Access to the territory and push backs

Germany

Country Report: Access to the territory and push backs Last updated: 21/04/22

Author

Paula Hoffmeyer-Zlotnik Visit Website

Arrival at the border and border controls

The law states that asylum seekers who apply for asylum at the border have to be referred to an initial reception centre for asylum seekers.[1]  However, entry to the territory has to be refused if a migrant reports at the border without the necessary documents for legal entry and if an immediate removal to the neighbouring country (as Safe Third Country) is possible.[2]

Since 2013, asylum seekers should not be sent back to neighbouring countries without their applications for international protection having been registered. It is not clear, however, whether this practice is applied in all cases: even if migrants have crossed the border – which is defined as a 30 km strip on the basis of a legal fiction laid down in the Law on the Federal Police (based on the Schengen Borders Code) – they have not necessarily entered the territory,[3] and it is possible that a removal to the neighbouring state (Zurückweisung) is still carried out at this point.

With the outbreak of the Covid-19 pandemic, the German government has introduced temporary border controls at internal Schengen borders at various points in time. The first introduction of border controls on 15 March 2020 applied to the borders with Austria, France, Denmark, Luxemburg and Switzerland.[4] After the lifting of these general border controls in June 2020, controls have again been introduced with Austria and the Czech Republic in the spring of 2021. While the border controls at the borders with the Czech Republic have been lifted, the border controls with Austria were prolonged until 11 May 2022 at the time of writing of this report. [5] According to the Federal government, the border controls have not affected the possibility to apply for asylum at German borders.[6]

Independently of the pandemic situation, Germany has regularly re-introduced border controls at its borders with Austria since 2015. In 2018, following a heated political debate, a new procedure was introduced which enables the Federal Police to refuse entry at the border and send persons back to Greece and Spain within 48 hours if they have previously applied for asylum there.[7] This procedure is based on administrative regulations and special administrative readmission agreements with the two countries. These returns are therefore not based on the Dublin Regulation, but on a refusal of entry under the (national) notion of “safe third countries” in combination with administrative arrangements concluded with other EU Member States. Since 2019, it was only applied to the Austrian-German border, as this was the only border where controls continue to take place.

The legality of the new procedure has been questioned by legal experts,[8] and forced returns that took place on its basis were subject to court challenges, including requests for interim measures to bring back the forcibly returned applicants. The responsible court – the administrative court of Munich – has granted interim measures and has ordered the German Federal Police to bring back the asylum seeker from Greece in two cases in 2019 and 2021.[9] While the two cases are still pending, the 2021 decision on interim measures states that the Dublin regulation has to be applied instead of the procedure foreseen by the administrative regulations agreements, and that the removal cannot take place without an examination by the Federal Office for Migration and Refugees, which is the competent authority for the Dublin procedure. In May 2021, the Federal Ministry of the Interior stated it did not intend to change the practice nor its legal assessment in light of the court decision of May 2021.[10]  However, according to the Federal Police, no refusals of entry have been carried out since May 2021 on the basis of the administrative arrangements with Greece and Spain.[11] In October 2021, the Ministry of Interior has declared its willingness to conclude a renewed agreement with Greece and to potentially reintroduce border controls at airports with flights from Greece.[12] However, the declaration occurred only weeks before the end of term of the Minister of Interior who had initiated the procedure.  More information on the procedure and the legal challenges brought against it can be found in the 2019 Update to the AIDA Country Report for Germany as well as in ECRE’s assessment of transfers of asylum seekers based on these agreements.[13]

In any case, the introduction of the new procedure had little effect in practice: Between August 2018 and May 2021, only 50 persons were returned (46 returns to Greece and 4 to Spain) on the basis of the readmission agreements with these countries.[14]  Therefore, the political debate over the return procedures at the border, which had even triggered a government crisis in 2018, has been described as “absurd” in retrospect.[15]

The humanitarian crisis at the Polish-Belarussian border also had effects on border-crossing in Germany. In 2021, the Federal Police registered 11,228 border crossings “with a connection to Belarus”, with the highest number of crossings reported between September and November 2021.[16] According to the Federal Police, the main nationalities of persons crossing into Germany were from Iraq, Syria, Yemen and Afghanistan.[17] The Federal Government did not introduce temporary border controls, and refusals of entry at the German-Polish border are therefore not permitted. The Federal Police conducts “intensive search measures short of border controls” in the border area.[18] Out of all the persons arriving in Germany, many were initially housed in the reception facility in Eisenhüttenstadt, Brandenburg, near the Polish border. In October 2021, reception capacity was increased temporarily through the use of heated tents, and the situation was described as “tough” by the head of the city’s refugee authority, also due to quarantine requirements in reception to prevent the spread of Covid-19.[19] In early November, the Federal Police opened a “registration centre” in Frankfurt/Oder, where persons asking for asylum are registered, and where a Covid test and security checks are done before the persons are referred to the responsible Federal State.[20] It should be further noted that, in light of the situation at the border, increased police operations were carried out to detect potential smuggling activities between Poland and Germany.[21]

Legal access to the territory

On top of family reunification, there are two main ways for asylum seekers to legally access the German territory: via the Government’s resettlement and humanitarian admission programmes and via relocation from other EU Member States. The Federal States also run admission programmes mainly for Syrian nationals, but these are mostly geared towards family members of beneficiaries of international protection residing in the respective Federal States (see Family Reunification).

