Regular procedure

General (scope, time limits)

The competent authority for the decision-making in asylum procedures is the BAMF. Next to asylum, its functions and duties include coordination of integration courses, voluntary return policies, and other tasks such as research on general migration issues. The BAMF also acts as national administration office for European Funds in the areas of refugees, integration and return (see Number of staff and nature of the first instance authority).

Time limits

The law does not set a time limit for the BAMF to decide on an application. If no decision has been taken within 6 months, the BAMF has to notify asylum seekers upon request about when the decision is likely to be taken.^[1]

In 2021, procedures at the BAMF took 6.6 months on average.[2] In 2020, the average duration was 8.3 months. The average time of asylum procedures until a final decision is issued (i.e. including possible court procedures) was 25.9 months in 2020, and 24 months in the first half of 2021.[3] According to the Federal government, the length of procedures has risen significantly due to the impact of Covid-19 on asylum procedures. As a response to the first lockdown in March 2020, the BAMF had stopped issuing negative decisions until 11 May 2020 to account for the difficulties in lodging appeals against negative decisions or to contact lawyers and NGOs during this time.[4] This has increased the length of procedures, as the length is counted from the time of lodging the application until the decision is issued to the applicant. In addition, the BAMF has prioritised decisions on cases which had been pending for longer during the time in which in-person activities were largely impossible.[5]

For the period 2013 to 2021, statistics show significant variation in length of procedures, depending on the countries of origin of asylum seekers and on the decision practice in the BAMF. In 2017, the average duration was higher as the BAMF dealt with a high backlog of cases on which it eventually decided in 2017. ^[6]

Source: Federal Government, Reply to parliamentary questions by The Left:  18/705, 5 March 2014; 18/3580, 28 January 2015; 18/7625, 22 February 2016; 18/11262, 21 February 2017, 19/1631, 13 April 2018; 19/13366, 19 September 2019, 19/23630, 23 October 2020, 20/940, 7 March 2022, 10.

The overall number of pending applications at the BAMF was 108,064 at the end of 2021.[7] This is twice as much compared to 2020 (52,056)[8] and significantly higher and in previous years (57,012 in 2019 and 58,325 in 2018). ^[9] Most of the pending applications are by Syrian (31.8 % of all pending cases) and Afghan nationals (25.8 % of all pending cases). The main reasons for this increase include the de-prioritisation of applications from Afghan nationals and from Syrian nationals holding a protection status in Greece (see Sections Differential treatment of specific nationalities and Suspension of transfers).[10]

Prioritised examination and fast-track processing

After the first registration of the intention to seek asylum, applicants are directed towards an “initial reception centre”. While the organisation of reception facilities is under the auspices of the Federal States, two types of initial reception centres have been established across Germany both for first arrival and for prioritised and fast-track processing. These are the “arrival centres” first established in 2015, on the one hand, and the “AnkER centres” established in several States since 2018, on the other (see also Section Types of accommodation).

Arrival centres (Ankunftszentren)

The arrival centres (Ankunftszentren) were introduced in December 2015 with the aim of fast-tracking procedures. For this purpose, federal authorities (in particular, the branch offices of the BAMF) and regional authorities shall closely cooperate in the centres. At the beginning of 2022, 18 out of 58 branch offices of the BAMF were integrated in arrival centres in 12 different Federal States.^[11] The concept of arrival centres is not based in law but has been developed by business consultants under the heading “integrated refugee management”.^[12] Accordingly, this method for fast-tracking of procedures must not be confused with the Accelerated Procedure introduced law in March 2016.

In the arrival centres, tasks of various authorities are “streamlined”, such as the recording of personal data, medical examinations, registration of the asylum applications, interviews and decision-making. Apart from a general concept for the “streamlining” of procedures, there is no detailed country-wide concept for the handling of procedures in arrival centres. Rather, the way the various authorities cooperate in the centres is based on agreements between the respective Federal States (responsible for reception and accommodation), the BAMF branch office (responsible for the asylum procedure) and other institutions present in the facilities (such as medical and social services).

The procedure, as it was developed at the Berlin arrival centre, was described in detail by the Berlin Refugee Council in November 2017. According to its report, a typical fast-track procedure called “direct procedure” (Direktverfahren) in the arrival centre was supposed to lead to a decision within four days.^[13] The report illustrates how asylum seekers go through the various stages of the reception procedure and the asylum procedure within a few days and thus is still typical of a procedure in an arrival centre, although the conditions may differ at other centres.

Day 1   Asylum seekers who report to the authorities are sent to a central accommodation centre, where they are registered preliminarily and are given instructions on the next steps of the procedure.

Day 2   Asylum seekers have to report to the arrival centre where the following steps take place: (a) medical examination; (b) formal registration, including identification checks, possible confiscation of documents and mobile phones; (c) decision on whether the asylum procedure is to be carried out in Berlin or in another Federal State, according to the EASY distribution system (see Registration).

