Admissibility procedure

General (scope, criteria, time limits)

There is no separate procedure preceding the regular procedure in which decisions on admissibility of asylum applications are taken. However, it is possible that applications are declared inadmissible in the course of the regular procedure, based on the grounds set out in Section 29 of the Asylum Act.

Applications are deemed inadmissible in the following cases:

• Another country is responsible for carrying out the asylum procedure, according to the Dublin Regulation or based on other European or international treaties (see Dublin); [1]
• Another EU Member State has already granted the applicant international protection;[2]
• A country that is willing to readmit the foreigner is regarded as a ‘safe third country’ for the asylum seeker;[3]
• A country that is not an EU Member State and is willing to readmit the foreigner is regarded as ‘another third country’;[4]
• The applicant has made a subsequent,[5] or secondary,[6] application (see Subsequent applications).

The BAMF took the following inadmissibility decisions between January and October 2023:

Source: Statistics on ‘abandonment of procedures for other reasons’ (‘sonstige Verfahrenserledigungen’) by the Federal Government, Response to parliamentary question by The Left, 20/9933, 28 December 2023, available in German at: https://bit.ly/42NJDMa, 3-4.

Of practical importance is the situation of persons who have been granted international protection in another EU Member State and then move to Germany to apply for international protection there. This often concerns persons with a status in Greece, or other EU Member States where it is difficult for beneficiaries of protection to access certain services and secure adequate living standards. In such cases, the BAMF’s earlier practice to issue inadmissibility decisions has been challenged by courts, as a result of which the BAMF now conducts a second asylum procedure for persons with a protection status in Greece in a majority of cases. The BAMF practice, court rulings and figures are described in Suspension of returns for beneficiaries of international protection in another Member State.

On 1 August 2022, the CJEU established in a preliminary ruling that the asylum applications of a child born in one Member states (in this case Germany) whose parents have been granted protection in another Member State (in this case Poland) cannot be rejected as inadmissible.[7] The request was made by the Administrative Court of Cottbus (Brandenburg), based on a BAMF decision that such an application was inadmissible on the grounds that Poland was responsible for conducting the asylum procedure under the Dublin regulation. According to the CJEU, this ground for inadmissibility cannot be applied analogously to cases where international protection has already been granted to family members.

The provision that asylum applications may be considered inadmissible in case of safety in ‘another third country’ (sonstiger Drittstaat) is based on the concept of First country of asylum of Article 35 of the recast APD.[8] ‘Another third country’ may refer to any country which is not defined as a Safe third country under German law.[9] The provision is rarely applied (5 cases in 2023, 6 cases in 2022, 4 cases in 2021).[10]

Personal interview

The examination of whether an application may be considered as inadmissible is part of the regular procedure; therefore, the same standards are applied and an inadmissibility interview has to take place before the inadmissibility decision is issued[11] (see also Regular Procedure: Personal Interview). However, if the applicant fails to appear at the interview, the BAMF can decide based on written documentation.[12]

See also Dublin: Personal Interview, as the majority of inadmissibility decisions concern Dublin cases.

Appeal

The appeal procedure in cases of inadmissible applications (i.e., mostly Dublin cases and cases of persons granted protection in another EU country) has been described in the section on Dublin: Appeal. Appeals have to be submitted to the court within 1 week (7 calendar days) together with a request to the court to grant suspensive effect to the appeal. The latter request has to be substantiated.

Legal assistance

As in the Regular procedure, asylum seekers can be represented by lawyers at first instance (at the BAMF), but they must pay for legal representation themselves and it may be difficult to find a lawyer for practical reasons.

The appeal procedure in cases of applications which are found inadmissible is identical to the procedure in ‘manifestly unfounded’ cases. It is possible to apply for legal aid for the appeal procedure. However, because of time constraints and because many of these cases are likely to fail the ‘merits test’, it is unusual for legal aid to be granted, with the exception of some Dublin cases (see Dublin: Legal Assistance).

Suspension of returns for beneficiaries of international protection in another Member State

Asylum applications of persons who have been granted international protection in another EU Member States are usually rejected as inadmissible.[13] In recent years, this has been challenged with regards to Member States where it is difficult for beneficiaries of protection to access certain services and secure adequate living standards. While previously, the BAMF usually decided that the asylum application was inadmissible but sometimes issued a removal ban for said Member State, the Federal Administrative Court, in a decision of 20 May 2020, ruled that in line with a CJEU ruling, an application for asylum cannot be deemed inadmissible on the grounds that another Member State has already granted protection if the situation the applicant would face in this Member State amounts to inhuman or degrading treatment, and thus be in violation of Art. 4 of the EU Charter on Fundamental Rights.[14] In these cases, the BAMF would have to carry out a regular asylum procedure.

