Subsequent applications

Germany

Country Report: Subsequent applications Last updated: 21/04/22

Author

Paula Hoffmeyer-Zlotnik 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defines a subsequent application (Folgeantrag) as any claim which is submitted after a previous application has been withdrawn or has been finally rejected.[1] In case of a subsequent application the BAMF conducts a preliminary examination on the admissibility of the application.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 according to the law 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. However, following an CJEU ruling indicating that such time limits are in violation of the EU Asylum Procedures Directive,[5] the BAMF has declared it will no longer require this in practice.[6]

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. A subsequent application always has to 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.[7]

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.[8] For secondary applications, the tolerated status is foreseen by law.[9] 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.[10] The applicant may also be detained pending removal until it is decided that a subsequent or secondary asylum procedure is carried out.[11]

The decision on admissibility of a subsequent or secondary application can be carried out without hearing the applicant.[12] 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”.[13] 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 removal.

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.[14]

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),[15] 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).[16]

2021 was marked by a significant increase in subsequent applications. A total of 42,583 persons lodged subsequent applications in 2021, compared to 19,589 in 2020 and 23,429 in 2019. The number of subsequent applications increased substantially for Syrian nationals and was almost 6 times the number of 2020 for Afghans. For Afghanistan, this is likely related to the changing situation in Afghanistan with the withdrawal of international troops and the takeover of the Taliban (see Section Differential treatment of specific nationalities in the procedure). While the share of inadmissibility decisions has decreased for applications from Afghans nationals in 2021, statistics on decisions do not yet reflect the changed circumstances as the overall number of decisions (1,939) is much lower than the number of subsequent applications (8,445). Regarding Syrian applicants, the increase in 2020 and 2021 is related to a CJEU ruling of November 2020 according to which there is a “strong presumption” that refusal to perform military service in the context of the Syrian civil war relates to one of the reasons to be granted refugee status.[17] As a result, many Syrians who had previously been granted subsidiary protection in Germany lodged subsequent applications. The statistics show that these were deemed inadmissible in most cases, however.[18] 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 has left Germany. However, there are statistics on the number of asylum applications lodged by persons who already have a protection status in Germany. 33,069 such applications were lodged until the  end of November 2021.[19] Around two thirds 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 2021 were as follows:

Subsequent applicants and decisions on subsequent applications: 2021
Nationality Applications Decisions Inadmissible Admissible
        Positive

decision

Negative

decision

Termination / inadmissibility
Syria 15,259 19,446 18,381 716 28 321
Afghanistan 8,445 1,939 604 666 103 566
Moldova 2,626 2,583 2,234 0 62 287
Iraq 1,268 1,687 535 209 232 535
Serbia 986 940 732 2 110 96
Total 42,583 42,569 31,948 2,919 2,401 5,301

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

The statistics show that the majority of subsequent applications are being rejected as inadmissible, before the asylum procedure is reopened (75 % in 2021, 48.5 % in 2020), or the follow-up procedure is terminated later either for formal reasons or because the application is found to be inadmissible at this stage (12.5 % in 2021, 28.6 % in 2020). However, when looking strictly at the subsequent applications decided on the merits, it appears that almost 50% of them were successful (2,919 decisions, equalling to 54.9 % in 2021, and 2,471 decisions in 2020 (49.1 %)).

The 2,919 “positive” decisions in 2021 resulted in the following status decisions:

  • Asylum or refugee status: 1,284
  • Subsidiary protection: 530
  • (National) humanitarian protection/prohibition of removal: 1,105

 

 

[1]  Section 71 Asylum Act. In line with the Dublin regulation,

[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]  CJEU, Case C‑18/20, Judgement of 9 September 2021.

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

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

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

[9]  Section 71a (3) Asylum Act.

[10]  Section 71(5) Asylum Act.

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

[12] Section 71(3) Asylum Act.

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

[14] 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).

[15]  Section 71(2) Asylum Act

[16] 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

[17] CJEU, Case C‑238/19, Judgment of 19 November 2020.  

[18] See also BAMF, Migrationsbericht 2020 der Bundesregierung, December 2021, 37, available in German at https://bit.ly/3nTDv1J.

[19]  Federal Government, Response to parliamentary question by The Left, 20/432, 14 January 2022, 9

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