If it has been established that the asylum procedure is to be carried out in the Federal State of Berlin, the asylum seekers are issued an arrival certificate (Ankunftsnachweis) and given various leaflets and instructions on the asylum procedure (see Provision of Information on the Procedure).

Asylum seekers whose procedure is carried out in Berlin are given the opportunity to speak to a staff member of the Federal State’s social services (Sozialdienst). The social services then carry out a consultation interview which lasts between 20 and 30 minutes. They also hand out further leaflets, including information on counselling services offered by NGOs and also basic advice on the interview in the asylum procedure published by Informationsverbund Asyl und Migration. If the social services find that an asylum seeker has special reception needs – e.g. single women, persons with physical disabilities or illnesses, LGBTI persons – they try to organise special accommodation on the same day. If there are indications that an asylum seeker is suffering from a severe illness, this person is referred to further medical examinations and the interview in the asylum procedure is postponed. In other cases the social services may also inform the BAMF that the interview should be carried out by a “special officer” (see Special Procedural Guarantees). Furthermore, asylum seekers are handed out some cash and a travel card for local public transport, valid for three months.

Day 3   Asylum seekers again have to report to the arrival centre where the asylum application is now lodged with the BAMF. The arrival certificate is then replaced with the “permission to stay” (Aufenthaltsgestattung). If the “direct procedure” applies, the Personal Interview can be carried out on the same day.

Day 4   It is possible that the decision is handed out on the fourth day. If protection is granted, a residence permit can be applied for on the same day. If the asylum application has been rejected, staff members of the authorities explain the reasons for the decision. The Berlin Refugee Council notes that this explanation does not include any advice on appeal procedures, however. In contrast, rejected asylum seekers may contact an advice service on voluntary return immediately.

In any case, regardless of the outcome of the procedure, asylum seekers should be referred to a different reception centre within the Federal State of Berlin.

The “direct procedure” described here shall only apply in “clear-cut” cases, in which protection can be ‘easily’ recognised or rejected. In contrast, the regular procedure has to take place in the following instances:

• The facts of the case cannot be established immediately, but further examinations are necessary;
• The applicant states he or she is not able to be interviewed for physical or mental reasons;
• A “special officer” should be consulted but is not readily available;
• The applicant states that a severe illness prevents him or her from returning to their country of origin. In these cases, the applicant should be given four weeks to undergo further medical examinations and to obtain a qualified medical report;
• The applicant has already appointed a lawyer, in which case the interview should take place on a date which enables the lawyer to attend;
• The applicant falls within the scope of the Dublin procedure;
• The applicant is an unaccompanied child.

These stages of the procedure are carried out within a few days. After that, a decision is usually handed out within a period of few weeks up to several months. It should be noted that there are considerable variations to the procedure in the various arrival centres. In particular, there is no common approach on access to social services or other counselling institutions, while in many arrival centres no such access exists. This is dependent on how the Federal States and the BAMF have organised the procedure in the respective centres.

Since 2019, the BAMF is obliged by law to offer a basic counselling service, consisting of general information on the procedure which is supposed to be provided before the asylum application is registered. During the procedure, asylum seekers shall also be given an opportunity to make individual appointments with a BAMF staff member or with a welfare organisation for advice on the procedure (see Provision of information on the procedure)

AnkER centres (AnkER-zentren)

The concept of AnkER centres was introduced in 2018. As of August 2018, three Federal States (Bavaria, Saxony and Saarland) started conducting a pilot project organising the procedure and accommodation in AnKER centres where not only activities relating to the asylum procedure, but also return procedures (in case of a rejection of the asylum application) are centralised. In 2019 and 2020, the concept was expanded to other Federal States, with the opening of “functionally equivalent facilities” in Mecklenburg­Western Pomerania, Schleswig­Holstein and Brandenburg in 2019 and in Hamburg and in Baden-Württemberg in 2020. As of May 2021, a total of 16 AnkER or functionally equivalent centres were established in Germany.[14]  In 2020, around 27 % of all asylum applications were examined in an AnkER centre or functionally equivalent facility.[15]

In Bavaria, where the majority of AnkER centres have been set up, asylum seekers are first registered in a so-called “arrival centre”^[16] in Munich and are transported to an AnkER centre if the responsibility of Bavaria has been established under the EASY system. A similar system has been established in the other Länder where AnKER centres are operating.