Many court decisions which have been published in recent years deal with cases of persons who have been granted international protection in other European states such as Bulgaria, Greece, Hungary or Italy. In many of these cases, transfers were suspended by courts on the grounds that a risk of inhuman or degrading treatment could not be excluded for beneficiaries of international protection in these countries. However, similarly to the existing case law on ‘systemic deficiencies’ in the context of Dublin transfers, the case law on this issue was not consistent and other courts upheld transfers of beneficiaries of international protection to Bulgaria or Italy, while the majority of courts do not consider transfers to Greece to be lawful (see also Suspension of transfers and below, this section).[15] A list of court cases dealing with transfers of beneficiaries of international protection is accessible online.[16]

The 2022 Act on the acceleration of asylum court proceedings and asylum procedures[17] introduced the possibility for the Federal Administrative Court to decide on the facts of the case as they pertain to the situation in the country of origin or destination[18] in order to avoid situations where Higher Administrative Courts come to different conclusions in this regard. Two of the three revision procedures launched under this new competence concerned the situation in Italy. While one procedure was stopped without a decision, the second procedure is still ongoing as of February 2024 (see Onward appeal(s)).

Between December 2019 and April 2022, the BAMF ‘de-prioritised’ cases from applicants who had already been granted international protection in Greece, meaning applications were de facto not processed, which left applicants in legal limbo, retaining the status of asylum seekers. In 2021, the Higher Administrative Courts of Lower Saxony and of North Rhine Westphalia ruled that persons with a protection status cannot be sent back to Greece as this would amount to inhuman or degrading treatment.[19] The Higher Administrative Court of Lower Saxony ruled that the applicants, two unmarried sisters, were likely to be homeless upon return to Greece due to the lack of state and non-state assistance regarding housing, the lack of access to social benefits and the high administrative and practical hurdles to find gainful employment. The Higher Administrative Court of North Rhine Westphalia ruled that it would be highly unlikely for the applicants to find accommodation and gainful employment in Greece and that access to social benefits was only possible after two years of residence proven with a tax declaration. Regarding the threshold for human or degrading treatment, the Federal Administrative Court ruled in September 2021 that all available support to individuals, including support by NGOs and other non-state actors and the applicants’ own efforts are to be taken into account for the assessment of each individual situation.[20] In July 2021, the German and Greek ministers of the Interior signed a memorandum of understanding aimed at improving the integration of beneficiaries of international protection in Greece regarding accommodation, health care and the provision of necessary goods through a project implemented by the IOM and financed by EU and German funds.[21] In March 2022, it was reported that an agreement was reached, and that accordingly the BAMF was planning on starting to examine the pending cases.[22] Decisions of the Higher Administrative Courts of Baden-Württemberg and Saxony in 2022 confirmed that beneficiaries cannot be sent back to Greece, and that their applications cannot be deemed inadmissible for the reason that protection has been granted in another Member State.[23]

The BAMF took up the processing of applications again on 1 April 2022. The BAMF stated that it planned to assess each case again on its merits, instead of accepting the decision to grant international protection from another Member State, and to only deem applications inadmissible “in justified individual cases” where no threat of violation of Art. 3 or 4 ECHR exists.[24] On 31 December 2023, ca. 6,100 asylum applications of persons who are likely to already have a protection in Greece were pending at the BAMF,[25] down from 12,500 as of 31 December 2022 [26] and 39,000 in December 2021. In 2023, 7,113 applications for international protection were filed by persons who had already been granted protection in Greece,[27] compared to 14,053 applications in 2022, and 19,805 such applications in 2021. Syrians and Afghans made up 56.7% of these applicants in 2023, and more than two thirds in previous years.[28] The BAMF decided on 16,495 such applications in 2023.

Source: Federal Government, Response to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at: https://bit.ly/3T30yHd, 22.

The overall protection rate for these decisions was 74.5%, while 11.5% of cases were rejected as inadmissible, and in 13.9% of all cases the BAMF rejected the asylum application although protection had been granted by Greek authorities. This is similar to 2022, where 11.6% (4,983) of the 43,091 decisions were rejections.[29] The rejection rate was comparatively high for persons from Iraq, where 69.2% of all applications resulted in a rejection even though the Greek authorities had granted international protection.

