Country Report: Germany

2019
UpdateAcknowledgements & Methodology
This report was written by Michael Kalkmann, Coordinator of Informationsverbund Asyl und Migration,
and Daniel Kamiab Hesari (Chapter “Reception Conditions”) and was edited by ECRE.
This report draws on information gathered from national authorities, including publicly available statistics
and responses to parliamentary questions, national case law, practice of civil society organisations, aswell as other public sources. Information on the situation at airport (detention) facilities and on the newly
established “AnkER centres” in Bavaria was added by ECRE following a visit in April 2019.
The information in this report is up-to-date as of 31 December 2019, unless otherwise stated.

The Asylum Information Database (AIDA)The Asylum Information Database (AIDA) is coordinated by the European Council on Refugees and Exiles(ECRE). It aims to provide up-to date information on asylum practice in 23 countries. This includes 19 EU
Member States (AT, BE, BG, CY, DE, ES, FR, GR, HR, HU, IE, IT, MT, NL, PL, PT, RO, SE, SI) and 4
non-EU countries (Serbia, Switzerland, Turkey, the United Kingdom) which is accessible to researchers,
advocates, legal practitioners and the general public through the dedicated website
www.asylumineurope.org. The database also seeks to promote the implementation and transposition of
EU asylum legislation reflecting the highest possible standards of protection in line with international
refugee and human rights law and based on best practice.

This report is part of the Asylum Information Database (AIDA), funded by the European Programme forIntegration and Migration (EPIM), a collaborative initiative by the Network of European Foundations, andthe European Union’s Asylum, Migration and Integration Fund (AMIF). The contents of this report are thesole responsibility of ECRE and can in no way be taken to reflect the views of EPIM or the European
Commission.

2

Table of Contents
Glossary ..................................................................................................................................6
List of Abbreviations ..............................................................................................................7
Statistics .................................................................................................................................8
Overview of the legal framework

10

Overview of the main changes since the previous report update ..................................... 11
Asylum Procedure ................................................................................................................13A.

General ....................................................................................................................................... 14
1.

Flow chart ........................................................................................................................ 14

2.

Types of procedures ........................................................................................................ 15

3.

List of authorities intervening in each stage of the procedure ......................................... 15

4.

Number of staff and nature of the determining authority ................................................. 15

5.

Short overview of the asylum procedure ......................................................................... 17

B.

Access to procedure and registration .................................................................................... 20
1.

Access to the territory and push backs ........................................................................... 20

2.

Registration of the asylum application............................................................................. 22

C.

Procedures ................................................................................................................................ 23
1.

Regular procedure ........................................................................................................... 23

2.

Dublin .............................................................................................................................. 33

3.

Admissibility procedure ................................................................................................... 45

4.

Border procedure (border and transit zones) .................................................................. 47

5.

Accelerated procedure .................................................................................................... 51

D.

Guarantees for vulnerable groups .......................................................................................... 52
1.

Identification .................................................................................................................... 52

2.

Special procedural guarantees ........................................................................................ 55

3.

Use of medical reports .................................................................................................... 57

4.

Legal representation of unaccompanied children ........................................................... 59

E.

Subsequent applications ......................................................................................................... 60

F.

The safe country concepts ...................................................................................................... 62
1.

Safe country of origin ...................................................................................................... 622.

Safe third country ............................................................................................................ 64

3.

First country of asylum .................................................................................................... 65

G.

Information for asylum seekers and access to NGOs and UNHCR ..................................... 65
1.

Provision of information on the procedure ...................................................................... 65

2.

Access to NGOs and UNHCR ......................................................................................... 68

H.

Differential treatment of specific nationalities in the procedure ......................................... 70

Reception Conditions...........................................................................................................73
A.

Access and forms of reception conditions ............................................................................ 73
1.

Criteria and restrictions to access reception conditions .................................................. 733

2.

Forms and levels of material reception conditions .......................................................... 74

3.

Reduction or withdrawal of reception conditions ............................................................. 76

4.

Freedom of movement .................................................................................................... 80

B.

Housing ...................................................................................................................................... 84
1.

Types of accommodation ................................................................................................ 84

2.

Conditions in reception facilities ...................................................................................... 88

C.

Employment and education ..................................................................................................... 93
1.

Access to the labour market ............................................................................................ 93

2.

Access to education ........................................................................................................ 94

D.

Health care ................................................................................................................................. 96

E.

Special reception needs of vulnerable groups ...................................................................... 98

F.

Information for asylum seekers and access to reception centres .................................... 101
1.

Provision of information on reception ............................................................................ 101

2.

Access to reception centres by third parties ................................................................. 101

G.

Differential treatment of specific nationalities in reception ............................................... 101

Detention of Asylum Seekers ............................................................................................103
A.

General ..................................................................................................................................... 103

B.

Legal framework of detention ................................................................................................ 106
1.

Grounds for detention .................................................................................................... 106

2.

Alternatives to detention ................................................................................................. 111

3.

Detention of vulnerable applicants ................................................................................. 112

4.

Duration of detention ...................................................................................................... 114

C.

Detention conditions ...............................................................................................................115
1.

Place of detention ........................................................................................................... 115

2.

Conditions in detention facilities ..................................................................................... 118

3.

Access to detention facilities ......................................................................................... 122

D.

Procedural safeguards ........................................................................................................... 124
1.

Judicial review of the detention order ............................................................................ 124

2.

Legal assistance for review of detention ....................................................................... 124

E.

Differential treatment of specific nationalities in detention ............................................... 126

Content of International Protection ...................................................................................127
A.

Status and residence .............................................................................................................. 127
1.

Residence permit........................................................................................................... 127

2.

Civil registration ............................................................................................................. 127

3.

Long-term residence...................................................................................................... 130

4.

Naturalisation ................................................................................................................. 131

5.

Cessation and review of protection status .................................................................... 132

6.

Withdrawal of protection status ..................................................................................... 137

B.

Family reunification ................................................................................................................ 137
1.

Criteria and conditions ................................................................................................... 137

2.

Status and rights of family members ............................................................................. 140

4

C.

Movement and mobility .......................................................................................................... 140
1.

Freedom of movement .................................................................................................. 140

2.

Travel documents .......................................................................................................... 142

D.

Housing .................................................................................................................................... 143

E.

Employment and education ................................................................................................... 145
1.

Access to the labour market .......................................................................................... 145

2.

Access to education ...................................................................................................... 146

F.

Social welfare .......................................................................................................................... 146

G.

Health care ............................................................................................................................... 147

ANNEX – Transposition of the CEAS in national legislation ...........................................148

5

Glossary
AnkER centre

Ankunfts-, Entscheidungs-, Rückführungzentrum (also Ankunft,
Entscheidung- kommunale Verteilung und Rückkehr) – Initialreception centre where all actors of the asylum procedure andreturn are concentrated. AnkER centres were set up in Bavaria,
Saxony and Saarland in 2018. In Bavaria, AnkER centres replaced
the “transit centres” (Transitzentren) operated in three locations in
Bavaria (Manching/Ingolstadt, Regensurg, Deggendorf). AnkER
centre is not a legal term.

Arrival centre

Ankunftszentrum – Centre where various authorities areconcentrated to streamline processes such as registration, identity
checks, interview and decision-making in the same facility. Arrival
centre is not a legal term.

Arrival certificate

Ankunftsnachweis – Certificate received upon arrival in the initialreception centre.

Dependance

In Bavaria, an accommodation centre attached to an AnkER centre,
which serves for the accommodation of asylum seekers. No stepsof the asylum procedure are carried out in the Dependancen.

Formal decisionCases which are closed without an examination of the asylum
claim's substance, e.g. because it is found that Germany is not
responsible for the procedure or because an asylum seeker
withdraws the application.

Geographical restriction

Also known as “residence obligation” (Residenzpflicht), this refers
to the obligation placed on asylum seekers not to leave the district
to which they have been assigned for a maximum period of threemonths, pursuant to Section 56 Asylum Act. An important exception
applies to applicants who are obliged to stay in initial reception
centres, the geographical restriction applies to them as long as they
are staying in those centres (Section 59a Asylum Act).

Initial reception centre(Erst-)Aufnahmeeinrichtung – Reception centre where asylum
seekers are assigned to reside during the first phase of the asylum
procedure.

Residence rule

Wohnsitzregelung – Obligation on beneficiaries of international
protection to reside in the Federal State where their asylum
procedure was conducted, pursuant to Section 12a Residence Act.
This is different from the geographical restriction imposed on
asylum seekers.

Revision

Appeal on points of law before the Federal Administrative Court.

Secondary application

Under Section 71a Asylum Act, this is a subsequent application
submitted in Germany after the person has had an application
rejected in a safe third country or a Dublin Member State.

Special officer

Sonderbeauftragter – Specially trained BAMF officer dealing withvulnerable asylum seekers.

Special reception centre

Besondere Aufnahmeeinrichtung – Reception centre where
accelerated procedures are carried out in accordance with Section
30a Asylum Act.

6

List of Abbreviations
AnKER

Arrival, Decision and Return | Ankunft, Entscheidung, Rückführung

ARE

Arrival and Return Centre | Ankunfts- und Rückführungseinrichtung

BAMF

Federal Office for Migration and Refugees | Bundesamt für Migration und FlüchtlingeBÜMAConfirmation of Reporting as Asylum Seeker | Bescheinigung über die Meldung als
Asylsuchender

BVerfG

Federal Constitutional Court | Bundesverfassungsgericht

CEFR

Common European Framework of Reference for Languages

CJEU

Court of Justice of the European Union

CPT

European Committee for the Prevention of Torture

EASY

Initial Distribution of Asylum Seekers | Erstverteilung der Asylbegehrenden

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

GGUA

Gemeinnützige Gesellschaft zur Unterstützung Asylsuchender

GU

Collective accommodation | Gemeinschaftsunterkunft

ILGA

International Lesbian and Gay Association

OVG

Higher Administrative Court | Oberverwaltungsgericht

VG

Administrative Court | Verwaltungsgericht

ZAB

Central Aliens Office | Zentrale Ausländerbehörde

7Statistics
Overview of statistical practice
The Federal Office for Migration and Refugees (BAMF) publishes monthly statistical reports (Aktuelle Zahlen zu Asyl) with information on applications and first
instance decisions for main nationalities. More detailed information is provided in the monthly Asylgeschäftsstatistik and in other BAMF publications (Bundesamt in
Zahlen).1 Furthermore, detailed statistics can be found in responses to information requests which are regularly submitted by German members of parliament.

Total

Applicants in Pending at end
Refugee status
2019
2019
165,938
57,01245,053

Subsidiary
protection
19,419Rejection

Refugee rate Subs. Prot. rate Rejection rate

54,034

36.2%

15.6%

43.4%

57
5,761
4,435
2,688
5,480
5,334
876
997
376
2,827

59%
38.8%
51.2%
23.8%
7%
25.7%
63.1%
51.3%
56.6%
0.1%

39.5%
5.9%
0.4%
6.6%
1.5%
1.8%
9.5%
9.8%
22.9%
0%

0.2%
48.2%
36.9%
36.9%
85.5%
71.8%
25.2%
30.7%
10%
99.2%

Breakdown by countries of origin of the total numbers
Syria
Iraq
TurkeyAghanistan
Nigeria
Iran
Undetermined
Somalia
EritreaGeorgia

41,094
15,348
11,423
11,306
10,533
9,498
4,228
4,154
3,743
3,880

14,210
5,550
6,497
4,188
2,466
4,392
1,975
1,618
1,421
642

22,705
4,639
4,871
1,734
446
1,906
2,189
1,663
2,125
4

15,173
705
39
480
93
133
328
319
858
1

Source: BAMF, Aktuelle Zahlen December 2019, available in German at: https://bit.ly/3iO0nv8, 3; BAMF, Asylgeschäftsstatistik 12/2019; Federal Government, Response to information
request by The Left, 19/18498, 2 April 2020, 4.

In addition, a “humanitarian status” (impediment to deportation) was granted in 5,857 cases (4.7%). The figures presented in the table above represent the “adjusted
protection rates” (bereinigte Schutzquoten). This means that “formal decisions” are not taken into account. There were 59,591 “formal decisions” in 2019, in which
the applications were rejected as “inadmissible” or in which the asylum procedure was terminated for other reasons. In all of these cases, the substance of the casewas not examined by the asylum authorities. In contrast, official statistics usually represent the “overall protection rate” (Gesamtschutzquoten), which is determinedby including the formal decisions. The overall protection rates for 2019 are:- Refugee rate: 24.5%, Subsidiary protection rate: 10.6%, “Humanitarian status”: 3.2%, Rejection: 29.4%, Formal decisions: 32.4%.

1

BAMF, Asylzahlen, available in German at: http://bit.ly/2mb014E.

Gender/age breakdown of the total number of applicants: 2019 (first applications)
Number

Percentage

Total number of applicants

142,509100%

Men

42,69630%

Women28,392

19.9%

Children

71,421

50.1%

Unaccompanied children

2,632

1.8%

Source: BAMF, Aktuelle Zahlen, December 2019, available in German at: https://bit.ly/3iO0nv8, 8; Federal Government, Response to information request by The Left, 19/18498, 2
April 2020, 36. Note that the figures on unaccompanied children is part of the number on children.

Comparison between first instance and appeal decision rates: 2019 (“adjusted decision rates”, excluding formal decisions):
First instanceAppealNumber

Percentage

Number

Percentage

Total number of decisions

124,363

100%

84,324100%

Positive decisions

70,32956.6%

22,302

26.4%

Refugee status

45,053

36.2%

8,956

10.6%

Subsidiary protection

19,419

15.6%

2,484

2.9%

humanitarian status

5,857

4.7%

10,862

12.9%

Negative decisions

54,03443.4%

62,022

73.6%

Source: BAMF, Aktuelle Zahlen Dezember 2019, available at: https://bit.ly/3iO0nv8, 3, and Federal Government, Response to information request by The Left, 19/18498, 2 April
2020, 45.

Overview of the legal framework
Main legislative acts relevant to asylum procedures, reception conditions, detention and content of protection
Title in English

Original Title (DE)Abbreviation

Asylum Act

Asylgesetz

AsylG

Residence Act

Aufenthaltsgesetz

AufenthG

Asylum Seekers’ Benefits Act

Asylbewerberleistungs-gesetz

AsylbLG

Basic Law (German Constitution)

Grundgesetz

Act on Procedures in Family Matters and in Mattersof Voluntary Jurisdiction

Gesetz über das Verfahren in Familiensachen und in den
Angelegenheiten der freiwilligen Gerichtsbarkeit

GG
FamFG

Web Link
http://bit.ly/1K3bGbv (DE)
http://bit.ly/2tZaS9E (EN)
http://bit.ly/1SiAxKm (DE)
http://bit.ly/1M5sZvW (EN)
http://bit.ly/1yuVyOx (DE)
http://bit.ly/1Twi9QM (DE)
http://bit.ly/1Rteu8M (EN)
http://bit.ly/1HAT3Yv (DE)
http://bit.ly/1M117bo (EN)Main implementing decrees and administrative guidelines and regulations relevant to asylum procedures, reception conditions, detention and content
of protection
Title in English

Original Title (DE)Abbreviation

Web Link

Regulation on Residence

Aufenthaltsverordnung

AufenthV

http://bit.ly/1eVh0mp (DE)Regulation on Employment

Beschäftigungsverordnung

BeschV

http://bit.ly/2nhb2B0 (DE)Overview of the main changes since the previous report update
The report was previously updated in March 2019.

Covid 19 related measures
Please note that this report has largely been written prior to the outbreak of COVID-19 in Germany.
Subsequently measures have been taken which impact the situation of asylum seekers andbeneficiaries of international protection. While these measures have not been inserted throughout the
AIDA report, this box aims to present some of the main measures applied as of 30 June 2020:❖ Access to the procedure: In the second half of March 2020, the BAMF generally did not registerasylum applications. Since April 2020, asylum applications have to be submitted using a form inorder to minimise personal contacts with staff members.
❖ Examination of applications for international protection: Interviews in the asylum procedure
were suspended for most cases. According to the BAMF, a limited number of interviews can now
be carried out in specially equipped rooms in which health protection measures can be observed.
Negative decisions were not handed out to asylum seekers between April 2020 and 11 May 2020,
in order to take into account the difficulties to contact lawyers or NGOs.
❖ Reception conditions: No country-wide regulations were in place, so the prevention andmanagement of COVID-19 outbreaks in accommodation centres lay with Federal States andmunicipalities. Some courts have ruled that the obligation for asylum seekers to stay in collective
accommodation centres had to be lifted, but other courts have upheld this obligation.
❖ Detention: Pre-deportation detention centres were not closed, but according to reports many
persons were released when it became evident that a deportation could not be carried out in thenear future. For example, media reported that all detainees were released from the detention centre
in Hannover-Langenhagen (Federal State of Lower Saxony) as early as March 2020, but in thefacility of Büren (North-Rhine Westphalia) several dozen persons were still in detention in May
2020.
❖ Suspension of Dublin transfers: Dublin transfers were suspended from 18 March 2020 onwards.
The BAMF also decided to suspend the time-limit for transferring the applicants, so that Germany
does not become responsible for the asylum procedure while transfers are suspended. Asylum
seekers affected by this practice were notified accordingly. Some courts have decided in summary
proceedings that the time-limit cannot be interrupted as announced by the BAMF. This would meanthat the time-limit for transfers could expire in many cases.

The year 2019 was marked by an extensive reform of German asylum and migration legislation. Sevenlaws were enacted as part of the so-called “migration package” in July 2019 and introduced numerouschanges to the Asylum Act (Asylgesetz), the Residence Act (Aufenthaltsgesetz), the Asylum Seekers
Benefits Act (Asylbewerberleistungsgesetz) and several other accompanying laws. Some of the mostnotable amendments include the following:
Asylum Procedure❖ Provision of information: A state-run counselling service for asylum-seekers shall be established in
all initial reception centres. This service is supposed to provide general information to asylum seekers
about the proceedings but it does not amount to legal advice.