In a 2018 report on the situation in the AnkER centre in Bamberg, Bavaria, corroborated by findings from the AnkER centres in Regensburg and Manching/Ingolstadt, Bavaria in 2019,^[17] as well as by an evaluation of AnkER centres carried out by the BAMF,[18] the procedure has been described as follows:^[19]

1. Step 1  The registration is carried out by the regional authorities. Since Federal State authorities and the BAMF are both present in AnkER centres, several measures to establish the asylum seeker’s identity and possible previous applications (such as fingerprints) are taken already before the application for asylum is officially lodged with the BAMF. If no identity documents exist, mobile phones are confiscated and checked to determine the asylum seeker’s origin. A room on the premises of the AnkER centre is assigned and medical examinations are scheduled.
2. Step 2  The asylum application is lodged at the BAMF. Usually prior to this, counselling on the asylum procedure by staff members of the BAMF is provided, which consists of general information on the asylum procedure to groups of people, while individual appointments have to be requested. According to the BAMF evaluation, the time between first registration and lodging of the application is 3 days longer on average in AnkER centres. This is attributed to the upstreaming of measures to establish identity and the group counselling sessions.[20]
3. Step 3    The  interview with the BAMF is conducted. This is followed by the decision. While the reports based on AnkER centres in Bavaria find that the interview is usually conducted within 2-3 days of lodging, the BAMF evaluation finds that on average, the time between lodging the application and the interview is 12 days, both in AnkER centres and in other branch offices.[21]

The average duration of the first instance procedure in the AnkER centres as 6.6 months in 2020, compared to 8.3 months for all procedures. In the first quarter of 2021, the average duration was 5.3 months in AnkER centres and 6.5 months in all first instance procedures. In the BAMF evaluation of AnkER centres, a comparison between procedures in AnkER centres and other procedures leads to the conclusion that procedures are only marginally faster in AnkER centres.[22]

As the name of the institution suggests, the AnkER centres are also supposed to implement returns of rejected asylum seekers more efficiently, especially by establishing return counselling services in the facilities and also by obliging rejected asylum seekers to stay in these facilities for a period of up to 24 months after the stay in the initial reception centre.^[23] However, these measures are not unique features of the AnkER centres and similar arrangements exist in other facilities as well. The BAMF evaluation finds that residents of AnkER centres and equivalent facilities who have their application rejected are more likely to decide to return “voluntarily”. However, the rate of absconding is also higher among rejected applicants living in AnkER centres, and the rate of forced removals has been found to be lower.[24] It also appears that (rejected) asylum seekers stay in these facilities for prolonged periods (see Freedom of Movement).

Personal interview

In the regular procedure, the BAMF conducts an interview with each asylum applicant.^[25] Only in exceptional cases may the interview be dispensed with, where:

• The BAMF intends to recognise the entitlement to asylum on the basis of available evidence;
• The applicant claims to have entered the territory from a Safe Third Country;^[26]
• An asylum application has been filed for children under 6 years who were born in Germany “and if the facts of the case have been sufficiently clarified based on the case files of one or both parents;^[27] or
• The applicant fails to appear at the interview without an adequate excuse.^[28]

Since 2016, the law also contains a provision according to which officials from other authorities may conduct interviews, “if a large number of foreign nationals applies for asylum at the same time”.^[29] This provision has not been applied in 2020 and 2021.

During the first wave of the Covid-19 outbreak between mid-March and mid-May 2020, interviews were suspended for the most part. Only in special cases, particularly those related to security issues, have interviews continued with mobile teams. In person interviews have gradually resumed since May 2020, with protective measures such as distancing, masks, transparent shields and ventilation in place. [30]

The updated version of the BAMF’s internal directive for asylum procedures of July 2021 foresees the possibly of video interviews for the Dublin interview, for border procedures as well as for subsequent applications and revocation procedures, but not in the regular asylum procedure.[31] The document specifies that the directives concerning video interviews are only applicable during the Covid-19 pandemic. Video interviews still require the presence of all involved persons on BAMF premises, albeit in different rooms or locations. Consent of the applicant is not required.[32] Video conferencing equipment for interviews has been installed in all BAMF branch offices. However, there are no statistics as to how often this possibility was used in practice.[33]

In previous years. video conferencing was used on a very rare basis until 2013, but its use seems to have been abandoned completely since then.^[34] Audio or video recording or video conferencing is not used in appeal procedures either.

Interpretation

The presence of an interpreter at the interview is required by law.^[35] The BAMF recruits its own interpreters on a freelance basis. The BAMF has introduced the possibility of videoconferences for interpretation in 2016. In these cases, interpreters sit in a different branch office than the one in which the interview is taking place or participate via a so-called “interpretation-hub”, ensuring that all transmission is via a secure internal network. Video interpretation is regarded as complementary to in-person interpretation, and should be used mainly for rare languages, when travel costs would be very high or in a situation with an unusually high number of interviews.[36] Video interpretation does not require consent by the applicant.[37] Video conferencing was used in 1,019 interviews in 2021 and 1,359 interviews in 2020.[38] There are no indications as to whether video interpretation was used more in 2020 and 2021 as a result of the Covid-19 outbreak.

