Cessation and review of protection status

Cessation (Erlöschen) based on individual conduct

With its entry into force on the 1^st January 2023, the grounds for Cessation (Erlöschen) have been amended in the context of the Act on the Acceleration of asylum court proceedings and asylum procedures (see Regular procedure). The aim of the legal reforms was to relieve courts and the Federal Office for Migration and Refugees from case overload. Elsewhere (See Overview) the Act has been criticised by civil society organisations that the relief for the authorities comes at the price of restricted legal protection for asylum seekers and refugees. Concerning grounds for cessation and revocations however, the reforms seem to extend the protection of the status, since the grounds for cessation and revocation have been restricted. The Federal government emphasises in the draft of the Act, that the amendments of the cessation grounds also serve to a more coherent and certain legal framework in line with Directive 2011/95/EU and respectively extended the scope of the cessation clause to beneficiaries of subsidiary protection. Following the reforms, cessation is only possible if the refugee has acted voluntarily. Cessation (Erlöschen) of a protection status is defined in Section 72(1) of the Asylum Act as follows:

Recognition of constitutional asylum and international protection (including refugees and beneficiaries for subsidiary protection) shall cease to have effect if the foreigner:

• Unequivocal, voluntarily and in writing declares in front of the Federal Office for Migration and Refugees the renunciation of the status
• has obtained upon his application the German nationality.

According to the new Act, the authorities may only start the cessation procedure upon application or declaration of the refugee. In this case the authorities ask them to hand in the residence permit, travel documents and other documents relating to the asylum procedure. It is possible to appeal the decision at an Administrative Court and the appeal has suspensive effect.[1]

Revocation (Widerruf) based on change in circumstances

With the Act on the Acceleration of asylum court proceedings and asylum procedures, the grounds and the procedure for revocations (Widerruf) have been changed drastically. Since the aim of the reforms was to relieve the workload of the authorities, the routine revision of the status under the former Section 73 (2a) Asylum Act has been abandoned completely. Prior to the reforms a revision of the status was initiated automatically by the BAMF three years after the first final decision on the status.[2] Additionally, the grounds for revocation (Widerruf) shall be bound more closely to the concrete events.

More importantly, the Asylum Act also contains a ‘ceased circumstances’ clause in Section 73(1), and the procedure for the respective loss of status is called revocation (Widerruf) in German. Responsibility for the revocation procedure lies with Department for revocations and cessation at the BAMF.[3] The law distinguishes between revocation grounds for refugees in Section 73 (1) Asylum Act, for beneficiaries of subsidiary protection in Section 73 (2) Asylum Act and revocation grounds for family members of beneficiaries of international protection in Section 73a Asylum Act. The procedure for revocations and cessations is now regulated in Section 75b Asylum Act.

Additionally, for all beneficiaries of international protection (refugees and subsidiary protection holders) Revocation is also possible after they have been granted the status, they are found to have committed offences which fulfil the criteria of exclusion from refugee status, e.g. acts that violate the aims and principles of the United Nations or serious criminal offences in Germany (see section on Withdrawal).

Revocation of the refugee status: Section 73(1) Asylum Act

This provision is generally applicable if the conditions on which the recognition of status was based have ceased to exist. A cessation of the conditions may especially be assumed in cases where refugees:

• voluntarily avail themselves of the protection of their country of origin;
• after loss of their nationality voluntarily regain the nationality of the country of origin
• have obtained another nationality upon application and enjoy the protection of the states from which they obtained the nationality
• voluntarily and permanently returned to the country which they left due to former fear of persecution can no longer refuse to claim the protection of the country of which they are  citizens, or if they, as stateless persons, are able to return to the country where they had their usual residence’.[4] Accordingly, a change of circumstances in the country of origin must be substantial and permanent and in a way that the fear of persecution in the country of origin can no longer be maintained in the individual case,[5] but it also has to be ascertained whether the refugee can be reasonably expected to return to the country of origin. Case law which so far only exists on the former legal framework, has established that trauma or mental disorders which result from persecution constitute compelling reasons within the meaning of this provision.[6] The assessment does not look at the strength of the person’s ties with Germany since settling there.

