Differential treatment of specific nationalities in the procedure

Germany

Country Report: Differential treatment of specific nationalities in the procedure Last updated: 21/04/22

Author

Paula Hoffmeyer-Zlotnik Visit Website

As a response to the high numbers of asylum applications in Germany in 2015 and 2016, the BAMF had prioritised applications from specific nationalities at different points in time. Prioritisation of applications from certain countries was revoked in the second quarter of 2016.[1] It was partially replaced by a system of “clustering” applications with the aim of prioritising the caseloads from countries of origin with a high and from those with a low protection rate. The clustering system was also abandoned in the first half of 2017.[2] Since then, the branch offices of the BAMF and the arrival centres decide on their own whether they set any priority in dealing with caseloads, in particular dependent on availability of staff members with the necessary country expertise and availability of interpreters. This also applied during the outbreak of Covid-19. However, during the first wave and when in-person applications and hearing were suspended, BAMF branch offices focussed on deciding cases which had been pending for a longer time and where the interview had already taken place.[3] Furthermore, according to the EU Fundamental Rights Agency, when hearing presumed the BAMF did not prioritise vulnerable applicants.[4] This information was not confirmed by the BAMF, however.

Similarly to previous years, in 2020, the average duration of procedures was significantly below the average of 8.3 months for asylum seekers from some of the European “safe countries of origin” and from Georgia:[5]

  • Albania and North Macedonia: 4 months
  • 4.2 months
  • Kosovo,: 8.1 months
  • Bosnia and Herzegovina: 3 months
  • Serbia: 3.5 months
  • Georgia: 3.6 months

This seems to imply that asylum applications from “safe countries of origin” are fast-tracked, however this does not seem to be the case for all “safe countries of origin” since procedures at the BAMF for asylum seekers from Kosovo, Ghana and Senegal were not faster than they were on average (9.1 months for Senegal, 10.6 months for Ghana, 8.1 months for Kosovo).

On the other hand, average duration of procedures was considerably above average for asylum seekers from these countries of origin:

  • Iran: 11.5 months
  • Nigeria: 12.6 months
  • Russian Federation: 13.3 months
  • Somalia: 11.1 months
  • Guinea: 12.6 months

Since 2019, the BAMF has de-prioritised applications from persons who have already received a protection status in Greece, due to several court rulings that have declared transfers of these persons to Greece unlawful (see Section Suspension of transfers).

Syria

Due to a policy change in the first months of 2016, the BAMF since then has granted subsidiary protection instead of refugee protection in a previously unrecorded number of cases. This policy change affected Syrian nationals in particular, but also asylum seekers from Iraq or Eritrea. For instance, 95.8% of Syrians had been granted refugee status in 2015, this rate dropped to 56.4% in 2016 and to 35% in 2017. While the percentage rose again in the following years, 27.6 % of Syrian applicants were granted asylum or refugee protection in 2021 (compared to 2018: 41.6 %, 2019: 49.5 %, 2020: 48.1 %). Conversely, the rate of Syrians being granted subsidiary protection rose from 0.1% in 2015 to 41.2% in 2016, 56% in 2017. Since then, it has decreased to 34.7 % in 2021 (compared to : 2018: 39.7%, 2019_33.1%, 2020: 39.6 %).

The policy change at the BAMF coincided with a legislative change in March 2016, according to which Family Reunification was suspended for beneficiaries of subsidiary protection until March 2018. Family reunification is again possible for beneficiaries of subsidiary protection since August 2018, but limited to a monthly quota of 1,000 visas for relatives of this group. Tens of thousands of beneficiaries of subsidiary protection have appealed against the authorities’ decisions in order to gain refugee status (“upgrade-appeals”). Courts decided upon 8,009 such cases in 2020. 835 upgrade-appeals were successful, with Administrative Courts granting asylum or refugee status. In 7,171 cases upgrade-appeals were rejected by Administrative Courts or procedures were abandoned for other reasons (settlement out of court and/or withdrawal of appeal). 10,802 cases of such appeals were pending at the end of 2020.[6]

A further increase in such “upgrade appeals” and in subsequent applications occurred in 2021 following a decision by the CJEU according to which there is a “strong presumption” that refusal to perform military service in the context of the Syrian civil war relates to one of the reasons to be granted refugee status.[7] Subsequent applications were deemed inadmissible in most cases, however (see also Subsequent applications).[8]