11❖ Medical reports: Medical grounds brought forward in the asylum procedure must now be verified
through a comprehensive medical certificate.
Reception conditions❖ Obligation to stay in initial reception centres: In general, asylum seekers are now obliged to stay
in initial reception centres (Aufnahmeeinrichtungen) for a maximum period of 18 months. Some
exceptions which allow for an extension of this period for certain groups of asylum seekers (especiallypersons from safe countries of origin) remain in place. An important new exception applies to children
and their families, for whom a maximum period of six months is now foreseen. Prior to theamendment, the duration of stay in initial reception centres had been limited to 6 months for mostasylum seekers.
❖ Access to the labour market: Asylum seekers who are obliged to stay in initial reception centres are
excluded from the labour market for a period of nine months.
❖ Access to benefits: Asylum seekers’ benefits have been reduced for single adult persons living incollective accommodation centres. Access to social benefits has improved for asylum seekers whostart vocational training.
❖ Reduction and withdrawal of benefits: Authorities may reduce and even withdraw asylum seekers’
benefits based on a range of newly introduced reasons. For example, reductions may now be
imposed for the following groups:◦ asylum seekers who do not immediately apply for asylum following their arrival in Germany;◦ asylum seekers who do not comply with obligations in connection with the clarification of theiridentities (e.g. obligation to be fingerprinted and obligation to hand over smartphones);◦ asylum seekers who do not comply with the obligation to stay in a place of residence assigned tothem by the authorities;◦ a complete withdrawal of benefits is now possible for asylum seekers who have been granted
international protection in another European state.
Detention of asylum seekers❖ Grounds for detention: The authorities continued to face criticism for their failure to carry out
deportations as a total of 32,482 deportations (i.e. returns or Dublin transfers) which had beenscheduled in 2019 did not take place. The government was unable to state the reasons for the failureof deportations in the overwhelming majority of cases. Nevertheless, the focus in the political debate
remained on deportations which supposedly failed as a result of absconding. As a result, a reform
was carried in August 2019 to improve the enforcement of the obligation to leave the country. The
new measures include (i) increased powers for law enforcement authorities to access apartments forthe purpose of deportation; (ii) new criteria to order detention based on an alleged risk of absconding– such as the refusal to cooperate in obtaining travel documents or the non-compliance with
instructions of the authorities.(iii) a new ground for detention to enforce the ‘obligation to cooperate’with the authorities’ and (iv) the possibility to hold pre-removal detainees in regular prisons until June
2022.
Content of international protection❖ Place of residence for beneficiaries of international protection: The obligation for persons withprotection status to take up residence in a particular Federal State or town for three years(Wohnsitzregelung pursuant to Section 12a Residence Act) has become permanent. This provision
had been introduced in 2016 as a temporary measure and was supposed to run out in 2019, but it
has been extended permanently instead.

12

Other legal issues
In addition to these legislative developments, several issues with a crucial impact on the outcome of manyasylum procedures were of high importance in 2019. Some of the most prominent are:❖ Family reunification: Significant problems were noted in the context of family reunification of asylum
seekers living in another European state (such as Greece and Italy) with family members in Germany
pursuant to the provisions of the Dublin regulation. Several issues are also reported in family
reunification procedures with family members trying to join a beneficiary of protection in Germany.
This includes a lack of coordination among the relevant authorities (i.e. local authorities, the Federal
Administrative Office, embassies, consulates, IOM), an increase in the number of pending family
reunification procedures, and waiting periods that can reach up to a year or more. The length of family
reunification procedures raises particular concern when it comes to unaccompanied children, as
Courts have argued that their right to family reunification may end once they become adults.
Nevertheless, courts have also repeatedly urged the authorities to prioritise family reunification
procedures of unaccompanied minors who are about to turn 18 years old.
❖ Legal issues were reported concerning persons who have been granted international protection inanother European State and admissibility of asylum applications of these persons.

❖ Revocation and withdrawal of protection status: A new provision introduced in 2019 has extended
the period for so-called “revocation examination procedures” from three years to four or five years
after a protection status has been granted. This affects cases in which protection status was granted
between 2015 and 2017. In 2019, the BAMF carried out 170,406 of these “revocation examination
procedures”, which doubles the number of such procedures recorded in 2018 (85,502) and marks anenormous increase compared to 2017 where only 2,527 revocation procedures were carried out. In
the vast majority of the 2019 “revocation examination procedures”, the BAMF found no reason to
revoke or withdraw the protection statuses (96.7%). However, the total number of revocation orwithdrawal decisions must not be underestimated as it concerned a total of 5,610 persons in 2019.
High proportion of “family protection” cases
Around 80% of persons recognised as refugees in Germany in 2019 were granted protection statusbecause they were family members (spouses or minor children) of a person who had been granted
protection status before. The proportion of such “family projection” decisions has increased dramaticallyin recent years. In more than 50% of these cases, protection was granted to children who were born inGermany.
The high percentage of asylum procedures which were carried out for children born in Germany also had
an impact on asylum statistics. Since the autumn of 2019, the Federal Ministry of the Interior distinguishes
between the total number of (first) asylum applications and the number of “formal border-crossing
applications”. The new statistics show that more than 31,000 applications were lodged for children bornin Germany. Accordingly, out of the total number of 142,509 applications, only 111,094 asylum applications
are considered to be “border crossing” applications.

13Asylum Procedure
A. General
1. Flow chart

Application on the territory
BAMF

Application at the airport
BAMF

Manifestly
unfounded (2 days)

Accelerated
procedure(1 week)
BAMFRegular procedure(including Dublin)
BAMF

Refugee status
Subsidiary protection
Humanitarian protection

Rejection

Manifestly unfounded

Inadmissible

Suspensive
Non-suspensive
AppealAdministrative Court

Appeal(exceptional cases)
High Administrative
Court

Revision(points of law)
FederalAdministrative Court

14

2. Types of procedures
Indicators: Types of Procedures
Which types of procedures exist in your country?
❖ Regular procedure:
Yes▪ Prioritised examination:2
Yes▪ Fast-track processing:3
Yes❖ Dublin procedure:Yes❖ Admissibility procedure:
Yes❖ Border procedure:Yes❖ Accelerated procedure:4
Yes

No
No
No
No
No
No
No

Are any of the procedures that are foreseen in the law, not being applied in practice?

Yes

No

3. List of authorities intervening in each stage of the procedureStage of the procedure

Competent authority (EN)

Competent authority (DE)Application at the border

Federal Police

Bundespolizei

Federal Office for Migration andRefugees (BAMF)
Federal Office for Migration andRefugees (BAMF)
Federal Office for Migration andRefugees (BAMF)

Bundesamt für Migration undFlüchtlinge (BAMF)
Bundesamt für Migration undFlüchtlinge (BAMF)
Bundesamt für Migration undFlüchtlinge (BAMF)

Federal Office for Migration andRefugees (BAMF)

Bundesamt für Migration undFlüchtlinge (BAMF)

Application on the territory
Dublin procedure
Airport procedure
Refugee statusdetermination
Appeal• First appeal• Second appeal• Final appeal
Subsequent application(admissibility)•••

Administrative Court
High Administrative Court
Federal Administrative Court••

Verwaltungsgericht
Oberverwaltungsgericht or
Verwaltungsgerichtshof
Bundesverwaltungsgericht•

Federal Office for Migration andRefugees (BAMF)

Bundesamt für Migration undFlüchtlinge (BAMF)

4. Number of staff and nature of the first instance authority
Name in English

Number of staff

Ministry responsible

Federal Office forMigration andRefugees (BAMF)

6,980 (about 3,600
full-time positions invarious asylum
departments)

Federal Ministry ofInterior

Is there any politicalinterference possible by
the responsible Ministerwith the decision making
in individual cases by the
first instance authority?
Yes

No

The BAMF is responsible for examining applications for international protection and competent to takedecisions at first instance.

2

3
4

For applications likely to be well-founded or made by vulnerable applicants. See Article 31(7) recast Asylum
Procedures Directive.
Accelerating the processing of specific caseloads as part of the regular procedure.
Labelled as “accelerated procedure” in national law. See Article 31(8) recast Asylum Procedures Directive.

15

The BAMF has branch offices in all Federal States. The branch offices process the asylum procedures,
but also carry out additional tasks (for instance, they function as contact points for authorities andorganisations active in the area of integration of foreign nationals). In cooperation with the Federal States,
the BAMF manages a distribution system for asylum seekers known as Initial Distribution of Asylum
Seekers (Erstverteilung der Asylbegehrenden, EASY) system, which allocates places according to aquota system known as “Königsteiner Schlüssel”. The quota is based on the size and the economic
strength of the Federal States in which the centres are located. Furthermore, the system takes into
account which branch office of the BAMF deals with an asylum seeker's country of origin.
As of February 2020, the BAMF had 6,980 positions or “full-time job equivalents” (meaning that the actual
number of staff is likely to be much higher, since many of these positions are shared by people working
part-time). Since the office is responsible for several other tasks on top of the asylum procedure (e.g.
research, integration), not all staff members are working in the area of asylum.
The government provided the following numbers for positions in the relevant departments:5- asylum department (excluding revocation and Dublin procedures): 1,998 full-time equivalents- revocation procedures: 830.3 full-time equivalents- procedures (appeal procedures, representation of the BAMF in court): 370.6 full-time
equivalents- quality management: 223.5 full-time equivalents- Dublin-procedures: 174.4 full-time equivalents
In total, this amounts to 3,596.8 full-time equivalents for jobs in the departments which deal with asylum
procedures.
Quality
The quality of BAMF asylum decisions has been much debated in recent years given the high number of
appeals filed at the courts, but also because of “scandals” which prompted extensive media coverage. In
2017, one of these cases became known as the “Franco A. scandal”. It concerned a German soldier who
had successfully posed as a Syrian refugee, allegedly preparing a terrorist attack. 6 In 2018, alleged
irregularities at a branch office of the BAMF in the Federal State of Bremen triggered the “BAMF-affair”:
According to allegations (partly from staff members of the Bremen branch office), the office had takenover a high number of cases for which it had not been responsible and had unlawfully granted refugee
status to up to 1,200 asylum seekers. These reports resulted in re-examinations of tens of thousands ofdecisions. According to preliminary results of the revision, it appears that the allegations in the “BAMFaffair” have been wildly exaggerated: out of 43,298 cases which were re-examined in the first half of 2018,
only 309 (0.7%) resulted in a revocation of a protection status, while the original decision taken by the
BAMF was confirmed in more than 99% of cases (see Cessation and Review of Protection Status).7
In the course of the debate on the quality of BAMF decisions, it turned out that many decision-makers
had not been fully qualified as they had not completed the training modules which the BAMF provides aspart of its in-house training programme. According to a media report, based on information submitted by
the BAMF, 454 decision-makers had not received any kind of relevant training in May 2017, although mostof them had been handling asylum applications for many months at the time. As of February 2018, thenumber of decision-makers without any relevant training had been reduced to 36, according to the report.

567

Federal Government, Response to information request by The Left, 19/18498, 2 April 2020, 66.
Deutsche Welle, ‘German soldier charged with plotting to kill politicians while posing as refugee’, 12 December
2017, available at: http://bit.ly/2FVuyRy.
Federal Government, Reply to parliamentary question by The Left, 19/3451, 19 July 2018, available inGerman at https://bit.ly/2O4R3nV; Süddeutsche Zeitung, ‘Nur wenige Flüchtlinge haben Bleiberecht
erschlichen’, 20 August 2018, available in German at https://bit.ly/2MsHLED.

16

Nevertheless, 769 out of 2,139 staff members who were deciding on asylum applications as of February
2018 had not completed the full training programme.8
According to the BAMF, training measures at the in-house qualification centre had fully resumed by 2019.
Newly employed decision-makers had to complete a 12-week course which included the following
modules:9• Refugee law,
• Interview techniques• Preparation of decision-making• Data protection• Dublin system• Cooperation with security services• Information service point and Database Medical Country of Origin Information (MedCoi)• Physical/technical examination of documents
In addition, the following EASO-ETC core modules were used for training of all decision-makers:• Granting of protection• Interview techniques• Assessment of evidence
Furthermore, there are other training schemes available for persons who already work as decisionmakers. These are carried out on a “regular basis” according to the BAMF and consist of the following
modules.
• Interviewing children• interviewing vulnerable Persons• Gender, Gender Identity and sexual Orientation
This information provided by the BAMF suggests that there has been a clear improvement of the situation
at the office in comparison to the years 2016 and 2017.
5. Short overview of the asylum procedure
If migrants report at the border while trying to enter Germany without the necessary documents, entry to
the territory may be refused on the grounds that the migrant has travelled through a “safe third country”.
However, if they apply for asylum, they would in most cases have to referred to the Federal Office forMigration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF).
Since August 2018, asylum seekers can also be denied entry at the Austrian-German land border if theauthorities are able to demonstrate within 48 hours that they have already applied for asylum in Greeceor Spain. In these cases, the transfer to the concerned Member state is not based on the Dublin
Regulation but on administrative arrangements between Germany and these countries. 10 Between August
2018 and October 2019, only 40 forced returns took place on the basis of these agreements and theAdministrative Court of Munich raised serious doubts about the legality of the new procedure in a decisionof August 2019.11

8

9

10

11

Wirtschaftswoche, ‘Eine Behörde arbeitet für die Statistik’, 4 February 2018, available in German at:
http://bit.ly/2oSbU2f.
BAMF, Response to information request, e-mail from “Zentrale Ansprechstelle” (central contact point), 28
August 2019; see also: Federal government, Response to parliamentary question by The Left, 6 June 2019,19/10733, 13.
ECRE, Bilateral Agreements: Implementing or Bypassing the Dublin Regulation?, December 2018; available
at: https://bit.ly/2GgVoEf.
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/.

17

Asylum seekers who arrive at an international airport without the necessary documents may be subject
to the airport procedure (Flughafenverfahren), dependent on whether the necessary facilities exist at
the airport. It is then decided in an accelerated procedure whether they will be allowed to enter the territory
or not.
Unless entry is denied at the border or at the airport, a regular procedure usually takes place. Applications
have to be lodged at the BAMF.
Regular procedure
According to the law, asylum seekers should be accommodated in an initial reception centre(Aufnahmeeinrichtung) for a maximum period of 18 months during the first stage of their asylum
procedures. Many asylum seekers do not stay in the initial reception centres for the whole 18 months,
since they are sent to other locations once a decision on the asylum application has been issued.
Furthermore, the maximum period is generally reduced to six months for families with children. As ageneral exception, however, asylum seekers from safe countries of origin are obliged to stay in initialreception centres for the whole duration of their procedures. Furthermore, Federal States may extend the
maximum period to 24 months for certain groups of asylum seekers, but it is not clear whether thisprovision is applied in practice at the moment in any Federal State.
The initial reception centres are usually located on the same premises as the branch office of the BAMF.
Following the initial reception period, most asylum seekers are sent to local accommodation centres
where they have to stay for the remaining time of their procedures. The obligation to stay in suchdecentralised accommodation centres also applies to the whole length of possible appeal procedures, butthere are regional differences with some municipalities also granting access to the regular housing market.
“Arrival centres” are a form of initial reception centres set up in different locations in Germany, where
various authorities are located on the same premises processes such as registration, identity checks, theinterview and the decision-making are “streamlined”.
In addition, “arrival, decision and return” (Ankunft, Entscheidung, Rückführung, AnkER) centres were
established in August 2018. The main purpose is to centralise all activities at one location and to shorten
the asylum procedure, which is a concept that was already applied in the “arrival centres” across Germany
and in “transit centres” set up in three locations in Bavaria (Manching/Ingolstadt, Regensburg,
Deggendorf). Most Federal States have not participated in the AnkER centres scheme. At the end of 2019,
only three Federal States (Bavaria, Saxony and Saarland) had agreed to establish AnkER centres, inmost cases simply by renaming their existing facilities.
In any case, both arrival centres and AnkER centres are part of administrative concepts which are notdefined in the law and it is therefore up to the Federal States and the BAMF to define in individual
agreements how these centres operate. This means that there are no general standards, but the common
feature is that various processes such as registration, identity checks, the interview and the decisionmaking are supposed to be “streamlined” both in the arrival centres and the AnkER-centres. However,fast-tracking of procedures in this manner must not be confused with the accelerated procedure which
was introduced in March 2016 in the law.
Accelerated procedure
An accelerated procedure can be carried out inter alia for asylum seekers from safe countries of origin
and for asylum seekers who have deliberately misled the authorities about their identity. Asylum seekers
whose applications were processed in the accelerated procedure shall be accommodated in “special
reception centres” (besondere Aufnahmeeinrichtung) in which they have to stay for the duration of theaccelerated procedure, where a decision must be taken by the BAMF within seven days. However, at theend of 2018, the two special reception centres existing in Bamberg and Manching/Ingolstadt had been18

transformed into AnkER centres, and it is not clear whether the accelerated procedure continues to be
applied therein. Furthermore, at least one facility in North Rhine-Westphalia was also designated as a
special reception centre in 2018, but it is not clear if and how accelerated procedures are carried out inthere. In any case, the accelerated procedure does not play a significant role in the German asylum
system and no figures are provided by the authorities as to how many accelerated procedures have been
carried out since its introduction.
First instance decision
Once the asylum procedure has started, the BAMF has to decide whether an asylum seeker is entitledto:
1. Constitutional asylum, restricted to people persecuted by state actors for political reasons;
2. Refugee status according to the 1951 Refugee Convention and to the Qualification Directive;
3. Subsidiary protection; and/or
4. Other forms of protection, called prohibition of deportation (Abschiebungsverbot).
The other forms of protection include a national protection status for people at risk of “substantial andconcrete danger to life and limb or liberty”. In principle, this latter status might apply to any such threat,
including risks emanating from ill health or from destitution, but case law has narrowed the scope of thisprovision to instances of “extreme risk”, i.e. cases in which an applicant would face “certain death or mostserious harm” upon return.
In a high number of cases, which amounted to 59,591 cases in 2019 (32.9%), a “formal decision” –including inadmissibility decisions – was taken, which means that the case was closed without an
examination of the asylum claim’s substance.12 In many instances such formal decisions are issued
because another state was found to be responsible for the asylum application under the Dublin
Regulation. Furthermore, decisions not to carry out follow-up procedures in cases of second or further
asylum applications are qualified as inadmissibility decisions since 2016.
AppealAn appeal against the rejection of an asylum application has to be submitted to a regular Administrative
Court (Verwaltungsgericht, VG). The responsible Administrative Court is the one with regional
competence for the asylum seeker's place of residence. Appeals generally have suspensive effect, unlessthe application is rejected as “manifestly unfounded” or as “inadmissible” (e.g. in Dublin cases). In thesecases applicants may ask the court to restore suspensive effect, but they only have one week to submit
the necessary request, which must be substantiated.
The decision of the Administrative Court is usually final in asylum procedures. Further appeals to higher
courts are possible only in exceptional circumstances, e.g. if the case is of fundamental importance or if
the Administrative Court's decision violates basic principles of jurisprudence.