Revocation of subsidiary protection: Section 73 (2) Asylum Act

Subsidiary protection may be revoked, if the circumstances on which the recognition of status was based have ceased to exist or changed in such a way that subsidiary protection is no longer necessary. The change of circumstances must be permanent and in such a significant way that in practice the risk of serious harm no longer exists.[7]

Revocation of the status of family members of beneficiaries of international protection Section 73a Asylum Act

The so called ‘family asylum’ (see Status and rights of family members) and the status of family members of beneficiaries of international protection can be revoked if family members have committed offences which fulfil the criteria of exclusion from refugee status (see above). The status is also revoked if the status of the person the family members are dependent on ceases, is revoked or withdrawn and no independent grounds for protection exist.[8]

d) Revocation procedure – applicable for all beneficiaries of international protection (Section 73 and Section 73a Asylum Act)

While the legal reforms in the Act on the Acceleration of asylum court proceedings and asylum procedures the legal basis changed for the revocation procedure, the procedure itself mainly remained the same.[9] If the BAMF intends to revoke or withdraw the status, the beneficiary of international protection is informed in advance and in writing that revocation or withdrawal is intended.

As a consequence of legislation which entered into force in December 2018, beneficiaries of international protection and constitutional asylum are now forced to cooperate fully with authorities in revocation and withdrawal procedures. Since January 2019, the law authorises the BAMF to impose obligations that are very similar to the obligations that apply during the asylum procedure. This includes:

• Obligation to attend a hearing (personal attendance is necessary, so representation through a lawyer is usually not sufficient),
• Obligation to cooperate with the authorities in clarifying identities (including obligation to hand over identity documents or other certificates);
• Obligation to undergo other identification measures to clarify identities (especially photographs and fingerprints);
• Obligation to accept storage of personal data by German authorities (in particular the Federal Criminal Police Office) and to accept transfer of data to other authorities both inside and outside Germany.[10]

The law expressly states that these measures have to be necessary and should be carried out only if the concerned person can be reasonably expected to undergo these measures. This is an important limitation as it is common understanding that refugees and other beneficiaries of protection cannot be expected to approach the authorities of their country of origin, i.e that they cannot obtain passports or other identification documents at embassies of their home country. Furthermore, the obligation to undergo new identification measures, especially the taking of fingerprints and photos, is only considered necessary (and therefore reasonable) if these measures had not already been carried out on an earlier occasion.[11]

Therefore, the hearing at the BAMF is the most important part of the revocation examination procedures and since attendance is now obligatory, persons with protection status are summoned to these hearings on a regular basis. There is a specialised unit for revocation procedures at the BAMF which initiates the procedures. The local authorities are then responsible for conducting the oral hearing.[12] The invitation letters to these hearings generally refer to the ‘obligation to cooperate in an examination of whether grounds for a withdrawal or revocation exist’. In practice, the major part of the hearings is dedicated to questions concerning the identity of the persons concerned, because for most refugees there are no reasons to assume that a revocation of status could be based on the cessation clause (i.e. a change of circumstances in the countries of origin). It has been noted that these ‘retroactive identity checks’ in some cases seem to take on the character of ‘security interviews’ with questions being asked that ‘have nothing to do with revocation or withdrawal’ but aim, for instance, at the BIP’s integration in Germany or their exercise of religion.[13] German NGO PRO ASYL has therefore criticised the examination procedures for creating uncertainty in thousands of cases, in spite of the ‘extremely small’ number of cases in which protection status is revoked or withdrawn in the end.[14] In 2021, fines were issued in 212 cases where persons did not follow the order to appear for the hearing. This resulted in 34 hearings being carried out.[15]

If the BAMF decides to revoke or withdraw the status, the BIP has two weeks’ time to appeal the decision before an Administrative Court. The appeal has suspensive effect, so the BIP retains such status until the court has decided upon the appeal. If BIPs choose to be represented by lawyers in this procedure, they would usually have to pay the fees themselves. It is possible to apply for legal aid, which is granted under the normal conditions, i.e. the court decides upon legal aid after a summary assessment of the appeal’s chances.

If international protection status is revoked or withdrawn, this does not necessarily mean that a foreigner loses their right to stay in Germany. The decision on the residence permit has to be taken by the local authorities and it has to take into account personal reasons which might argue for a stay in Germany (such as length of stay, degree of integration, employment situation, family ties). Therefore, it is possible that even after loss of protection status another residence permit is issued on another ground.

The legal framework still applicable in 2022 for revocation procedures is explained in the AIDA country report Germany – update on the year 2021.[16] The following numbers of revocation procedures thus rely on the former legal framework.

The total number of revocation procedures that have been initiated in recent years still is as follows:

Source: BAMF, Asylgeschäftsbericht (monthly asylum report) December 2018, available at: https://bit.ly/2T3P04i, 8. and BAMF, Aktuelle Zahlen, December 2019, available in German at https://bit.ly/3dNKylQ, 14, Aktuelle Zahlen, December 2021, available in German at: https://bit.ly/3KBBalG, 14. BAMF, Aktuelle Zahlen, December 2022, available at: http://bit.ly/3DvmlPI. 