Following discussions about the quality of translations during interviews, the BAMF has revised the procedures for the deployment of interpreters since 2017. For example, a new training programme of online modules and in-house trainings was established. Both experienced and newly employed interpreters are now required to complete the training programme. Apart from basic information on the asylum procedure and general communication skills, several training modules are supposed to deal with specifics of the asylum interview such as the “role of the interpreter during the interview” or “handling psychological burden caused by asylum seekers’ traumatic backgrounds”. now need advanced German language skills; level C1 of the Common European Framework of Reference for Languages. Moreover, the BAMF has stated that a system for complaint management in the context of interpretation at the BAMF has been established in 2017.^[39] The complaint management system was revised in 2020 and involves a multi-stage procedure at the end of which a termination of contractual relations with the interpreter is possible.[40]

In addition, the BAMF has published a code of conduct for interpreters.^[41] According to this document, interpreters at the BAMF have to commit to various principles, such as “integrity”, “qualification” and “professional and financial independence” (including neutrality, an obligation to provide full and correct translations, and to clarify misunderstandings immediately). Since the introduction of the new concept and the code of conduct in 2017 and until April 2018, more than 2,100 interpreters have been declared unfit for further employment by the BAMF, most of them apparently due to insufficient language skills. In 30 cases, interpreters were declared unfit because they were found to be in breach of the code of conduct.^[42] However, no re-assessment of the decisions where these interpreters were involved has taken place.[43] Between 2017 and February 2022, a total of 926 complaints were signalled to the BAMF via its complaint management system.[44]

The quality of interpretation also seems to vary between interviews at the BAMF and court hearings: whereas in court, interpreters must take an oath to accurately reflect the applicants’ position, this is not the case for interviews conducted with the BAMF or the Border Police. Reportedly, taking oath in Court proceedings results in better translation services and cases being taken “more seriously”.^[45] Interpreters at court are, however, also generally paid more than interpreters contracted by the BAMF, and courts require higher levels of qualifications.

Transcript of the interview

The transcript of the interview consists of a summary of questions and answers (i.e. it is not a verbatim transcript). It is usually taken from a tape recording of the interview and it is only available in German. The interpreter present during the personal interview will also be responsible for translations of the transcript. The applicant has the right to correct mistakes or misunderstandings. By signing the transcript, the applicant confirms that he or she has had the opportunity to present all the important details of the case, that there were no communication problems and that the transcript was read back in the applicant’s language. Video recordings of interviews do not take place.

In spite of this, alleged mistakes in the transcript frequently give rise to disputes at later stages of the asylum procedure. For instance, doubts about the credibility of asylum seekers are often based on their statements as they appear in the transcript. However, it is possible that the German wording of the transcript reflects mistakes or misunderstandings which were caused by the translation. For example, the transcript is usually translated (orally) once more at the end of the session by the same interpreter who has been present during the interview as well. On this occasion, it is more than likely that interpreters repeat the mistakes they made during the interview and it is thus impossible for the asylum seeker to identify errors in the German transcript which result from the interpreters’ misunderstandings or mistakes. It is very difficult to correct such mistakes afterwards, since the transcript is the only record of the interview. The tape (or digital) recording of the interview is deleted.

Interviews at the BAMF have frequently been criticised for being too superficial and not sufficiently aiming to establish the facts of the case. In particular, it has been reported that there are instances where no further questions are asked in cases of inconsistencies in the asylum seekers’ accounts.^[46] In such cases, it is impossible to establish in later stages of the procedure whether inconsistencies result from contradictions in the asylum seekers’ statements or merely from misunderstandings or translation errors.

Appeal

Appeal before the Administrative Court

Appeals against rejections of asylum applications have to be lodged at a regular Administrative Court (Verwaltungsgericht, VG). There are 51 Administrative Courts, at least 48 of which are competent to deal with appeals in asylum procedures.^[48] The responsible court is the one with regional competence for the asylum seeker’s place of residence. Procedures at the administrative court generally fall into 2 categories, depending on the type of rejection of the application:

“Simple” rejection: An appeal to the Administrative Court has to be submitted within 2 weeks (i.e. 14 calendar days). This appeal has suspensive effect. It does not necessarily have to be substantiated at once, since the appellant has 1 month to submit reasons and evidence. Furthermore, it is common practice that the courts either set another deadline for the submission of evidence at a later stage (e.g. a few weeks before the hearing at the court) or that further evidence is accepted up to the moment of the hearing at the court.

Rejection as “manifestly unfounded” (offensichtlich unbegründet): Section 30 of the Asylum Act lists several grounds for rejecting an application as “manifestly unfounded”. These include among others unsubstantiated or contradictory statements by the asylum seeker, as well as misrepresentation or failure to state one’s identity. Furthermore, applications from so-called safe countries of origin are legally assumed to be manifestly unfounded (Section 29a Asylum Act) requiring a higher burden of proof on the part of the applicant of their reasons for needing protection.[49] For inadmissibility decisions, see Admissibility Procedure.

