ANNEX I – Transposition of the CEAS in national legislation

 Directives and other CEAS measures transposed into national legislation

Note that the Asylum Procedures Directive and the Reception Conditions Directive have only partially been transposed by the corresponding acts referred to here. As of 1 January 2023, amendments of the Asylum Act entered into force through the Act on the acceleration of asylum court proceedings and asylum procedures which transposed several provisions of the APD. This includes the time limits for the first instance procedure and the reasons for dispensing with the personal interview (see Regular procedure).

Doubt as to the correct transposition or application of EU Directives on Asylum and Return remain regarding the following issues:

• Procedural guarantees for vulnerable applicants: Section on vulnerable groups in the procedure: There is no requirement in law or mechanism in place to systematically identify vulnerable persons in the asylum procedure, except for unaccompanied children. According to the BAMF, the identification of vulnerable applicants as required by the APD is primarily the remit of the Federal States, who are responsible for reception and accommodation. However, since 2022 the BAMF internal guidelines also acknowledge a duty on the side of the BAMF to identify vulnerabilities to guarantee a fair asylum procedure for the persons concerned. In addition to identification, there are no provisions in German law regarding adequate support for applicants in need of special procedural guarantees throughout the procedure (see Guarantees for vulnerable groups).
• Legal representation of unaccompanied minors: the current legal situation as to legal guardians is not in line with relevant provisions of the recast APD and other European legal acts which state that children should be represented and assisted by representatives with the necessary expertise, since there is no specific training for legal guardians regarding asylum law or the asylum procedure (see Legal representation of unaccompanied children).
• Border procedure: The scope of the airport procedure in Germany is not consistent with the boundaries set by the recast APD since German law triggers the airport procedure as soon as it is established that the asylum seeker is unable to prove their identity by means of a passport or other documentation, with no requirements of misleading the authorities by withholding relevant information on identity or nationality, or destroying or disposing of an identity or travel document in bad faith. Moreover, the German Asylum Act exempts neither unaccompanied children nor persons with special procedural guarantees from the airport procedure, despite an express obligation under the APD to provide for such exemptions under certain conditions. It also makes no reference to ‘adequate support’ which should be provided to those requiring special procedural guarantees (see Border procedure (border and transit zones)).
• Grounds for detention: The grounds for detention have been expanded in 2019 through several provisions providing grounds for the assumption of a risk of absconding as well as ‘indications’ for such a risk. The new provisions have been criticised for being in contradiction with the principle of detention as a ‘last resort’. Furthermore, it has been pointed out that the concept of a ‘refutable assumption’ for the risk of absconding does not exist in the EU Return Directive, which is why the compatibility of national law with this Directive has been put in doubt. For detention to enforce Dublin transfers, the general reference to the ‘risk of absconding’ as a ground for detention as defined in Section 62, NGOs have raised doubts as regards the compliance of this provision with the Dublin III Regulation.[1] According to the latter, Member States may detain the person concerned only if there is a significant risk of absconding and on the basis of an individual assessment (Article 28 II of the Dublin III Regulation). In contrast, German law now lists numerous grounds for detention, some of which are vaguely worded thus raising the question as to whether they constitute significant reasons to assume a risk of absconding. In 2020, the possibility of detention during the asylum procedure was introduced for persons who are subject to an entry ban and present ‘a significant danger to their own or others’ lives, or to internal security’ or have been convicted for criminal offences, including asylum seekers (Section 62c Residence Act). NGOs such as PRO ASYL and the Federal Association for Unaccompanied Minors heavily criticised the new provision as it contains no safeguards for vulnerable groups and lacks a proper legal basis in the grounds for detention as provided by the EU Reception Conditions Directive (see Grounds for detention).
• Place of detention: Between 2019 and July 2022, Federal States had the legal possibility to detain persons in regular prisons, which was justified by an alleged acute shortage of detention places. In March 2022, the CJEU ruled that an emergency situation cannot be based solely on a high number of persons who are obliged to leave, and that a failure on the side of the state to provide for sufficient specialised detention facilities cannot justify an emergency situation (see Place of detention).
• Detention conditions: In its March 2022 ruling, the CJEU ruled that conditions in detention facilities must not be prison-like if they are to qualify as specialised detention facilities in the sense of the EU Return Directive. According to the lawyer filing the original case, this puts in question some of the existing specialised detention facilities such as Glückstadt in Schlewsig-Holstein or Hof in Bavaria that are surrounded by high walls and barbed wire. In Bavaria, the appeals court of Coburg found on 24 November 2022 that conditions in the detention centre in Eichstätt are not in line with the CJEU’s ruling (see Conditions in detention facilities).

[1] PRO ASYL, Stellungnahme zum Entwurf eines Zweiten Gesetzes zur besseren Durchsetzung der Ausreisepflicht (BT-Drucksache 19/10047), 29 May 2019, available in German at: https://bit.ly/2WqrSlt, 5.