Subsequent applications

As of 2024, some of the information in this section will be affected by the provisions of the new Act on the Improvement of Removals of 18 January 2024.

The law defines a subsequent application (Folgeantrag) as any claim which is submitted after a previous application has been withdrawn or has been finally rejected.[1] In case of a subsequent application the BAMF conducts a preliminary examination on the admissibility of the application. The admissibility test is determined by the requirements for resumption of procedures as listed in the Administrative Procedure Act.[2] According to this, a new asylum procedure is only initiated if one of the following applies:

• The material or legal situation on which the decision was based has subsequently changed in favour of the applicant;
• New evidence is produced which would have resulted in a more favourable decision for the applicant in the earlier procedure; or
• There are grounds for resumption of proceedings, for example because of serious errors in the earlier procedure.[3]

Regarding the first two requirements, the Administrative Court of Sigmaringen (Baden-Württemberg) has referred a question to the CJEU in February 2022 asking if this is compatible with the EU APD, which merely refers to new elements or findings as requirements for subsequent applications, and does not mention whether they would change the decision. The court further requested clarification on the status of new CJEU rulings, which are currently not considered a ‘new legal situation’ in Germany if the ruling only concerns the interpretation of EU law.[4] The CJEU decided on the 8 February 2024 that in general the exceptions under which a subsequent application to be declared admissible should be interpreted broadly.[5] More specifically, the court decided that CJEU rulings qualify as ‘new elements’ which may lead to a ‘new legal situation’ even if the only concern the interpretation of EU law.[6] The Administrative Court of Minden (North Rhine Westphalia) also referred a question to the CJEU as to whether the first and second ground can be assumed to not be applicable if the applicant has returned to and lived in their country of origin for several years.[7] In its judgment from May 2023 the CJEU ruled that the temporary return to the country of origin has no impact on the classification of a further application as ‘subsequent application’.[8]

A further requirement according to the law is that the applicant was unable, without grave fault on their part, to present the grounds for resumption in earlier proceedings, particular by means of legal remedy. The law also states that the application must be made within 3 months after the applicant has learned of the grounds for resumption of proceedings, [9] however, following an CJEU ruling indicating that such time limits are in violation of the EU APD,[10] the BAMF has declared it will no longer require this in practice.[11] German courts have adopted the ruling in several cases which were decided by BAMF prior to the judgement in 2021.[12] However, there is no information available whether the limits are still applied by the BAMF after 2021, the newest Internal Directive for Asylum Procedures (Dienstanweisung Asyl) from BAMF still includes the time limit of three months.[13]

Only if these requirements are met, the applicant regains the legal status of asylum seeker and the merits of the case will be examined in a regular asylum procedure (see below for further details). The procedure is the same for third or further applications. A subsequent application always must be lodged by the applicant; the BAMF does not self-initiate new procedures to grant protection (as opposed to withdrawal procedures, see Cessation and review of protection status).

If the application for international protection was rejected in another EU Member State, Norway or Switzerland (i.e. not in Germany), the application in Germany is called a secondary application (Zweitantrag). In the case of such a secondary application, the same requirements for changed circumstances, new evidence or errors in the previous procedure apply. In addition, Germany must be responsible to carry out the asylum procedure.[14] A CJEU ruling of September 2022 found that applications from persons whose asylum application has previously been rejected in Denmark – which applies the Dublin regulation but not the EU Qualification and Procedures Directives – cannot be considered a secondary application in Germany.[15]

The legal status of applicants pending the decision on the admissibility of their subsequent application is not expressly regulated by law. It is generally assumed, though, that a removal order has to be suspended until the Federal Office has taken a decision on the commencement of a new asylum procedure. Accordingly, the stay of applicants is to be ‘tolerated’ (geduldet) until this decision has been rendered.[16] For secondary applications, the tolerated status is foreseen by law.[17] However, a removal may proceed from the very moment that the Federal Office informs the responsible Foreigners’ Authority that a new asylum procedure will not be initiated. If an enforceable removal order already exists, a new removal order or other notification is not required to enforce removal.[18] The applicant may also be detained pending removal until it is decided that a subsequent or secondary asylum procedure is carried out.[19]

The decision on admissibility of a subsequent or secondary application can be carried out without hearing the applicant.[20] Internal BAMF guidelines state that such a hearing only needs to take place when this is considered necessary to decide on the admissibility of the application. An example given is when the applicant has travelled to their country of origin in the meantime and puts forwards an individual persecution.[21] However, a judgement by the Administrative Court of Berlin of October 2022 found that even though the BAMF has full discretion, there has to be evidence that it actually exercised discretion by considering reasons for or against conducting an interview.[22] In a judgement of April 2022, the Administrative Court of Minden (North Rhine Westphalia) found that the BAMF has to conduct a hearing in principle, and has to provide a reasoning when it decided not to.[23] Because such hearings often do not take place in practice, it is recommended that subsequent applications, which generally have to be submitted in person, should be accompanied with a detailed written motivation.[24]