If asylum applications are rejected as “manifestly unfounded”, the timeframe for submitting appeals is reduced to one week. Since appeals do not have (automatic) suspensive effect in these cases, both the appeal and a request to restore suspensive effect have to be submitted to the court within 1 week (7 calendar days). The request to restore suspensive effect has to be substantiated.

The short deadlines in these rejections are often difficult to meet for asylum seekers and it might be impossible to make an appointment with lawyers or counsellors within this timeframe. Therefore, it has been argued that the 1-week period does not provide for an effective remedy and might constitute a violation of the German Constitution.^[50] In any case, suspensive effect is only granted in exceptional circumstances.

The Administrative Court investigates the facts of the case. This includes a personal hearing of the asylum seeker (usually not when deciding on applications for suspensive effect, though). Courts are required to gather relevant evidence at their own initiative. As part of the civil law system principle, judges are not bound by precedent. Court decisions are generally available to the public (upon request and in anonymous versions if not published on the court’s own initiative).

Until September 2021, the average processing period for appeals was 26.4 months (compared to 24.3 months in 2020).[51] This is significantly longer than in previous years which had already seen a rising trend (17.6 months in 2019 compared to 12.5 months in 2018 and 7.8 months in 2017). ^[52] The high increase in 2020 and 2021 is likely related to the Covid-19 pandemic, as administrative courts had cancelled hearings, treated only urgent cases or did not allow public access especially during the first wave of the pandemic in spring 2020.[53] The increase in previous years can still be traced back to a significant increase in the number of appeals filed in 2017, following a sharp increase in BAMF decisions especially in 2016 and 2017. [54]  At the end of the year 2017, 361,059 cases were pending before the Administrative Courts. It appears that courts are still trying to address this backlog, with 165,367cases pending as of August 2021 (compared to 191,110 pending cases at the end of 2020 and 252,250 at the end of 2019).^[55] According to the UNHCR, PRO ASYL as well as the spokesperson of the Higher Administrative Court of Lower Saxony, courts have been understaffed and have lacked the capacity to effectively deal with the backlog for years.[56]

Over the last years, the BAMF has put efforts into digitalising communication with the courts, partly to shorten the times for appeal procedures. According to the BAMF, “files and documents from all the branch offices can be sent to the administrative courts electronically, by legally-compliant means as well as encrypted”, via the so-called ‘Electronic Court and Administration Mailbox EGVP’. The administrative courts can in turn address file requests to a central office of the BAMF in Nuremberg. “An average of approx. 1,800 files and documents are sent by electronic means every day.” According to the BAMF, “the rapid dispatch of files requested, on the same day in most cases, enables administrative court judges to recognise a clear time benefit when it comes to processing cases”. [57]

It should be noted that a high number of appeal procedures (46.3 % in 2020[58]) is terminated without an examination of the substance of the case, and therefore often without a hearing at the court. These terminations of procedures take place, for instance, if the appeal is withdrawn by the asylum seeker or if an out-of-court settlement is reached between the asylum seeker and the BAMF. Therefore, it has to be assumed that the average period for appeals is considerably longer than the averages referred to above, if the court decides on the merits of the case.

If the appeal to the Administrative Court is successful (or partly successful), the court obliges the authorities to grant asylum and/or refugee status or to declare that removal is prohibited. The decision of the Administrative Court is usually the final one in an asylum procedure. Only in exceptional cases is it possible to lodge further appeals to higher instances.

Until the end of November 2021, approximately 18 % of all court decisions led to the granting of a form of protection to the applicant. If formal decisions (without examination of the substance) are not taken into account, the success rate for appeals was at 35 %. This is slightly higher than in previous years (in 2020, the rates were 17 % of all appeal decisions and 31 % if formal decisions are not taken into account; the rates for 2019 were 15 % and 27 %).[59]

Onward appeal

The second appeal stage is the High Administrative Court (Oberverwaltungsgericht, OVG or Verwaltungsgerichtshof); the latter term is used in the Federal States of Bavaria, Hessen, and Baden-Württemberg. There are 15 High Administrative Courts in Germany, one for each of Germany’s 16 Federal States, with the exception of the States of Berlin and Brandenburg which have merged their High Administrative Courts since 2005. High Administrative Courts review the decisions rendered by the Administrative Court both on points of law and of facts.

In cases of “fundamental significance” the Administrative Court itself may pave the way for a further appeal (Berufung) to the High Administrative Court, but usually it is either the authorities or the applicant who apply to the High Administrative Court to be granted leave for a further appeal. In contrast to the general Code of Administrative Court Procedure (Verwaltungsgerichtsordnung) the criterion of “serious doubts as to the accuracy of a decision” is not a reason for a further appeal in asylum procedures. It is therefore more difficult to access this second appeal stage in asylum procedures than it is in other areas of administrative law. According to Section 78 of the Asylum Act, a further appeal against an asylum decision of an Administrative Court is only admissible if:

1. The case is of fundamental importance;
2. The Administrative Court’s decision deviates from a decision of a higher court; or
3. The decision violates basic principles of jurisprudence

Decisions by the High Administrative Court may be contested at a third stage, the Federal Administrative Court, in exceptional circumstances. The Federal Administrative Court only reviews the decisions rendered by the lower courts on points of law. The respective proceeding is called “revision” (Revision). High Administrative Courts may grant leave for a revision if the case itself or a point of law is of fundamental significance, otherwise the authorities or the asylum seekers have to apply for leave for such a further appeal to the Federal Administrative Court. Possible reasons for the admissibility of a revision are similar to the criteria for an appeal to a High Administrative Court as mentioned above.