In April 2019 it was reported that the BAMF had in some cases only granted a so-called humanitarian status (under Section 60 V of the Residence Act) instead of subsidiary protection to Syrian nationals. These decisions were supposedly based on new internal guidelines by the BAMF, which had concluded that possible risks upon return would in many cases only result from the poor general circumstances in Syria, rather than from deliberate acts of certain parties.[9] Following media reports, decisions in which this legal question was relevant, were suspended by the BAMF. The Ministry of the Interior announced that it would discuss the matter with the Foreign Office. Finally, the Ministry announced that the internal guidelines would remain unchanged, so decision-making practice would, as a rule, also remain the same as before April 2019 – meaning that subsidiary protection was again granted in most cases of Syrian nationals who were not recognised as refugees.[10]

Statistics for 2019 show, that the “humanitarian status” under Section 60 V of the Residence Act was indeed only granted in 489 cases of Syrian nationals in 2019, thus representing 3.2% of the total number of decisions. The overwhelming majority of Syrian applicants were granted asylum or refugee status (50.6%) or subsidiary protection (33.1%). Almost all rejections were rejections for formal reasons (inadmissibility or termination of the case). This means that in cases, in which the substance of the case was examined, 99.9% of Syrian nationals were granted some kind of protection status in 2019.[11] This tendency has continued in 2020, with 238 Syrians granted a “humanitarian status” in 2021 and 192 in 2020.

A the end of December 2020, the removal ban for Syria that had been in place since 2012 expired. The ban was based on a common decision of the Federal States and the Federal government, but could not be renewed due to disagreement regarding the possibility to remove criminals and “persons posing a risk” related to terrorist activities (“Gefährder).This was heavily criticised by NGOs and organisations such as the German Institute for Human Rights, UNHCR and Caritas.[12] The removal statistics for 2020 indicate that 248 removals of Syrian nationals took place. However Syria is not listed as a country of destination for removals in 2020, meaning that the removals of Syrian nationals took place to other countries, for example to other EU Member States in the form of Dublin transfers.[13] As of October 2021, according to the government, an “examination procedure” was still ongoing in the BAMF regarding possible returns to Syria.[14]

Afghanistan

With the outbreak of Covid-19, the Federal Ministry of Interior stopped forced removals to Afghanistan on 27 March 2020, since the Afghan authorities refused to take back Afghan nationals in light of the pandemic.[15]  Removals started again after the first wave however, with one charter flight departing from Germany on 16 December 2020.[16] In total, 137 persons were forcibly removed to Afghanistan in 2020;[17] and 167 were removed in 2021, with the last charter flight departing from Germany on 6 July 2021.[18] With the takeover of the Taliban on 15 August 2021, the German government started an evacuation operation for German nationals in Afghanistan as well as Afghan nationals who had worked for German authorities, the military and “especially endangered persons”. Between 16 and 26 August 2021, a total of 5,300 persons were evacuated, out of which 4,400 Afghan nationals. The evacuated persons have entered Germany via an emergency visa (based on Section 14 and 22 Residence Act).[19]

Upon arrival, the BAMF then examined whether persons had already been granted permission for an admission from abroad (Section 22 Residence Act). If this was not the case, and if the Federal Ministry decided no such permission could be granted, persons were informed of this and of the possibility to apply for asylum in Germany. [20] As of 10 December 2021, a total of 28,053 permissions for admission from abroad had been issued to Afghan nationals. However, only 8,014 persons had entered Germany as of the same date.[21]

Over the whole year of 2021, the protection rate for Afghan nationals has only increased slightly, from 36.6 % in 2020 to 42.9 % in 2021. As of mid August 2021, the BAMF had de-prioritised decisions on asylum applications from Afghanistan due to the uncertain situation in the country except for cases in which international protection can be granted according to the guidelines in place or where the situation in Afghanistan was irrelevant for the decision. The government further declared that decisions continued to be taken on an individual, case-by-case basis.[22] As a result, the number of pending applications by Afghan nationals has risen considerable compared to 2020, to 27,846 at the end of 2021 (2020: 6,101).