Some administrative courts have confirmed these rejections on the merits, arguing that the BAMF is not bound by decisions of the Greek asylum authorities. This question has been put before the CJEU in a request for preliminary ruling in September 2022.[30] Between January and August 2023, a total of 92 removals of non-Greek nationals took place to Greece, but the removal statistics do not give indications on the residence status or nationality of persons returned.[31] This indicates an increase from 2022 where 72 non-Greek nationals were removed to Greece. [32]

Regarding removals to Bulgaria, most courts are of the opinion that removals of beneficiaries of protection are lawful. By way of exception, some administrative courts have found – in the case of the administrative court of Potsdam even before the outbreak of the war in Ukraine – that even non-vulnerable persons face destitution and homelessness upon arrival.[33] The Federal State government of Lower Saxony issued guidance on 21 February 2022 according to which transfers are only admissible for healthy persons who are fit to work, and not for single parents, families with minor children and persons unable to work.[34]

For Hungary, in 2023 as in the previous year, some administrative courts have found that the situation of beneficiaries of international protection in Hungary bears the danger of violating Art. 3 ECHR or Art. 4 CFR as beneficiaries are likely not able to ensure a minimum of existence.[35]

For Poland, jurisprudence has been unclear over the course of 2022, with the administrative court of Hannover deciding against removal in June 2022 on the basis that capacities in Poland are overstretched due to the reception of Ukrainian refugees,[36] while the administrative court of Würzburg found no indication of inhuman or degrading treatment for beneficiaries of international protection in April 2022.[37] No new information on jurisprudence was available for the year 2023.

A transfer of beneficiaries of international protection to Romania was halted by the Federal Constitutional Court in July 2022, which held that the competent administrative court had not properly assessed the situation on the ground in light of the changed situation after the outbreak of the war in Ukraine.[38] The Higher Administrative Court of North Rhine Westphalia asked the Swiss Refugee Council to assess the situation in April 2022, and found in a judgement of 25 August 2022 that no danger of inhuman or degrading treatment exists.[39]

[1] Section 29(1)(1) Asylum Act.

[2] Section 29 (1)(2) Asylum Act.

[3] Section 29(1)(3) Asylum Act, citing Section 26a Asylum Act.

[4] Section 29(1)(4) Asylum Act, citing Section 27 Asylum Act.

[5] Section 29(1)(5) Asylum Act, citing Section 71 Asylum Act.

[6] Section 29(1)(5) Asylum Act, citing Section 71a Asylum Act.

[7] CJEU, Judgment in case C‑720/20, 1 August 2022, available at: http://bit.ly/3WEtCmX.

[8] Maria Bethke und Stephan Hocks, Neue „Unzulässigkeits’-Ablehnungen nach § 29 AsylG, Asylmagazin 10/2016, available in German at: https://bit.ly/3NXQ0Gz, 336-346 (343).

[9] ‘Safe third countries’ are all member states of the European Union plus Norway and Switzerland: Section 26a Asylum Act and addendum to Asylum Act.

[10] Federal Government, Response to parliamentary question by The Left, 20/9933, 28 December 2023, available in German at: https://bit.ly/42NJDMa, 3-4, 20/432, 14 January 2022, available in German at: https://bit.ly/3RvW8GL, 6, and 20/5709, 17 February 2023, available in German at: https://bit.ly/3K3w3MX, 6.

[11] Section 29(2) Asylum Act.

[12] Section 29(3) Asylum Act.

[13] Section 29 (1) No. 2 Asylum Act.

[14] Federal Administrative Court, Decision 1 C 34.19, 20 May 2020, available in German at: https://bit.ly/3hvFzsN. The CJEU decisions to which the BverG refers are decisions C-297/17 and C-540/17.

[15] Informationsverbund Asyl & Migration, Vorlage des BVerwG an den EuGH: Ist das BAMF an die Schutzzuerkennung durch andere EU-Staaten gebunden?, 21 September 2022, available in German at: http://bit.ly/407ZvXV.

[16] The website is available in German at: https://bit.ly/3Tj9SqI. Search with the keyword ‘internationaler Schutz in EU-Staat’ (international protection in EU Member State).

[17] Official Gazette I no. Nr. 56 (2022) of 28 December 2022, 2817.

[18] Section 78(8) Asylum Act.

[19] Higher Administrative Court of North Rhine Westphalia, Decisions 11 A 1564/20.A and 11 A 2982/20.A of 21 and 26 January 2021, available in German at: https://bit.ly/483EIZi and Higher Administrative Court of Lower Saxony, Decisions 10 LB 244/20 and 10 LB 245/20, 19 April 2021, available in German at: https://bit.ly/483L4rj and https://bit.ly/41zQDeL; see also PRO ASYL, ‘Bett, Brot, Seife – Ein ferner Traum für Flüchtlinge in Griechenland’, available in German at: https://bit.ly/3FzB4Y9.