12

In the previous years the numbers were as follows: 109,476 (18.1%) in 2017; 87,697 (12.6%) in 2016 and50,297 (17.8%) in 2015.

19

B. Access to procedure and registration
1. Access to the territory and push backs
Indicators: Access to the Territory
1. Are there any reports (NGO reports, media, testimonies, etc.) of people refused entry at theborder and returned without examination of their protection needs?
YesNo
2. Is there a border monitoring system in place?

Yes

No

The law states that asylum seekers who apply for asylum at the border have to be referred to an initialreception centre for asylum seekers.13 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 theneighbouring country (as Safe Third Country) is possible.14
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 appliedin all cases: even if migrants have crossed the border - which is defined as a 30 km strip on the basis ofa legal fiction laid down in the Residence Act - they have not necessarily entered the territory, 15 and it ispossible 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 toAustria, although it had not been clarified whether they intended to apply for asylum in Germany. 16 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 ofpeople 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 thatthe 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.17 The government clarified in 2017 that
Dublin procedures at the borders are conducted by the BAMF (see Dublin: Procedure).
In 2018, following 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. nolegislative changes were implemented. In 2019, it was only applied to the Austrian-German border, as thiswas 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 theFederal Ministry of the Interior, refusals of entry are possible if it can be immediately established with thehelp of a Eurodac “hit” which proves that the person trying to cross the border and seeking protection inGermany has already applied for asylum elsewhere. An immediate return then has to take place within
48 hours.18 These returns are therefore not based on the Dublin Regulation, but on a refusal of entry

13
14
15
16

17
18

Section 18 (1) Asylum Act.
Section 18(2) Asylum Act and Sections 14 and 15 Residence Act.
Section 13(2) Residence Act.
See e.g. ZDF, ‘Ein Jahr Grenzkontrollen in Deutschland’, 13 September 2016, available in German at:
http://bit.ly/2nG9y3u.
Information provided by the Federal Police Head Office, 23 February 2017.
Federal Ministry of the Interior, ‚Zurückweisung an der Grenze‘, 9 August 2018, available in German at:https://bit.ly/2T5vHHL.

20

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 thereadmission agreement with Greece is described as follows: 19 an Afghan asylum-seeker wasapprehended 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 inGermany, he was not referred to the BAMF, but the Federal Police issued a formal notification of “refusalof entry”, based on the grounds that Greece was obliged under the Dublin III Regulation to take chargeof 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, witha reference to the German-Greek agreement. The Greek authorities confirmed receipt of this notificationand 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.20 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.21 The responsible court for these cases was the Administrative Courtof 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 themain 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. 22-

On the contrary, in a second decision of 8 August 2019, another judge of the Administrative Court ofMunich ordered the German Federal Police to bring back the asylum seeker from Greece.23 In thisdecision, the Administrative Court expressed important doubts about the legality of the returnprocedure 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 theGerman 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 mainproceedings.24

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 andOctober 2019, only 40 persons were returned (38 returns to Greece and 2 to Spain) on the basis of the
19

20

21

22

23

24

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/.
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 »SeehoferAbkommen« mit unionsrechtlichen Vorgaben zum effektiven Rechtsschutz, 6 December 2018,available inGerman at: https://bit.ly/2VyPGQq; ECRE, Bilateral Agreements: Implementing or Bypassing the Dublin
Regulation?, December 2018, available at: https://bit.ly/2GgVoEf.
As of October 2019 according to the Federal Government, Response to parliamentary question by The Left,
19/13857, 9 October 2019, 5-6.
Administrative Court Munich, Decision M 5 E 19.50027, 9 May 2019; See: asyl.net: M27257, available inGerman at: https://www.asyl.net/rsdb/m27257/.
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/.
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.

21

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 25
Therefore, the political debate over the return procedures at the border, which had even triggered agovernment crisis in 2018, has been described as “absurd” in retrospect.26

2. Registration of the asylum application
Indicators: Registration
1. Are specific time limits laid down in law for making an application?
❖ If so, what is the time limit for lodging an application?

Yes

No

2. Are specific time limits laid down in law for lodging an application?
❖ If so, what is the time limit for lodging an application?

Yes

No

3. Are registration and lodging distinct stages in the law or in practice?

Yes

No

4. Is the authority with which the application is lodged also the authority responsible for its
examination?
Yes
No

1.1. Making and registering the application
Irrespective of special regulations which apply in the border region only, most applications are made byasylum seekers who have already entered the territory. Under these circumstances the law obliges asylum
seekers to “immediately” report to a “reception facility” (Aufnahmeeinrichtung). Alternatively, they canreport to a police station or to an office of the foreigners’ authorities.27 Following this first contact with theauthorities, the asylum application has to be filed “immediately”. There is no strict definition of an“immediate” application and there are no exclusion rules for applications which are filed at a later date.
However, a delay in filing the application may be held against the asylum seeker in the course of theasylum procedure, unless reasonable justification for the delay is brought forward.
Once asylum seekers have reported to the “reception facility” mentioned above, they have to be issued
an “arrival certificate” (Ankunftsnachweis). Afterwards, the responsible branch office of the BAMF isdetermined with the help of distribution system known as Initial Distribution of Asylum Seekers(Erstverteilung der Asylbegehrenden, EASY). This distribution system allocates places according to aquota system known as “Königsteiner Schlüssel” based on the reception capacities of the Federal States.
These capacities are determined by taking into account the size and the economic strength of the Federal
States. Furthermore, the EASY-system takes into account which branch office of the BAMF deals with theasylum seeker's country of origin (see section on Freedom of Movement).28 It is possible that the EASYsystem assigns a place in the facility to which asylum-seekers have reported. In this case, they arereferred to the BAMF office, often located on the same premises or nearby, for the registration of theasylum application. If the EASY-system assigns a facility located in another region, asylum-seekers aretransported to this facility or are provided with tickets to travel there on their own.
While the BAMF is responsible for the processing of the asylum application, responsibility for the reception
and accommodation of asylum-seekers lies with the Federal States. Therefore, the regional branch officesof the BAMF are usually assigned to an initial reception centre managed by the Federal State. Both branch
office and initial reception centre may in turn be parts of an “arrival centre” (Ankunftszentrum) or of an“AnkER-centre” (AnkER-Zentrum). The organisational structure and the denomination of these institutions
25

26
27
28

Federal Government, Response to parliamentary question by The Left, 19/3451, 19 July 2018, available inGerman at: https://bit.ly/2O4R3nV; Süddeutsche Zeitung, ‘Nur wenige Flüchtlinge haben Bleiberecht
erschlichen’, 20 August 2018, available in German at https://bit.ly/2MsHLED.
Süddeutsche Zeitung, Der Streit war absurd, 3 November 2019, available in German at: https://bit.ly/3011Y8e.
Section 13 Asylum Act.
BAMF, Asylum and refugee protection, available at: http://bit.ly/1O5qPus.

22depends on the way the Federal States have organised the reception system and how they cooperatewith the BAMF at the respective location.
Only the BAMF is entitled to register an asylum application. Hence asylum seekers reporting to the police
or to another authority will be referred to the BAMF and they do not have the legal status of asylum
seekers as long as they have not arrived at the responsible branch office of the BAMF and until theirapplications have been registered. Asylum seekers are obliged to appear in person without delay or on
the date determined by the authorities at the responsible branch office of the BAMF. Asylum seekers who
fail to comply with this obligation face the sanction of “failure to pursue” the asylum procedure. The asylum
procedure thus can be abandoned before it has begun. 29 Problems with delayed registration of
applications for which the authorities were responsible have not been reported in recent years.

1.2. Lodging the application
Once they arrive in the responsible branch office of the BAMF, which may be a part of an arrival centre oran AnkER centre, asylum seekers lodge their application with the BAMF. Following the lodging of theapplication, they are issued a “residence permit for asylum seekers” (Aufenhaltsgestattung). With thisdocument, the arrival certificate ceases to be valid and has to be retracted by the authorities.

C. Procedures
1. Regular procedure

1.1. General (scope, time limits)
Indicators: Regular Procedure: General
1. Time limit set in law for the determining authority to make a decision on the asylum application
at first instance:None
2. Are detailed reasons for the rejection at first instance of an asylum application shared with theapplicant in writing?
Yes
No
3. Backlog of pending cases at first instance of 31 December 2019:57,012The competent authority for the decision-making in asylum procedures is the BAMF. Its functions andduties include coordination of integration courses or research on general migration issues. The BAMF
also acts as national administration office for European Funds in the areas of refugees, integration andreturn (see Number of staff and nature of the first instance authority).
Time limits
The law does not set a time limit for the BAMF to decide on an application. If no decision has been taken
within 6 months, the BAMF has to notify asylum seekers upon request about when the decision is likely
to be taken.30
The overall number of pending applications at the Federal Office was 57,012 at the end of 2019. This
number is roughly on the same level as it was at the end of 2018 (58,325 pending applications in 2018,thus representing a decrease of 2.3%).31

29
30
31

Sections 20, 22 and 23 Asylum Act.
Section 24(4) Asylum Act.
BAMF, Aktuelle Zahlen, December 2019, available in German at: https://bit.ly/2XL4gsp. .

23

In 2019, procedures at the BAMF took 6.1 months on average. This average time is similar to previous
years, with the exception of the year 2017 during which the average time was 10.7 months. The BAMF
had explained that the increase in 2017 was due to the backlog of cases, which were eventually processedin 2017.32 As regards the average time of asylum procedures until a final decision is issued (i.e. including
possible court procedures), it was 17.6 months in 2018 according to the government – but no comparable
figures were available for the year 2019.
For the years 2013 to the mid-year 2019, statistics show significant variation in length of procedures,
depending on the countries of origin of asylum seekers:
Average duration of the procedure (in months) per country of origin

All countries

2013

2014

2015

2016

2017

2018

2019
(mid-year)

7.2

7.1

5.2

7.1

10.7

7.5

5.9

Serbia

2.1

4

4.2

8.9

:

3

2.3

Afghanistan

14.1

13.9

14.0

8.7

11.9

10.6

6.3

Syria

4.6

4.2

3.2

3.8

7.0

4.9

5.1

Iraq

9.5

9.6

6.8

5.9

9.1

6.0

5.6

North
Macedonia

2.4

5.3

4.5

:

:

2.6

2.0

Iran

13

14.5

17.1

12.3

10.3

6.3

5.5

Pakistan

15

15.7

15.3

15.5

13.9

10.6

5.2

Russia

5.6

10

11.8

15.6

15.7

12.9

8.5

Source: Federal Government, Reply to parliamentary questions by The Left: 18/705, 5 March 2014; 18/3580, 28
January 2015; 18/7625, 22 February 2016; 18/11262, 21 February 2017, 19/1631, 13 April 2018; 19/13366, 19
September 2019 (detailed statistics for countries of origin not available for the whole year of 2019)..

Since 2016, branch offices of the BAMF are entitled to set their own priorities in dealing with caseloads,
in order to respond effectively to the local situation. 33 “Clustering” of cases, which had been introduced inlate 2015 and which meant that both caseloads with an alleged high and those with an alleged low successrate would be prioritised, does not take place anymore. 34

1.2. Prioritised examination and fast-track processing
Arrival centres (Ankunftszentren)
The arrival centres (Ankunftszentren) were introduced in December 2015 with the aim of fast-tracking
procedures. For this purpose, federal authorities (in particular, the branch offices of the BAMF) andregional authorities shall closely cooperate in the centres. At the beginning of 2020, 20 out of 58 branch
offices of the BAMF were integrated in arrival centres in 14 different Federal States. 35 The concept ofarrival centres is not based in law but has been developed by business consultants under the heading“integrated refugee management”.36 Accordingly, this method for fast-tracking of procedures must not be
confused with the Accelerated Procedure introduced into law in March 2016.
32

33
34
35

36

Federal Government, Response to parliamentary question by The Left, 19/1371, 22 March 2018, 42; 18/11262,
21 February 2017, 13.
Federal Government, Response to parliamentary question by The Left, 18/9415, 17 August 2016, 23.
Information provided by the BAMF, 23 January 2018.
BAMF, Locations, , https://bit.ly/3dFTd8w, lists 58 “branch offices” and “regional offices” , with some offices
having both functions. The official list still refers to two “arrival centres” in the Federal State of Saxony(Chemnitz and Leipzig), although these facilities were renamed as “AnkER-centres”, according to otherreports.
These include McKinsey, Roland Berger and Ernst & Young: BAMF, ‘Viele helfende Hände – für den
gemeinsamen Erfolg’, 22 March 2016, available in German at: http://bit.ly/2Hbd1Ru. See further Washington

24

In the arrival centres, tasks of various authorities are “streamlined”, such as the recording of personaldata, medical examinations, registration of the asylum applications, interviews and decision-making. Apartfrom a general concept for the “streamlining” of procedures, there is no detailed country-wide concept for
the handling of procedures in arrival centres. Rather, the way the various authorities cooperate in thecentres is based on agreements between the respective Federal States (responsible for reception andaccommodation), the BAMF branch office (responsible for the asylum procedure) and other institutions
present in the facilities (such as medical and social services).
The procedure, as it was developed at the Berlin arrival centre, was described in detail by the Berlin
Refugee Council in November 2017. According to its report, a typical fast-track procedure called “directprocedure” (Direktverfahren) in the arrival centre was supposed to lead to a decision within four days. 37
The report illustrates how asylum seekers go through the various stages of the reception procedure andthe asylum procedure within a few days and thus is still typical of a procedure in an arrival centre, although
the conditions may differ at other centres.
Day 1 Asylum seekers who report to the authorities are sent to a central accommodation centre, where
they are registered preliminarily and are given instructions on the next steps of the procedure.
Day 2 Asylum seekers have to report to the arrival centre where the following steps take place: (a)medical examination; (b) formal registration, including identification checks, possible confiscationof documents and mobile phones; (c) decision on whether the asylum procedure is to be carriedout in Berlin or in another Federal State, according to the EASY distribution system (seeRegistration).
If it has been established that the asylum procedure is to be carried out in the Federal State ofBerlin, the asylum seekers are issued an arrival certificate (Ankunftsnachweis) and given various
leaflets and instructions on the asylum procedure (see Provision of Information on the Procedure).
Asylum seekers whose procedure is carried out in Berlin are given the opportunity to speak to astaff member of the Federal State’s social services (Sozialdienst). The social services then carryout a consultation interview which lasts between 20 and 30 minutes. They also hand out further
leaflets, including information on counselling services offered by NGOs and also basic advice on
the interview in the asylum procedure published by Informationsverbund Asyl und Migration. If
the social services find that an asylum seeker has special reception needs – e.g. single women,
persons with physical disabilities or illnesses, LGBTI persons – they try to organise special
accommodation on the same day. If there are indications that an asylum seeker is suffering froma severe illness, this person is referred to further medical examinations and the interview in theasylum procedure is postponed. In other cases the social services may also inform the BAMF
that the interview should be carried out by a “special officer” (see Special Procedural Guarantees).
Furthermore, asylum seekers are handed out some cash and a travel card for local public
transport, valid for three months.
Day 3 Asylum seekers again have to report to the arrival centre where the asylum application is now
lodged with the BAMF. The arrival certificate is then replaced with the “permission to stay”(Aufenthaltsgestattung). If the “direct procedure” applies, the Personal Interview can be carriedout on the same day.
Day 4 It is possible that the decision is handed out on the fourth day. If protection is granted, a residence
permit can be applied for on the same day. If the asylum application has been rejected, staff

37

Post, ‘How McKinsey quietly shaped Europe’s response to the refugee crisis’, 24 July 2017, available at:
http://wapo.st/2HdDq0P.
Flüchtlingsrat Berlin, Das Schnellverfahren für Asylsuchende im Ankunftszentrum Berlin, November 2017,
available in German at: http://bit.ly/2HdSDzb.

25members of the authorities explain the reasons for the decision. The Berlin Refugee Council notesthat this explanation does not include any advice on appeal procedures, however. In contrast,
rejected asylum seekers may contact an advice service on voluntary return immediately.
In any case, regardless of the outcome of the procedure, asylum seekers should be referred to adifferent reception centre within the Federal State of Berlin.
The “direct procedure” described here shall only apply in “clear-cut” cases, in which protection can be‘easily’ recognised or rejected. In contrast, the regular procedure has to take place in the following
instances:▪ The facts of the case cannot be established immediately, but further examinations are necessary;▪ The applicant states he or she is not able to be interviewed for physical or mental reasons;▪ A “special officer” should be consulted but is not readily available;▪ The applicant states that a severe illness prevents him or her from returning to their country oforigin. In these cases, the applicant should be given four weeks to undergo further medical
examinations and to obtain a qualified medical report;▪ The applicant has already appointed a lawyer, in which case the interview should take place on
a date which enables the lawyer to attend;▪ The applicant falls within the scope of the Dublin procedure;▪ The applicant is an unaccompanied child.
These stages of the procedure are carried out within a few days. After that, a decision is usually handed
out within a period of few weeks up to several months. It should be noted that there are considerable
variations to the procedure in the various arrival centres. In particular, there is no common approach on
access to social services or other counselling institutions, while in many arrival centres no such accessexists. This is dependent on how the Federal States and the BAMF have organised the procedure in therespective centres.
Since 2019, the BAMF is obliged by law to offer a basic counselling service, consisting of general
information on the procedure which is supposed to be provided before the asylum application isregistered. During the procedure, asylum seekers shall also be given an opportunity to make individual
appointments with a BAMF staff member or with a welfare organisation for advice on the procedure (seeProvision of information on the procedure)
AnkER centres (AnkER-zentren)
Since August 2018, three Federal States (Bavaria, Saxony and Saarland) further established the socalled AnKER centres where not only activities relating to the asylum procedure, but also returnprocedures (in case of a rejection of the asylum application) are centralised. In Bavaria, where themajority of AnkER centres have been set up, asylum seekers are first registered in a so-called “arrival
centre”38 in Munich and are transported to an AnkER centre if the responsibility of Bavaria has been
established under the EASY system.
In a 2018 report on the situation in the AnkER centre in Bamberg, Bavaria, corroborated by findings fromthe AnkER centres in Regensburg and Manching/Ingolstadt, Bavaria in 2019,39 the procedure has been
described as follows:40
Step 1

38

39

40

The registration is carried out by the regional authorities. If no identity documents exist,
mobile phones are confiscated and checked to determine the asylum seeker’s origin. A

This form of “arrival centre” seems to a Bavarian institution, not to be confused with the arrival centres in other
Federal States which operate as a combination of reception facilities and BAMF branch offices.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
Markus Kraft: “Die ANKER-Einrichtung Oberfranken”, Asylmagazin 10-11/2018, 352-353.

