Overview of the main changes since the previous report update

The report was previously updated in April 2023.

National context

Right to stay for persons with a long-term tolerated status (Chancenaufenthaltsrecht)

A reform which entered into force on 31 December 2022 introduced a new way for persons with a tolerated status (‘Duldung’) to legalise their stay in Germany and relaxes some conditions for existing pathways to legal residence.[1] A tolerated status applies to persons who are obliged to leave Germany, e. g. because their application for asylum was rejected, but whose removal is suspended for either legal reasons (e. g. because of the situation in the country of origin) or practical reasons (e. g. when removals cannot be enforced due to an illness or the lack of travel documents).[2] The newly introduced provision applies to all persons who have been staying in Germany for five years on 1 October 2022. They can apply to receive a residence permit for a period of 18 months without fulfilling the usual criteria to legalise their stay (such as the ability to secure their own subsistence, valid identity documents, and German language skills), and then have to meet these criteria within the 18 months in order to secure their legal stay.[3] The provision is set to expire after three years.[4] The reform also relaxed conditions for existing ways to legalise stay in Germany. These include the residence permit for young persons (Section 25a Residence Act) and for persons proving ‘sustainable integration’ (Section 25b Residence Act). For the first group, the age until when young people can apply to obtain the residence permit was increased to 27 (from 21). For the second group, the length of previous stay was lowered from eight to five years. However, they must have had a tolerated stay (and not e. g. the legal status of an asylum seeker) for the 12 months preceding the application.[5] Since coming into force, at least 49,000 people with a tolerated stay have applied for a permanent stay under this provision. Around 17,000 applications have been granted, 2,100 refused.[6] Numbers differ between the Federal States which might be the result of different information policies.

Act to Improve Removals (Rückführungsverbesserungsgesetz)

The Act on the Improvement of Removals was introduced by the coalition government in October 2023 and voted through parliament on 18 January 2024.[7] It has various implications for asylum seekers and beneficiaries of international protection, e.g., concerning detention, asylum seekers benefits or the right to work. However, given that this law only enters into force in 2024, these measures will generally not be discussed in detail in the sections of the report.

International protection

• Key asylum statistics: In 2023, a total of 329,120 applications for international protection were lodged in Germany, mainly by Syrians (102,930), Afghans (51,275) and Turkish nationals (61,181). This marks an important increase compared to 244,132 applications in 2022 and 190,816 applications in 2021. With the increase in applications, the number of pending cases at the BAMF has also risen significantly, with 239,614 cases as of 31 December 2023. The overall recognition rate at first instance stood at 68.6% (i.e., 21.6% refugee status, 36.2% subsidiary protection and 10.9% humanitarian protection). It reached 99.9% for Syrians, 98.7% for Afghans, but only 17.8% for Turkish nationals and 33.2% for Iraqis. Other nationalities such as Georgians, North Macedonians or Moldovans were nearly all rejected with a rejection rate around 99%. An additional 5,881 persons were granted international protection by Courts at second instance until the end of August 2023. The number of pending cases at the BAMF, which had more than doubled between the end of 2020 and 2021 from 52,056 to 108,064, increased again from 136,448 at the end of 2022 to 239,614 at the end of 2023. Until the end of August 2023, the rate of successful appeals has dropped from 37% to approx. 25 % in merit decisions.

