Border procedure (border and transit zones)

Germany

Country Report: Border procedure (border and transit zones) Last updated: 30/11/20

Author

Informationsverbund Asyl und Migration Visit Website

General (scope, time limits)

 

There is no special procedure at land borders, although as part of the reintroduction of border controls, a refusal of entry and return procedure has been installed on the German-Austrian border for cases of persons who have previously sought asylum in Spain and Greece. The following section refers to the airport procedure (Flughafenverfahren).

The “procedure in case of entry by air” is legally defined as an “asylum procedure that shall be conducted prior to the decision on entry” to the territory.[1] Accordingly, it can only be carried out if the asylum seekers can be accommodated on the airport premises during the procedure, with the sole exception that an asylum seeker has to be sent to hospital and therefore cannot be accommodated on the airport premises, and if a branch office of the BAMF is assigned to the border checkpoint. The necessary (detention) facilities exist in the airports of Berlin (Schönefeld), Düsseldorf, Frankfurt/Main, Hamburg and Munich, although the BAMF does not have a branch office assigned to all of those places (see Place of Detention).

The airport procedure applies to applicants who do not have valid documents upon arrival at the airport, but it may also apply to applicants who ask for asylum at the border authorities in the transit area and to those who come from a “safe country of origin”.[2] In practice, it was not applied to unaccompanied children in 2018,[3] although its applicability to unaccompanied children is not excluded.

In 2019, the airport procedure was applied in 489 cases, 395 at the Frankfurt/Main Airport, 63 at the Munich Airport, 19 at the Berlin Airport and 12 at the Hamburg Airport. No airport procedures took place at the Düsseldorf airport in 2019. As the statistics show, the overwhelming majority of procedures continue to take place at Frankfurt/Main Airport.

The countries of origin of persons subject to the airport procedure in 2019 were as follows:

 

Applicants subject to the airport procedure: 2019

Nationality

Number

Iran

128

Syria

43

Turkey

28

Afghanistan

25

Iraq

20

Somalia

15

Unknown

6

Nigeria

3

Eritrea

1

Total

489

 

Source: Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, available at: https://bit.ly/3bhIikR, 43-44.

 

Potential outcomes of airport procedures are as follows:

  1. The BAMF decides within 2 calendar days that the application is “manifestly unfounded” and entry to the territory is denied. A copy of the decision is sent to the competent Administrative Court.[4] The applicant may ask the court for an interim measure against deportation within three calendar days;
     
  2. In theory, the BAMF can decide within the 2 calendar days that the application is successful or it can reject the application as “unfounded”. In these cases, entry to the territory and, if necessary, access to the legal remedies of the regular procedure would have to be granted. However, this option seems to be irrelevant in practice since the BAMF always grants entry to the territory for the asylum procedure to be carried out in a regular procedure if an application is not rejected as manifestly unfounded;
     
  3. The BAMF declares within the first 2 calendar days following the application that it will not be able to decide upon the application at short notice. Entry to the territory and access to the regular procedure are granted;[5] or
     
  4. The BAMF has not taken a decision within 2 calendar days following the application. Entry to the territory and to the regular procedure is granted.

In practice, the third option is the most common outcome, including in cases where the Dublin Regulation is considered to be applicable. The outcome of airport procedures in 2019 was as follows:

Outcomes of airport procedures: 2019

Airport

No decision within two days

Manifestly unfounded

Frankfurt/Main

203

175

 

Munich

0

39

Berlin

4

9

Hamburg

0

8

Total

207

231

 

Source: Source: Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, available at: https://bit.ly/3bhIikR, 44.

 

Whereas in previous years, the majority of airport procedures were halted because the BAMF notified the Federal Police that no decision would be taken within the timeframe required by law (264 out of 444 in 2017; 191 out of 273 in 2016, 549 out of 627 in 2015), a notable increase in decisions rejecting the application as manifestly unfounded was seen in 2018 and 2019. In the case of Hamburg and Munich Airport, the airport procedure led to rejection as manifestly unfounded in all cases according to government statistics, albeit in a comparably low number of total cases.

