Long-term residence

Spain

Country Report: Long-term residence Last updated: 30/11/20

Author

The law states that asylum seekers who apply for asylum at the border have to be referred to an initial reception centre for asylum seekers.[1]  However, entry to the territory has to be refused if a migrant reports at the border without the necessary documents for legal entry and if an immediate removal to the neighbouring country (as Safe Third Country) is possible.[2]

Since 2013, asylum seekers should not be sent back to neighbouring countries without their applications for international protection having been registered. It is not clear, however, whether this practice is applied in all cases: even if migrants have crossed the border – which is defined as a 30 km strip on the basis of a legal fiction laid down in the Residence Act – they have not necessarily entered the territory,[3] and it is possible that a removal to the neighbouring state (Zurückweisung) is still carried out at this point.

In recent years, Germany has regularly re-introduced border controls at its borders with Austria. Media reports from 2016 suggest that, at the Austrian-German border, people were immediately sent back to Austria, although it had not been clarified whether they intended to apply for asylum in Germany.[4] In response to an information request, the Federal Police stated that persons who had applied for asylum had not been returned on the basis of national law or on the basis of the readmission agreement with Austria. However, in the same statement the Federal Police mentioned that there had been returns of people who had asked for asylum in Germany but were returned to other Member States of the Dublin Regulation. The Federal Police did not provide information on the number of such cases. It claimed that the BAMF had not been carrying out Dublin procedures in these cases, but had been involved in these returns by determining the responsible Member State under the Dublin Regulation. The Federal Police also claimed that procedural guarantees, in particular access to an effective remedy as regulated in the Dublin Regulation, were provided to in these return procedures.[5] The government clarified in 2017 that Dublin procedures at the borders are conducted by the BAMF (see Dublin: Procedure).

In 2018, follwing a heated political debate, a new procedure was introduced which enables the Federal Police to refuse entry at the border. This procedure is based on administrative regulations only; i.e. no legislative changes were implemented. In 2019, it was only applied to the Austrian-German border, as this was the only border where controls took place. The current temporary re-introduction of border controls with Austria is valid until 11 November 2020. The aim of the new approach is to facilitate the immediate removal of persons who have already applied for asylum in a southern European country with which Germany has concluded a special readmission agreement; namely Spain and Greece. According to the Federal Ministry of the Interior, refusals of entry are possible if it can be immediately established with the help of a Eurodac “hit” which proves that the person trying to cross the border and seeking protection in Germany has already applied for asylum elsewhere. An immediate return then has to take place within 48 hours.[6] These returns are therefore not based on the Dublin Regulation, but on a refusal of entry under the (national) notion of “safe third countries” in combination with administrative arrangements concluded with other EU Member States.

In a decision of the Administrative Court of Munich of August 2019, a return procedure based on the readmission agreement with Greece is described as follows:[7] an Afghan asylum‑seeker was apprehended by the Federal Police after having entered Germany on a train from Austria. He was taken into custody at the directorate of the Federal Police. A Eurodac-hit showed that he had applied for asylum in Greece in 2018 and in Austria in 2019. Although he expressed his intention to apply for asylum in Germany, he was not referred to the BAMF, but the Federal Police issued a formal notification of “refusal of entry”, based on the grounds that Greece was obliged under the Dublin III Regulation to take charge of the asylum procedure. The document also stated that an “appropriate admission or re-admission procedure" was to be initiated. However, only a “notification of refusal of entry” was sent to Greece, with a reference to the German-Greek agreement. The Greek authorities confirmed receipt of this notification and on this basis a short‑term detention order was issued by a local court and the deportation to Greece was carried out the next day.

The legality of the new procedure has been questioned by legal experts.[8] Moreover, three forced returns which had taken place on the basis of the readmission agreements with Greece were challenged in court in 2019 – two of which were accompanied with requests for interim measures in order to have the asylum seekers brought back from Greece.[9] The responsible court for these cases was the Administrative Court of Munich (because of the location of the competent regional department of the Federal Police), and it published its decisions on the requested interim measures in May and August 2019 respectively.