26

room on the premises of the AnkER centre is assigned and medical examinations arescheduled.
Step 2

The asylum application is lodged at the BAMF. Usually prior to this, counselling on theasylum procedure by staff members of the BAMF is provided, which consists of general
information on the asylum procedure to groups of people, while individual appointments
have to be requested.

Step 3

Interview with the BAMF, usually conducted within 2-3 days of lodging. This is followedby the decision.

The average duration of the first instance procedure in the AnkER centres in 2019 has been estimated at
two months.41 As the name of the institution suggests, the AnkER centres are also supposed to implement
returns of rejected asylum seekers more efficiently, especially by establishing return counselling services
in the facilities and also by obliging rejected asylum seekers to stay in these facilities for a period of up to
24 months.42 However, these measures are not unique features of the AnkER centres and similararrangements exist in other facilities as well. It also appears that (rejected) asylum seekers stay in thesefacilities for prolonged periods (see Freedom of Movement).

1.3. Personal interview
Indicators: Regular Procedure: Personal Interview
1. Is a personal interview of the asylum seeker in most cases conducted in practice in the regularprocedure?
YesNo❖ If so, are interpreters available in practice, for interviews?
YesNo
2. In the regular procedure, is the interview conducted by the authority responsible for taking thedecision?
Yes
No
3. Are interviews conducted through video conferencing?

Frequently

RarelyNever

In the regular procedure, the BAMF conducts an interview with each asylum applicant. 43 Only in
exceptional cases may the interview be dispensed with, where:(1) The BAMF intends to recognise the entitlement to asylum on the basis of available evidence;(2) The applicant claims to have entered the territory from a Safe Third Country;44(3) An asylum application has been filed for children under 6 years who were born in Germany “andif the facts of the case have been sufficiently clarified based on the case files of one or bothparents;45 or(4) The applicant fails to appear at the interview without an adequate excuse.46
Since 2016, the law also contains a provision according to which officials from other authorities may
conduct interviews, “if a large number of foreign nationals applies for asylum at the same time”.47 This
provision has not been applied in 2019.
Interpretation

41

42
43
44

45
46
47

ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
Markus Kraft: “Die ANKER-Einrichtung Oberfranken”, Asylmagazin 10-11/2018, 355.
Sections 24 and 25 Asylum Act.
This provision is rarely applied in the regular procedure since it has usually not been established at the timeof the interview whether Germany or a safe third country is responsible for the handling of the asylum claim.
Section 24(1) Asylum Act.
Section 25 Asylum Act.
Section 24(1a) Asylum Act.

27

The presence of an interpreter at the interview is required by law. 48 The BAMF recruits its own interpreters
on a freelance basis.
Following discussions about the quality of translations during interviews, the BAMF announced in 2017that procedures for the deployment of interpreters had been revised. For example, a new training
programme of online modules and in-house trainings was established. Both experienced and newly
employed interpreters are now required to complete the training programme. Apart from basic informationon the asylum procedure and general communication skills, several training modules are supposed todeal with specifics of the asylum interview such as the “role of the interpreter during the interview” or“handling psychological burden caused by asylum seekers’ traumatic backgrounds”. Interpreters for many
languages now need advanced German language skills; level C1 of the Common European Frameworkof Reference for Languages. Moreover, the BAMF has stated that a system for complaint management in
the context of interpretation at the BAMF has been established. 49
In addition, the BAMF has published a code of conduct for interpreters. 50 According to this document,interpreters at the BAMF have to commit to various principles, such as “integrity”, “qualification” and“professional and financial independence” (including neutrality, an obligation to provide full and correcttranslations, and to clarify misunderstandings immediately). Following the introduction of the new concept
and the code of conduct in 2017, more than 2,100 interpreters have been declared unfit for further
employment by the BAMF, most of them apparently due to insufficient language skills. In 30 cases,
interpreters were declared unfit because they were found to be in breach of the code of conduct. 51
Transcript of the interview
The transcript of the interview consists of a summary of questions and answers (i.e. it is not a verbatim
transcript). It is usually taken from a tape recording of the interview and it is only available in German. Theinterpreter present during the personal interview will also be responsible for translations of the transcript.
The applicant has the right to correct mistakes or misunderstandings. By signing the transcript, theapplicant confirms that he or she has had the opportunity to present all the important details of the case,that there were no communication problems and that the transcript was read back in the applicant's
language.
In spite of this, alleged mistakes in the transcript frequently give rise to disputes at later stages of theasylum procedure. For instance, doubts about the credibility of asylum seekers are often based on theirstatements as they appear in the transcript. However, it is possible that the German wording of thetranscript reflects mistakes or misunderstandings which were caused by the translation. For example, thetranscript is usually translated (orally) once more at the end of the session by the same interpreter who
has been present during the interview as well. On this occasion, it is more than likely that interpreters
repeat the mistakes they made during the interview and it is thus impossible for the asylum seeker to
identify errors in the German transcript which result from the interpreters' misunderstandings or mistakes.
It is very difficult to correct such mistakes afterwards, since the transcript is the only record of the interview.
The tape (or digital) recording of the interview is deleted.
Furthermore, asylum seekers are frequently asked if the retranslation of the transcript may be dispensed
with. Few asylum seekers insist on the retranslation, therefore mistakes in the transcript go unnoticed, asreported in observations from a network of 12 German NGOs (“Memorandum Alliance”).52
48
49

50
51

52

Section 17 Asylum Act.
BAMF, ‘Online-Videotraining für Sprachmittler gestartet’, 28 September 2017, available in German at:
http://bit.ly/2oWwbTH.
BAMF, Verhaltenskodex für Sprachmittler, June 2017, available in German at https://bit.ly/2XZADBF.
Federal Government, Response to parliamentary question by The Left, 19/1631, 13 April 2018, available inGerman at: https://bit.ly/2F2kvqq, 40-41.
Memorandum Alliance, Memorandum für faire und sorgfältige Asylverfahren in Deutschland: Standards zur
Gewährleistung der asylrechtlichen Verfahrensgarantien, November 2016, available in German at:
http://bit.ly/2gZGhBq, 18-19.

28

Interviews at the BAMF have frequently been criticised for being too superficial and not sufficiently aiming
to establish the facts of the case. In particular, it has been reported that no further questions are asked incases of inconsistencies in the asylum seekers’ accounts.53 For this reason, it is impossible to establish
in later stages of the procedure whether inconsistencies result from contradictions in the asylum seekers’
statements or merely from misunderstandings or translation errors.
Video recordings of interviews do not take place. Video conferencing was used, albeit rarely, 54 until 2013,
but its use seems to have been abandoned completely since then. Audio or video recording or videoconferencing is not used in appeal procedures either.

1.4. Appeal
Indicators: Regular Procedure: Appeal
1. Does the law provide for an appeal against the first instance decision in the regularprocedure?
YesNo❖ If yes, is it
Judicial
Administrative❖ If yes, is it suspensive- Rejection
Yes
Some grounds
No- Rejection as manifestly unfounded
Yes
Some grounds
No
2. Average processing time for the appeal body to make a decision:

17.6 months

1.4.1. Appeal before the Administrative Court
Appeals against rejections of asylum applications have to be lodged at a regular Administrative Court(Verwaltungsgericht, VG). There are 50 Administrative Courts, at least 47 of which are competent to deal
with appeals in asylum procedures.55 The responsible court is the one with regional competence for theasylum seeker's place of residence. Procedures at the administrative court generally fall into 2 categories,
depending on the type of rejection of the application:“Simple” rejection: An appeal to the Administrative Court has to be submitted within 2 weeks (i.e. 14
calendar days). This appeal has suspensive effect. It does not necessarily have to be substantiated atonce, since the appellant has 1 month to submit reasons and evidence. Furthermore, it is common
practice that the courts either set another deadline for the submission of evidence at a later stage (e.g. a
few weeks before the hearing at the court) or that further evidence is accepted up to the moment of thehearing at the court.
Rejection as “manifestly unfounded” (offensichtlich unbegründet): Section 30 of the Asylum Act lists
several grounds for rejecting an application as “manifestly unfounded”. These include among others
unsubstantiated or contradictory statements by the asylum seeker, as well as misrepresentation or failure
to state one’s identity. For inadmissibility decisions, see Admissibility Procedure.
If asylum applications are rejected as “manifestly unfounded”, the timeframe for submitting appeals is
reduced to one week. Since appeals do not have (automatic) suspensive effect in these cases, both theappeal and a request to restore suspensive effect have to be submitted to the court within 1 week (7calendar days). The request to restore suspensive effect has to be substantiated.

53

54

55

Uwe Berlit, Sonderasylprozessrecht – Zugang zu gerichtlichem Rechtsschutz im Asylrecht, Informationsbrief
Ausländerrecht 9/2018, 311.
Katharina Stamm, ‘Videokonferenztechnik im Asylverfahren – warum sie unzulässig ist’, Asylmagazin 3/2012,
70; Federal Government, Response to parliamentary question by The Left, 17/8577, 10 February 2012, 22.
In the Federal State of Rhineland-Palatinate, the Administrative Court of Trier is competent for all asylum
appeal procedures, therefore the other three Administrative Courts in the Federal State only deal with asylum
matters on an ad hoc basis.

29

The short deadlines in these rejections are often difficult to meet for asylum seekers and it might be
impossible to make an appointment with lawyers or counsellors within this timeframe. Therefore, it has
been argued that the 1-week period does not provide for an effective remedy and might constitute a
violation of the German Constitution.56 In any case, suspensive effect is only granted in exceptional
circumstances.
The Administrative Court investigates the facts of the case. This includes a personal hearing of the asylum
seeker (usually not when deciding on applications for suspensive effect, though). Courts are required togather relevant evidence at their own initiative. As part of the civil law system principle, judges are notbound by precedent. Court decisions are generally available to the public (upon request and inanonymous versions if not published on the court's own initiative).
In 2019, the average processing period for appeals was 17.6 months, which was significantly longer thanin 2018 (12.5 months) and represented a dramatic increase in comparison to 2017 (7.8 months). 57 It
should be noted that a high number of appeal procedures (44.7%) was terminated without an examinationof the substance of the case, and therefore often without a hearing at the court. These terminations ofprocedures take place, for instance, if the appeal is withdrawn by the asylum seeker or if an out-of-court
settlement is reached between the asylum seeker and the BAMF. Therefore, it has to be assumed thatthe average period for appeals is considerably longer than the 17.6 months referred to above, if the court
decides on the merits of the case.
The increase in the average duration of appeal procedures can still be traced back to a dramatic increasein the number of appeals filed in 2017. At the end of the year 2017, 361,059 cases were pending before
the Administrative Courts. It appears that courts are still trying to address this backlog, with 252,250 cases
pending at the end of 2019 (compared to 310,959 pending cases at the end of 2018).58
If the appeal to the Administrative Court is successful (or partly successful), the court obliges theauthorities to grant asylum and/or refugee status or to declare that deportation is prohibited. The decisionof the Administrative Court is usually the final one in an asylum procedure. Only in exceptional cases is it
possible to lodge further appeals to higher instances.

1.4.2. Onward appeal
The second appeal stage is the High Administrative Court (Oberverwaltungsgericht, OVG or
Verwaltungsgerichtshof); the latter term is used in the Federal States of Bavaria, Hessen, and BadenWürttemberg. There are 15 High Administrative Courts in Germany, one for each of Germany's 16
Federal States, with the exception of the States of Berlin and Brandenburg which have merged theirHigh Administrative Courts since 2005. High Administrative Courts review the decisions rendered by the
Administrative Court both on points of law and of facts.
In cases of “fundamental significance” the Administrative Court itself may pave the way for a further appeal(Berufung) to the High Administrative Court, but usually it is either the authorities or the applicant who
apply to the High Administrative Court to be granted leave for a further appeal. In contrast to the general
Code of Administrative Court Procedure (Verwaltungsgerichtsordnung) the criterion of “serious doubts as
to the accuracy of a decision” is not a reason for a further appeal in asylum procedures. It is therefore
more difficult to access this second appeal stage in asylum procedures than it is in other areas of

56

57

58

See more references in Dominik Bender and Maria Bethke. “'Dublin III', Eilrechtsschutz und das Comeback
der Drittstaatenregelung.”, Asylmagazin 11/2013, 362.
Federal Government, Responses to parliamentary question by The Left, 19/18498, 2 April 2020, 47; 19/8701,
25 March 2019, 48; 19/1371, 22 March 2018, 42.
Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, 47; 19/8701,
25 March 2019, 43; 19/1371, 22 March 2018, 34.

30

administrative law. According to Section 78 of the Asylum Act, a further appeal against an asylum decisionof an Administrative Court is only admissible if:
a. The case is of fundamental importance;b. The Administrative Court’s decision deviates from a decision of a higher court; orc. The decision violates basic principles of jurisprudence.
Decisions by the High Administrative Court may be contested at a third stage, the Federal Administrative
Court, in exceptional circumstances. The Federal Administrative Court only reviews the decisions
rendered by the lower courts on points of law. The respective proceeding is called “revision” (Revision).
High Administrative Courts may grant leave for a revision if the case itself or a point of law is offundamental significance, otherwise the authorities or the asylum seekers have to apply for leave for sucha further appeal to the Federal Administrative Court. Possible reasons for the admissibility of a revision
are similar to the criteria for an appeal to a High Administrative Court as mentioned above.
Judgments of the Federal Administrative Court are always legally valid since there is no further legal
remedy against them. However, as the Federal Administrative Court only decides on points of law anddoes not investigate the facts, it often sends back cases to the High Administrative Courts for further
investigation.
Outside the administrative court system, there is also the possibility to lodge a so-called constitutional
complaint at the Federal Constitutional Court (Bundesverfassungsgericht). Such complaints areadmissible in cases of violations of basic (i.e. constitutional) rights. In the context of asylum procedures
this can be the right to political asylum as well as the right to a hearing in accordance with the law, butstandards for admissibility of constitutional complaints are difficult to meet. Therefore, only few asylum
cases are accepted by the Federal Constitutional Court.

1.5. Legal assistance
Indicators: Regular Procedure: Legal Assistance
1. Do asylum seekers have access to free legal assistance at first instance in practice?
Yes
With difficultyNo❖ Does free legal assistance cover:Representation in interview
Legal advice
2. Do asylum seekers have access to free legal assistance on appeal against a negative decisionin practice?
Yes
With difficultyNo❖ Does free legal assistance coverRepresentation in courts
Legal advice
Legal assistance is not systematically available to asylum seekers in Germany. Welfare organisations andother NGOs offer free advice services which include basic legal advice. 59 In some initial reception centres(including the arrival centres and AnkER centres) welfare organisations or refugee councils have regular
office hours or asylum seekers can easily access the offices of such organisations close to the centres.
However, such advice services are not available in all centres and not all of the time, so very often
interviews take place before asylum seekers have had a chance to contact an NGO or a lawyer. There isno mechanism which ensures that asylum seekers are getting access to legal advice from an independent
institution before the interview.
The so-called “Orderly-Return-Law”, in force since 21 August 2019,60 created a new section in the Asylum
Act (Section 12a). This provision establishes a “voluntary independent state-run” counselling service witha two-stage approach: the first stage consists of group lectures with basic information on the asylum
procedure as well as on return procedures; in the second stage individual counselling sessions can take

59
60

A database of advice services for asylum seekers is available at: https://bit.ly/2Ho73Az.
Second law to enhance enforcement of the obligation to leave, 20 August 2019, Official Gazette I, 1294.

31

place upon demand, these can be carried out either by the Federal Office or by welfare organisations,according to the law. However, the government has made it clear that it does not intend to commission
welfare organisations to carry out the counselling service on its behalf, but rather plans to extend advice
services offered only by BAMF staff members throughout Germany. Moreover, the government has also
pointed out that the counselling service on asylum procedures is “definitely is not legal advice”.61 (seechapter Provision of information on the procedure).

1.5.1. Legal assistance at first instanceOnce asylum seekers have left the initial reception centres and have been transferred to otheraccommodation, the accessibility of legal advice depends strongly on the place of residence. For instance,asylum seekers accommodated in rural areas might have to travel long distances to reach advice centres
or lawyers with special expertise in asylum law.
NGOs are not entitled to legally represent their clients in the course of the asylum procedure. During thefirst instance procedure at the BAMF, asylum seekers may be represented by a lawyer but they are notentitled to free legal aid, so they have to pay their lawyers' fees themselves at this stage.

1.5.2. Legal assistance in appeals
During court proceedings, asylum seekers can apply for legal aid to pay for a lawyer. The granting of legal
aid is dependent on how the court rates the chances of success. This “merits test” is carried out by thesame judge who has to decide on the case itself, and is reportedly applied strictly by many Courts.62
Therefore some lawyers do not always recommend to apply for legal aid, since they are concerned thata negative decision in the legal aid procedure may have a negative impact on the main proceedings.
Furthermore, decision-making in the legal aid procedure may take considerable time so lawyers regularly
have to accept a case before they know whether legal aid is granted or not. Lawyers often argue that fees
based on the legal aid system do not always cover their expenses. As a consequence, specialising only
on asylum cases is generally supposed to be difficult for law firms. Most lawyers specialising in this area
have additional areas of specialisation while a few also charge higher fees on the basis of individual
agreements with their clients.
It is possible to appeal against the rejection of an asylum application at an Administrative Court without
being represented by a lawyer, but from the second appeal stage onwards representation is mandatory.

