Freedom of movement

Germany

Country Report: Freedom of movement Last updated: 30/11/20

Author

Informationsverbund Asyl und Migration Visit Website

Dispersal and geographical restriction

 

The freedom of movement of asylum seekers is restricted and they have no right to choose their place of residence. According to the Asylum Act, their right to remain on the territory under a permission to stay (Aufenthaltsgestattung) is generally limited to the district of the foreigners’ authority in which the responsible reception centre is located.[1] This “residence obligation” (Residenzpflicht), legally called “geographical restriction” (räumliche Beschränkung), means that asylum seekers are not allowed to leave that area even for short periods of time without permission of the BAMF. However, Federal States have the possibility to extend this geographical restriction to the jurisdiction of other foreigners’ authorities or the area encompassing a whole Federal State, or even to another Federal State, provided that there is agreement between the concerned Federal States.[2] Asylum seekers in Brandenburg for example have the freedom to move in all of Brandenburg and Berlin.

As long as the residence obligation applies – i.e. during the initial period of the procedure in most cases – the applicant can also request permission to temporary leave the assigned area for urgent public interest reasons, where it is necessary for compelling reasons or where refusal of permission would constitute undue hardship.[3] As a rule, permission shall also be granted if the asylum seeker intends to take up employment or education in another area. Permission shall be granted without delay in cases where the person has appointments with UNHCR or NGOs.[4]

The law provides that the geographical restriction shall generally expire after 3 months.[5] However, this rule is subject to two important derogations:

  • The geographical restriction remains in force for persons who have an Obligation to Stay in Initial Reception Centres.[6] Given that the obligation to stay in these centres has been extended by the 2019 amendment of the Asylum Act, the geographical restriction has also been extended substantially.
  • The geographical restriction may be re-imposed if the person has been convicted of a criminal offence or if deportation is imminent.[7]

The place of residence of asylum seekers is usually determined by the Initial Distribution of Asylum Seekers (Erstverteilung der Asylbegehrenden, EASY); a general distribution system whereby places for asylum seekers are at first allocated to the Federal States for the initial reception period. Within that Federal State, they are allocated to a particular municipality, usually the place of the initial reception centre at first and possibly another municipality when the obligation to live in the initial reception centre ends.[8]

Distribution of asylum seekers to the Federal States is determined by the following aspects:[9]

  1. Capacities of initial reception centres;
  2. Competence of the branch offices of the BAMF for the particular applicant’s country of origin. This means that certain initial reception centres tend to host specific nationalities (see Differential Treatment of Specific Nationalities in Reception);
  3. A quota system called “Königsteiner Schlüssel”,[10] according to which reception capacities are determined for Germany’s 16 Federal States. The Königstein key takes into account the tax revenue (accounting for 2/3 of the quota) and the number of inhabitants (1/3) of each Federal State.

The quota for reception of asylum seekers in 2019 (“Königsteiner Schlüssel”) in comparison to number of (first) asylum applications in 2019 was as follows:

Distribution of asylum seekers in Germany: 2019

Federal State

Quota

(First) applications in 2019

Actual share in 2019

Baden-Württemberg

13.01 %

14,990

10.52 %

Bavaria

15.56 %

18,368

12.89 %

Berlin

5.14 %

8,221

5.77 %

Brandenburg

3.02 %

4,151

2.91 %

Bremen

0.96 %

1,683

1.18 %

Hamburg

2.56 %

3,551

2.49 %

Hesse

7.44 %

11,901

8.35%

Mecklenburg-Vorpommern

1.98 %

2,548

1.79 %

Lower Saxony

9.41 %

13,741

9.64 %

North Rhine-Westphalia

21.09 %

33,879

23.77 %

Rhineland-Palatinate

4.82 %

7,406

5.17 %

Saarland

1.20 %

2,141

1.50 %

Saxony

4.99%

6,310

4.43 %

Saxony-Anhalt

2.75 %

4,168

2.92 %

Schleswig-Holstein

3.40 %

5,729

4.02 %

Thuringia

2.65 %

3,558

2.47 %

Source: BAMF, Das Bundesamt in Zahlen 2019, 2020.

 

The above table demonstrates that the distribution of applicants has only roughly been in line with the “Königsteiner Schlüssel” in 2019. Deviations from the quota can (at least partially) be explained by the fact that the distribution of applicants takes into account additional criteria, as mentioned above.

It is possible for the asylum seeker to apply to the authorities to be allocated to a particular town or district, but such applications are only successful in exceptional cases (e.g. if a rare medical condition requires that an asylum seeker has to stay close to a particular hospital). The allocation of the asylum seeker to a particular area is not a formal decision that can be legally challenged by the individual.

