Cessation and review of protection status

Germany

Country Report: Cessation and review of protection status Last updated: 30/11/20

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Cessation (Erlöschen) based on individual conduct

 

Cessation (Erlöschen) of a protection status is defined in Section 72(1) of the Asylum Act as follows:

Recognition of asylum status and refugee status shall cease to have effect if the foreigner

  1. Voluntarily or by accepting or renewing a national passport or by any other action places him or herself under the protection of the state whose nationality he or she holds;

2.   Voluntarily returns to and settles in the country he or she left or stayed away from for fear of persecution;

3.   After losing his or her nationality has voluntarily regained it;

  1. Has obtained a new nationality upon application and enjoys the protection of the state whose nationality he or she has obtained; or
  2. Renounces such recognition or withdraws his or her application before the decision of the Federal Office becomes incontestable.

If the local authorities at the refugee's place of residence have found that one of these reasons applies, they inform the refugee in writing about cessation of his or her status and ask him or her 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. No statistics are available on the number of cases in which the cessation provision of Section 72 of the Asylum Act has been applied and only a few cases have been decided upon by the courts in recent years; usually cases of voluntary return to a refugee's country of origin.

The cessation provisions of Section 72 of the Asylum Act do not apply to beneficiaries of subsidiary protection.

 

Revocation (Widerruf) based on change in circumstances

 

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 the BAMF. The law contains two provisions for the necessary procedures:

 

Routine revision of status: Section 73(2a) Asylum Act

 

Before a formal revocation procedure is initiated, the BAMF carries out a “revocation test”, i.e. it examines summarily whether preconditions for a revocation might apply. A revocation under this provision can be based either on a change of conditions on which status determination was based, or on other evidence, namely if it has turned out that status determination was based on incorrect information or on withholding of essential facts. The BAMF can summarily decide not to initiate revocation procedures for certain groups of refugees (see Long-Term Residence).

According to Section 73(2a) Asylum Act the routine revocation test has to take place three years “at the latest” after the status determination has become final. However, a new provision was added in 2019 which extends the period for revocation tests to all cases in which status determination has been finally concluded in the years 2015, 2016 and 2017.[1] For these cases, the time limit has now been set at a period between four and five years. For instance, the BAMF has been set a deadline at the end of 2019 to carry out revocation tests for all status decisions which have become legally valid before the end of 2015. According to the explanatory memorandum to the new law, the extension of the time-limit has been introduced to enable the BAMF to deal with the high number of refugee recognitions of the years 2015-2017.[2]

 

Revocation without a set period of time: 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 and the refugee “can no longer refuse to claim the protection of the country of which he is a citizen, or if he, as a stateless person, is able to return to the country where he had his usual residence”.[3] Accordingly, revocation of the status cannot be based only on a change of circumstances in the country of origin, but it also has to be ascertained whether the refugee can be reasonably expected to return to the country of origin. This is not the case if, for example, a refugee has “compelling reasons, based on earlier persecution” to refuse to return.[4] Case law has established that trauma or mental disorders which result from persecution constitute compelling reasons within the meaning of this provision.[5]

Revocation is also possible if refugees, after they have been granted the status, 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).   

If the BAMF intends to revoke or withdraw refugee status, the refugee 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, refugees (and persons with other protection statuses) are now forced to cooperate fully with authorities in revocation and withdrawal procedures. Prior to December 2018, refugees were notified if a revocation or withdrawal procedure had been initiated and were given the opportunity to submit a written reply. The law now 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.[6]

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 have not already been carried out on an earlier occasion.[7]

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 being summoned to these hearings on a regular basis. 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 refugee’s integration in Germany or his/her exercise of religion.[8] The 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.[9]

If the BAMF decides to revoke or withdraw the status, the refugee has two weeks’ time to appeal the decision at an Administrative Court. The appeal has suspensive effect, so the refugee retains the status until the court has decided upon the appeal. If refugees 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 refugee status is revoked or withdrawn, this does not necessarily mean that a foreigner loses his or her 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.

The cessation provisions of Section 73 of the Asylum Act (for ceased circumstances and for reasons corresponding to exclusion clauses) and the procedure for revocation or withdrawal of status equally apply to beneficiaries of subsidiary protection.

Since 2017, the BAMF has initiated hundreds of thousands of “revocation examination procedures” or “revocation tests” (Widerrufsprüfverfahren), i.e. preliminary examinations on whether a formal revocation is to be carried out or not. 215,618 of these revocation tests were pending at the end of 2019.[10] The BAMF estimates that a further 480,000 such procedures will be carried out until 2021.[11]

This represents a dramatic increase in comparison to the years prior to 2017, when only a few thousand “revocation examination procedures” were initiated each year. The increase since 2017 was triggered by a case which has become known as the “Franco A. scandal” in 2017. In April 2017, two German soldiers and a German student were arrested for the alleged preparation of a terrorist attack. Following the arrest, it turned out that one of them, named as 28-year-old soldier Franco A., had managed to be granted subsidiary protection status after he had assumed a fake identity of a Syrian citizen. Media reported that the group had planned to carry out terrorist attacks on prominent German politicians. According to public prosecutors, Franco A. had assumed the fake identity in order to shift responsibility for the planned attacks on refugees.[12] The trial against Franco A. has yet to start, following years of legal disputes over the question of whether he would eventually be charged with “preparation of a serious crime posing a risk to the state”. [13]

The BAMF was criticised in the course of this affair for the handling of the asylum application of Franco A. who had managed to pose as a Syrian asylum seeker although he did not speak Arabic and apparently answered some of the questions in his interview in German. In response to this affair, the BAMF conducted a survey of 2,000 decisions and found that 480 of these decisions were “not plausible”, according to media reports. For this reason, the Ministry of Interior instructed the BAMF to carry out an examination of 80,000 to 100,000 asylum decisions, in particular those concerning male asylum seekers aged between 18 and 40. These re-examinations are carried out as “revocation examination procedures”, thereby explaining the high number of such procedures initiated in 2017.[14]