If the BAMF decides not to carry out a subsequent procedure, the application is rejected as ‘inadmissible’.[25] Even though in this case the BAMF does not examine the merits of the application, it can pronounce a removal ban subject to national law at this stage.[26] If the BAMF issues a renewed order to leave the territory with the decision (see above), the period set for ‘voluntary departure’ is seven days, which is also the delay within which an appeal can be filed with the Administrative Court.[27] The appeal does not have suspensive effect, unless an interim measure is filed and granted to this effect. The delay for requesting interim measures is also seven days.[28] Where the person was already under the obligation to leave the territory before lodging the subsequent application and where no new order to leave is issued, the delay for filing an appeal against the inadmissibility decision is two weeks. However, since the appeal does not have a suspensive effect and since the immigration authority is usually informed of the outcome before the applicant, a request for interim measures should be filed quickly in order to avoid removal.[29] There is no free legal assistance available for subsequent applications or for appealing against rejections of subsequent applications. Since the appeal only pertains to the (in)admissibility decision, the court considers whether such decision was made lawfully, but not the merits of the asylum application as such.

In contrast, if the BAMF decides to carry out a new procedure, this will usually be in the form of a ‘regular procedure’ and the applicant regains the status of asylum seeker, including access to reception conditions and including the other rights and obligations connected with this status.[30]

In terms of the asylum procedure, the law does not distinguish between situations in which the applicant has left Germany following a negative decision and situations where they remained on the territory. Differences exist regarding reception however: all subsequent applications have to be lodged in the BAMF branch office which was responsible for the first application, but persons who have left and re-entered Germany are subject to the regular distribution procedure and are obliged to stay in initial reception centres (see Making and registering the application),[31] whereas applicants who stayed in Germany and who are no longer required to stay in an initial reception centre usually do not have to go back to an initial reception centre for the duration of the procedure, unless their subsequent applications are dealt with in the ‘accelerated procedure’, but this type of procedure is only applied in a few branch offices of the BAMF (see Accelerated procedure).[32]

The number of subsequent applications decreased in 2023 following the trend of 2022. 22.795 persons lodged subsequent applications in 2023, compared to 26,358 in 2022 and 42,583 in 2021.[33] The highest number of subsequent applications between January and October 2023 came from North Macedonia and Afghan nationals.[34]. The majority of subsequent applications from North Macedonian nationals were inadmissible, no subsequent application led to a protection status.[35] Only a minority of subsequent applications from Afghan nationals were deemed inadmissible (341), whereas the overwhelming majority (3,891) resulted in the granting of some form protection, in most cases a removal ban based on national law (2,743 cases).[36]

Statistics do not distinguish between situations where applicants have remained in Germany until lodging a subsequent application and situations where subsequent applications are lodged after the applicant had left Germany. However, there are statistics on the number of asylum applications lodged by persons who already have a legalised status in Germany. 9,932 such applications were lodged in the first half of 2023, compared to 20,392 in 2022 and 35,701 in 2021.[37] Around 63% of the applicants had either a residence permit for political or humanitarian reasons (which includes international protection) or a tolerated status, suggesting that their application might be counted as a subsequent application.

The decisions on subsequent applications in 2023 were as follows:

Source: BAMF, Asylgeschäftsstatistik (statistics on applications, decisions and pending procedures), 1-12/2023, available at: https://bit.ly/3UjFWf0.

The statistics show that 49.6% of subsequent applications were being rejected as inadmissible before the asylum procedure was reopened in 2023, which is a bit higher than in the previous year (41,6% in 2022, 75% in 2021 and 48.5% in 2020). In 16% of cases, the follow-up procedure was terminated later either for formal reasons or because the application was found to be inadmissible at this stage (13% in 2022, 12.5% in 2021,). When looking strictly at the subsequent applications decided on the merits, 40.6%of them were successful (6,278decisions, compared to 12,402 decisions in 2022 (84.3%), and 2,919decisions in 2021 (54.9%).

The 6,278 ‘positive’ decisions in 2023 resulted in the following status decisions:

• Asylum or refugee status: 2,134
• Subsidiary protection: 679
• (National) humanitarian protection / removal ban: 3,465

[1] Section 71 Asylum Act.

[2] Section 51(1)-(3) Administrative Procedure Act (Verwaltungsverfahrensgesetz).

[3] The relevant grounds for this third alternative are listed in Section 580 of the Code of Civil Procedure (‘action for retrial of a case’), to which the Asylum Act makes a general reference. Serious errors according to this provision include false testimony by witnesses or experts. Apart from that, Section 580 of the Code of Civil Procedure contains several grounds which are either not relevant for the asylum procedure or are covered by the grounds referred to under the first and second alternatives mentioned here. Although it is conceivable that the third alternative may apply in certain cases, it hardly seems to be of significance in practice, cf. Kerstin Müller, AsylVfG § 71, para. 32, in Hofmann/Hoffmann, eds. HK-AuslR (Handkommentar Ausländerrecht), 2008, 1826.

[4] Art. 33(2)d and 40(2) recast APD. The CJEU case is lodged as case C-216/22 and can be followed up upon here: https://bit.ly/4arjs14.