61

62„Die Asylverfahrensberatung des BAMF ist gerade keine Rechtsberatung“, Federal government, response to
information request by The Left, 19/19535, 26 May 2020, 17.
For a recent overview of practice in Regensburg, Bavaria, see ECRE, The AnkER centres Implications for
asylum procedures, reception and return, April 2019, available at: https://bit.ly/2W7dICZ.

32

2. Dublin
2.1. General

Dublin statistics: 2019
Outgoing procedure

Incoming procedure

Requests

Transfers

Requests

Transfers

Total

48,847

8,423

Total

23,717

6,087

Italy

14,175

2,575France11,1942,022

GreeceFrance9,870

20Netherlands

5,021

1,212

Belgium

3,116
1,934

1,125
301

Sweden2,603

565

Greece

1,684

730

Spain

2,827

591

Italy

1,325

221

Poland

1,981

508

Switzerland

997

444

Netherlands

1,916

571

Austria

835

433

Austria

1,638

517

United Kingdom

794

115

Switzerland

1,215

375

Sweden429

246

Bulgaria

851

21

Denmark

250

117

Belgium

823

293

Ireland219

1

Denmark

766

149

Luxembourg

187

100

Portugal

733

193

Portugal

89

16

Czech Rep.

613

179

Finland

71

33

Romania585

83

Slovenia

68

12

Croatia

565

29

Czech. Rep.

66

23

Finland

491

150

Malta

66

1

Lithuania

478

70

Norway62

53

Slovenia

347

88

Poland57

29

Norway331

207

Croatia

55

6

Malta

264

16

Cyprus49

3

Latvia241

54

Hungary32

11

Slovak Rep.

121

39

Iceland32

10

United Kingdom

118

22

Bulgaria

28

8Luxembourg

92

11

Lithuania

28

9Estonia

76

5

Spain

25

5

Cyprus54

2

Romania

16

6

Hungary32

0Liechtenstein

5

3

Iceland14

0

Slovak Rep.

3

4

Ireland5

4

Latvia10Liechtenstein10

Estonia00Source: Federal Government, Response to parliamentary information request by The Left, 19/17100, 20 February
2020, 52, Update

33

The number of outgoing requests decreased from 2018 to 2019, but it was still high in comparison withprevious years:
Outgoing Dublin requests from Germany
Year

2013

2014

2015

2016

2017

2018

2019

Requests

35,28035,11544,982

55,69064,26754,91048,847

Source: Federal Government, Responses to parliamentary questions from 2013 to 2019.

Application of the Dublin criteria
The majority of outgoing Dublin requests was based on so-called “Eurodac hits” (64.6% in 2019, incomparison to 65.4% in 2018, 65.1% in 2017, 69.2% in 2016, 76% in 2015, 68.5% in 2014, 66.7% in 2013
and 72.8% in 2012).63 Details on the criteria used for requests are only available for the outgoing requests
which were based on “Eurodac hits”. Statistics for 2019 refer to a total of 31,544 requests based on
Eurodac, out of which:
25,159 (79.8%) after an application for international protection (CAT 1);64-

3,737 (11.8%) after apprehension upon illegal entry (CAT 2);65
2,648 (8.4%) after apprehension for illegal stay (CAT 3).66

The number of transfers from other European countries to Germany decreased from 7,580 in 2018 to
6,087 in 2019. This decrease was particularly notable in the numbers of transfers from Greece (730transfers in 2019 compared to 3,495 in 2018). The overwhelming majority of transfers from Greece (690
out of 730) were carried out on the basis of the family unity provisions of the Dublin Regulation. The
German government provided following details on the transfers carried out from Greece:
Incoming Dublin transfers from Greece: 2019
Criterion

Number of transfers

Unaccompanied children with family members or relatives: Article 8

205

Family members of beneficiaries of international protection: Article 9325

Family members of asylum seekers: Article 10114

Dependent persons: Article 16

22

Family reunification based on the humanitarian clause: Article 17(2)23Family procedure: Art. 11 a)

1

Others

40

Total

730

Source: Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, 64.

The decrease in transfers from Greece can partly be explained by the fact that a backlog of family
reunification cases had been cleared in 2018. In February 2018 some 3,100 asylum seekers for whom
Germany had already accepted “take charge” requests had still been waiting for their transfer.67

63

64
65
66
67

Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, 3;
19/8340, 13 March 2019, 2; 19/921, 26 February 2018, 19; 18/11262, 21 February 2017, 35; 18/7625, 22
February 2016, 32.
Article 9 recast Eurodac Regulation.
Article 14 recast Eurodac Regulation.
Article 17 recast Eurodac Regulation.
Federal Government, Response to parliamentary question by The Left, 19/921, 26 February 2018, 22-24.

34

Another important reason for the decrease in transfers from Greece is that the BAMF has been handling
applications for family reunification under the Dublin regulation more restrictively in comparison to former
years. It has been reported that 75% of incoming Dublin requests from Greece were rejected by theGerman authorities in the first half or 2019, often for formal reasons (supposed expiry of deadlines for therequest, alleged lack of evidence for family relationships etc.). In many cases, families therefore had toappeal to courts in order to oblige the BAMF to accept a transfer request from Greece. 68
The dependent persons and discretionary clauses
The government's statistics do not contain exact information on the number of cases in which thehumanitarian clause or the sovereignty clause has been used. Available information only refers to 3,070
cases in 2019 in which either the use of the sovereignty clause or “de facto impediments to transfers”
resulted in the asylum procedure being carried out in Germany. 69
During the year 2015, Syrian nationals had been exempted from transfers under the Dublin Regulation.
However, given that there is no more distinction made between Syrians and other nationalities as far as
Dublin procedures are concerned, 549 Syrians were transferred to other countries in 2018 (representing
6% of all transfers). In 2019, 310 transfers of Syrian nationals took place, this represented 3.7% of alltransfers.70

2.2. Procedure
Indicators: Dublin: Procedure
1. Is the Dublin procedure applied by the authority responsible for examining asylum applications?
YesNo
2. On average, how long does a transfer take after the responsible Member State has accepted
responsibility?
Not available
The Dublin Regulation is explicitly referred to as a ground for inadmissibility of an asylum application in
the Asylum Act.71 The examination of whether another state is responsible for carrying out the asylum
procedure (either based on the Dublin Regulation or on the German “safe third country” rule) is anadmissibility assessment and as such a part of the regular procedure. Thus, in the legal sense, the term
“Dublin procedure” does not refer to a separate procedure in the German context, but merely to the shiftingof responsibility for an asylum application within the administration (i.e. takeover of responsibility by the“Dublin Units” of the BAMF).
Fingerprints are usually taken from all asylum seekers on the day that the application is registered andthey are subjected to Eurodac queries on a routine basis. Eurodac queries are the major ground for the
initiation of Dublin procedures. No cases of asylum seekers refusing to be fingerprinted have beenreported, only several cases where manipulation of fingerprints took place i.e. persons scraping off oretching their fingertips, making fingerprints unrecognisable.
In principle, only the BAMF is responsible for conducting the Dublin procedure. However, there areindications that there have also been Dublin procedures managed by the Federal Police in 2016 (seeAccess to the Territory).72 The German government confirmed in August 2017 that Dublin procedures had
been taking place at the border.73 However, in contrast to earlier reports, the government explained in this
68

69
70

71
72
73

Anne
Pertsch,„Dublinreversed“vor
Gericht.
Aktuelle
Rechtsprechungzu
DublinFamilienzusammenführungen. Asylmagazin 8-9/2019, available at: https://bit.ly/2W0l8tM, 287-294.
Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, 12.
Federal Government, Response to parliamentary question by The Left, 19/8340, 13 March 2019 , 15; and19/17100, 20 February 2020, 33.
Section 29(1)(a) Asylum Act.
Federal Government, Response to parliamentary question by The Left, 18/13428, 18 August 2017, 23-24.
Ibid.

35

statement that these Dublin procedures were not carried out by the Federal Police. According to thestatement, the Federal Police informs the BAMF if there is evidence or if statements of an asylum seeker
apprehended at the border indicate that another Dublin State might be responsible for the procedure. The
Dublin procedure then is carried out by the BAMF which can issue a deportation order. A possible forced
return to the responsible Member State is carried out by the Federal Police. The Federal Police may also
ask a court to issue a detention order if there is a considerable risk of “absconding”. This implies thatasylum seekers are not sent to the “normal” reception centres but remain under the authority of theFederal Police for the whole duration of the Dublin procedure. Furthermore, in 2018 a new procedure wasintroduced at the Austrian-German border which enables the Federal Police to refuse entry at the borderwithout applying the Dublin Regulation. This procedure is based on readmission agreements with Spainand Greece, but it apparently has not been applied in many cases (see Access to the territory and pushbacks). This new procedure seems to have replaced the practice of Dublin procedures managed by theFederal Police as described above, but it cannot be ruled out that other “improvised” procedures resulting
in forced returns are still carried out at the border.
In a ruling of the CJEU in Mengesteab on 26 July 2017, an important element of the Dublin procedure
has been clarified with an important impact on the handling of Dublin procedures by the German
authorities. Before this decision the German authorities held that the time limit for sending a request toanother country would start with the lodging of an asylum application. Furthermore, requests were
frequently submitted to other states after the Dublin Regulation time limits for these requests had expired,in the hope that the other state would take charge of the procedure nevertheless. The CJEU made clearthat both practices were incompatible with the Dublin Regulation: the time limit for Dublin requests thus
starts with the moment that a Member State becomes aware of an asylum seeker’s intention to apply for
asylum. If a Member State fails to submit a request within the time limits as defined in the Regulation, thisMember State automatically becomes responsible for carrying out the procedure. 74
Since the Mengesteab judgment, the BAMF bases the time limits for issuing a “take charge” request on
the moment of registration and the issuance of an “arrival certificate”, not the moment when the application
is lodged. It applies the same interpretation to incoming “take charge” requests and has often rejected
such requests on the basis that the deadlines of the Regulation have been exceeded.
Individualised guarantees
There is no general policy to require guarantees for vulnerable groups, although the Dublin Unit and local
authorities make arrangements for the asylum seekers concerned e.g. to ensure the continuation of
dialysis treatments, or to ensure separate accommodation of families in cases of domestic violence. 75
Even before the ECtHR’s ruling in the case of Tarakhel v. Switzerland,76 the Federal Constitutional Court(BVerfG) had decided that the BAMF has to take precautionary measures against possible health risks incases of deportations or transfers to other states. With regard to transfers to Italy, the Constitutional Court
specified that children up to the age of three might face such health risks because of scarce capacities of
the Italian reception system and possible homelessness. Therefore, the Constitutional Court obliged theBAMF to make sure, in coordination with the Italian authorities, that families with children up to the age ofthree would have access to accommodation in case of transfers to Italy. 77 The BAMF therefore had torequest individual guarantees for these families from the Italian authorities. According to the Federal
Government, no transfers to Italy were carried out in 2018 if families and children aged less than threeyears-old were concerned.78 However, this policy has been terminated as of March 2019 following the
74

75
76
77

78

Case C-670/16 Mengesteab, Judgment of 26 July 2017. See Constantin Hruschka, ‘Zu EuGH, Mengesteabsowie Shiri: Dublin-Fristen unmittelbar wirksam und gerichtlich voll überprüfbar’, Asylmagazin 1-2/2018, 4649.
Information provided by the BAMF, 1 August 2017.
ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.
BVerfG, Decision 2 BvR 1795/14, 17 September 2014, Asylmagazin 10/2014, 341, available at:
http://bit.ly/1I0LpIo.
Federal Government, Response to parliamentary question by The Left, 19/8340, 13 March 2019, 21-22.

36

latest Circular of the Italian Dublin Unit dated 8 January 2019, which informed all Member States thatfamilies with children are accommodated in the same first reception centres and temporary reception
centres as other asylum seekers.79 This practice was maintained throughout 2019, according to thegovernment. Apparently, the BAMF still asks the Italian authorities for individualised guarantees
concerning families with children below the age of three years, but it has not made it fully clear whether
this is a routine procedure in all of these cases. 80
In March 2017, the Administrative Court of Trier halted the transfer of a pregnant woman to Italy andstated that German asylum authorities have to obtain individualised guarantees in all cases of possible
transfers of vulnerable persons to Italy. 81 Similar decisions were issued in 2018. In the last quarter of 2018,some courts ruled that requests for individual guarantees had to be submitted for vulnerable persons,especially because the situation in Italy had become less predictable for Dublin returnees in the light ofthe 2018 legislative reform.82 However, the High Administrative Court of Bavaria held that a pregnant
woman would not be at risk of inhuman or degrading treatment following her transfer to Italy, hereby
confirming the ruling of the Administrative Court of Munich.83
Similar divisions were noted in jurisprudence in 2019, with several courts holding that the BAMF could be
obliged to obtain individualised guarantees from Italy, e.g. in cases of families (including families withchildren older than 3 years),84 pregnant women,85 and with regard to persons with serious medical
conditions.86 Other courts disagreed and generally held that conditions in Italy would not lead to particularrisks for Dublin returnees, which rendered individualised guarantees unnecessary (these decisions
included cases with young children,87 and pregnant women).88
Currently, the BAMF requests individual guarantees for all transfers to Hungary and Greece, to ascertain
whether asylum seekers will be treated in accordance with the Asylum Directives.89 This policy has led toa standstill in transfers to Hungary since May 2017, as the Hungarian authorities have not submitted
individual guarantees.90 As regards Greece, Germany has issued a comparably high number of takecharge requests (9,807) and received 574 positive replies from the Greek authorities which apparently
were combined with individualised guarantees. However, only 20 transfers were carried out in 2019. The
BAMF was informed by the Greek authorities that all persons transferred were issued a temporary
residence permit upon arrival in Greece and were accommodated either in reception centres (CampEleonas, Camp Shisto) or in private apartments. One transferred person was reported to have left Greece
for his country of origin after having participated in a voluntary return programme.91
The Federal Constitutional Court defined some important standards concerning Dublin transfers in a rulingof October 2019. According to the Federal Constitutional Court, it is necessary to take into account thesituation of an asylum seeker in Greece not only during the asylum procedure, but also after the possible
granting of protection status in Greece. The Constitutional Court in the present case saw “concrete
indications” that persons with protection status might be at risk of treatment which might violate Article 4

79

80

81

82

83
84
85
86
87
88
89
90

91

Informationsverbund Asyl und Migration, ‘BAMF führt Überstellungen nach Italien wieder "uneingeschränkt"durch’, 29 March 2019, available in German at: https://bit.ly/2Uobbqu.
Federal Government, Response to parliamentary question by The Left, 19/8340, 13 March 2019, 33-34 and37.
Administrative Court Trier, Decision 5 L 1846/17.TR, 16 March 2017, asyl.net, available at:
http://bit.ly/2FupouH.
Administrative Court Arnsberg, Decision 5 L 1831/18.A, 29 November 2018; Administrative Court
Braunschweig, Decision 1 B 251/18, 16 October 2018.
High Administrative Court of Bavaria, Decision 10 CE 19.67, 9 January 2019.
Administrative Court Magdeburg, decision of 15 January 2019 - 2 B 806/18 MD - asyl.net: M26942
Administrative Court Trier, decision of 31 January 2019 - 7 L 181/19.TR - asyl.net: M27030.
Administrative Court Darmstadt, decision of 27 March 2019 - 4 L 489/19.DA.A - asyl.net: M27122.
Administrative Court Trier, decision of 5 April 2019 - 7 L 1263/19.TR - asyl.net: M27648.
Administrative Court Frankfurt a.M., decision of 17 January 2019 - 3 L 50/19.F.A - asyl.net: M27018.
Information provided by the BAMF, 1 August 2017.
Federal Government, Response to parliamentary question by The Left, 19/8340, 13 March 2019, 1(preliminary remark).
Ibid., 52 and 59-60.

37

of the European Charter of Fundamental Rights. In line with the CJEU’s ruling in the case of Jawo,92 thecourt held that authorities and courts in Germany had to examine this point when deciding about thepossibility of a transfer.93 This decision might also influence the question of whether individualised
guarantees by the Greek authorities can be considered to provide sufficient protection from possible
inhuman treatment.
Transfers
Transfers under the Dublin Regulation are usually carried out as deportations since no deadline is set for“voluntary departure” to the responsible Member State. Even if asylum seekers offer to leave Germanyon their own, this is frequently not accepted and an escorted return is carried out instead.
Generally, in line with the Residence Act, 94 dates of deportations were not previously announced toasylum seekers in Dublin procedures. The police performed unannounced visits to places of residence
e.g. reception centres with a view to apprehending the person and proceed to the transfer.
In 2019, a deviation from this general practice has been observed in AnkER centres in Bavaria. Following
the issuance of the Dublin decision of the BAMF, the competent Central Aliens Office (Zentrale
Ausländerbehörde, ZAB) notifies the applicant of the date and destination of the transfer and instructs
him or her to be present in his or her room in the reception centre at a specified time for pick-up by thepolice, usually between 03:30 and 05:00. If the applicant is not found in his or her room at that time, theZAB deems the person to have “absconded” and informs the BAMF accordingly in order for the extensionof the transfer deadline from 6 to 18 months to be ordered under Article 29(2) of the Dublin Regulation.
The extension of the deadline to 18 months has been heavily debated in the context of “church asylum”(Kirchenasyl), the temporary sanctuary offered by religious institutions to protect people facing
deportation from undue hardship. The new guidelines of the Federal Office for Migration and Refugees(BAMF) which took effect on 1 August 2018 state that an extension of the transfer deadline to 18 months
for reasons of “absconding” can be ordered under a number of circumstances, including where: (a) church
asylum is not notified on the day it is provided; (b) the file is not transmitted to the BAMF within a fourweek period to justify grounds of hardship; or (c) church asylum was only provided after a negativedecision from the BAMF.95 These measures have been criticised by religious and refugee-supportingorganisations, and run counter to the approach taken by courts. In a 2018 ruling, the Administrative High
Court of Bavaria held, in line with the dominant position of domestic case law, that a person receiving
church asylum whose whereabouts are reported to the BAMF cannot be considered as “absconding” fromthe Dublin procedure.96
In its recent ruling in Jawo, the CJEU clarified that absconding “may be assumed that that is the casewhere the transfer cannot be carried out due to the fact that the applicant has left the accommodation
allocated to him without informing the competent national authorities of his absence, provided that he has
been informed of his obligations in that regard”.97

92
93

94
95

96

97

CJEU, Judgment in case C-163/17, Jawo, 19 March 2019, available at: https://bit.ly/304sXA2.
Federal Constitutional Court, decision of 7 October 2019 - 2 BvR 721/19 - Asylmagazin 1-2/2020, S. 37 f. asyl.net: M27758.
Section 59(1) Residence Act.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
AIDA, ‘Germany: Measures restricting “church asylum” contradict case law’, 31 August 2018, available at:https://bit.ly/2V1pSg4; Informationsverbund Asyl und Migration, ‘Rechtsprechungsübersicht zum Kirchenasyl
in Dublin-Fällen’, 27 February 2019, available in German at: https://bit.ly/2F1XP9K.
CJEU, Case C-163/17 Jawo, Judgment of 19 March 2019, para 70.