In 2018, re-examinations of asylum cases also took place following the so-called “BAMF scandal”. In April 2018, it was reported that six staff members of the Bremen branch office of the BAMF, including the head of the office, were under investigation for corruption. The branch office had allegedly taken over up to 1,200 asylum cases for which it was not responsible and protection statuses had been illegally granted. However, the results of the internal investigation carried out by the BAMF later demonstrated that the “scandal” had been largely overestimated. Although it was confirmed that the branch office had been entitled to take over cases from other regions, internal auditors had to retract a substantial part of the allegations they had made at the beginning of the investigation. In August 2018, results from the internal investigation were made public and showed that only 195 out of 18,300 audited decisions were considered to be seriously flawed.[15] Nevertheless, the “BAMF scandal” has largely triggered the increase of  “revocation examination procedures”.

In 2017, 77,106 procedures were initiated and this number increased sharply to 192,664 procedures in 2018 and to 205,285 in 2019.[16] The BAMF decided over 170,406 revocation examination procedures in 2019. These were twice as many decisions as in 2018 (85,502) and an enormous increase in comparison to earlier years (only 2,527 such decisions were registered in 2017). In the vast majority of these cases, the BAMF found no reason to revoke or withdraw the protection statuses (96.7% in 2019, 98.8% in 2018). However, due to the high number of procedures, the total number of revocation or withdrawal decisions is still significant:

 

Outcome of revocation examination procedures in 2019

Revocation or withdrawal of protection status

4,428 (2.6 %)

Revocation/withdrawal of prohibition of deportation

1,182 (0.7%)

No revocation or withdrawal

164,796 (96.7%)

Total

170,406

 

Source: BAMF, Aktuelle Zahlen, December 2019, available in German at https://bit.ly/3dNKylQ, 14.

 

At the end of 2018, the decisions on revocation of status was as follows:

Decisions on revocation of status per nationality: 2018

Country

Refugee status revocation

Subsidiary protection revocation

National protection revocation

No revocation

Total

Syria

253

70

29

53,189

53,541

Iraq

154

33

14

11,389

11,590

Afghanistan

16

13

81

4,757

4,867

Eritrea

14

5

0

3,602

3,621

Undefined

16

8

2

3,119

3,145

Iran

13

1

2

1,773

1,789

Stateless

3

2

0

1,144

1,149

Somamia

7

8

3

1,153

1,171

Total

577

184

221

84,079

85,052

Source: BAMF.

A detailed breakdown of decisions on revocation of status per nationality in 2019 was not available. However, available figures indicate a total of 170,406 in 2019, distributed as follows:[17]

Decisions on revocation of status per nationality: 2019

*

Refugee status revocation

Subsidiary protection revocation

National protection revocation

No revocation

Total

Total

3,489 (2 %)

939 (0.6%)

1,182 (0.7%)

164,796 (96.7%)

170,406

Source: BAMF, Aktuelle Zahlen, December 2019, available in German at https://bit.ly/3dNKylQ, 14.

 

At the end of 2019, 215,618 revocation examination procedures were pending at the BAMF.[18]

In 2019, 2,146 revocation decisions were challenged in court and 422 court decisions were registered. Only 29 appeals against revocation or withdrawal decisions by the BAMF were successful (9.,6%). This rate is lower than it was in 2018 (12.6% successful appeals).

In 153 cases (36.3%), the BAMF decision to withdraw or revoke a protection status was upheld by the courts, and 240 (56.9%) 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.[19]

 


[1] Section 73(7) Asylum Act

[2]Explanatory memorandum to draft bill, 19/10047, 10 May 2019, available in German at https://bit.ly/39iOnvK,  48.

[3] Section 73(1) Asylum Act.

[4] Section 73(1) Asylum Act.

[5] 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), 2nd edition (2016), 105.

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

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

[8] 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.

[9] Ibid.

[10] Federal Government, Reply to parliamentary question by The Left, 18/11262, 22 February 2017, 11; 19/633, 5 February 2018, 9; 19/19333, 25 March 2020, 8.

[11]  BAMF, ‚Widerrufsprüfungen für 2019 fristgerecht erledigt – Widerrufsquote bei 3,3 Prozent‘, press release of 14 January 2020, available in German at: https://bit.ly/30ejDJH.

[12]  Deutsche Welle, ‘German soldier charged with plotting to kill politicians while posing as refugee’, 12 December 2017, available at: http://bit.ly/2FVuyRy.

[13] Spiegel Online, Bundesanwaltschaft beharrt auf Terrorverdacht im Fall Franco A., 20 June 2018, available in German at: https://bit.ly/2K5fJ1d.

[14] Der Spiegel, ‘Bamf soll Zehntausende Asylbescheide prüfen’, 31 May 2017, available in German at: http://bit.ly/2rENYm6; See also Deutsche Welle, ‘’, 17 May 2017, available at: http://bit.ly/2GV08w1.

[15] Deutsche Welle, Bremen migration office scandal much smaller than first thought, available at https://bit.ly/2WNXlvk.

[16] 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.

[17]  BAMF, Aktuelle Zahlen, December 2019, available at https://bit.ly/3dNKylQ, 14.

[18] BAMF, Aktuelle Zahlen, December 2019, available at https://bit.ly/3dNKylQ, 14.

[19] Federal Government, Responses to parliamentary questions by The Left, 19/18498, 2 April 2020, 46, and 19/8701, 25 March 2019, 47.

 

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