[5] CJEU, Case C-216/22, 8 February 2023, available at: https://bit.ly/3T0GYLR, 36.

[6] CJEU, Case C-216/22, 8 February 2023, available at: https://bit.ly/3T0GYLR, 44f.

[7] See Administrative Court of Minden, 7 June 2022, J.B. S.B. F.B. (Lebanon) v Federal Republic of Germany, request for a preliminary ruling, summary available at http://bit.ly/3Y7EUSm.

[8] CJEU, Case C-364/22, Judgement of 25 May 2023, available at: https://bit.ly/42Q2RAE.

[9] Section 51(2) Administrative Procedure Act.

[10] CJEU, Case C‑18/20, Judgement of 9 September 2021, available at: https://bit.ly/3RQA9f4.

[11] Asyl.net, EuGH stärkt Rechte von Asylsuchenden bei Asylfolgeanträgen, last update on 17 November 2021, available in German at: https://bit.ly/3IB1tXA.

[12] Administrative Court Saarland, Decision 6 K 703/20, 14 April 2022, available in German at: https://bit.ly/3OJ0I47; Administrative Court Freiburg, Decision A 14 K 6699/18, 27 September 2021, available in German at: https://bit.ly/3ub8uwi.

[13] BAMF Dienstanweisung Asyl (internal directive for asylum procedures), latest update January 2023, available in German at: https://bit.ly/49cX22k.

[14] BAMF, Initial, follow-up and second applications, 28 November 2018, available at: https://bit.ly/3prAS83.

[15] CJEU, Case C‑497/21, Judgement of 22 September 2022, available at: https://bit.ly/3ROhjp0.

[16] Kerstin Müller, ‘AsylG § 71, para. 50’, in Hofmann/Hoffmann, eds., HK-AuslR (Handkommentar Ausländerrecht), 3rd edition, 2023.

[17] Section 71a (3) Asylum Act.

[18] Section 71(5) Asylum Act.

[19] Section 71(8) Asylum Act, Section 71a (2) Asylum Act.

[20] Section 71(3) Asylum Act.

[21] BAMF, Dienstanweisung Asyl (internal directive for asylum procedures), January 2023, 262 (pdf), available at: https://bit.ly/49cX22k.

[22] VG Berlin, 38 L 340/22 A, 26 October 2022, available in German at: http://bit.ly/3LK1k8M.

[23] Administrative Court Minden, judgement of 6 April 2022, 10 K 3200/20.A, available in German at: http://bit.ly/3nkUITX.

[24] Kirsten Eichler, Der Asylfolgeantrag. Zu den Voraussetzungen für die erneute Prüfung von Asylanträgen und zum Ablauf des Folgeverfahrens, October 2018, available in German at: https://bit.ly/3MbCfBj, 55.

[25] Section 29(1)(5) Asylum Act.

[26] Section 31(3) Asylum Act, Kirsten Eichler, Der Asylfolgeantrag. Zu den Voraussetzungen für die erneute Prüfung von Asylanträgen und zum Ablauf des Folgeverfahrens, October 2018, available in German at: https://bit.ly/3MbCfBj, 61.

[27] Section 71(4), 74(1) and 36(1)(3) Asylum Act.

[28] Section 75(1) Asylum Act, Section 80(5) Code of Administrative Court Procedure (VwGO).

[29] Kirsten Eichler, Der Asylfolgeantrag. Zu den Voraussetzungen für die erneute Prüfung von Asylanträgen und zum Ablauf des Folgeverfahrens, October 2018, available in German at: https://bit.ly/3MbCfBj, 64.

[30] Before the decision on admissibility, applicants usually have access to similar reception conditions since the law governing reception conditions (the Asylum Seekers benefits Act) also applies to persons with a tolerated status, see Section 1a of the Act. The exact conditions for access to housing, the labour market or social benefits depend on the duration of stay and the individual situation, however (see Chapter on Reception Conditions).

[31] Section 71(2) Asylum Act.

[32] Kirsten Eichler, Der Asylfolgeantrag. Zu den Voraussetzungen für die erneute Prüfung von Asylanträgen und zum Ablauf des Folgeverfahrens, October 2018, available in German at: https://bit.ly/3MbCfBj.

[33] BAMF, Aktuelle Zahlen, Dezember 2023, available in German at: https://bit.ly/3HE2Ypk, 3.

[34] Federal Government, Response to information request by AfD, 20/9932, 28 December 2023, available at: https://bit.ly/3SB1r9G, 2.

[35] BAMF, Antrags-, Entscheidungs- und Bestandsstatistik, 8 January 2024, available in German at: https://bit.ly/3UjFWf0.

[36] Ibid.

[37] Federal Government, Response to parliamentary question by The Left 20/8222, 5 September 2023, available in German at: https://bit.ly/3SklJCR, 9; Federal Government, Response to parliamentary question by The Left, 20/5709, 17 February 2023, available in German at: https://bit.ly/3K3w3MX, 10 and 20/2309, 17 June 2022, available in German at: https://bit.ly/3ni6gYk, 9.