38

“Absconding” from the Dublin procedure also has repercussions on Reduction and Withdrawal of
Reception Conditions, which are systematically applied in AnkER centres in Bavaria in such cases, andcan also constitute a ground for ordering Detention.98
There are no publicly available statistics on how many Dublin transfers are preceded by detention. Ifasylum seekers have already accessed the regular procedure, they must not be detained for the durationof the procedure. However, detention may be imposed once an application has finally been rejected as“inadmissible” because another country was found to be responsible for the asylum procedure. In thesecases, the legal basis for ordering and prolongation of detention is the same as for other forms of detention
pending deportation. This implies that certain preconditions for the lawfulness of detention have to be
fulfilled: In particular, any placing into custody under these circumstances should generally be ordered inadvance by a judge, since it does not constitute a provisional arrest which may be authorised by a court
at a later stage. However, a judge should generally not issue a detention order until the formal request to
leave Germany – usually a part of the rejection of the asylum application – has been handed out to theperson concerned and if sufficient grounds for detention exist. However, it has been alleged that thesepreconditions continue to be often ignored by authorities and courts in Dublin cases (in the same manneras in other cases of detention pending deportation). It can be assumed, based on the comparable low
number of places which are available in detention facilities, that most Dublin transfers take place within
one day and therefore are preceded only by short-term arrests, in contrast to detention in a specialised
facility which has to be ordered by a judge.
The use of excessive force, physical restraints, separation of families, humiliating treatment and sedative
medication by police authorities in Dublin transfers were denounced in Berlin and Lower Saxony in2018.99 More recent observations from Bavaria corroborate coercive practices in the enforcement of
Dublin transfers, including police raids with dogs in AnkER centres and handcuffing of asylum seekers,
including pregnant women.100

2.3. Personal interview
Indicators: Dublin: Personal Interview
Same as regular procedure
1. Is a personal interview of the asylum seeker in most cases conducted in practice in the Dublin
procedure?
YesNo❖ If so, are interpreters available in practice, for interviews?
YesNo
2. Are interviews conducted through video conferencing?

Frequently

RarelyNever

A personal interview is mandatory.101 There is no consistent practice for interviews in Dublin procedures.
For the authorities a Dublin procedure means that responsibilities are referred to the “Dublin units” of theBAMF, which may take place at various stages of the procedure. In practice, the Dublin and regularprocedure are carried out simultaneously, therefore a regular interview is conducted according to thestandards of the Regular Procedure: Personal Interview. In this context it has been noted that questions
on the travel routes of asylum seekers may take up a considerable part of the interview, which may resultin a shifting of focus away from the core issues of the personal interview.

98

99

100

101

ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
See Federal Government, Response to parliamentary question by The Left, 19/7401, 29 January 2019,available in German at: https://bit.ly/2HWaiQQ.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
Entscheiderbrief, 9/2013, 3.

39

If a Dublin procedure is initiated before the “regular” interview, the BAMF may only carry out a “personal
conversation” (sometimes also referred to as the “Dublin interview”) with the asylum seeker. In this“conversation” only facts relevant for the Dublin procedure are established. Accordingly, the asylum
seekers are not questioned on the reasons for their asylum applications. However, they should be given
an opportunity to provide possible reasons why a deportation to another Dublin state could be impeded(e.g. existence of relatives in Germany).

2.4. Appeal
Indicators: Dublin: Appeal
Same as regular procedure
1. Does the law provide for an appeal against the decision in the Dublin procedure?
YesNo❖ If yes, is it
Judicial
Administrative❖ If yes, is it suspensive
Yes
No
Dublin decisions are inadmissibility decisions under Section 29 of the Asylum Act.
It is possible to lodge an appeal against a Dublin decision at an Administrative Court within 1 week of
notification. This appeal has no automatic suspensive effect; suspensive effect can be restored only uponrequest to the court. Once an application to restore suspensive effect has been filed, the transfer toanother Member State cannot take place until the court has decided on the request. The transfer can be
executed only if the applicant misses the deadline or if the court rejects the application for suspensive
effect.
Material requirements for a successful appeal remain difficult to fulfil and the way these requirements
have to be defined in detail remains a highly controversial issue. For example, administrative courts in theFederal States continue to render diverging decisions with regard to the question of whether problems inthe different Member States’ asylum systems amount to “systemic deficiencies” or not (see Suspensionof Transfers).
In addition, serious practical difficulties result from the 7-day time limit for the necessary application to thecourt. This short deadline is often difficult to meet for asylum seekers since the application for suspensive
effect has to be fully substantiated. To prepare such an application requires expert knowledge of theasylum law, but in the absence of systematic legal counselling asylum seekers regularly have to turn to alawyer or to refugee counsellors for assistance. However, it might prove impossible for asylum seekers tomake an appointment with lawyers or counsellors within the short timeframe. Even if they manage tocontact a lawyer, it is still very difficult to produce a sufficiently substantiated application at such short
notice. Therefore, it has been argued that the one-week period, although being an improvement comparedto the previous situation, still does not provide for an effective remedy and might constitute a violation of
the German Constitution.102
In May 2017, the Federal Constitutional Court established some general standards for the appeal
procedure in Dublin cases and cases of deportations of people who have been granted protection status
in a third country. With regard to the case at hand, where the Administrative Court had rejected an
application to restore suspensive effect of an appeal against a deportation to Greece, the Court statedthat the reception conditions in another country have to be assessed on a factual basis which is “reliable
and sufficient, also concerning the amount [of available information].” This is necessary, in any case, if
there were grounds to assume that inhuman or degrading treatment might take place following adeportation. If sufficient information on the factual situation in another country was not available,suspensive effect of the appeal should be granted. In line with the general principle of judicial
102

Dominik Bender and Maria Bethke, “'Dublin III', Eilrechtsschutz und das Comeback der Drittstaatenregelung.”
Asylmagazin 11/2013, 362.

40

independence, the Constitutional Court did not define which kind of information was necessary to clarify
the factual situation. It only pointed to the general obligation for authorities and courts to obtain information
about conditions in other countries and to obtain individual guarantees, if necessary. 103
The following table illustrates the number of court decisions on requests for urgent legal protection i.e.
requests to restore suspensive effect of appeals in Dublin cases between January and November 2019.
A decision to grant an interim measure does not necessarily mean that the court suspended a transfer
because of serious individual risks or because of systemic deficiencies in another Dublin state. In manycases, interim measures can also be granted for formal or technical reasons (expiry of time-limits, formal
errors in the authorities’ decision etc.).
Decisions on requests for suspensive effect in Dublin appeals, Jan- Nov 2019
Country

Granting suspensive effectRefusing suspensive effectBelgium

30

261

Bulgaria

90

137

Denmark

58

213

Estonia329

Finland

24

138

France171

1,3461

Greece

125

129

UK

1

13

Ireland0

1

Iceland

2

2

Italy

1,762

4,951

Croatia

20

169

Latvia13

95

Lithuania

31

178

Luxemburg

1

5

Malta

14

66

Netherlands

82

463

Norway20

115

Austria26

420

Poland106

767

Portugal28

249

Romania77

287

Sweden113

599

Switzerland

24

307

Slovakia

17

89

Slovenia

24

120

Spain

141

866

Czech Republic

38

274

Hungary

7

19

Cyprus4

16

Source: Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, 58.
Note that the Government does not give a total number of these decisions and explains that these figures do not
represent official statistics. Rather, they were produced on the basis of the BAMF’s internal document management
system. Therefore, deviations from court statistics are possible.
103

BVerfG, Decision 2 BvR 157/17, 8 May 2017, asyl.net, available at: http://bit.ly/2G6rw9X.

41

2.5. Legal assistance
Indicators: Dublin: Legal AssistanceSame as regular procedure
1. Do asylum seekers have access to free legal assistance at first instance in practice?
Yes
With difficultyNo❖ Does free legal assistance cover:Representation in interview
Legal advice
2. Do asylum seekers have access to free legal assistance on appeal against a Dublin decision inpractice?
Yes
With difficultyNo❖ Does free legal assistance coverRepresentation in courts
Legal advice
There are no specific regulations for legal assistance in Dublin procedures; therefore the information given
in relation to the section on Regular Procedure: Legal Assistance applies equally to the Dublin procedure.
It is possible to apply for legal aid for the appeal procedure. However, because of time constraints andbecause many of these cases are likely to fail the “merits test”, it is unusual for legal aid to be granted,
with the possible exception of cases concerning certain Dublin countries such as Italy, Hungary, Bulgaria,
in which chances of success have to be rated higher due to the conflicting case law.

2.6. Suspension of transfers
Indicators: Dublin: Suspension of Transfers
1. Are Dublin transfers systematically suspended as a matter of policy or jurisprudence to one ormore countries?
Yes
No❖ If yes, to which country or countries?
Hungary: According to information provided by the BAMF, any Dublin request to the Hungarian authorities
is accompanied by a request of individualised guarantees, i.e. that Dublin returnees will be treated inaccordance with the Reception Conditions Directive and the Asylum Procedures Directive. 104 As a result,no Dublin transfers to Hungary have taken place since 11 April 2017.105 The German government informed
Parliament in March 2019 that no individual guarantees had been provided by the Hungarian authorities.
Hence, it can be concluded that the policy of seeking individual guarantees have led to a standstill intransfers to Hungary in practice. However, this has not led to a formal suspension of transfers or to achange of policy: German authorities continue to submit take charge requests to their Hungarian
counterparts and requests were sent to Hungary also in 2019.
Greece: A formal suspension of transfers to Greece, which had been in place for several years, ended in
March 2017. In 2019, Germany sent a comparably high number of take charge requests to Greece (9,807)
and received 574 positive replies from the Greek authorities which apparently were combined withindividualised guarantees. However, only 20 transfers were carried out in 2019. 106 In addition, nine
persons were deported to Greece between August 2018 and January 2019 on the basis of an
administrative agreement between Germany and Greece (see Access to the Territory).
Italy: The BAMF stated in March 2019 that it now carries out Dublin transfers to Italy without obstacles,
after discontinuing a previous policy of requesting individual guarantees for families with children below

104
105

106

Federal Government, Response to parliamentary question by The Left, 19/921, 26 February 2018, 19.
Preliminary remark to Federal Government, Response to parliamentary question by The Left, 19/17100, 20
February 2020, 1.
Ibid., 52 and 59-60.

42

the age of three.107 Transfers to Italy are systematically ordered, including for vulnerable persons such as
pregnant women or persons with severe mental health conditions. 108
With reference to the CJEU decision in the case of Jawo vs. Germany, the Federal Constitutional Court
reiterated in October 2019 that courts are obliged to consult objective, reliable and up-to-date sources of
information when deciding on the legitimacy of Dublin transfers 109 The Constitutional Court overruled two
decisions by the Administrative Court of Würzburg in which transfers to Italy had been declaredpermissible. The Constitutional Court pointed out that the lower court had not sufficiently examined thereception conditions in Italy and the possible risks upon return which might result from homelessness andfrom possible systemic deficiencies in the asylum system.
Furthermore, several hundred court cases have resulted in suspension of transfers to other countries bymeans of issuance of interim measures. At the same time, however, other courts have decided in favourof transfers to these countries, which is mainly due to the fact that the definition of requirements for asuspension of transfers remains highly controversial. For example, courts continue to render diverging
decisions on the issue of whether problems in the Italian asylum system amount to “systemic deficiencies”
or not, or whether the situation of Dublin returnees in Italy calls for individualised guarantees or not.
A detailed analysis of case law on this issue, which consists of hundreds of decisions, has not beenpossible within the scope of this report. By way of illustration, recent decisions concerning transfers ofasylum seekers and beneficiaries of international protection to Italy are listed below:
Examples of Administrative Court rulings on Dublin transfers and transfers of persons withprotection status in another European country: 2019
Country
Italy

Halting transfer

Upholding transfer

Administrative Court of Düsseldorf, Decision Administrative Court of Trier, Decision 1 K
22 K 1273/18.A, 4 February 2020
12662/17.TR, 29 October 2019, Decision 7 L
Administrative Court of Minden, Decisions 10 1226/19.TR, 10 April 2019, Decision L
K 7608/17.A, 10 K 2275/19.A , 10 K 1263/19.TR, 5 April 2019
2221/18.A, 10 K 2747/19.A, 13 November VGH (High Administrative Court) of Baden2019
Württemberg, Decision A 4 S 749/19, 29 July
Administrative Court of Braunschweig, 2019
Decision 3 A 16/18, 17 October 2019, Administrative Court of Aachen, Decision 9 K
Decision 1 B 165/19, 7 August 2019, 4004/17.A, 27 May 2019
Decision 3 B 220/19, 23 July 2019
Administrative Court of Cottbus Decision 5 K
Administrative Court of Freiburg, Decision A 811/14.A, 7 May 2019
5 K 1977/19, 10 October 2019
Administrative Court of Kassel, Decision 1 L
Administrative Court of Karlsruhe, Decision A 1011/19.KS.A , 30 April 2019
3 K 4406/19, 25 September 2019
Administrative Court of Darmstadt, Decision
3 L 1694/19.DA.A, 23 September 2019
Administrative Court of Trier, 7 K 4270/18.TR,
29 August 2019
Administrative Court of Köln, Decision 23 K
401/16.A, 29 May 2019

107

108

109

Informationsverbund Asyl und Migration, ‘BAMF führt Überstellungen nach Italien wieder "uneingeschränkt"durch’, 29 March 2019, available in German at: https://bit.ly/2Uobbqu.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
Bundesverfassungsgericht (BverfG), Decision 2 BvR 1380/19, 10 October 2019, asyl.net: M27757.

43

Administrative Court of Göttingen, Decision 3
A 142/18, 24 April 2019
In other cases, courts have stopped short of discussing these basic questions and have stopped transfers
on individual grounds e.g. lack of adequate medical treatment for a rare disease in the Member State.
It has to be noted that many court decisions which have been published in 2019 were dealing with casesof persons who had been granted international protection in other European states such as Bulgaria,
Greece or Italy. In many of these cases, transfers were suspended by courts on the grounds that a risk ofinhuman or degrading treatment could not be excluded for beneficiaries of international protection in thesecountries. However, similarly to the existing case law on “systemic deficiencies”, the case law on this issue
was not consistent and other courts upheld transfers of beneficiaries of international protection to Bulgaria,
Greece or Italy. These decisions have not been included to the list above as the cases do not fall under
the Dublin Regulation. A list of such cases can be found online. 110

2.7. The situation of Dublin returnees
Germany received 6,087 incoming transfers in 2019. Dublin transfers are usually carried out individually
through commercial flights. In 2019, there were some exceptions with persons who were directlytransferred to a “waiting room” in Erding, close to Munich Airport. This place served as reception point for
the following persons: (a) Transfers in the context of ad hoc relocation arrangements following
disembarkation and in Malta and Italy, except for unaccompanied children; and (b) Dublin returns fromthe United Kingdom, which were implemented through charter flights preceded by detention and physicalrestraints. The persons concerned arrived in Munich Airport. Upon arrival, returnees were transferred to
the “waiting room” (Warteraum) in Erding managed by the BAMF and the German Red Cross, where
they received accommodation and assistance for a period of 72 hours before being distributed to different
regions in the country.111
According to reports from November 2019, activities at the “waiting room” in Erding were to be suspended
at the end of 2019. This means that the facility has not been closed permanently, but put on “stand-bymode”, so it can be reactivated at short notice in case it is needed for new arrivals. 112
In addition, as mentioned in General, a high number of transfers to Germany took place from Greece
under the family unity provisions of the Dublin Regulation. Upon arrival in Germany, persons are sent to
the place where their relatives are staying and local authorities provide them accommodation and otherrelated reception services.
There have been no reports of Dublin returnees facing difficulties in re-accessing an asylum procedure or
facing any other problems after having been transferred to Germany. There is no uniform procedure forthe reception and further treatment of Dublin returnees. If they had already applied for asylum in Germany,
they are usually obliged to return to the region to which they had been assigned during the former asylum
procedure in Germany. If their application had already been rejected by a final decision, it is possible forthem to be placed in pre-removal detention upon return to Germany. 113

110

111

112

113

The website is available in German at: https://www.asyl.net/recht/dublin-entscheidungen/. Search with the
keyword “Anerkannte“ (recognised persons).
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
br.de, Erdinger "Warteraum Asyl" nur noch im Standby-Modus, 20 November 2019, available at:https://bit.ly/321g4t9.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.