Judgments of the Federal Administrative Court are always legally valid since there is no further legal remedy against them. However, as the Federal Administrative Court only decides on points of law and does not investigate the facts, it often sends back cases to the High Administrative Courts for further investigation.

Outside the administrative court system, there is also the possibility to lodge a so-called constitutional complaint at the Federal Constitutional Court (Bundesverfassungsgericht). Such complaints are admissible in cases of violations of basic (i.e. constitutional) rights. In the context of asylum procedures this can be the right to political asylum as well as the right to a hearing in accordance with the law, but standards for admissibility of constitutional complaints are difficult to meet. Therefore, only few asylum cases are accepted by the Federal Constitutional Court.

Legal assistance

 Legal assistance at first instance

Legal assistance at first instance is not systematically available to asylum seekers in Germany. NGOs are not entitled to legally represent their clients in the course of the asylum procedure. During the first instance procedure at the BAMF, asylum seekers may be represented by a lawyer but they are not entitled to free legal aid, so they have to pay their lawyers’ fees themselves at this stage.[60] Consequently, asylum seekers are rarely represented by a lawyer at the initial stage of the asylum procedure and/or during the interview.

With the so-called “Orderly-Return-Law”, in force since 21 August 2019, a “voluntary independent state-run” counselling service with a two-stage approach was introduced (Section 12a Asylum Act): the first stage consists of group sessions with basic information on the asylum procedure as well as on return procedures; the second stage consists of individual counselling sessions. While the law stipulates that the counselling can be carried out either by the Federal Office or by welfare organisations, in practice it is the BAMF which provides counselling. Government advice covers the period from the lodging of the asylum application to the explanation of a first instance decision. To avoid conflict with provisions covering legal advice in Germany, it is not aimed at providing counselling at the appeal stage. The government has also pointed out that the counselling service on asylum procedures is “definitely not legal advice”.^[61] (see chapter Provision of information on the procedure). The new coalition government has announced in November 2021, however, that legal assistance should be offered by independent organisations instead of the BAMF.[62]  It remains to be seen if this will be implemented in practice.

Once asylum seekers have left the initial reception centres and have been transferred to other accommodation, the access to legal assistance depends on the place of residence. For instance, asylum seekers accommodated in rural areas might have to travel long distances to reach advice centres or lawyers with special expertise in asylum law.

Legal assistance at second instance

During court proceedings, asylum seekers can apply for legal aid to pay for a lawyer. The granting of legal aid is dependent on how the court rates the chances of success. This “merits test” is carried out by the same judge who has to decide on the case itself and is reportedly applied strictly by many Courts.^[63] Therefore some lawyers do not always recommend to apply for legal aid, since they are concerned that a negative decision in the legal aid procedure may have a negative impact on the main proceedings.

Furthermore, decision-making in the legal aid procedure may take considerable time so lawyers regularly have to accept a case before they know whether legal aid is granted or not. Lawyers often argue that fees based on the legal aid system do not always cover their expenses. As a consequence, specialising only on asylum cases is generally supposed to be difficult for law firms. Most lawyers specialising in this area have additional areas of specialisation while a few also charge higher fees on the basis of individual agreements with their clients.

It is possible to appeal against the rejection of an asylum application at an Administrative Court without being represented by a lawyer, but from the second appeal stage onwards representation is mandatory.

[1]  Section 24(4) Asylum Act.

[2]  Federal Government, Response to parliamentary question by The Left, 20/940, 7 March 2022, 10.

[3]  Federal Government, Response to parliamentary question by The Left, 20/940, 7 March 2022, 12, and 19/30711, 15 June 2021, 3.

[4]  Federal Government, Response to written question No. 8 by Luise Amtsberg (The Greens), 19/19363, p. 5, available in German at https://bit.ly/3qdXmdy, 5.

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

[6]  Federal Government, Response to parliamentary question by The Left, 19/1371, 22 March 2018, 42; 18/11262, 21 February 2017, 13.

[7] BAMF, Asylgeschäftsstatistik (statistics on applications, decisions and pending procedures), 1-12/2021, available in German at: https://bit.ly/38DEdqJ.

[8]BAMF, Asylgeschäftsstatistik (statistics on applications, decisions and pending procedures), 1-12/2020, available at: https://bit.ly/3rnIEzR.