Asylum Procedure

• Act on the acceleration of asylum court proceedings and asylum procedures. The reform entered into force on 1 January 2023. The most important changes of the reform include:
  • The introduction of independent counselling for asylum seekers, instead of the state-run counselling which was introduced in 2019 (see Information for asylum seekers and access to NGOs and UNHCR).
  • Changes to the rules for personal interviews: an additional ground for dispensing with the interview was introduced when the BAMF is of the opinion that the foreigner is unable to attend a hearing due to permanent circumstances beyond their control and the possibility of conducting video interviews (see Personal interview)
  • The provisions on time limits for the asylum procedure were changed in order to closely mirror the relevant provisions of the EU Asylum Procedure Directive (see Regular procedure – General (scope, time limits))
  • A change in the rules for onward appeals (Revision) to the Federal Administrative Court, according to which the latter can now also adjudicate on the facts of the case, rather than merely on points of law (see Regular procedure – Onward appeal(s)).
  • Complete revision of the grounds for cessation of the residence permit and substantial amendments to the grounds of revocation of the residence permit (see Cessation and review of protection status).
  • In contrast to the rules introduced by the legal reform concerning independent counselling, the Highest Administrative Court decided in March 2023 that local authorities are not required to provide regular access for NGOs and welfare associations to reception centres.[8] Only where independent counselling is explicitly requested by the applicant, must access be granted. The repercussions of this and whether this leads to more difficulties in accessing legal aid need to be examined in practice. In general, the introduction of independent counselling falls short of its goals due to delays in implementation, practical obstacles for NGOs to access the arrival centres, insufficient funding for 2023 and 2024 and lack of reliable long-term funding strategies from the state (see Information for asylum seekers and access to NGOs and UNHCR).
• Continued reading out of mobile devices in asylum procedures: The Act to Improve Removals introduced a new norm that allows the authorities to read out mobile devices. Legal scholars criticise the provision as unconstitutional and the Federal Administrative Court has already emphasised that it must be applied only ultima ratio (see Lodging the application).
• Increased border controls and suspected illegal push backs: The Federal Government has introduced further ‘temporary’ stationary border controls on the borders with Poland, the Czech Republic and Switzerland during 2023. They have regularly been prolonged and are still in place. With these increased border controls, a significant decrease in asylum claims on the border has been observed while the number of people arriving is further increasing. Some stakeholders suspect illegal push backs by the Federal Police (see Access to the territory and push backs).
• Breaches of church asylum: In light of a hardening political climate, the authorities have breached into church premises where persons were housed in the context of church asylum in 2023. Due to strong protests, they however did ultimately not transfer the asylum seekers concerned (see Dublin – Procedure).

• Humanitarian admission programme for Afghan nationals: On 17 October 2022, the Federal Government launched a federal admissions programme which had been announced in the coalition agreement of 2021.[9] Following false accusations of misuse, the admission programme was put on hold in March 2023. It was resumed in June 2023, but a new screening mechanism was introduced which includes data checks and specific security interviews (see Differential treatment of specific nationalities in the procedure). NGOs criticise that the temporary suspension and the introduction of the additional screening procedure caused further delays and that the programme does not live up to the originally envisaged admission scheme.

• Unaccompanied minors:
  • Due to overburdening of local authorities in 2023, unaccompanied children often did not have access to special care such as psychological assistance and to schooling (see Legal representation of unaccompanied minors)
  • Age assessment has been repeatedly criticised for providing a large margin of discretion to the authorities (Identification – Age assessment of unaccompanied children).

• Safe Country concept: In 2023, Georgia and Moldova were added to the list of safe countries of origin. NGOs criticise this decision. They claim that, in these countries, minorities such as Roma and LGBTIQ+ members face discrimination and that there has been a backlash to democracy and the rule of law (see Safe country of origin).

• Removal ban for Iran: The federal removal ban for Iran has been lifted as of January 1st, 2024. However, over the course of 2023, four persons were removed to Iran despite the ban.

• Key jurisprudence on subsequent applications: The CJEU decided in February 2024 that its rulings can qualify as ‘new elements’ under the APD.[10] This means that subsequent applications should be declared admissible if CJEU court rulings strongly suggest the existence of a ‘new legal situation’ even if the CJEU ruling only concerns the interpretation of EU law. The ruling came as a result of a preliminary ruling requested by the Administrative Court of Sigmaringen in 2022, asking whether the two conditions for the admissibility of a subsequent application are compatible with the EU Asylum Procedures Directive (APD).[11] In addition, the CJEU ruled that a temporary return to the country of origin has no impact on further applications as to whether these further applications are subsequent applications[12] (see Subsequent applications).

Reception conditions

• Reintroduction of emergency shelters: Due to the increasing arrivals of protection seekers, several municipalities, especially larger cities, have had to reintroduce emergency shelters. Without any change in 2023, especially in larger cities, exhibition grounds and/or made-up tent facilities are used to host asylum seekers. The conditions in these emergency shelters are below standards. Housing and its financing have been subject to a heated debate between the Federal Government and the Federal States driven by a specific political climate. The Federal Government plans to provide EUR 1,3 billion in 2024 for housing to the Federal States (see Types of accommodation).