 

Obligation to stay in initial reception centres

 

As a rule, asylum seekers are required to stay in the initial reception centre where they lodged their application for international protection. Initial reception centres can be designated as “arrival centres” (Ankunftszentren), AnkER-centres or as separate institutions, depending on the way reception is organised in the Federal States. Long term stays in these centres used to be the exception. In recent years, however, the obligation to stay there has been regularly extended. While the law initially foresaw a maximum stay of 3 months, the maximum was extended to 6 months in 2015. In 2019, the German legislature extended the maximum by another year – i.e. asylum seekers now may be obliged to stay in initial reception centres for up to 18 months.[11]

For some groups of asylum seekers, the maximum obligatory stay is even longer:

  • Asylum seekers from safe countries of origin have to stay in initial reception centres until their asylum application has been decided upon and – in case of a rejection – until they leave the territory.[12]
  • Since 2019, under certain circumstances, asylum seekers who have failed to cooperate with the authorities have to stay in initial reception centres indefinitely.[13]
  • Federal States are allowed to impose an obligation on applicants to stay in initial reception centres for up to 24 months.[14]

However, the obligation to stay in initial reception centres must be limited to the duration of the first instance procedure until a decision by the BAMF, and may only be prolonged in case the application is rejected as manifestly unfounded or dismissed as inadmissible.[15]

Since 2019, the Asylum Act also provides for a maximum stay of 6 months in initial reception centres for families with minor children. This maximum time period applies to all asylum seekers with minor children pursuant to Section 47(1) of the Asylum Act, as well as to families from safe countries of origin pursuant to Section 47(1a) of the Asylum Act. However, it does not explicitly apply to asylum seekers subject to a Federal State regulation, which extends the stay in initial reception centres to 24 months pursuant to Section 47 (1b) Asylum Act. It has been argued that – because of the clear legislative intent to protect families with children – the maximum stay of 6 months must apply to these asylum seekers as well.[16] However, so far there have not been any court decisions addressing this issue, mainly because it is not entirely clear whether the provision of Section 47(1b) Asylum Act is currently applied in any Federal State. As far as it has become known, this provision was mainly applied in the so-called “transit centres” in the Federal State of Bavaria, but Bavaria has re-organised its reception system in 2018 and has introduced AnkER-centres throughout the Federal State. The Bavarian Reception Act still contains the obligation to stay in reception centres for up to 24 months,[17] but it is not clear, if this obligation is still enforced in practice.

The maximum stay in initial reception centres which the law provides for is not obligatory for the Federal States. They are entitled to release asylum seekers from these centres and allocate them to other places within the State. In fact, the obligation may be terminated at any time for reasons of public health, for other reasons of public security and order, e.g. to ensure accommodation and distribution, or for other compelling reasons.[18] Moreover, the obligation has to be terminated if a threat of deportation (Abschiebungsandrohung) is enforceable and deportation is not possible within a reasonable period of time.[19] The asylum seeker shall also be released from the initial reception centre if the administrative court granted suspensive effect, with the exception of Dublin cases and those already granted international protection in another Member state.[20]

In Bavaria for example, the obligation to stay in initial reception centres for up to 24 months under Section 47(1b) of the Asylum Act had already been introduced in 2017 in three “transit centres” (Manching/Ingolstadt, Regensburg, Deggendorf).[21] All of these centres were renamed as AnKER centres in 2018, together with the other Bavarian reception centres. The Bavarian Reception Act in its latest version now generally obliges the following groups to stay in reception centres:

  • All asylum seekers until the BAMF has decided upon their applications;
  • Asylum seekers whose application has been rejected as manifestly unfounded or inadmissible until they leave the country or are deported, but limited to a maximum period of 24 months.[22]

There is no exception for families with minor children in the Bavarian law, which might call into question its conformity with the new Section 47 of the Asylum Act as mentioned above. In 2018, the average duration of the stay varied by nationality e.g. 3-4 months for Syrians, over 36 months for safe country of origin nationals who cannot be returned e.g. due to health reasons, and 10-11 months for others if they appeal a rejection.[23]

Similarly, in Saxony, where an AnkER centre also exists, an obligation to stay in reception centres under Section 47(1b) Asylum Act had also been introduced through the state’s Refugee Reception Act on 11 December 2018 in conjunction with the Saxon Residence Restriction Extension Decree (Sächsische Wohnpflichtverlängerungsverordnung). This obligation affects the following groups of asylum seekers:[24]

  • Asylum seekers from a country of origin with a protection rate lower than 20% until the BAMF has decided upon their applications. The Federal State’s government has published a list of 94 countries of origin which fall under this category.[25]
  • Asylum seekers whose application has been rejected as manifestly unfounded or inadmissible until they leave the country or are deported.

In both cases, the maximum period of stay is 24 months and minor children and their parents are exempt.[26]

The Federal State of North Rhine-Westphalia extended the obligation to stay in initial reception centres to a maximum of 24 months for those whose application has been rejected as manifestly unfounded or inadmissible. Families and children are exempted from this regulation.[27] The latter will be applicable until 1 September 2024.