[9]  BAMF, Aktuelle Zahlen, December 2019, available in German at: https://bit.ly/2XL4gsp.   

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

[11] BAMF, Locations, www.bamf.dehttps://bit.ly/3dFTd8w, lists  58 “branch offices” and “regional offices” , with some offices having both functions. Some of the centres listed as “arrival centres” are also considered functionally equivalent to “AnkER-centres”, according to the BAMF (see BAMF, Evaluation of AnkER Facilities and Functionally Equivalent Facilities, Research Report 37 of the BAMF Research Centre, 2021, 17 and 22, available in English at https://bit.ly/3FgxXnq).

[12]  These include McKinsey, Roland Berger and Ernst & Young: BAMF, ‘Viele helfende Hände – für den gemeinsamen Erfolg’, 22 March 2016, available in German at: http://bit.ly/2Hbd1Ruhttp://bit.ly/2llkWoc. See further Washington Post, ‘How McKinsey quietly shaped Europe’s response to the refugee crisis’, 24 July 2017, available at: http://wapo.st/2HdDq0Phttp://wapo.st/2gWSmJ3.

[13] Flüchtlingsrat Berlin, Das Schnellverfahren für Asylsuchende im Ankunftszentrum Berlin, November 2017, available in German at: http://bit.ly/2HdSDzb.

[14] Federal Government, Response to parliamentary question by The Left, 19/30711, 15 June 2021, 28.

[15]  Federal Government, Response to parliamentary question by The Left, 19/30711, 15 June 2021, 31.

[16] This form of “arrival centre” seems to a Bavarian institution, not to be confused with the arrival centres in other Federal States which operate as a combination of reception facilities and BAMF branch offices.

[17]  ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at: https://bit.ly/2W7dICZ.

[18] BAMF, Evaluation of AnkER Facilities and Functionally Equivalent Facilities, Research Report 37 of the BAMF Research Centre, 2021, available in English at https://bit.ly/3FgxXnq 

[19]  Markus Kraft: “Die ANKER-Einrichtung Oberfranken”, Asylmagazin 10-11/2018, 352-353.

[20]  BAMF, Evaluation of AnkER Facilities and Functionally Equivalent Facilities, Research Report 37 of the BAMF Research Centre, 2021, 28, available in English at https://bit.ly/3FgxXnq 

[21] BAMF, Evaluation of AnkER Facilities and Functionally Equivalent Facilities, Research Report 37 of the BAMF Research Centre, 2021, 30, available in English at https://bit.ly/3FgxXnq 

[22]  The evaluation is based on asylum procedures regarding first-time cross border asylum applications that were finished within one calendar year and carried out between 01.8.2019 and 31.03.2020. The evaluation finds that such procedures took 77 days in AnkER centres and equivalent facilities, compared to 82 days in other BAMF branch offices. Source: BAMF, Evaluation of AnkER Facilities and Functionally Equivalent Facilities, Research Report 37 of the BAMF Research Centre, 2021, 23, 30, available in English at https://bit.ly/3FgxXnq

[23]  Markus Kraft: “Die ANKER-Einrichtung Oberfranken”, Asylmagazin 10-11/2018, 355.

[24] BAMF, Evaluation of AnkER Facilities and Functionally Equivalent Facilities, Research Report 37 of the BAMF Research Centre, 2021, 52-53, available in English at https://bit.ly/3FgxXnq 

[25]   Sections 24 and 25 Asylum Act.

[26]  This provision is rarely applied in the regular procedure since it has usually not been established at the time of the interview whether Germany or a safe third country is responsible for the handling of the asylum claim.

[27]  Section 24(1) Asylum Act.

[28]  Section 25 Asylum Act.

[29]  Section 24(1a) Asylum Act.

[30] ECRE, Information Sheet 28 May 2020: Covid-19 Measures Related to Asylum and Migration Across Europe, available at: https://bit.ly/3lMPtZD; ECRE, Information Sheet 7 December 2020: Covid-19 Measures Related to Asylum and Migration Across Europe, 3, available at: https://bit.ly/3dDxnop.

[31]  BAMF, Dienstanweisung Asyl (internal directive for asylum procedures), 03 August 2021, 104

[32]  BAMF, Dienstanweisung Asyl (internal directive for asylum procedures), 03 August 2021, 104

[33]  Information provided by the BAMF, 10 March 2022. See also EASO, ‘COVID-19 emergency measures in asylum and reception systems. Issue No. 3, 7 December 2020, available at https://bit.ly/3FBPZ3Y

[34] Katharina Stamm, ‘Videokonferenztechnik im Asylverfahren – warum sie unzulässig ist’, Asylmagazin 3/2012, 70; Federal Government, Response to parliamentary question by The Left, 17/8577, 10 February 2012, 22.

[35] Section 17 Asylum Act.

