Short overview of the asylum procedure

Germany

Country Report: Short overview of the asylum procedure Last updated: 30/11/20

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If migrants report at the border while trying to enter Germany without the necessary documents, entry to the territory may be refused on the grounds that the migrant has travelled through a “safe third country”. However, if they apply for asylum, they would in most cases have to referred to the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF).

Since August 2018, asylum seekers can also be denied entry at the Austrian-German land border if the authorities are able to demonstrate within 48 hours that they have already applied for asylum in Greece or Spain. In these cases, the transfer to the concerned Member state is not based on the Dublin Regulation but on administrative arrangements between Germany and these countries.[1] Between August 2018 and October 2019, only 40 forced returns took place on the basis of these agreements and the Administrative Court of Munich raised serious doubts about the legality of the new procedure in a decision of August 2019.[2]

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.

Unless entry is denied at the border or at the airport, a regular procedure usually takes place. Applications have to be lodged at the BAMF.

Regular procedure

According to the law, asylum seekers should be accommodated in an initial reception centre (Aufnahmeeinrichtung) for a maximum period of 18 months during the first stage of their asylum procedures. Many asylum seekers do not stay in the initial reception centres for the whole 18 months, since they are sent to other locations once a decision on the asylum application has been issued. Furthermore, the maximum period is generally reduced to six months for families with children. As a general exception, however, asylum seekers from safe countries of origin are obliged to stay in initial reception centres for the whole duration of their procedures. Furthermore, Federal States may extend the maximum period to 24 months for certain groups of asylum seekers, but it is not clear whether this provision is applied in practice at the moment in any Federal State.

The initial reception centres are usually located on the same premises as the branch office of the BAMF.  Following the initial reception period, most asylum seekers are sent to local accommodation centres where they have to stay for the remaining time of their procedures. The obligation to stay in such decentralised accommodation centres also applies to the whole length of possible appeal procedures, but there are regional differences with some municipalities also granting access to the regular housing market.

“Arrival centres” are a form of initial reception centres set up in different locations in Germany, where various authorities are located on the same premises processes such as registration, identity checks, the interview and the decision-making are “streamlined”.

In addition, “arrival, decision and return” (Ankunft, Entscheidung, Rückführung, AnkER) centres were established in August 2018. The main purpose is to centralise all activities at one location and to shorten the asylum procedure, which is a concept that was already applied in the “arrival centres” across Germany and in “transit centres” set up in three locations in Bavaria (Manching/Ingolstadt, Regensburg, Deggendorf). Most Federal States have not participated in the AnkER centres scheme. At the end of 2019, only three Federal States (Bavaria, Saxony and Saarland) had agreed to establish AnkER centres, in most cases simply by renaming their existing facilities.

In any case, both arrival centres and AnkER centres are part of administrative concepts which are not defined in the law and it is therefore up to the Federal States and the BAMF to define in individual agreements how these centres operate. This means that there are no general standards, but the common feature is that various processes such as registration, identity checks, the interview and the decision-making are supposed to be “streamlined” both in the arrival centres and the AnkER-centres. However, fast-tracking of procedures in this manner must not be confused with the accelerated procedure which was introduced in March 2016 in the law.

Accelerated procedure

An accelerated procedure can be carried out inter alia for asylum seekers from safe countries of origin and for asylum seekers who have deliberately misled the authorities about their identity. Asylum seekers whose applications were processed in the accelerated procedure shall be accommodated in “special reception centres” (besondere Aufnahmeeinrichtung) in which they have to stay for the duration of the accelerated procedure, where a decision must be taken by the BAMF within seven days. However, at the end of 2018, the two special reception centres existing in Bamberg and Manching/Ingolstadt had been transformed into AnkER centres, and it is not clear whether the accelerated procedure continues to be applied therein. Furthermore, at least one facility in North Rhine-Westphalia was also designated as a special reception centre in 2018, but it is not clear if and how accelerated procedures are carried out in there. In any case, the accelerated procedure does not play a significant role in the German asylum system and no figures are provided by the authorities as to how many accelerated procedures have been carried out since its introduction.

First instance decision

Once the asylum procedure has started, the BAMF has to decide whether an asylum seeker is entitled to:

  1. Constitutional asylum, restricted to people persecuted by state actors for political reasons;
  2. Refugee status according to the 1951 Refugee Convention and to the Qualification Directive;
  3. Subsidiary protection; and/or
  4. Other forms of protection, called prohibition of deportation (Abschiebungsverbot).

The other forms of protection include a national protection status for people at risk of “substantial and 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”, i.e. cases in which an applicant would face “certain death or most serious harm” upon return.

In a high number of cases, which amounted to 59,591 cases in 2019 (32.9%), a “formal decision” – including inadmissibility decisions – was taken, which means that the case was closed without an examination of the asylum claim’s substance.[3] In many instances such formal decisions are issued because another state was found to be responsible for the asylum application under the Dublin Regulation. Furthermore, decisions not to carry out follow-up procedures in cases of second or further asylum applications are qualified as inadmissibility decisions since 2016.

Appeal

An appeal against the rejection of an asylum application has to 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] ECRE, Bilateral Agreements: Implementing or Bypassing the Dublin Regulation?, December 2018; available at: https://bit.ly/2GgVoEf.

[2]Administrative Court Munich, 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/.

[3] In the previous years the numbers were as follows: 109,476 (18.1%) in 2017; 87,697 (12.6%) in 2016 and 50,297 (17.8%) in 2015.

 

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