• Overcrowding in arrival and reception centres: As a consequence of the increasing arrivals, many regular arrival centres are heavily overcrowded. This has led to deteriorating conditions in the facilities. In many municipalities there is a backlog in registrations of asylum seekers and access to health care and social assistance became more difficult. Especially children do not receive adequate assistance in mass accommodations. According to the Federal Government, this backlog is supposedly made up for (see Conditions in reception facilities).

• Integration courses: Since the beginning of 2023, all asylum seekers, no matter their nationality, are now eligible to participate in integration courses.

• Asylum seekers benefits (see Criteria and restrictions to access reception conditions):
  • The amount of benefits and its issuance in cash has been heavily debated during the course of 2023. To reduce alleged ‘pull factors’, the Federal States have decided in a political agreement to introduce the so-called Bezahlkarte (‘payment card’) for asylum seekers in 2024.[13] At first glance, this card is supposed to function as any other debit card – asylum seekers can pay ‘normally’ at any card payment terminal in restaurants or supermarkets. However, transfers from card to card or to foreign countries should not be possible and cash withdrawal is limited.[14]
  • The Act to Improve Removals entails an extension of the timeframe within which asylum seekers receive only the reduced asylum seekers benefits to 36 months instead of 18 months.

• Access to the labour market: With the Act to Improve Removals, asylum seekers living inside reception centres should already be able to work after six months, compared to nine months previously. Work permits for those living outside reception centres should not be dependent upon the discretion of the authorities but in all cases be allowed after three months. Asylum seekers with a tolerated stay should be able to work after six months – independent of the discretion of the authorities (see Access to the labour market).

• Jurisprudence on reception conditions: Following a decision by the Federal Constitutional Court, single adults who live in mass accommodation centres and those who live in private housing shall now receive the same amount of financial social benefits. Prior to the judgement it was assumed by the authorities that those who live in mass accommodations economise together and therefore require less financial benefits.[15] Although the necessary corresponding legislation has not been passed yet, single adults living inside and outside accommodation centres now receive the same amount of asylum seekers benefits (see Forms and levels of material reception conditions). In February 2022 the Higher Court of Baden-Wuerttemberg ruled that private rooms in mass accommodation centres are protected under the German Constitution and that consequently any entry and raids by security personnel must be regulated by law and justified in the individual case.[16] In June 2023, however, the Federal Administrative Court restricted this right of inviolability of the home again and regarded searches by security personnel as permissible.[17] According to another Court ruling in 2023, asylum seekers benefits can be reduced or withdrawn when the asylum seeker violates its residence obligation[18] (see Physical security).

Detention of asylum seekers

• Changes in the framework of detention: The Act on the Improvement of Removals was introduced by the coalition government in October 2023 and voted through parliament on 18 January 2024.[19] The reform involves changes in the legal framework for detention, among other reforms. More specifically:
  • Asylum applicants can now be detained if grounds for detention applied at the time when they lodged their application. Before the reform, asylum seekers could only be detained in cases where they lodged the asylum request from within detention.
  • For pre-removal detention to be ordered, it will be sufficient that the removal can take place within 6 months, instead of 3.
  • The grounds for pre-removal extension will be extended to cases where persons entered legally, visa free or with a Schengen visa, and then overstayed their period for legal stay.
  • The maximum duration of custody pending removal is to increase from 10 days to 28 days.
  • The grounds for detention to enforce cooperation will be expanded, so that this form of detention can also be orders in cases of persons who do not cooperate in the establishment of their identity.
  • Detainees who are not yet represented by a lawyer will be provided with a lawyer by the court.
  • Minors and families will not to be detained “in principle”, whereas previously they could only be detained “only in exceptional cases and only for as long as it is adequate considering the well-being of the child.’
  • The new law foresees a possibility for authorities to file a complaint against the refusal by courts to order detention.
  • The Act also changes authorities’ competences for enforcing removals and tightens rules around the enforcement of entry bans and extends possibilities for the expulsion of persons with a criminal conviction.

Content of international protection

• Cessation and revocation: In 2023 the number of revocation procedures further decreased in comparison to the three previous years Nevertheless, the status of 2,040 persons was revoked in 2023, mainly of persons from Syria, Iraq, Afghanistan and Iran (see detailed statistics under Cessation and review of protection status).

• Severe cuts in funding of support measures: For 2024 the Federal government announced significant cuts in the funding for services for refugees, beneficiaries for subsidiary protection and other migrants. After protests and advocacy by the welfare associations providing these services, the cuts were partly withdrawn (see Access to the labour market and Health care).

• Key jurisprudence on the content of international protection: In August 2022, the CJEU strengthened the right to family reunification by ruling that the age cut off for family reunification applied by the German authorities was contrary to EU law.[20] Prior to the judgement, the child had to be a minor at the time of effective reunification in cases where the sponsor was the child as well as in cases where the sponsor was the parent. This had been criticised heavily by civil society organisations, since the visa procedure may take several months or even years and minor children may turn eighteen in the meantime. The CJEU decided that the age at the time of the original application for international protection is decisive in both scenarios. However, this ruling only spoke of family reunification of refugees. In December 2022, the Federal Administrative Court ruled that a distinction between refugees and beneficiaries of subsidiary protection concerning the right to family reunification does not violate the Constitution.[21] The CJEU has again strengthened its ruling concerning the time of the child’s minority, but its application to subsidiary protection beneficiaries by German Courts remains open. In October 2023, the Federal Administrative Court ruled that international protection status due to family reunification can be revoked, if the ‘principal’ person entitled to international protection dies[22] (see Family reunification).

Temporary protection

The information given hereafter constitute a short summary of the German Report on Temporary Protection, for further information, see Annex on Temporary Protection.

• Key statistics on temporary protection: as of February 2024, 1,139,689 persons were registered in the Central Register of Foreigners, and 941,559 persons held a residence permit for temporary protection. As of January 2024, 65% of registered persons are women, and 30.7% are under 18 years old.

Temporary protection procedure

• Scope of temporary protection and disadvantageous treatment of third country nationals: In Germany the scope of temporary protection is wider than in the Council decision. Temporary protection is awarded to Ukrainian nationals and their family members, which includes spouses, non-married partners, minor children and other close relatives if there is a ‘dependency relationship’ that was already established prior to entering Germany. In 2023 however, two administrative Courts expressed contradicting positions concerning non-married partners. Whereas a Court in Cologne decided that a permanent partnership can be established according to its exclusivity and willingness to support each other financially and emotionally, a Court in Munich did not consider permanent partnership as equivalent to married couples. Temporary protection may also be granted to third country nationals holding a residence permit in Ukraine, even if not a permanent one, but only if they are unable to return to their countries of origin. It has been criticised that in practice applicants from third countries face several disadvantages in all stages of the procedure compared to Ukrainian nationals. The different treatment between third country nationals applying for temporary protection and applicants of Ukrainian nationality constitutes the most flagrant legal disputes as to the German implementation of the Council Decision. The difference in treatment is displayed in the registration process, where access to the application for temporary protection is sometimes not granted to third country nationals or where eligible third country nationals are pressured into the asylum procedure instead. After having lodged their application, third country nationals are further treated differently with regards to access to the labour market and other social benefits. There have been legal practitioners and Courts condemning this practice. However, a differentiation still takes place.

• No automatic suspensive effect upon appeal: Differing from the asylum procedure, the appeal of a negative decision on temporary protection does not have automatic suspensive effect, an application for interim measures must be filed to guarantee legal stay during the appeal proceedings.

• Accessibility of information on temporary protection: The German government is putting effort into distributing information for people fleeing Ukraine on entry, legal stay and housing on their websites in different languages.

• Flaws in identification of vulnerable groups: As for the asylum procedure no systemic mechanisms exist to identify applicants with special needs and meet these needs.

• Access to regular social benefits: As of June 2022, applicants and beneficiaries of temporary protection have access to regular social benefits. The unequal treatment between applicants for temporary protection who receive regular social benefits and applicants for international protection who receive social benefits under the Asylum Seekers Benefits Act has been criticised by many civil society organisations, including in 2023.

Content of temporary protection

• Excessive waiting periods for receiving residence permits: Depending on the region, decision making may take several months due to a general overburdening of the local authorities.

• Obligation to reside in the allocated municipality also applies to beneficiaries of temporary protection. Following legal amendments in June 2022 beneficiaries of temporary protection are also obliged to reside in the municipality to which they have been allocated in the determination procedure for three years. However, North Rhine-Westphalia suspended the application of this obligation for beneficiaries of temporary protection.

• Dense housing situation and reintroduction of emergency shelters: While most of the emergency shelters of 2016 had been dismantled, the rising numbers of people fleeing Ukraine but also the continuing high numbers of people fleeing Iran, Syria and Afghanistan in combination with the general lack of affordable housing led the authorities to reintroduce emergency shelters. The conditions in the emergency shelters but also in overcrowded first accommodation centres have been criticised by many NGOs. While beneficiaries of temporary protection are generally allowed to access the regular housing market, due to the lack of affordable housing, they are often required to stay in accommodation centres for extended periods. Thus, beneficiaries of temporary protection are still often living in critical housing conditions, including in 2023.

• Access to regular social benefits, labour market and health care: Beneficiaries of temporary protection in theory have the same access to social benefits and health care as German nationals. Practical hurdles may however arise due to administrative requirements.

[1] Official Gazette I no. Nr. 57 (2022) of 30 December 2022, 2847.

[2] Section 60a (1) Residence Act.

[3] Section 104c Residence Act.

[4] Federal Ministry of the Interior and Community, Anwendungshinweise des Bundesministeriums des Innern und für Heimat zur Einführung eines Chancen-Aufenthaltsrechts, 23 December 2022, available in German at: https://bit.ly/3TaVTRS.

[5] Informationsverbund Asyl & Migration, Chancen-Aufenthaltsrecht und Änderungen im Asylverfahren: die ersten Gesetze der Ampel-Koalition treten in Kraft, 2 January 2023, available in German at: http://bit.ly/3WLfGYc.

[6] Mediendienst Integration, Zehntausende Geduldete beantragen den Chancenaufenthalt, 6 July 2023, available in German at: https://bit.ly/4c1F05p.

[7] Federal Government, Draft Bill of the Act to Improve Removals (Entwurf eines Gesetzes zur Verbesserung der Rückführung (Rückführungsverbesserungsgesetz), available in German at: https://bit.ly/49CaKMs.

[8] Highest Administrative Court (BVerwG), Decision 1 C 40.21, 28 March 2023, available in German at: https://bit.ly/480lN0o, para. 27f.

[9] For further details, see AIDA, Country Report Germany – Update on the year 2021, April 2022, available at https://bit.ly/3XnN7RS, 11.

[10] Ibid.

[11] Art. 33(2)d and 40(2) recast APD. To follow on the preliminary ruling see CJEU, Case C-216/22, available at: http://bit.ly/3z3gNJr.

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

[13] Sz.de, Bezahlkarte für Flüchtlinge kommt bundesweit, 31 January 2024, https://bit.ly/42Ogpww.

[14] Ibid.

[15] Federal Constitutional Court, Decision 1 BvL 3/21, 19. October 2022, available in German at: http://bit.ly/3z5FN2W, para 70f.

[16] VGH Baden-Wuerttemberg, Decision 12 S 4089/20, 2 February 2022, available in German at: https://bit.ly/3K4VP3e.

[17] Federal Administrative Court, Judgment no. 1 C 10.22, 15 June 2023, available in German at: https://bit.ly/42OG34j.

[18] Infomigrants, Bremen court ruling: Benefits can be cut for migrants receiving church asylum, 13 December 2023, available in German at: https://bit.ly/4bJIOba.

[19] Federal Government, Draft Bill of the Act to Improve Removals (Entwurf eines Gesetzes zur Verbesserung der Rückführung (Rückführungsverbesserungsgesetz)), available in German at: https://bit.ly/49CaKMs.

[20] CJEU, Joined Cases C-273/20 and C-355/20, Judgement of 1 August 2022, available at: http://bit.ly/42CZDjh.

[21] Federal Administrative Court, Voraussetzungen für den Familiennachzug zu subsidiär Schutzberechtigten, press release Nr. 78/2022, 8 December 2022, available in German at: https://bit.ly/3YcL6rO.

[22] Federal Administrative Court, Decision BVerwG 1 C 35.22, 11 October 2023, available in German at: https://bit.ly/4bHhFFT.