[36] BAMF, Dienstanweisung Asyl (internal directive for asylum procedures), Sprachmittlung, 23 August 2019. 17, available in German at https://bit.ly/3r5l76x

[37]  BAMF, Dienstanweisung Asyl (internal directive for asylum procedures), 03 August 2021, 101

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

[39]  BAMF, ‘Online-Videotraining für Sprachmittler gestartet’, 28 September 2017, available in German at: http://bit.ly/2oWwbTH.

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

[41]  BAMF, Verhaltenskodex für Sprachmittler, June 2017, available in German at https://bit.ly/2XZADBF.

[42] Federal Government, Response to parliamentary question by The Left, 19/1631, 13 April 2018, available in German at: https://bit.ly/2F2kvqq, 40-41.

[43] PRO ASYL, ‘Stellungnahme von PRO ASYL zum Antrag für ein umfassendes Qualitätsmanagement beim Bundesamt für Migration und Flüchtlinge (BT-Drs. 19/4853) sowie zum Entwurf eines Gesetzes zur Änderung des Asylgesetzes zur Beschleunigung von Verfahren durch erweiterte Möglichkeit der Zulassung von Rechtsmitteln (BT-Drs. 19/1319) 21’, available in German at https://bit.ly/34Ge2Sy

[44] Information provided by the BAMF, 10 March 2022. This is out of a total of 3,971 messages to the system, which also include positive or neutral messages.

[45] Information provided by an attorney-at-law, 31 August 2020.

[46]  Uwe Berlit, Sonderasylprozessrecht – Zugang zu gerichtlichem Rechtsschutz im Asylrecht, Informationsbrief Ausländerrecht 9/2018, 311.

[47]  For the period until 30 September 2021. Source: Federal Government, Response to parliamentary question by The Left, 20/432, 14 January 2022, 22. A full-year figure was not available in 2021. By way of comparison, the average processing time for the appeal body in 2020 was 24.3 months.

[48]  In the Federal State of Rhineland-Palatinate, the Administrative Court of Trier is competent for all asylum appeal procedures, therefore the other three Administrative Courts in the Federal State only deal with asylum matters on an ad hoc basis. 

[49]Der Paritätische Gesamtverband, Grundlagen des Asylverfahrens, überarbeitete 5. Auflage 2021, available in German at https://bit.ly/33c4uhF, p.26.

[50] See more references in Dominik Bender and Maria Bethke. “‘Dublin III‘, Eilrechtsschutz und das Comeback der Drittstaatenregelung.”, Asylmagazin 11/2013, 362.

[52]  Federal Government, Responses to parliamentary question by The Left, 19/18498, 2 April 2020, 47; 19/8701, 25 March 2019, 48; 19/1371.

[53]  By way of example see the website of the Administrative Court of Stuttgart as of 11 April 2020: https://bit.ly/34ITHvU and of the Administrative Court of Berlin as of 1 April 2020: https://bit.ly/3K43Kfa .

[54]  BAMF, Das Bundesamt in Zahlen 2020, 37.

[55]   Federal Government, Response to parliamentary question by The Left 19/28109 , 14 October 2021, 30, 19/28109, 30 March 2021, 38, 19/18498, 2 April 2020, 47; 19/8701, 25 March 2019, 43; 19/1371, 22 March 2018, 34.

[56] FRA (European Union Fundamental Rights Agency), ‘Migration: Key Fundamental Rights Concerns’, Quarterly Bulletin 01.01.2021-30.06.2021, 14, available at: https://bit.ly/3qB3RHk.

[57]  BAMF, Digitalisation of the asylum procedure, 2020 available at: https://bit.ly/3pFFlTU.

[58] Federal Government, Response to parliamentary question by The Left, 19/28109, 30 March 2021, 38.

[59]  Federal Government, Responses to parliamentary question by The Lef 20/432, 14 January 2022, 21 19/28109, 30 March 2021, 38, 19/18498, 02 April 2020, 45.

[60]  In theory, there is the possibility to apply for free legal counselling under a general scheme for legal counselling (Beratungshilfe). However, the fees paid by the state for this counselling are so low that there are only few lawyers who accept to give counselling under this scheme. Moreover, the scheme that is available to all persons in Germany who do not have enough funds to avail themselves of legal counselling is hardly known in general.

[61] „Die Asylverfahrensberatung des BAMF ist gerade keine Rechtsberatung“, Federal government, response to information request by The Left, 19/19535, 26 May 2020, 17.

[62] SPD, BÜNDNIS 90/DIE GRÜNEN UND FDP, ‚Mehr Fortschritt wagen. Bündnis für Freiheit, Gerechtigkeit und Nachhaltigkeit. Koalitionsvertrag 2021 – 2025 zwischen der Sozialdemokratischen Partei Deutschlands (SPD) und den Freien Demokraten (FDP)‘, 137-142, available in German at: https://bit.ly/3ITYqJZ.    

[63]   For an overview of practice in Regensburg, Bavaria, see ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at: https://bit.ly/2W7dICZ.