden, EASY). It is possible that the EASY-system assigns a place in the facility to which asylum-seekers have reported. In this case, they are referred to the BAMF office, often located on the same premises or nearby, for the registration of the asylum application. If the EASY-system assigns the person to a facility located in another region, asylum-seekers are transported to this facility or are provided with tickets to travel there on their own. Asylum seekers are obliged to appear in person without delay or on the date determined by the authorities at the responsible branch office of the BAMF. Once they arrive in the responsible branch office of the BAMF, asylum seekers lodge their application with the BAMF. Following the lodging of the application, they are issued a ‘permission to stay for asylum seekers’ (Aufenhaltsgestattung). With this document, the arrival certificate ceases to be valid and must be retracted by the authorities.
First instance decision
Once the asylum procedure has started, the BAMF must decide whether an asylum seeker is entitled to:
- asylum based on the German Constitution (Grundgesetz);[2]
- Refugee status according to the 1951 Refugee Convention and to the Qualification Directive;[3]
- Subsidiary protection as part of the international protection under the Qualification Directive;[4] or
- Other forms of protection, removal ban. (Abschiebungsverbot).[5]
The other forms of protection include a national protection status for people whose removal would constitute a breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) or a ‘considerable concrete danger to life and limb or liberty’. In principle, this latter status might apply to any such threat, including risks emanating from ill health or from destitution, but case law has narrowed the scope of this provision to instances of ‘extreme risk’ for all cases not related to ill health, i.e. cases in which an applicant would face ‘certain death or most serious harm’ upon return. Reasons of ill health are only applicable in cases of life-threatening or serious diseases that would become much worse in case of a return. According to the BAMF, this is not contingent on the healthcare provided in the destination state being equivalent to that available in the Federal Republic of Germany. Adequate medical treatment is also deemed to be provided as a rule if this is only guaranteed in a part of the destination country.[6]
In a high number of cases, 64,546 cases in 2023 (24.7% of total decisions), a ‘formal decision’ – including inadmissibility decisions – was taken, which means that the case was closed without an examination of the asylum claim’s substance.[7] Formal decisions are mostly issued because another state was found to be responsible for the asylum application under the Dublin Regulation or due to the withdrawal of the application by the applicant. Furthermore, decisions not to carry out follow-up procedures in cases of second or further asylum applications have been qualified as inadmissibility decisions since 2016.
If an asylum and subsidiary protection application is rejected, the notice of rejection also includes an instruction to leave the country and a “Deportation warning”[8] (removal warning), which is equivalent to a return decision under EU law.[9]
Appeal
An appeal against the rejection of an asylum application must be submitted to a regular Administrative Court (Verwaltungsgericht, VG). The responsible Administrative Court is the one with regional competence for the asylum seeker’s place of residence. Appeals generally have suspensive effect, unless the application is rejected as ‘manifestly unfounded’ or as ‘inadmissible’ (e.g., in Dublin cases). In these cases, applicants may ask the court to restore suspensive effect, but they only have one week to submit the necessary request, which must be substantiated.
The decision of the Administrative Court is usually final in asylum procedures. Further appeals to higher courts are possible only in exceptional circumstances, e.g., if the case is of fundamental importance or if the Administrative Court’s decision violates basic principles of jurisprudence.
[1] Section 13 Asylum Act.
[2] Article 16a Basic Law and Section 2 Asylum Act.
[3] Section 3 Asylum Act.
[4] Section 4 Asylum Act.
[5] Section 60 (5) and (7) Residence Act.
[6] BAMF, National ban on deportation, 28 November 2018, available at https://bit.ly/3wjp1PI.
[7] In the previous years the numbers were as follows: 50,880 in 2022 (22.3%), 55,035 (28.8%) in 2021, 36,015 (29.5%) in 2020, 59,591 (32.9%) in 2019, 65,507 (30.2%) in 2018, 109,476 (18.1%) in 2017; 87,697 (12.6%) in 2016 and 50,297 (17.8%) in 2015.
[8] Terminology used in the English translation of the Germany Asylum Act on the official government website, available here.
[9] Section 34 (1) Asylum Act.