  • In a first decision of 9 May 2019, the court decided against the request to have the asylum seeker brought back from Greece, because it considered the chances of a success of the legal action in the main proceedings as low. In this decision, the court also saw no sufficient reason to doubt that Greece was responsible for carrying out the asylum procedure under the Dublin III regulation.[10]
  • On the contrary, in a second decision of 8 August 2019, another judge of the Administrative Court of Munich ordered the German Federal Police to bring back the asylum seeker from Greece.[11] In this decision, the Administrative Court expressed important doubts about the legality of the return procedure at the border. It ruled that the Dublin III regulation, including a full-scale examination of the responsible Member State, was very likely applicable as soon as an asylum seeker had entered the German territory. Therefore, the argument brought forward by the Federal Police, according to which the asylum seeker in the present case had not effectively entered the territory and that the return was the result of a “Pre-Dublin-Procedure” was unlikely to stand up to a legal examination in the main proceedings.[12]

Since the main proceedings in these cases are pending, the legal argument has not been resolved. In any case, the introduction of the new procedure had little effect in practice: Between August 2018 and October 2019, only 40 persons were returned (38 returns to Greece and 2 to Spain) on the basis of the readmission agreements with these countries. Furthermore, following the decision of the Administrative Court of Munich of 8 August 2019, one of these persons was brought back to Germany from Greece [13] Therefore, the political debate over the return procedures at the border, which had even triggered a government crisis in 2018, has been described as “absurd” in retrospect.[14]

 


[1]Section 18 (1) Asylum Act.

[2]Section 18(2) Asylum Act and Sections 14 and 15 Residence Act.

[3]Section 13(2) Residence Act.

[4] See e.g. ZDF, ‘Ein Jahr Grenzkontrollen in Deutschland’, 13 September 2016, available in German at: http://bit.ly/2nG9y3u.https://www.zdf.de/nachrichten/zdf-morgenmagazin/ein-jahr-grenzkontrollen-in-deutschland-102.html

[5] Information provided by the Federal Police Head Office, 23 February 2017.

[6]Federal Ministry of the Interior, ‚Zurückweisung an der Grenze‘, 9 August 2018, available in German at: https://bit.ly/2T5vHHL.

[7] Administrative Court Munich, Decision M 18 E 19.32238, 8 August 2019 – see Asylmagazin 10-11/2019, 371; available in German at: https://www.asyl.net/rsdb/m27488/.

[8] A collection of statements by various experts and institutions can be found at: https://bit.ly/2zwUPTs. See also Anna Lübbe, Vereinbarkeit der Zurückweisungspraxis unter dem deutsch-griechischen »Seehofer-Abkommen« mit unionsrechtlichen Vorgaben zum effektiven Rechtsschutz, 6 December 2018,available in German at: https://bit.ly/2VyPGQq; ECRE, Bilateral Agreements: Implementing or Bypassing the Dublin Regulation?, December 2018, available at: https://bit.ly/2GgVoEf.

[9] As of October 2019 according to the Federal Government, Response to parliamentary question by The Left, 19/13857, 9 October 2019, 5-6.

[10] Administrative Court Munich, Decision M 5 E 19.50027, 9 May 2019; See: asyl.net: M27257, available in German at: https://www.asyl.net/rsdb/m27257/.

[11] Administrative Court Munich, Decision M 18 E 19.32238, 8 August 2019 – see Asylmagazin 10-11/2019, 371; available in German at: https://www.asyl.net/rsdb/m27488/.

[12] Bellinda Bartolucci, “Vielzahl an Kritikpunkten” an Einreiseverweigerung nach “Seehofer-Deal”. Zum Beschluss des VG München vom 8. August 2019, Asylmagazin 10-11/2019, 334-338.

[13] Federal Government, Response to parliamentary question by The Left, 19/3451, 19 July 2018, available in German at: https://bit.ly/2O4R3nV; Süddeutsche Zeitung, ‘Nur wenige Flüchtlinge haben Bleiberecht erschlichen’, 20 August 2018, available in German at https://bit.ly/2MsHLED.

[14] Süddeutsche Zeitung, Der Streit war absurd, 3 November 2019, available in German at: https://bit.ly/3011Y8e.

 

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