44

3. Admissibility procedure
3.1. General (scope, criteria, time limits)
There is no separate procedure preceding the regular procedure in which decisions on admissibility of
asylum applications are taken. However, it is possible that applications are declared inadmissible in thecourse of the regular procedure, based on the grounds set out in Section 29 of the Asylum Act.
Applications are deemed inadmissible in the following cases: 114
1. Another country is responsible for carrying out the asylum procedure, according to the Dublin
Regulation or based on other European or international treaties;
2. Another EU Member State has already granted the applicant international protection;
3. A country that is willing to readmit the foreigner is regarded as a “safe third country” for the asylum
seeker;115
4. A country that is not an EU Member State and is willing to readmit the foreigner is regarded as“another third country”;116
5. The applicant has made a subsequent,117 or secondary,118 application.
The BAMF took the following inadmissibility decisions in 2019:
Inadmissibility decisions: 2019
GroundNumber

Applicability of the Dublin Regulation

24,490International protection in another EU Member State

12,452

Safe third country

40

Another third country

38

Secondary application (after procedure in a safe third country)

3,434

Subsequent application (after procedure in Germany)

14,020Source: Statistics on “abandonment of procedures for other reasons” (“sonstige Verfahrenserledigungen”) by theFederal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, available at:https://bit.ly/3bhIikR, 6.Insert

The provision that asylum applications may be considered inadmissible in case of safety in “another third
country” (sonstiger Drittstaat) has been based on the concept of First Country of Asylum of Article 35 of
the recast Asylum Procedures Directive. 119 “Another third country” may refer to any country which is notdefined a Safe Third Country under German law.120 This concept replaces the former notion, according towhich asylum applications were “to be disregarded” (unbeachtlich) if return to “another third country” waspossible. In the process, important restrictions have been removed. In particular, the former provision
could only be applied if return to the safe “other third country” was possible within three months. Although
this qualification has been removed, the provision has only been applied rarely.

114
115
116
117
118
119

120

Section 29(1) Asylum Act.
Section 29(1)(3) Asylum Act, citing Section 26a Asylum Act.
Section 29(1)(4) Asylum Act, citing Section 27 Asylum Act.
Section 29(1)(5) Asylum Act, citing Section 71 Asylum Act.
Section 29(1)(5) Asylum Act, citing Section 71a Asylum Act.
Maria Bethke und Stephan Hocks, Neue „Unzulässigkeits“-Ablehnungen nach § 29 AsylG, Asylmagazin
10/2016, 336-346 (343).
“Safe third countries” are all member states of the European Union plus Norway and Switzerland: Section 26a
Asylum Act and addendum to Asylum Act.

45

3.2. Personal interview
Indicators: Admissibility Procedure: Personal Interview
Same as regular procedure
1. Is a personal interview of the asylum seeker in most cases conducted in practice in theadmissibility procedure?
YesNo❖ If so, are questions limited to identity, nationality, travel route?
Yes
No❖ If so, are interpreters available in practice, for interviews?
YesNo
2. Are interviews conducted through video conferencing?

Frequently

RarelyNever

The examination of whether an application may be considered as inadmissible is part of the regularprocedure; therefore, the same standards are applied (see Regular Procedure: Personal Interview). See
also Dublin: Personal Interview, as the majority of inadmissibility decisions concern Dublin cases.

3.3. Appeal
Indicators: Admissibility Procedure: Appeal
Same as regular procedure
1. Does the law provide for an appeal against the decision in the admissibility procedure?
YesNo❖ If yes, is it
Judicial
Administrative❖ If yes, is it suspensive
Yes
Some grounds
No
The appeal procedure in cases of inadmissible applications (i.e. mostly Dublin cases and cases of
persons granted protection in another EU country) has been described in the section on Dublin: Appeal.
Appeals have to be submitted to the court within 1 week (7 calendar days) together with a request to thecourt to restore suspensive effect. The latter request has to be substantiated.

3.4. Legal assistance
Indicators: Admissibility Procedure: Legal AssistanceSame as regular procedure
1. Do asylum seekers have access to free legal assistance at first instance in practice?
Yes
With difficultyNo❖ Does free legal assistance cover:Representation in interview
Legal advice
2. Do asylum seekers have access to free legal assistance on appeal against a Dublin decision inpractice?
Yes
With difficultyNo❖ Does free legal assistance coverRepresentation in courts
Legal advice
As in the regular procedure, asylum seekers can be represented by lawyers at first instance (at theBAMF), but they have to pay for legal representation themselves and it may be difficult to find a lawyer
for practical reasons.
The appeal procedure in cases of applications which are found inadmissible is identical to the procedurein “manifestly unfounded” cases. It is possible to apply for legal aid for the appeal procedure. However,
because of time constraints and because many of these cases are likely to fail the “merits test”, it isunusual for legal aid to be granted, with the exception of some Dublin cases (see Dublin: Legal
Assistance).

46

4. Border procedure (border and transit zones)
4.1. General (scope, time limits)
Indicators: Border Procedure: General
1. Do border authorities receive written instructions on the referral of asylum seekers to thecompetent authorities?
Yes
No
2. Can an application made at the border be examined in substance during a border procedure?
YesNo
3. Is there a maximum time limit for a first instance decision laid down in the law?
Yes
No
❖ If yes, what is the maximum time limit?
2 daysThere is no special procedure at land borders, although as part of the reintroduction of border controls, a
refusal of entry and return procedure has been installed on the German-Austrian border for cases of
persons who have previously sought asylum in Spain and Greece (see Access to the Territory). The
following section refers to the airport procedure (Flughafenverfahren).
The “procedure in case of entry by air” is legally defined as an “asylum procedure that shall be conductedprior to the decision on entry” to the territory.121 Accordingly, it can only be carried out if the asylum seekers
can be accommodated on the airport premises during the procedure, with the sole exception that an
asylum seeker has to be sent to hospital and therefore cannot be accommodated on the airport premises,
and if a branch office of the BAMF is assigned to the border checkpoint. The necessary (detention)
facilities exist in the airports of Berlin (Schönefeld), Düsseldorf, Frankfurt/Main, Hamburg and Munich,although the BAMF does not have a branch office assigned to all of those places (see Place of Detention).
The airport procedure applies to applicants who do not have valid documents upon arrival at the airport,
but it may also apply to applicants who ask for asylum at the border authorities in the transit area and to
those who come from a “safe country of origin”.122 In practice, it was not applied to unaccompanied
children in 2018,123 although its applicability to unaccompanied children is not excluded.
In 2019, the airport procedure was applied in 489 cases, 395 at the Frankfurt/Main Airport, 63 at theMunich Airport, 19 at the Berlin Airport and 12 at the Hamburg Airport. No airport procedures took
place at the Düsseldorf airport in 2019. As the statistics show, the overwhelming majority of procedurescontinue to take place at Frankfurt/Main Airport.
The countries of origin of persons subject to the airport procedure in 2019 were as follows:
Applicants subject to the airport procedure: 2019

121
122
123

Nationality

Number

Iran

128

Syria

43

Turkey28

Afghanistan

25

Iraq

20

Somalia

15

Unknown

6

Nigeria3

Eritrea1Section 18a(1) Asylum Act.
Section 18a(1) Asylum Act.
Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, available at:https://bit.ly/3bhIikR, 43.

47

Total489

Source: Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, available
at: https://bit.ly/3bhIikR, 43-44.

Potential outcomes of airport procedures are as follows:
1. The BAMF decides within 2 calendar days that the application is “manifestly unfounded” and entry
to the territory is denied. A copy of the decision is sent to the competent Administrative Court. 124 The
applicant may ask the court for an interim measure against deportation within three calendar days;
2. In theory, the BAMF can decide within the 2 calendar days that the application is successful or it canreject the application as “unfounded”. In these cases, entry to the territory and, if necessary, accessto the legal remedies of the regular procedure would have to be granted. However, this option seems
to be irrelevant in practice since the BAMF always grants entry to the territory for the asylum
procedure to be carried out in a regular procedure if an application is not rejected as manifestly
unfounded;
3. The BAMF declares within the first 2 calendar days following the application that it will not be able todecide upon the application at short notice. Entry to the territory and access to the regular procedureare granted;125 or
4. The BAMF has not taken a decision within 2 calendar days following the application. Entry to theterritory and to the regular procedure is granted.
In practice, the third option is the most common outcome, including in cases where the Dublin Regulationis considered to be applicable. The outcome of airport procedures in 2019 was as follows:
Outcomes of airport procedures: 2019
AirportNo decision within two days

Manifestly unfoundedFrankfurt/Main

203

175

Munich039Berlin4

9Hamburg

0

8

Total

207

231

Source: Source: Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020,
available at: https://bit.ly/3bhIikR, 44.

Whereas in previous years, the majority of airport procedures were halted because the BAMF notified theFederal Police that no decision would be taken within the timeframe required by law (264 out of 444 in
2017; 191 out of 273 in 2016, 549 out of 627 in 2015), a notable increase in decisions rejecting theapplication as manifestly unfounded was seen in 2018 and 2019. In the case of Hamburg and Munich
Airport, the airport procedure led to rejection as manifestly unfounded in all cases according togovernment statistics, albeit in a comparably low number of total cases.
Concerns persist regarding the quality of decision-making in the airport procedure in 2018 and 2019. The
assessment of applications by the BAMF seems to be more restrictive in the airport procedure compared
to procedures elsewhere, resulting in “manifestly unfounded” rejections even for nationalities such as124
125Section 18a(2)-(4) Asylum Act.
Section 18a(6) Asylum Act.

48

Afghanistan, Iran, Turkey or Iraq which benefit from significant recognition rates nationwide. At
Frankfurt/Main Airport, the BAMF reportedly places considerable emphasis on potential contradictions
and inconsistencies in the applicant’s statements, and often relies on the report of the initial interview with
the Federal Police upon arrival, even though the asylum seeker receives no copy thereof. At Munich
Airport, concerns are expressed with regard to the lack of risk assessment prior to rejections ofapplications as manifestly unfounded, even in cases where asylum seekers bring forth evidence such aspolitical activity in the country of origin. 126
Finally, it should be highlighted that at Munich Airport, where the BAMF decides within the time limit of
2 days, it occurs that the notification of the decision to the applicant can take up to a week. 127

4.2. Personal interview
Indicators: Border Procedure: Personal Interview
Same as regular procedure
1. Is a personal interview of the asylum seeker in most cases conducted in practice in the borderprocedure?
YesNo❖ If so, are questions limited to nationality, identity, travel route?
Yes
No❖ If so, are interpreters available in practice, for interviews?
YesNo
2. Are interviews conducted through video conferencing?

Frequently

RarelyNever

In the airport procedure, the Federal Police may conduct a preliminary interview which includes questions
on the travel route and on the reasons for leaving the country of origin. Practice varies from one airport toanother. At Frankfurt/Main Airport, the person is interviewed by the Federal Police in the airport terminaland subsequently upon arrival at the detention facility, whereas at Munich Airport the only interview with
the Federal Police takes place upon arrival at the facility, usually late at night. Where interpretation isneeded for the Federal Police interview, it is ensured by phone. The asylum seeker does not receive a
copy of the report of these interviews.128
The relevant interview for the purpose of admission to the territory is carried out by the BAMF in person,with the presence of an interpreter. Whereas the BAMF has a branch office in the facility of Frankfurt/Main
Airport, for procedures at Munich Airport officials travel to the facility from Munich when interviews need
to be conducted.
The standards for this interview are identical to those described in the context of the regular procedure(see Regular Procedure: Personal Interview). However, quality concerns have been raised at Munich
Airport vis-à-vis the lack of interpretation and lack of proper understanding of the interview report prior tosignature.129

126

127
128

129

ECRE, Airport procedures in Germany Gaps in quality and compliance with guarantees, April 2019, available
at: https://bit.ly/2QgOmAH.
Ibid.
ECRE, Airport procedures in Germany Gaps in quality and compliance with guarantees, April 2019, available
at: https://bit.ly/2QgOmAH.
Ibid. See also Memorandum Alliance, Memorandum für faire und sorgfältige Asylverfahren in Deutschland:Standards zur Gewährleistung der asylrechtlichen Verfahrensgarantien, November 2016, 28.

49

4.3. Appeal
Indicators: Border Procedure: Appeal
Same as regular procedure
1. Does the law provide for an appeal against the decision in the border procedure?
YesNo❖ If yes, is it
Judicial
Administrative❖ If yes, is it suspensive
Yes
Some grounds
No
Manifestly unfounded decisions are generally subject to restrictions in legal remedy, but in the airport
procedure the law has placed even stricter timeframes on the procedure. Thus, if an application is rejected
as manifestly unfounded in the airport procedure, a request for an interim measure must be filed with an
Administrative Court within 3 calendar days. The necessary application to the court can be submitted at
the border authorities.130
The Administrative Court shall decide upon the application for an interim measure in a written procedure,i.e. without an oral hearing of the applicant.131 The denial of entry, including possible measures to enforce
a deportation, is suspended as long as the request for an interim measure is pending at an Administrative
Court. If the court does not decide on this request within 14 calendar days, the asylum seeker has to be
granted entry to the territory.132

4.4. Legal assistance
Indicators: Border Procedure: Legal AssistanceSame as regular procedure
1. Do asylum seekers have access to free legal assistance at first instance in practice?
Yes
With difficultyNo❖ Does free legal assistance cover:Representation in interview
Legal advice
2. Do asylum seekers have access to free legal assistance on appeal against a negative decision inpractice?
Yes
With difficultyNo❖ Does free legal assistance coverRepresentation in courts
Legal advice
During the first instance procedure before the BAMF, legal assistance is only made available throughlawyers funded by Pro Asyl for Frankfurt/Main Airport, subject to limited capacity.
For legal aid in appeals before the Administrative Court, the association of lawyers of the airport's region
coordinates a consultation service with qualified lawyers. If an applicant wants to speak to a lawyer, theFederal Police contacts one of the lawyers on the list of the association as soon as the rejection of theasylum application is issued. However, it has been pointed out by NGOs that the short timeframe foreseenin the airport procedure hinders effective access to a lawyer (see Access to Detention Facilities).133
Consultation with the lawyer following a decision of the BAMF in the airport procedure is free of charge
for the applicant as far as it concerns the possibilities of legal remedy. The lawyer may also assist withthe drafting of the request to the Administrative Court. In this regard, the airport procedure is the only
procedure in Germany in which asylum seekers are entitled to a form of free legal assistance. Thisrequirement does not have a basis in legislation but results from a decision of the Federal Constitutional

130
131
132
133

Section 18a(4) Asylum Act.
Section 18a(4) Asylum Act.
Section 18a(6) Asylum Act.
Memorandum Alliance, Memorandum für faire und sorgfältige Asylverfahren in Deutschland: Standards zur
Gewährleistung der asylrechtlichen Verfahrensgarantien, 27.

50

Court.134 Any other actions undertaken by the lawyer are not included in the free assistance. In particular,
representation before the court is not part of this free legal assistance. In the appeal procedure following
an airport procedure, the preconditions for legal assistance are identical to those of the Regular
Procedure: Legal Assistance.

5. Accelerated procedure
An accelerated procedure exists since March 2016. According to Section 30a of the Asylum Act, theaccelerated procedure can be carried out in branch offices of the BAMF which are assigned to a “special
reception centre” (besondere Aufnahmeeinrichtung). Only in these locations can accelerated procedures
be carried out for the asylum seekers who:135
1. Come from a Safe Country of Origin;
2. Have clearly misled the authorities about their identities or nationalities by presenting false
information or documents or by withholding relevant documents;
3. Have in bad faith destroyed or disposed of an identity or travel document that would have helped
establish their identities or nationalities, or if the circumstances clearly give reason to believe that
this is so;
4. Have filed a subsequent application, in case they have left Germany after their initial asylum
procedure had been concluded;136
5. Have made an application merely in order to delay or frustrate the enforcement of an earlier or
imminent decision which would result in their deportations;
6. Refuse to be fingerprinted in line with the Eurodac Regulation; or
7. Were expelled due to serious reasons of public security and order of if there are serious reasons
to believe that they constitute a serious threat to public security and order.
In the accelerated procedure, the BAMF has to decide within 1 week (7 calendar days).137 If it rejects theasylum application as manifestly unfounded or inadmissible within this timeframe, the procedure is carriedon as an accelerated procedure and the asylum applicants are obliged to stay in the “special reception
centres”. If the BAMF does not decide within one week, or if the application is rejected as simply“unfounded” or if protection is granted, the applicant is allowed to leave the special reception centre andthe procedure is carried on as a regular procedure, if necessary.138
During an accelerated procedure, asylum seekers are obliged to stay in the special reception centres.139
These are not closed facilities, but asylum seekers may leave the premises and are free to move aroundin the local area (town or district). In this respect, the same rules apply to them as to asylum seekers in
the regular procedure who also face a “residence obligation” in the first months of an asylum procedure(see Freedom of Movement). However, asylum seekers in the accelerated procedure face significantly
stricter sanctions for non-compliance with the “residence obligation”: If they leave the town or district inwhich the special reception centre is located, it shall be assumed that they have failed to pursue theasylum procedure.140 This may lead to the termination of their asylum procedure and rejection of theirapplication.

134

135
136

137
138
139
140

Federal Constitutional Court, Decision of 14 May 1996, 2 BvR 1516/93, cf. Reinhard Marx. AsylVfG –Kommentar zum Asylverfahrensgesetz (Asylum Procedures Act – Commentary), 7th edition, 2009, 432.
Section 30a(1) Asylum Act.
This qualification (that only asylum seekers who have left Germany after a first asylum procedure are subject
to this provision) is not contained in the law. However, a representative of the BAMF stated in a committee
hearing in Parliament that the authorities were obliged to make use of this qualification for legal reasons. The
Federal Government later explained that the authorities would “presumably” apply the law in this manner:
Federal Government, Response to a parliamentary question by Member of Parliament Volker Beck, 18/7842,
8 March 2016, 19.
Section 30a(2) Asylum Act.
Section 30a(2)-(3) Asylum Act.
Section 30a(3) Asylum Act.
Section 33(2)(3) Asylum Act.

51

From 1 August 2018 onwards, the “special reception centres” existing in Bamberg andManching/Ingolstadt were renamed as AnkER centres.141 The accelerated procedure does not seem tohave been applied therein since then. The BAMF does not collect statistics on the use of the accelerated
procedure.142 By and large, it can be concluded that introduction of the accelerated procedure under
Section 30a of the Asylum Act has only had little impact on asylum procedures in general.
In the Federal State of North Rhine-Westphalia, a directive is in place which enables the regional
government to establish „special reception centres“ in which persons, for whom an accelerated procedure
under Section 30a Asylum Act has been carried out, should be accommodated. 143 According to local
media reports, a facility in the town of Echtrop has been designated a „special reception centre“ in April
2018.144 Since the BAMF does not have a branch office in this facility, it is not clear how accelerated
procedures are actually carried out at this facility. Apparently, persons from safe third countries areaccommodated in this facility after their applications have been rejected elsewhere. Thus, the main
purpose of this facility does not seem to be the acceleration of procedures but to impose stricter sanctions(as described above) on certain groups of persons whose applications have been found to be „manifestly
unfounded“.
The rules concerning personal interviews, appeal and legal assistance are similar to those described in
the Regular Procedure and, for inadmissibility decisions, the Admissibility Procedure.