Finally, the Federal State of Saxony Anhalt has made use of Section 47(1b) of the Asylum Act, but extended the obligation to 18 months only. Additionally, the State did not only exempt families with children, but also single women, persons with severe physical and psychological illnesses, victims of torture and sexual violence, LGBTIQ and asylum seekers who belong to persecuted minorities.[28]

Asylum seekers may leave the premises of the initial reception centres (regardless of whether they are called arrival centres, AnkER-centres or have a different denomination) at any time, subject to no curfew or obligation to stay overnight, but in many centres they have to report to security personnel at the door upon leaving and re-entering. In some AnkER centres such as Regensburg, monitoring of entry and exit is carried out through a bar code card scanned by asylum seekers at the door.[29] The same is true, for example, for initial reception centres in Brandenburg, like Eisenhüttenstadt and Doberlug-Kirchhain. According to house rules, asylum seekers at these facilities are allowed to leave the premises for a maximum of 48 hours only (not including weekends). In the event of prolonged unannounced absence from the initial reception facility, the person concerned can be deregistered and payment of benefits can be suspended.

In general, people can travel freely within the town and district in which the reception centre is located, although the limited accessibility of certain initial reception centres by public transport raises questions concerning freedom of movement. For example, the authorities provide asylum seekers in the AnkER centres with subsidised public transport tickets. However, residents in accommodation centres attached to AnkER centre (Dependancen) located outside the municipality of the competent AnkER centre – e.g. Schwandorf, located 38km from Regensburg, or Garmisch, located 90km away from Munich – are only provided with public transport tickets to travel to the competent AnkER centre for official appointments such as interviews with the BAMF. Applicants have to cover their own travel costs for any other appointments, including meetings with NGOs or doctors, that are not present in Dependancen. The set-up and location of the Dependancen therefore poses an additional barrier to asylum seekers’ access to essential services.[30] In most Federal States, applicants need a special permission to travel to other parts of the state or to other parts of Germany (see Residenzpflicht above).

 


[1] Sections 55(1) and 56(1) Asylum Act.

[2] Section 58(6) Asylum Act.

[3] Section 58(1) Asylum Act.

[4]Section 58(2) Asylum Act.

[5] Section 59a(1) Asylum Act.

[6] Section 59a(1) Asylum Act.

[7] Section 59b(1) Asylum Act.

[8] BAMF, ‘Initial Distribution of Asylum-Seekers (EASY)’, 1 October 2016, available at: http://bit.ly/2DASJOS.

[9]Section 46(2) Asylum Act.

[10] Section 45 Asylum Act.

[11] Section 47(1) Asylum Act.

[12] Section 47(1a) Asylum Act.

[13] Section 47(1) 3rd Sentence Asylum Act.

[14] Section 47 (1b) Asylum Act.

[15] Section 47(1b) Asylum Act.

[16] Wiebke Judith, Druck auf die Länder? Lex AnkER im „II. Hau-Ab-Gesetz“ in: Informationsverbund Asyl und Migration (ed), Das Migrationspaket: Beilage zum Asylmagazin 8-9/2019, September 2017, 74.

[17]  Section 2(2) Bavarian Reception Act (Aufnahmegesetz), as amended by the Act of 5 December 2017, available in German at: https://bit.ly/2uE71MT.

[18] Section 49(2) Asylum Act.

[19] Section 49 (1) Asylum Act.

[20]  Section 50 (1) Number 1 Asylum Act.

[21] Bayerischer Flüchtlingsrat, ‘Abschiebelager Manching/Ingolstadt’, available in German at: http://bit.ly/2pnLtRg.

[22] Section 2(2) Bavarian Reception Act (Aufnahmegesetz), as amended by the Act of 5 December 2017, available in German at: https://bit.ly/2uE71MT.

[23]  ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at: https://bit.ly/2W7dICZ.

[24] Section 12(3) Saxon Refugee Reception Act (Flüchtlingsaufnahmegesetz), as amended by the Act of 14 December 2018, available in German at: https://bit.ly/2VaJLkY, in conjunction with Section (1) and (2) Saxon Residence Restriction Extension Decree (Wohnpflichtverlängerungsverordnung), as amended by the Act of 20 April 2020, available in German at: https://bit.ly/2Zgcgku.

[25] Addendum to the Saxon Residence Restriction Extension Decree of 3 May 2019, available in German at https://bit.ly/2CBBAKl.

[26] Section 3 Saxon Residence Restriction Extension Decree (Sächsische Wohnpflichtverlängerungsverordnung).

[27] Section(1) Implementing Act to Section 47(1b) of the Asylum Act, available in German at: https://bit.ly/2BcfuO5.

[28] Section(1a) Reception Act, as amended by the Act of 14 Febrary 2019, available in German at: https://bit.ly/2YAXTbC.

[29] ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at: https://bit.ly/2W7dICZ.

[30]  Ibid.

 

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