Concerns persist regarding the quality of decision-making in the airport procedure in 2018 and 2019.  The assessment of applications by the BAMF seems to be more restrictive in the airport procedure compared to procedures elsewhere, resulting in “manifestly unfounded” rejections even for nationalities such as Afghanistan, Iran, Turkey or Iraq which benefit from significant recognition rates nationwide. At Frankfurt/Main Airport, the BAMF reportedly places considerable emphasis on potential contradictions and inconsistencies in the applicant’s statements, and often relies on the report of the initial interview with the Federal Police upon arrival, even though the asylum seeker receives no copy thereof. At Munich Airport, concerns are expressed with regard to the lack of risk assessment prior to rejections of applications as manifestly unfounded, even in cases where asylum seekers bring forth evidence such as political activity in the country of origin.[6]

Finally, it should be highlighted that at Munich Airport, where the BAMF decides within the time limit of 2 days, it occurs that the notification of the decision to the applicant can take up to a week.[7]

 

Personal interview

 

In the airport procedure, the Federal Police may conduct a preliminary interview which includes questions on the travel route and on the reasons for leaving the country of origin. Practice varies from one airport to another. At Frankfurt/Main Airport, the person is interviewed by the Federal Police in the airport terminal and subsequently upon arrival at the detention facility, whereas at Munich Airport the only interview with the Federal Police takes place upon arrival at the facility, usually late at night. Where interpretation is needed for the Federal Police interview, it is ensured by phone. The asylum seeker does not receive a copy of the report of these interviews.[8]

The relevant interview for the purpose of admission to the territory is carried out by the BAMF in person, with the presence of an interpreter. Whereas the BAMF has a branch office in the facility of Frankfurt/Main Airport, for procedures at Munich Airport officials travel to the facility from Munich when interviews need to be conducted.

The standards for this interview are identical to those described in the context of the regular procedure (see Regular Procedure: Personal Interview). However, quality concerns have been raised at Munich Airport vis-à-vis the lack of interpretation and lack of proper understanding of the interview report prior to signature.[9]

 

 

Appeal

 

Manifestly unfounded decisions are generally subject to restrictions in legal remedy, but in the airport procedure the law has placed even stricter timeframes on the procedure. Thus, if an application is rejected as manifestly unfounded in the airport procedure, a request for an interim measure must be filed with an Administrative Court within 3 calendar days. The necessary application to the court can be submitted at the border authorities.[10]

The Administrative Court shall decide upon the application for an interim measure in a written procedure, i.e. without an oral hearing of the applicant.[11] The denial of entry, including possible measures to enforce a deportation, is suspended as long as the request for an interim measure is pending at an Administrative Court. If the court does not decide on this request within 14 calendar days, the asylum seeker has to be granted entry to the territory.[12]

 

Legal assistance

 

During the first instance procedure before the BAMF, legal assistance is only made available through lawyers funded by Pro Asyl for Frankfurt/Main Airport, subject to limited capacity.

For legal aid in appeals before the Administrative Court, the association of lawyers of the airport's region coordinates a consultation service with qualified lawyers. If an applicant wants to speak to a lawyer, the Federal Police contacts one of the lawyers on the list of the association as soon as the rejection of the asylum application is issued. However, it has been pointed out by NGOs that the short timeframe foreseen in the airport procedure hinders effective access to a lawyer (see Access to Detention Facilities).[13]

Consultation with the lawyer following a decision of the BAMF in the airport procedure is free of charge for the applicant as far as it concerns the possibilities of legal remedy. The lawyer may also assist with the drafting of the request to the Administrative Court. In this regard, the airport procedure is the only procedure in Germany in which asylum seekers are entitled to a form of free legal assistance. This requirement does not have a basis in legislation but results from a decision of the Federal Constitutional Court.[14] Any other actions undertaken by the lawyer are not included in the free assistance. In particular, representation before the court is not part of this free legal assistance. In the appeal procedure following an airport procedure, the preconditions for legal assistance are identical to those of the Regular Procedure: Legal Assistance.



[1] Section 18a(1) Asylum Act.

[2] Section 18a(1) Asylum Act.

[3] Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, available at: https://bit.ly/3bhIikR, 43.

[4] Section 18a(2)-(4) Asylum Act.

[5] Section 18a(6) Asylum Act.

[6] ECRE, Airport procedures in Germany Gaps in quality and compliance with guarantees, April 2019, available at: https://bit.ly/2QgOmAH.

[7] Ibid.

[8] ECRE, Airport procedures in Germany Gaps in quality and compliance with guarantees, April 2019, available at: https://bit.ly/2QgOmAH.

[9] Ibid. See also Memorandum Alliance, Memorandum für faire und sorgfältige Asylverfahren in Deutschland: Standards zur Gewährleistung der asylrechtlichen Verfahrensgarantien, November 2016, 28.

[10] Section 18a(4) Asylum Act.

[11] Section 18a(4) Asylum Act.

[12] Section 18a(6) Asylum Act.

[13] Memorandum Alliance, Memorandum für faire und sorgfältige Asylverfahren in Deutschland: Standards zur Gewährleistung der asylrechtlichen Verfahrensgarantien, 27.

[14] Federal Constitutional Court, Decision of 14 May 1996, 2 BvR 1516/93, cf. Reinhard Marx. AsylVfG – Kommentar zum Asylverfahrensgesetz (Asylum Procedures Act – Commentary), 7th edition, 2009, 432.

 

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