Germany adopted its first resettlement programme in 2012 in the form of a pilot programme where 300 refugees were admitted per year. The programme was made permanent in 2015, with a quota of 500 persons. Since 2016, the German resettlement programme is part of Germany’s contribution to the EU resettlement scheme.[22] Next to the national quota, resettlement includes admissions of Syrian refugees from Turkey in the context of the so-called EU-Turkey statement. Resettled refugees. In addition, the Federal Government can decide on humanitarian admission programmes on an ad-hoc, temporary basis. Such a temporary humanitarian admission programme was in place for 20,000 Syrian refugees between 2013 and 2015.[23]

In 2019, the German government introduced an additional private sponsorship programme in the form of a pilot scheme with 500 additional places. In the programme called “Neustart im Team (NesT)” groups of at least 5 persons commit to accompany and support resettled refugees for at least one year and to pay for their rent during two years. As of 23 November 2021, 92 persons had been resettled with the new pilot programme.[24]

In the resettlement programme. the BAMF is responsible for the selection process together with the UNHCR. Once resettled refugees arrive in Germany, they first stay in the reception of Friedland (Lower Saxony) for up two weeks, and are then allocated to a municipality, where they are issued a residence permit which is equivalent in rights to residence permits granted to recognised refugees.[25]

As a result of the Covid-19 pandemic, all admission to Germany were suspended in mid-March 2020.[26] The first resettlement flight after the suspension took place on 29 September 2020, relocating Syrian refugees from Turkey.[27]

Year Resettlement places pledged Persons admitted
2016 / 2017 1,600 1,600
2018 / 2019 10,200 8,000
2020 5,500 1,178 (due to Covid-related suspension)
2021 6,800 (referring to 4,300 persons not admitted in 2020 and 2,500 additional places)

Source: Federal Ministry of the Interior, ‘Resettlement und humanitäre Aufnahmen’, available in German at https://bit.ly/3H4rqhK. Note that the website www.resettlement.de provides more detailed statistics (under “current admissions”) on every arrival that was processed through Friedland since 2015 and until the end of 2021. However the counting differs from the Ministry of Interior, since the national and state-level humanitarian admission / family reunification programmes are also included.

 

In 2021, the coalition agreement further announced that resettlement should be strengthened in line with needs reported by the UN Refugee Agency (UNHCR). A humanitarian admission programme will be established which should be used for Afghans.

As regards relocation, Germany also relocated a (small) number of asylum seekers from other EU Member states on the basis of temporary and ad-hoc agreements in 2020 and 2021. In March 2020, Germany agreed to admit 243 minors from Greece based on an agreement of a “coalition of the willing” at EU level. Following the fire in the Moria camp on the Greek island of Lesbos, the government agreed to admit an additional 150 unaccompanied minor refugees and 1,553 persons in family groups.[28] A total of 210 unaccompanied minors from Greece were relocated to Germany in 2020.[29] In total, 2,812 persons were admitted between April 2020 and the end of 2021. [30]

According to the EU Visa Code, a visa with limited territorial validity can be issued by Member States when they consider it necessary on humanitarian grounds, for reasons of national interest or because of international obligations even if the conditions for issuing a uniform Schengen visa are not fulfilled (Article 25 paragraph 1a of the Visa Code). Germany however does not issue humanitarian visas in the context of asylum applications.

 

 

 

 

[1]  Section 18 (1) Asylum Act.

[2] Section 18(2) Asylum Act and Sections 14 and 15 Residence Act.

[3] Section 13(2) Residence Act.

[4] See Lorenzo Piccoli, Leslie Ader, Paula Hoffmeyer-Zlotnik, Christina Mittmasser, Oliver Pedersen, Aurélie Pont, Frowin Rausis, Petra Sidler, ‘Mobility and Border Control in Response to the COVID-19 Outbreak’, nccr – on the move and GLOBALCIT, April 2021, available at: https://tabsoft.co/33DRzWd.

[5]  European Commission, ‘Temporary Reintroduction of Border Control’, available at: https://bit.ly/3HLwSGd.  

[6]Pro Asyl, ‘Newsticker Coronavirus: Informationen für Geflüchtete und Unterstützer*innen‘, available in German at https://bit.ly/3n5bqEe.

