Subsequent applications

Germany

Country Report: Subsequent applications Last updated: 30/11/20

Author

Informationsverbund Asyl und Migration Visit Website

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defines a subsequent application (Folgeantrag) as any claim which is submitted after a previous application has been withdrawn or has been finally rejected.[1] In case of a subsequent application the BAMF conducts a preliminary examination on the admissibility of the application.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:

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

Further requirements are that:[4]

  1. The applicant was unable, without grave fault on his or her part, to present the grounds for resumption in earlier proceedings, particular by means of legal remedy; and
  2. The application must be made within 3 months after the applicant has learned of the grounds for resumption of proceedings.

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 subsequent asylum procedure. The procedure is the same for third or further applications.

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 deportation 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.[5] However, a deportation 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 deportation order already exists, a new deportation order or other notification is not required to enforce deportation.[6] The applicant may also be detained pending deportation until it is decided that a subsequent asylum procedure is carried out.[7]

The decision on admissibility of a subsequent application can be carried out without hearing the applicant.[8] This means that the BAMF has full discretion in deciding whether to conduct an interview or not at this stage. Therefore, it is often recommended that subsequent applications, which generally have to be submitted in person, should be accompanied with a detailed written motivation.

If the BAMF decides not to carry out a subsequent procedure, the application is rejected as “inadmissible”.[9] This decision can be appealed before an Administrative Court. It is also necessary to request an interim measure from the court in order to suspend deportation.

There is no free legal assistance available for subsequent applications or for appealing against rejections of subsequent applications.

In contrast, if the Federal Office 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. Since March 2016, it is also possible that subsequent applications are dealt with in the “accelerated procedure”, but this type of procedure has only been introduced in two branch offices of the BAMF (see Accelerated Procedure). Furthermore, accelerated procedures should only take place if the applicant has left Germany after his or her initial asylum procedure had been concluded, so most subsequent applications should not be affected by this provision.[10]

23,429 persons lodged subsequent applications in 2019. The decisions on subsequent applications in 2019 were as follows:

 

Subsequent applicants and decisions on subsequent applications: 2019

Nationality

Applications

Decisions

Inadmissible

Admissible

 

 

 

 

Positive

decision

Negative

decision

Termination / inadmissibility

Syria

1,824

1,815

899

723

18

175

Afghanistan

1,784

2,488

981

623

145

739

Iraq

1,606

1,926

752

175

228

771

Serbia

1,577

1,589

1,227

2

179

181

Nigeria

1,463

1,714

691

67

143

813

Total

23,429

26,208

14,020

2,594

2,641

6,953

Source: BAMF, Asylgeschäftsstatistik (statistics on applications, decisions and pending procedures), 1-12/2019, available at: https://bit.ly/38DEdqJ.

 

The statistics show that the majority of subsequent applications fail at the level of the admissibility examination, before the asylum procedure is reopened (53.5%), or the follow-up procedure is terminated later either for formal reasons or because the application is found to be inadmissible at this stage (26.5%). When looking exclusively at applications decided on the merits (5,235), it appears that almost 50% of these subsequent applications were successful (i.e. 2,594 positive decisions, equalling to 49.4%).

The 2,594 “positive” decisions resulted in the following status decisions:[11]

  • Asylum or refugee status: 1,255
  • Subsidiary protection: 329
  • (National) humanitarian protection/prohibition of deportation: 1,010


[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] Section 51(2) Administrative Procedure Act.

[5] Kerstin Müller, ‘AsylVfG § 71, para. 44’, in Hofmann/Hoffmann, eds., HK-AuslR (Handkommentar Ausländerrecht), 2008, 1830.

[6] Section 71(5) Asylum Act.

[7] Section 71(8) Asylum Act.

[8] Section 71(3) Asylum Act.

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

[10] This qualification (that only asylum seekers who have left Germany after a first asylum procedure are subject to this provision) is not contained in the law. However, a representative of the BAMF stated in a committee hearing in Parliament that the authorities were obliged to make use of this qualification for legal reasons. The Federal Government later explained that the authorities would “presumably” apply the law in this manner: Federal Government, Response to a parliamentary question by Member of Parliament Volker Beck, 18/7842, 8 March 2016, 19.

[11] BAMF, Monthly asylum report, December 2018, available at: https://bit.ly/2T3P04i, 7.

 

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