The BAMF has resumed decisions concerning Afghan nationals in December 2021,[23] prioritising cases which involve several persons (as opposed to individual applications) and vulnerable applicants.[24]

In previous years, legal debates concerning decision-making practices on Afghanistan had focused on single male adults. The BAMF generally assumed that “healthy young men who are able to work” can be referred to an internal protection alternative in big cities in Afghanistan (Kabul, Herat oder Mazar-e Sharif) or in the provinces of Bamiyan and Panjshir. Because of the alleged existence of an internal protection alternative, the BAMF often did not fully examine the risks which an asylum seeker might face upon return. The BAMF decisions therefore have been criticised for regularly lacking a thorough examination of the individual circumstances of the case.[25]

Appeals at Administrative Courts against such decisions had a comparably high success rate in the last years. From the start of 2021 until the end of November 2021, 5,726 Afghan nationals were granted a form of protection by courts, compared to 1,626 rejections of appeals. In total, 45.2 % of appeals were successful. If only decisions on the merits are counted, 77.8 % of appeals resulted in the granting of protection.[26] The success rate is higher compared to previous years: In 2020, 39.1% of all court decisions ended in the granting of some form of protection. If only decisions on the merits are counted, 60 % resulted in a form of protection (8,287 cases out of 21,168 court decisions). 27,0002 appeals of Afghan nationals were pending at the court at the end of 2020.[27]

In 2019, 8,649 Afghan nationals were being granted some form of protection in court procedures, in comparison to 9,103 rejections of appeals and 7,627 court procedures which were abandoned for formal reasons. This represents a rate of 48.7% of at least partially successful appeals in those cases, in which the substance of the matter was examined.

 

[1]  Federal Government, Reply to parliamentary question by The Left, 18/9415, 17 August 2016, 23.

[2] Information provided by the BAMF, 23 January 2018.

[3]  Information provided by the BAMF, 10 March 2022.

[4] FRA (European Union Fundamental Rights Agency), ‘Migration: Key Fundamental Rights Concerns’, Quarterly Bulletin 1.7.2020 – 30.9.2020, 31, available at: https://bit.ly/3NuoiiC.

[5] Federal Government, Response to parliamentary question by The Left, 19/30711, 15 June 2021, 3.

[6] Federal Government, Reply to parliamentary question by The Left, 19/28109, 30 March 2021, 42-44.

[7]  CJEU, Case C‑238/19, Judgment of 19 November 2020.  

[8] See also BAMF, Migrationsbericht 2020 der Bundesregierung, December 2021, 37, available in German at https://bit.ly/3nTDv1J

[9] asyl.net, ‚BAMF setzt Entscheidungen über subsidiären Schutz bei syrischen Asylsuchenden aus‘, 29 April 2019, available in German at: https://bit.ly/320Dmz1.

[10] zeit.de, ‚Horst Seehofer will Asylpraxis für Syrer vorerst nicht ändern‘, 15 May 2019, available in German at: https://bit.ly/2BIYU8X.

[11]Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, 3.

[12] FRA (European Union Fundamental Rights Agency), ‘Migration: Key Fundamental Rights Concerns’, Quarterly Bulletin 01.01.2021-30.06.2021, available at https://bit.ly/3qB3RHk.

[13] Federal Government, Response to parliamentary question by The Left, 19/27007, 25 February 2021, 3;5.

[14] Federal Government, Responses to parliamentary question by The Left, 19/32678, 14 October 2021, 31, 19/28109, 30 March 2021, 16.

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

[16] Federal Government, Response to parliamentary question by The Left, 19/27007, 25 February 2021, 28

[17] Federal Government, Response to parliamentary question by The Left, 19/27007, 25 February 2021, 3.

[18]  Federal Government, Reply to parliamentary question by The Left, 20/890, 2 March 2022, 3, 47.

[19] BAMF, ‘Aufnahme ehemaliger Ortskräfte und gefährdeter Personen aus Afghanistan’, 29 November 2021, available in German at https://bit.ly/3nv6sjZ.

[20] BAMF, Migrationsbericht 2020 der Bundesregierung, December 2021, 38, available in German at https://bit.ly/3nTDv1J.

[21] Deutscher Bundestag, parliamentary question by The Left, 20/791, 22 February 2022, 1.

[22]  Federal Government, Response to parliamentary question by The Left, 19/32678, 14 October 2021, p. 18-19.

[23] See PRO ASYL, ‘Steigende Asylzahlen? Ein Blick hinter die Schlagzeilen‘, 14 January 2022, available in German at https://bit.ly/3GMuoqI.

[24] Federal Government, Response to written question by Clara Bünger (The Left), 20/765, 18.

[25] For an overview of decision-making and case law in cases of Afghan asylum seekers, see Susanne Giesler and Christopher Wohnig, Uneinheitliche Entscheidungspraxis zu Afghanistan, June 2016, available in German at: http://bit.ly/2G1FSIq.

[26]  Federal Government, Responses to parliamentary questions by The Left, 20/432, 14 January 2022, 21.

[27]  Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, 45.

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