As appears from the table above, there was a sharp and consistent increase of revocation procedures being initiated from 2017 to 2019, followed by a decrease from 2020. As regards the outcome of these revocation and withdrawal procedures that were already examined, they were as follows (note that the figures above cover both revocation and withdrawal procedures as national statistics do not distinguish between the two (see below Withdrawal of protection status)):

Source: BAMF, Aktuelle Zahlen, December 2022, available at http://bit.ly/3DvmlPI.

In the vast majority of these cases, the BAMF found no reason to revoke or withdraw the protection statuses. The total number of revocation or withdrawal decisions affected a total of 2,649 persons in 2022. 114,632 revocation procedures were still pending at the end of 2022. Nationalities with a comparatively high number of revocations in 2022 include Syria, Iraq and Afghanistan.

Source: Federal Government, Responses to parliamentary questions by The Left, 20/5850, 2 March 2023, available in German at: https://bit.ly/41cx7Uv, 3.

In 2022 1,059 court decisions regarding challenges of revocation decisions were registered. Only 279 appeals against revocation or withdrawal decisions by the BAMF were successful (12.5%).^[17] This rate is higher than in 2020 (8.9%) but comparable to previous years (2019: 9.6%, 2018: 12.6%). In 778 cases (34.9%), the BAMF decision to withdraw or revoke a protection status was upheld by the courts, and in 1,171 cases (52.6%) of appeal procedures were terminated for other reasons, e.g. because the appeal was withdrawn by the claimant, or because a settlement out of court took place. Nationalities with a comparatively high rate of successful appeals in 2021 included Afghanistan (23.0%, 150 successful appeals) Ukraine (25%, 2 successful appeals), Tunisia (16,7%, 1 successful appeal) and Ethiopia (16%, 4 successful appeals).^[18]

[1] Section 74 Asylum Act.

[2] AIDA, Country Report Germany – Update on the year 2021, April 2022, available at https://bit.ly/3XnN7RS, 163-168.

[3] BAMF, Dienstanweisung Asyl, 1 January 2023, available in German at: https://bit.ly/3Ht4JVw, 519.

[4] Section 73(1) Asylum Act.

[5] Section 73 (1) Sentence 3 Asylum Act.

^[6] Federal Administrative Court, Decision 1 C 21/04 of 1 November 2015, asyl.net, M7834. See also Kirsten Eichler, Leitfaden zum Flüchtlingsrecht (Guideline to refugee law), 2^nd edition (2016), 105.

[7] Section 73 (5) Asylum Act.

[8] Section 73a Asylum Act.

[9] Prior to the reforms the legal framework on the procedure was Section 73 Asylum Act, it now changed to Section 73b Asylum Act.

[10] Michael Kalkmann, ‘Das Gesetz zur Einführung der Mitwirkungspflicht in Widerrufsverfahren’, Asylmagazin 1-2/2019, 6.

[11] Kirsten Eichler, GGUA Flüchtlingshilfe: ‘Einführung von Mitwirkungspflichten im Widerrufs- und Rücknahmeverfahren‘, 12 December 2018, available in German at at: https://bit.ly/3auqFxR. 

[12] See Federal Office for Migration and Refugees, Organigramm, lastly updated 01 December 2022, available at: http://bit.ly/3XQEkYZ.

[13] Pro Asyl, ‘Hintergrund: Viel hilft nicht viel: Widerrufs- und Rücknahme-Aktionismus beim BAMF‘, 29 April 2019, available in German at: https://bit.ly/2vU7jU3. See also: Taz, ‘Wiederrufsprüfverfahren beim Asyl’, 20 February 2020, available in German at: https://bit.ly/3apZoMe.

[14] Ibid.

[15] Federal Government, Responses to parliamentary questions by The Left, 20/940, 7 March 2022, 7.

[16] AIDA, Country Report Germany – Update on the year 2021, April 2022, available at https://bit.ly/3XnN7RS.

[17] Federal Government, Response to parliamentary questions by The Left, 20/5709, 17 February 2023, available in German at: https://bit.ly/3K3w3MX, 37.

[18] Federal Government, Responses to parliamentary questions by The Left, 20/432, 14 January 2022, 22, 19/28109, 30 March 2021, 38, 19/18498, 2 April 2020, 46, and 19/8701, 25 March 2019, 47.