[20] Federal Administrative Court, Decision 1 C 3.21 of 07 September 2021, available in German at: https://bit.ly/3pnuXk2.

[21] Federal Ministry of the Interior and Community, ‘Gemeinsame Absichtserklärung zu Bemühungen um die Integration von Personen mit internationalem Schutzstatus in Griechenland’, available in German at: https://bit.ly/3KeKziO.

[22] Infomigrants, ‘Germany to process frozen asylum claims of refugees from Greece’, 21 March 2022, available online at: https://bit.ly/3qH0fTN.

[23] Higher Administrative Court of Baden-Württemberg, A 4 S 2443/21, 27 January 2022, available in German at: https://bit.ly/3Nz6c0B; Higher Administrative Court of Saxony, 5 A 492/21.A, 27 April 2022, available in German at: https://bit.ly/483ETUs.

[24] BAMF, Letter to the Presidents of Higher Administrative Courts and Administrative Courts, 31 March 2022, available in German at: https://bit.ly/3ksC5Mq.

[25] Federal Government, Response to parliamentary question by the CDU/CSU, 20/10869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 14.

[26] Federal Government, Response to parliamentary question by the CDU/CSU, 20/10869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 14.

[27] Federal Government, Response to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at: https://bit.ly/3T30yHd, 20.

[28] 2023: between 1 January and 31 August; Federal Government, Response to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at: https://bit.ly/3T30yHd, 20, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 17; and 20/861, 24 February 2022, available in German at: https://bit.ly/41vdo3r, 17.

[29] Federal Government, Response to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 17.

[30] Federal Administrative Court (BVerwG), Decision of 7 September 2022 – 1 C 26.21 – asyl.net: M30943; to monitor the progress of the request, see case C-753/22 before the CJEU, available at: http://bit.ly/3KbQp6T.

[31] Federal Government, Response to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at: https://bit.ly/3T30yHd, 24.

[32] Federal Government, Response to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 25.

[33] Administrative Court of Frankfurt / Oder, 10 K 803/22.A, 6 January 2023; Administrative Court of Oldenburg, 12 A 849/22, 2 March 2023; Administrative Court of Saarland, 3 L 1057/23, 20 July 2023; Administrative Court of Potsdam, 12 K 2418/20.A, 11 January 2022; Administrative Court of Ansbach, 14 S 22.50126, 31 October 2022, available in German at: https://bit.ly/4738dJb; Administrative Court of Köln, 20 K 3733/22.A, 15 November 2022, available in German at: https://bit.ly/48nFdwU; Administrative Court of Freiburg, A 14 K 900/22, 19 September 2022, available in German at: https://bit.ly/3GRyCza. See also Justus Linz, Zur Situation von »Dublin-Rückkehrenden« und »Anerkannten« in Staaten Osteuropas, September 2022, asyl.net, 3, available in German at: https://bit.ly/3JdJ7PH.

[34] Ministry for the Interior and Sports of Lower Saxony, Abschiebunsgvollzug von anerkannt Schutzberechtigten nach Bulgarien, 21 February 2022, available in German at: http://bit.ly/3Y1o1rT.

[35] Administrative Court of Meiningen, 8 K 529/23 Me, 25 April 2023; Administrative Court of Bremen, 3 K 491/18, 6 April 2022; Administrative Court of Aachen, 5 K 3571/18.A – asyl.net: M30632, available in German at: https://bit.ly/47nolWp; Administrative Court of Munich, M 6 K 18.33184, 10 May 2022, asyl.net: M30693, available in German at: https://bit.ly/41ufxfY.

[36] Administrative Court of Hannover, 15 B 371/22.A, 27 June 2022, asyl.net: M30777, available in German at: https://bit.ly/48usuZz.

[37] VG Würzburg, W 1 K 22.30178, 6 April 2022, available in German at: https://bit.ly/485Qm5J; see also Justus Linz, Zur Situation von »Dublin-Rückkehrenden« und »Anerkannten« in Staaten Osteuropas, September 2022, asyl.net, 3, available in German at: https://bit.ly/3JdJ7PH.

[38] Federal Constitutional Court (BVerfG), 2 BvR 961/22, 19 July 2022, asyl.net: M30822, available in German at: https://bit.ly/4760ASn.

[39] Higher Administrative Court of North Rhine Westphalia, Decision 11 A 861/20.A, 25 August 2022, asyl.net: M30995, available in German at: https://bit.ly/3tvWmWk.