Short overview of the asylum procedure

Germany

Country Report: Short overview of the asylum procedure Last updated: 21/04/22

Author

Paula Hoffmeyer-Zlotnik Visit Website

Access to the territory and registration

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 be 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 that they have already applied for asylum in Greece or Spain. In these cases, the transfer to the concerned Member state is foreseen to take place within 48 hours. There is no basis for such transfers in the Dublin Regulation and is based on administrative arrangements with Spain and Greece. The practice was ruled unlawful by the administrative court of Munich in May 2021 and has not been applied since (see Access to the territory and push backs for more details).[1]

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 (border and transit zones).

Once persons seeing 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.[2] Once asylum seekers have reported to the reception facility, they have to be issued an “arrival certificate” (Ankunftsnachweis). Afterwards, the responsible branch office of the BAMF is determined with the help of 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 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 has to be retracted by the authorities.

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 as part of the international protection under the Qualification Directive; or
  4. Other forms of protection, called prohibition of removal (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” 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.

In a high number of cases, which amounted to 55,035 cases in 2021 (28.8%), 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.

If an application for international protection is rejected, the notice of rejection also includes a removal warning, which is equivalent to a return decision under EU law.[4]

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] Section 13 Asylum Act.

[3] In the previous years the numbers were as follows: 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.

[4]   Section 34 (1) Asylum Act.

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