[7] The text of the German-Spanish Administrative Arrangement is available at: http://bit.ly/2G2lZ7E. The text of the German-Greek Administrative Arrangement is available at: https://bit.ly/3HkJ4Nx.

[8]  A collection of statements by various experts and institutions can be found at: https://bit.ly/2zwUPTs. See also Anna Lübbe, Vereinbarkeit der Zurückweisungspraxis unter dem deutsch-griechischen »Seehofer-Abkommen« mit unionsrechtlichen Vorgaben zum effektiven Rechtsschutz, 6 December 2018,available in German at: https://bit.ly/2VyPGQq; ECRE, Bilateral Agreements: Implementing or Bypassing the Dublin Regulation?, December 2018, available at: https://bit.ly/2GgVoEf.

[9] Administrative Court Munich, Decision M 22 E 21.30294, 4 May 2021 – see Asylmagazin 7-8/2021, 292, available in German at https://bit.ly/3ID8I13; Decision M 18 E 19.32238, 8 August 2019 – see Asylmagazin 10-11/2019, 371; available in German at: https://www.asyl.net/rsdb/m27488/.

[10] Federal Ministry of the Interior, Response to written question by Ulla Jelpke (The Left), 14 May 2021, available in German at: https://bit.ly/3hnv2jp.

[11]  Information provided by the Federal Police, 6 April 2022.

[12] Federal Ministry of the Interior, ‘Kabinett berät aktuelle Migrationslage’, 20.10.2021, available in German at: https://bit.ly/3JOjeUk.

[13]  AIDA, Country Report Germany – Update on the year 2019, July 2020, available at: https://bit.ly/3GlpjEQ, p. 20-21; See also: ECRE, Bilateral Agreements: Implementing or Bypassing the Dublin Regulation?, December 2018; available at: https://bit.ly/2GgVoEf.

[14] Federal Ministry of the Interior, Response to written question by Ulla Jelpke (The Left), 14 May 2021, available in German at: https://bit.ly/3hnv2jp.

[15]  Süddeutsche Zeitung, Der Streit war absurd, 3 November 2019, available in German at: https://bit.ly/3011Y8e.

[16] Federal Police, Illegale Migration aus Belarus über Polen nach Deutschland konstant auf niedrigem Niveau: 361 Feststellungen durch die Bundespolizei seit Jahresbeginn, 2 February 2022, available in German at https://bit.ly/3vfraJB.

[17] Deutschlandfunk Kultur, ‘Die neue Belarus-Route’, 4 November 2021, available in German at: https://bit.ly/3Ilgb4R.

[18]  Federal Police, Illegale Migration aus Belarus über Polen nach Deutschland konstant auf niedrigem Niveau: 361 Feststellungen durch die Bundespolizei seit Jahresbeginn, 2 February 2022, available in German at https://bit.ly/3vfraJB.

[19]  Deutsche Welle, ‘Germany sees sharp rise in migrants via Belarus route’, 13 October 2021, available at: https://bit.ly/3t88Hff

[20]  Deutschlandfunk Kultur, ‘Die neue Belarus-Route’, 04 November 2021, available in German at: https://bit.ly/3Ilgb4R.

[21]  Ndr.de, ‘Neue Fluchtroute: Über Belarus und Polen nach MV’, 20 August 2021, available in German at: https://bit.ly/3M1LdAZ

[22]  Federal Ministry of the Interior, ‘Resettlement und humanitäre Aufnahmen’, available in German at: https://bit.ly/3H4rqhK.

[23]  resettlement.de,  ‘Humanitarian admission programmes’, available at: https://bit.ly/3fSx62o.

[24]  BAMF, Migrationsbericht 2020 der Bundesregierung, December 2021, available in German at: https://bit.ly/3nTDv1J, p.23.

[25]  resettlement.de, ‘Resettlement, available at https://bit.ly/3qVMD7P.  

[26] Pro Asyl, ‘Newsticker Coronavirus: Informationen für Geflüchtete und Unterstützer*innen‘, available in German at: https://bit.ly/3n5bqEe.

[27]  resettlement.de, ‘Current Admissions’, available at: https://bit.ly/3GZyM5M.

[28]  BAMF, Migrationsbericht 2020 der Bundesregierung, December 2021, available in German at https://bit.ly/3nTDv1J, p.22.

[29]  Reply of the Parliamentary State Secretary for the Ministry of the Interior to a question by Gökay Akbulut (The Left), 19/25159, 11 December 2020, available in German at https://bit.ly/3FXPIsn, p.11.

[30]  BAMF, Migrationsbericht 2020 der Bundesregierung, December 2021, available in German at https://bit.ly/3nTDv1J, p.22.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation