Overview of the main changes since the previous report update

Germany

Country Report: Overview of the main changes since the previous report update Last updated: 21/04/22

Author

Paula Hoffmeyer-Zlotnik Visit Website

National context

The year 2021 was marked by the continuing impact of the Covid-19 pandemic, on the one hand, and the Federal elections in September on the other hand. In contrast to previous years, no major legal changes occurred in 2020 or 2021. The Federal elections on 26 September 2021 resulted in the formation of a government between the Social Democratic Party (SPD), the Green Party and the Liberal Free Democrats (FDP). The coalition agreement, presented on 24 November 2021, foresees the following measures and reforms in the area of asylum and international protection:[1]

New measures in the area of asylum and international protection stemming from the coalition agreement of 24 November 2021
Asylum procedure The new government has pledged to accelerate and improve the quality of asylum procedures. Revocation or cessation procedures should again be conducted on an ad-hoc basis only (i. e. when there is a reason to believe that the protection status should be revoked), instead of the systematic regular review. The asylum procedure counselling  during the first instance procedure should be offered by independent organisations instead of the BAMF. Vulnerable applicants should be identified systematically.

 

Legal pathways The coalition agreement announces that resettlement should be strengthened in line with needs reported by the UN Refugee Agency (UNHCR). A humanitarian admission programme will be established which should be used for Afghans. Furthermore the government plans to introduce humanitarian visa for persons at risk.
Reception The new government pledges to “not pursue the concept of the AnkER centres further”.
Integration Access to integration courses is to be granted immediately upon arrival. Courses should be “tailored and accessible.
Family reunification The restrictions on family reunification for beneficiaries of subsidiary protection should be removed. Minors who have received a protection status should be allowed to bring their siblings, and not only their parents as is currently the case.
Tolerated stay Significant approvals are foreseen for persons with a tolerated status. People in situations of ‘chain toleration’ will now have access to a one-year residence permit after living in Germany for five years. People with tolerated status who are in formal training should also receive a residence permit.[2]  Young people under 27 should have the opportunity to receive a legal status after three years, and other persons who undergo considerable integration efforts should also get the opportunity to get an equal status. Work bans for persons with a tolerated status are to be abolished, as is the newly introduced status of a “Duldung light”.

 

Return The new government pledges a concerted effort on return while prioritising voluntary return and the forced removal of persons convicted of a crime or posing a risk. Counselling and financial support for voluntary return is to be expanded. The Federal government should lend more support to the Federal States with regard to forced removals and should be empowered to order temporary removal bans for specific nationalities. Children and youth should not be put in detention as a matter of principle.

 

Cooperation at EU level The agreement commits to fundamental reform of the European asylum system with the goal of fair distribution of responsibility for reception between member states. The coalition signals its intent to make progress on this with a coalition of willing member states. It calls for state-coordinated and EU-supported search and rescue capacity and for Frontex to be in charge of border management in a manner that is effective, transparent, compliant with the rule of law, and subject to parliamentary control.
Cooperation with third countries The government outlines an ambition to conclude new practical and partnership-based agreements with major countries of origin in compliance with human rights standards. For this purpose, a Special Representative should be appointed. Decisions related to development funding should not be made conditional on the conclusion of possible cooperation agreements.

 

As regards the main changes in the German asylum system in 2021, there were as follows:

Asylum Procedure

  • Key asylum statistics: In 2021, a total of 190,816 applications for international protection were lodged in Germany, mainly by Syrians (70,162), Afghans (31,721) and Iraqis (16,872). This marks an important increase compared to 122,170 applications in 2020. The overall recognition rate at first instance stood at 58% (i.e. 33.8% refugee status, 24.2% subsidiary protection and 5 % humanitarian protection). It reached 99.8% for Syrians, 74.0% for Afghans, but only 44.4% for Iraqis. Other nationalities such as Moldovans, Albanians or Serbians were nearly all rejected with a rejection rate around 99%. An additional 14,569 persons were granted international protection by Courts at second instance until the end of November 2021. The number of pending cases at the BAMF more than doubled from 52,056 at the end of 2020 to 108,064 at the end of 2021, mainly due to the de-prioritisation of applications from Afghan nationals and from Syrian nationals with a protection status in Greece.
  • Situation at the PolishBelarussian border: Due to the situation at the Polish-Belarussian border, increased border crossings have been observed from Poland into Germany in 2021. The Federal Police registered a total of 11,228 irregular migrants from Belarus crossing the German–Polish border in 2021, with the main nationalities being from Iraq, Syria, Yemen and Afghanistan, However the government did not introduce internal border controls in this context.
  • Temporary reintroduction of internal border controls at the Austrian border: The 2018 practice of refusing access to the territory at the German-Austrian border (where temporary internal border controls are in place) to asylum seekers who have previously lodged an application in Greece and Spain was considered unlawful by the Administrative Court of Munich. The latter ordered interim measures in May 2021 while the final decision on the case is still pending. The competent government at the time declared that it did not intend to change its practice, but it is unclear whether the new government has continued said practice.
  • Afghan nationals: After the stop in removal operations caused by the Covid-19 outbreak, Germany reinitiated charter flights for removal again in December 2020, and continued to operate removals until July 2021. Following the takeover by the Taliban in summer 2021, the German government started an evacuation operation for German nationals in Afghanistan as well as Afghan nationals who had worked for German authorities, the military and “especially endangered persons”. Between 16 and 26 August 2021, a total of 5,300 persons were evacuated, out of which 4,400 Afghan nationals. The evacuees entered Germany via an emergency visa (based on Section 14 and 22 Residence Act). Upon arrival, the BAMF then examined whether persons had already been granted permission for an admission from abroad (Section 22 Residence Act). If this was not the case, and if the Federal Government decided that such permission could not be granted, persons were informed of the possibility to apply for asylum in Germany.  As of 10 December 2021, a total of 28,053 permissions for admission from abroad had been issued to Afghan nationals. However, only 8,014 persons had entered Germany as of the same date.As regards Afghan asylum seekers, the BAMF decided to de-prioritise Afghan cases due to the uncertain situation in the country, except for cases in which international protection can be granted according to the guidelines in place or where the situation in Afghanistan was irrelevant for the decision. The government further declared that decisions continued to be taken on an individual, case-by-case basis. As a result, the number of pending applications by Afghan nationals significantly increased from 6,101 in 2020 to 27,846 at the end of 2021. The BAMF resumed its examination of Afghan cases in December 2021, prioritising cases which involve several persons (as opposed to individual applications) and vulnerable applicants. The overall protection rate increased slightly from 62% in 2020 to 74% in 2021.
  • Response to the situation in Ukraine as of 31 March 2022: Ukrainian nationals are granted temporary protection in Germany since 4 March 2022, following the activation of the Temporary Protection Directive at the EU level.[3] A letter was sent by the Federal Ministry of the Interior on 14 March 2022 to the Federal States to outline the conditions for temporary protection in Germany:[4] 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. Temporary protection is granted to third country nationals holding a residence permit in Ukraine only if they are unable to return to their countries of origin. Beneficiaries of temporary protection are allowed to work and are entitled to social benefits similar to those for asylum seekers, under the Asylum Seekers Benefits Act. On 7 April, the conference of the heads of Federal state governments and the Chancellor decided that from 1 June onwards, Ukrainian refugees with a temporary protection status should be entitled to the same level of social benefits as beneficiaries of international protection. According to the BAMF; they will also have access to integration courses.[5] Refugees and other status holders in Ukraine that are fleeing the country have to apply to obtain the concurrent residence permit with the local foreigners’ authority. Once issued, all residence permits have a validity until 4 March 2024.[6] Temporary protection and the granting of a status in the asylum procedure are mutually exclusive. Refugees are thus discouraged from applying for asylum in Germany. Since 16 March 2022, newly arriving refugees who are not hosted by friends or family or otherwise in private accommodation are distributed to the Federal States according to the “Königstein key” (see Freedom of Movement).[7] This decision followed after the authorities in Berlin were overwhelmed by the number of new arrivals, since most trains and busses from Ukraine and its neighbouring countries arrive in the capital
  • Subsequent applicants: The number of subsequent applicants more than doubled from 19,589 in 2020 to a total of 42,583 in 2021, especially those lodged by Syrian and Afghan nationals. This is due to the takeover by the Taliban in Afghanistan and, for Syrians, to a judgement of November 2020 in which the CJEU considered that there is a “strong presumption” that the refusal to perform military services in the context of the Syrian civil war relates to one of the reasons to be granted refugee status.[8] As a result, many Syrians who had previously been granted subsidiary protection in Germany lodged subsequent applications in order to obtain a refugee status. Available statistics show that the majority of subsequent applications are being rejected as inadmissible, before the asylum procedure is reopened (75% of all subsequent applications in 2021), 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). However, when looking strictly at subsequent applications being assessed on the merits, it appears that almost 50% of them were successful (referring to a total of 2.919 positive decisions in 2021).
  • Beneficiaries of protection in another country who apply for asylum in Germany: As of December 2021, around 39,000 asylum applications from persons who have already been granted international protection in Greece were pending in Germany. Following a decision of the Federal Constitutional Court which defined standards that have to be met for the authorities to be able to send those persons back to Greece, the BAMF has “de-prioritised”, and thus de facto stopped processing, asylum applications from that group. In 2021, two Higher Federal Administrative Courts declared removals to Greece of beneficiaries of protection to be unlawful due to the dire humanitarian situation in Greece. In July 2021, the German and Greek ministers of the Interior signed a memorandum of understanding aimed at improving the integration of beneficiaries of international protection in Greece regarding accommodation, health care and the provision of necessary goods through a project implemented by IOM and financed by EU and German funds.[9] In March 2022, it was reported that an agreement was reached, and that accordingly the BAMF was planning on starting to examine the pending cases, but it remains to be seen if this will be effectively implemented in practice.[10]
  • Data collection at registration stage: In July 2021, a new law was adopted to amend the law on the Central Register of Foreigners (Ausländezrentralregister (AZR)). The law extends access to the register for more authorities and enlarges the type of data stored, including to highly sensitive data such as decisions on asylum applications or court decisions.[11] The new law was criticised by the German Institute for Human Rights, PRO ASYL and the German Society for Civil Rights (GFF) for the risk of abuse and violations of data protection and security.[12]
  • Absconding in church asylum cases: In 2020, the Federal Administrative Court confirmed a ruling by the Administrative High Court of Bavaria according to which persons who are subject to a transfer to another Member State but are given temporary sanctuary by churches cannot be considered as “absconding” if they declare this to the BAMF, meaning that the timeline of 18 months until Germany becomes responsible does not apply. As a result, the BAMF clarified in January 2021 that persons in “open church asylum” where their whereabouts are known are not considered to be absconding.[13] This led to an increase of church asylum cases from 355 cases in 2020 up to 822 cases in 2021.

Reception conditions

 

  • COVID-19 vaccination: Asylum seekers living in reception centres were among the priority groups to receive a vaccine against COVID-19. However, some reception centres reported a low uptake among asylum seekers, owing to several reasons including the lack of systematic and multilingual information and mistrust in the authorities.
  • Conditions in reception centres: Conditions in reception centres continued to be impacted by the COVID-19 pandemic throughout 2021. Mass quarantines and suspension of services and activities in many centres have deteriorated conditions which had already been subject to criticism before the COVID-19 outbreak, as they have exacerbated difficulties to work or otherwise integrate asylum seekers who are isolated from the rest of the society. This has led a number of NGOs and welfare associations to call for the closure of AnkER centres and to prioritise decentralised accommodation of refugees.

Detention of asylum seekers

 

  • Places of detention: In 2021, two new detention facilities opened in Glückstadt (Schleswig-Holstein) with a capacity of 60 places, and in Hof (Bavaria) with a capacity of 150 places (the second largest detention facility in Germany). Following a legal amendment of 2019, detention for the purpose of removal was considered possible in regular prisons until June 2022. This practice, introduced by the government on the grounds of an “emergency situation” and a shortage of detention places, has been ruled unlawful by the CJEU on 10 March 2022.[14] The Court ruled that the courts issuing the detention order have to be able to assess whether such an emergency (justifying detention in regular prisons) exists or not. Furthermore, the court ruled that conditions in detention facilities must not be prison-like if they are to qualify as specialised detention facilities in the sense of the EU Return Directive.
  • Detention conditions: Detention condition continued to be impacted by the COVID-19 pandemic throughout 2021. In several detention facilities, visits of relatives, supporters as well as civil society organisations continue to be severely restricted by access rules introduced during the first wave of the COVID-19 pandemic.

 

Content of international protection

  • Cessation and withdrawal procedures: As in previous years, the BAMF continues to initiate a high number of revocation procedures. A total of 117,093 revocation procedures were initiated in 2021, which marks a decrease in comparison to the three previous years however. In 96.1 % of all cases, the BAMF ended up not revoking the protection status. Nevertheless, the status of 6,630 persons was revoked in 2021, mainly of nationalities from Syria, Iraq, Afghanistan and Iran (see detailed statistics under Cessation and review of protection status). 95,960 revocation procedures were still pending at the end of 2021.
  • Long term residence for beneficiaries of international protection: Beneficiaries of internal protection are eligible for a permanent residence permit after five years (three years if they have a good command of the German language). A total of 70,705 beneficiaries of international were granted a permanent residence permit under these conditions in 2021, marking a sharp increased compared to 16,338 in 2020. This is likely caused by the high number of persons being granted refugee status in 2016, and who were then granted a permanent residence permit after five years.
  • Family reunification: Family reunification for beneficiaries of subsidiary protection continues to be limited to 1,000 persons per month as a matter of policy. However, in 2021, only 5,958 visas were issued for family members of beneficiaries of subsidiary protection in practice, and thus only half of the foreseen quota was used. This is similar to previous years. Difficulties for family reunification continued to be exacerbated by long waiting periods at embassies.
  • Ad hoc family reunification programmes: Several Federal States have initiated ad-hoc programmes for family members of Syrians living in Germany. Many of these programmes ended over the course of 2021. A number of Federal States decided to put similar family reunification programmes in place for family members of Afghan refugees, but these have not been authorised by the Federal Ministry of the Interior. The new Federal Government announced plans to set up a humanitarian admission programme on its own initiative in December 2021.

 

 

 

[1] SPD, BÜNDNIS 90/DIE GRÜNEN UND FDP, ‚Mehr Fortschritt wagen. Bündnis für Freiheit, Gerechtigkeit und Nachhaltigkeit. Koalitionsvertrag 2021 – 2025 zwischen der Sozialdemokratischen Partei Deutschlands (SPD) und den Freien Demokraten (FDP)‘, 137-142, available in German at: https://bit.ly/3ITYqJZ.    

[2] ECRE, ‘Germany: Incoming Coalition Agreement Signals Significant Change in Asylum and Integration Policy’, Weekly Bulletin 3/12/2021, available at https://bit.ly/3GXQRRW.

[3] Section 24 Residence Act.

[4] Federal Ministry of the Interior, ‘Umsetzung des Durchführungsbeschlusses des Rates zur Feststellung des Bestehens eines Massenzustroms im Sinne des Artikels 5 der Richtlinie 2001/55/EG und zur Einführung eines vorübergehenden Schutzes’, 14 March 2022, available in German at: https://bit.ly/3qGBTcY.

[5] BAMF, ‘BAMF unterstützt bei der Aufnahme Geflüchteter aus der Ukraine‘, 11 March 2022, available in German at: https://bit.ly/38kYPIr.

[6] This is applicable as of 28 March 2022. As of this date, applications have to be launched until 23 May 2022.

[7] PRO ASYL, ‘Hinweise für Geflüchtete aus der Ukraine’, last updated 18 March 2022, available in German at: https://bit.ly/3wGG10n.

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

[9]Federal Ministry of the Interior, ‘Gemeinsame Absichtserklärung zu Bemühungen um die Integration von Personen mit internationalem Schutzstatus in Griechenland’, available in German at at https://bit.ly/3KeKziO  

[10] Infomigrants, ‘Germany to process frozen asylum claims of refugees from Greece’, 21 March 2022, available online at: https://bit.ly/3qH0fTN.

[11] Deutscher Bundestag, Beschlussempfehlung und Bericht des Ausschusses für Inneres und Heimat (4. Ausschuss) zu dem Gesetzentwurf der Bundesregierung – Drucksache 19/28170 – Entwurf eines Gesetzes zur Weiterentwicklung des Ausländerzentralregisters, 19/29820, 19 May 2021, available in German at https://bit.ly/3tcRAZX.

[12] GFF, Das Ausländerzentralregister – Eine Datensammlung außer Kontrolle, 13 January 2022, available in German at https://bit.ly/3stCIY1; and FRA (European Union Fundamental Rights Agency), ‘Migration: Key Fundamental Rights Concerns’, Quarterly Bulletin 01.01.2021-30.06.2021, available at: https://bit.ly/3qB3RHk.

[13] BAMF, ‘Merkblatt Kirchenasyl im Kontext von Dublin-Verfahren’, availabe in German at https://bit.ly/3HY47WI. See also PRO ASYL, Bundesverwaltungsgericht entscheidet: Kein »Flüchtigsein« im offenen Kirchenasyl!‘, available in German at: https://bit.ly/3fi5Rhd

[14]  CJEU, Case C‑519/20, 10 March 2022, available in German at: https://bit.ly/3NtZt6u.

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