D. Guarantees for vulnerable groups
1. Identification
Indicators: Identification
1. Is there a specific identification mechanism in place to systematically identify vulnerable asylum
seekers?
Yes
For certain categories
No❖ If for certain categories, specify which: Unaccompanied children
2. Does the law provide for an identification mechanism for unaccompanied children?
Yes
No

1.1. Screening of vulnerability
There is no requirement in law or mechanism in place to systematically identify vulnerable persons in theasylum procedure, with the exception of unaccompanied children. The BAMF and the Federal Ministry ofInterior drafted a “concept for the identification of vulnerable groups” in 2015, which was intended to be
codified in law as part of the transposition of the recast Asylum Procedures and Reception Conditions
Directives. However, the concept has not been implemented and instead has been only made available
to BAMF staff as an internal guideline.145
A 2016 amendment to the German Asylum Act has introduced wording relevant to the identification ofvulnerable asylum seekers.146 However, the law stops short of requiring Federal States to transmit
personal information about an applicant’s vulnerabilities to the BAMF, as it only confers them the power
to do so. It also fails to properly transpose the recast Asylum Procedures Directive, as it only requires the

141
142
143

144

145
146

Markus Kraft, Die ANKER-Einrichtung Oberfranken, Asylmagazin 10-11/2018, p. 351-353.
Information provided by the BAMF, 1 August 2017.
Federal State of North Rhine-Westphalia, Verordnung über Zuständigkeiten im Ausländerwesen (ZustAVO),
10 September 2019 (last amendment), Section 11,
Soester Anzeiger, ZUE Echtrop nun "besondere Aufnahmeeinrichtung", 18 May 2018, available at:https://bit.ly/2ZSbkDs.
Information provided by the BAMF, 1 August 2017.
Section 8(1b) Asylum Act.

52

BAMF to “duly carry out” the interview and not to provide “adequate support” to applicants in need of
special procedural guarantees throughout the duration of the procedure. In practice, therefore,
identification procedures in Germany have been generally described as “a matter of luck andcoincidence”, given that authorities “are not able to systematically undertake the necessary steps toascertain mental disorders or trauma.”147
All asylum seekers should undergo a medical examination, which usually takes place shortly after theregistration of the asylum application in the arrival centre. However, this examination is focussed on thedetection of communicable diseases and does not include a screening for potential vulnerabilities.
Sometimes medical personnel or other staff members working in the reception centres inform the BAMF
if they recognise symptoms of trauma, but there is no systematic procedure in place ensuring that suchinformation is passed on.
Some Federal States have introduced special schemes for the identification of vulnerable groups. In
Berlin, a “Network for persons with special protection needs” has developed concepts for the identificationof vulnerable persons and their needs since 2008. The network, which refers to itself as a unique projectin Germany, consists of seven NGOs which cooperate with the social services of the regional government.
The NGOs have special expertise in the support of the following groups: traumatised persons and victimsof torture; LGBTI*; single women and pregnant women; children and unaccompanied children; persons
with disabilities, with chronic diseases and older persons.148 The network has been involved in thedevelopment of guidelines for the social services to assist with the identification of vulnerable groups. 149
The guidelines, published in August 2018, provide detailed information on how vulnerable persons canbe identified and on the determination of special support needs. If the social services find during thereception procedure at the arrival centre Berlin that an asylum seeker has special reception needs or
requires special procedural guarantees, they try to take appropriate measures (including appointmentswith specialised institutions) and inform the BAMF accordingly. 150 In spite of these efforts, participating
NGOs of the Berlin network have reported that measures to accelerate procedures in the “arrival centre”
have had a negative impact on the identification process, since the interview in the asylum procedure isoften scheduled before the persons concerned have a chance to speak to staff members of NGOs or of
the Federal State institutions. Asylum seekers at this point are mainly in contact with staff members of the
BAMF which is not involved in the identification scheme and which does not seem to have a concept for
identification of vulnerable groups.151 Recent practice shows that when an asylum seeker needs special
procedural guarantees, the BAMF simply assigns “special officers” for the interview (see Special
Procedural Guarantees). Apart from that, the regular procedure is carried out and the interview may takeplace within a few days. NGOs have criticised the fact that special procedural needs of asylum seekers
are not taken into account (i.e. the lack of support and time to prepare for an interview. 152
Other projects to improve the identification of vulnerable groups have been established in reception
centres first in Friedland and then also in other reception centres in the Federal State of Lower

147

148

149

150

151

152

Nina Hager and Jenny Baron, ‘Eine Frage von Glück und Zufall. Zu den Verfahrensgarantien für psychischKranke oder Traumatisierte im Asylverfahren’ in Informationsverbund Asyl und Migration (ed), Beratung und
Rechtsschutz im Asylverfahren: Beilage zum Asylmagazin 7-8/2017, July 2017, 17-26.
A list of the project partners of the „Berliner Netzwerk für besonders schutzbedürftige Flüchtlinge” can be found
at: https://bit.ly/3dR5CGU.
Leitfaden zur Identifizierung von besonders schutzbedürftigen Geflüchteten in Berlin. Für Mitarbeiter*innen
des Sozialdienstes des Landesamts für Flüchtlingsangelegenheiten (LAF), available in German at:https://bit.ly/38kBqme.
Flüchtlingsrat Berlin, Das Schnellverfahren für Asylsuchende im Ankunftszentrum Berlin, November 2017,
available in German at: http://bit.ly/2HdSDzb.
Nina Hager and Jenny Baron, ‘Verfahrensgarantien für psychisch Kranke oder Traumatisierte’, Asylmagazin
7–8/2017, 17-26, 22.
Manuel Armbruster, Georg Classen und Katharina Stübinger, ‘Neue Verfahrensabläufe im Ankunftszentrum
Berlin’, Asylmagazin 10-11/2018, 350.

53

Saxony,153 as well as in Brandenburg and Rhineland-Palatinate.154 In the latter, the regional
government has adopted a protection concept which also includes methods for the identification ofvulnerabilities.155 This includes the following measures:

▪
▪
▪
▪

Obligation to check for possible vulnerabilities in the reception centres during the initial stages of
the reception process and the asylum procedure;
Intensification of communication between various actors and authorities involved in the reception
system and in the first steps of the asylum procedure;
Documentation of possible vulnerabilities in a data system used by all authorities involved in thereception process and in the asylum procedure;
Training measures for persons employed by the Federal State in the reception centres to raiseawareness on the different forms of vulnerabilities.

However, there are considerable variations to the procedure in the different arrival centres, AnkER centres
etc. There is no common approach on access to social services or other counselling institutions and, inmany centres, this access does not even exist. This depends on how the Federal States and the BAMF
have organised the procedure in the respective centres. While other Federal States have also adopted
measures for the protection of violence in accommodation centres, 156 the guidelines from Berlin andRhineland-Palatinate seem to be the only publicly available examples of detailed measures for theidentification and accommodation of vulnerable persons. 157
The BAMF claims that the new counselling service for asylum-seekers, consisting of general informationon the procedure as well as the opportunity to make individual appointments with BAMF staff (seeProvision of information on the procedure) has led to vulnerabilities “being partially identified more
often”.158 However, no details were given concerning the number or the type of vulnerabilities which wereidentified in the course of the new advice service.
With the exception of unaccompanied children, the BAMF does not collect statistics on the number ofvulnerable persons applying for asylum in Germany. 159

1.2. Age assessment of unaccompanied children
The BAMF is not responsible for age assessments but refers all unaccompanied asylum seekers claiming
to be under 18 to the local youth welfare office (Jugendamt).160 During the provisional care period, theyouth welfare office has to establish the age of the unaccompanied minor. The office has to check
identification documents and, if these are not available, an age assessment has to be carried out basedon a “qualified inspection”, meaning the visual impressions of two experienced staff members of the
153

154

155

156

157

158
159
160

See evaluation report of the project in Lower Saxony which was carried out between 2015 and 2018: JennyThomsen, Evaluation zur Früherkennung besonders Schutzbedürftiger im Aufnahmeverfahren, Umsetzung
der EU-Aufnahmerichtlinie 2013/33/EU in Niedersachsen, July 2018, available at: https://bit.ly/3dVoCnq.
Nina Hager and Jenny Baron, ‘Verfahrensgarantien für psychisch Kranke oder Traumatisierte’, Asylmagazin
7–8/2017, 17-26, 22.-24.
Konzept zum Gewaltschutz und zur Identifikation von schutzbedürftigen Personen in den Einrichtungen derErstaufnahme in Rheinland-Pfalz, available in German at: https://bit.ly/2FsmG7V.
A list of six of such protection concepts has been compiled by the Bundesinitiative „Schutz von geflüchteten
Menschen in Flüchtlingsunterkünften“ (Federal Initiative for the protection of asylum seekers/refugees inaccommodation centres“); available in German at: https://bit.ly/2uAMF7t.
For example, the protection concept for the Federal State of North-Rhine Westphalia refers to the concept ofvulnerable persons in general terms and it specifies detailed standards for accommodation facilities, but it
does not contain any guidelines for the identification of vulnerable groups. See: Landesgewaltschutzkonzept
für Flüchtlingseinrichtungen des Landes Nordrhein-Westfalen (Regional concept for protection from violencein refugee facilities of the Federal State of North Rhine-Westphalia), March 2017, available in German athttps://bit.ly/2ul7CCQ.
BAMF, Entscheiderbrief 11/2019, available in German at https://bit.ly/2BZqdLY, 2.
Information provided by the BAMF, 1 August 2017.
BAMF, Dienstanweisung Asyl (internal directive for asylum procedures), 21 February 2019, available athttps://bit.ly/2C1XSVi, 4/14.

54

office.161 As part of this qualified inspection, the office may hear or gather written evidence from experts
and witnesses.
Only in cases in which remaining doubts concerning the age cannot be dispelled by these means, theyouth office may initiate a medical examination. This examination has to be carried out by qualified
medical experts with the “most careful methods”. The explanatory memorandum to the law states explicitlythat the previously practiced examination of the genitals is excluded in this context.162
The problem of questionable age assessments carried out by the authorities has been discussed in somecourt decisions in 2016. For instance, the Administrative Court Berlin criticised the authorities for an age
assessment based only on outward appearances.163 This age assessment had been called into question
by a paediatrician. The High Administrative Court of Bavaria, in a decision of 16 August 2016, set certain
standards for age assessment by the authorities: According to the High Administrative Court, such an age
assessment based only on outward appearances cannot be regarded as sufficiently certain if there ispossibility that a medical examination might lead to a different result. This means that such an assessment
could only be done in exceptional cases in which there can be no doubt that an asylum seeker is older
than 18 years. All other cases should be treated as “cases of doubt” and a “grey area” (margin of error)of one to two years should be taken into account in favour of the asylum seeker. Even following a medical
examination a margin of error of another two to three years should be considered as a margin of tolerance,in order to avoid any risk of incorrect assessments. The court based its opinion on an expert’s statement,
according to which some medical methods for age assessment had a margin of error of up to five years. 164
The decision of the youth welfare office may be challenged with an “objection”, to be filed within one
month and to be examined by the youth authorities themselves. If the objection is not successful, theperson can appeal before the competent Family Court. However, neither the objection nor the appeal dohave suspensive effect.165 This means that the youth welfare office’s decision not to take a young person
into custody remains in force as long as the objection or appeal procedure is pending.
In practice, though, the results of age assessment are rarely challenged and therefore not many court
decisions on this issue have become known. A study by the NGO “Association for unaccompanied refugeeminors” found that young persons affected by age assessments as well as staff of youth authorities often
were not aware of the possibility to challenge age assessments. Moreover, young persons usually lose
any entitlement to be supported in legal matters by the youth authorities once they are declared to be
adults in the course of the age assessment.166
Given that different youth welfare offices and Family Courts are responsible for age assessments, nostatistics are available on the number and outcome of age assessments.

2. Special procedural guarantees
Indicators: Special Procedural Guarantees
1. Are there special procedural arrangements/guarantees for vulnerable people?
Yes
For certain categories
No❖ If for certain categories, specify which: Unaccompanied children, traumatised persons
Victims of torture or violence
161
162

163
164

165
166

Section 42f Social Code (SGB), Vol. VIII.
Bundesfachverband Unbegleitete Minderjährige Flüchtlinge, Vorläufige Inobhutnahme – Was ändert sich zum
1.11.2015?, October 2015, 2-3.
Administrative Court Berlin, Decision 18 L 81.16, 19 April 2016, asyl.net, available at: http://bit.ly/2mJm85c.
High Administrative Court Bavaria, Decision 12 CS 16.1550, 16 August 2016, asyl.net, available at:
http://bit.ly/2m2hP0w.
Section 42f(3) Social Code, Vol. VIII.
Nerea González Méndez de Vigo, Alterseinschätzung – ein Irrgarten ohne Ausweg? Rechtlicher Rahmen und
Verfahren der Alterseinschätzung in Deutschland, Asylmagazin 6-7/2019, available in German at:https://bit.ly/2VI0w9G, 206-217.

55

2.1. Adequate support during the interview
The BAMF does not have specialised units dealing with vulnerable groups but employs “special officers”(Sonderbeauftragte) responsible for interviews and decisions on claims by applicants with special needs.
In addition to the core modules of the EASO Training Curriculum, these special officers also complete thetraining module on “Interviewing Vulnerable Persons”.167 The BAMF guidelines stipulate that the following
cases shall be handled in a particularly sensitive manner and, if necessary, by specially-trained decisionmakers:168- Unaccompanied children;- Victims of gender-specific prosecution; and- Victims of torture and traumatised asylum seekers.
As of June 2019, the following numbers of special officers were working at the BAMF with these areas of
responsibilities: Unaccompanied children (396), victims of gender-specific persecution (211) traumatised
persons and victims of torture (218), victims of trafficking (151). 169
If it becomes evident during the interview that an asylum seeker belongs to one of these groups, theofficer conducting the interview is obliged to consult a special officer. A note has to be added to the file on
how the officers are planning to proceed, particularly if the special officer takes over the case as a resultof this consultation. According to recent information provided by the government, there is an obligation incases of unaccompanied minors for special officers to take over responsibility for the asylum procedures.
In other cases of other vulnerable groups, the special officer has to be consulted and there are two options
for further procedures: Either the special officer adopts an advisory role or s/he takes over responsibility
for the procedure.170 However, the BAMF does not record the number of cases in which special officers
are consulted or in which procedures are delegated to special officers.171
Lawyers have reported that the introduction of the special officers has led to some improvement in thehandling of “sensitive” cases, but there have also been examples of cases in which indications of trauma
and even explicit references to torture did not lead to special officers being consulted. It has also beenreported that the involvement of special officers does not automatically result in a better quality ofinterviews.172
It has been noted that the BAMF seems to operate with a very limited understanding of “adequate support”
for vulnerable groups.173 Thus, in a BAMF guideline for the establishment of arrival centres, vulnerable
groups are defined as persons who should be interviewed by a special officer, “following a transpositionof the relevant provisions of the Asylum Procedures Directive into German law.” It is not clear whichtransposition is referred to here, since the law does not contain any reference to the concept of “adequate
support” at the moment. Furthermore, no other procedural guarantees for vulnerable groups are referred
to in this document.

167
168
169

170
171

172

173

Federal Government, Reply to parliamentary question by The Left, 18/12001, 20 April 2017, 3.
BAMF, DA-Asyl (Dienstanweisung Asylverfahren) – Belehrungen, 2010, 139.
The government notes that the figures cannot be added since some officers may have qualified in more than
one area; furthermore, for unknown reasons branch offices did not report the number of their special officers
if this was lower than 3; Federal Government, Reply to parliamentary question by The Left, 19/10733, 6 June
2019, 7-8.
Federal Government, Reply to parliamentary question by The Left, 19/10733, 6 June 2019, 6-8.
BAMF, response to information request, e-mail from “Zentrale Ansprechstelle” (central contact point), 28
August 2019.
See e.g. FRA, Monthly data collection: Highlights – Migrants with disabilities, August 2016, available at:
http://bit.ly/2kWFgLT, 14.
Nina Hager and Jenny Baron, ‘Verfahrensgarantien für psychisch Kranke oder Traumatisierte’, Asylmagazin
7–8/2017, 17-26, 19.

56

In August 2019, the BAMF provided the following information on “special officers”:174 Staff members who
become „special officers“ have to complete a training module for the specialisation they want to achieve.
There are training modules for the the following areas:• Unaccompanied minors;• Gender-specific prosecution;• Traumatised persons and victims of torture;• security issues in asylum procedures.
Special officers for security issues are responsible for a whole range of issues and should be involved inasylum procedures whenever indications arise for instances of “extremism, terrorism, criminality, humantrafficking, war crimes, crimes against humanity and smuggling of human beings”.175 The special officers
for security issues act as contact points between the BAMF and other authorities, but they do notnecessarily take part in interviews or take over responsibility of particular asylum procedures.

2.2. Exemption from special procedures
Guarantees for unaccompanied children are identical in prioritised and non-prioritised cases. Although
there is no provision for this in the law, unaccompanied children were not placed in the airport procedurein 2019.176 That said, the detention facility at Frankfurt/Main Airport contains dedicated rooms forunaccompanied boys and girls.177 In any case, the exemption does not apply to children who arrive at the
airport together with their parents (86 airport procedures were initiated for children in 2019). 178
The airport procedure is also applied to other vulnerable groups such as pregnant women, persons withacute medical conditions and victims of rape or other forms of violence. It has also been reported thatthe BAMF conducts interviews with pregnant women lasting several hours in the airport facilities. 179

3. Use of medical reports
Indicators: Use of Medical Reports
1. Does the law provide for the possibility of a medical report in support of the applicant’s statements
regarding past persecution or serious harm?
Yes
In some cases
No
2. Are medical reports taken into account when assessing the credibility of the applicant’s
statements?
Yes
No
The BAMF is generally obliged to clarify the facts of the case and to compile the necessary evidence. 180
As a general rule, an applicant is not expected to provide written evidence, but is only obliged to handover to the authorities those certificates and documents which are already in his or her possession andwhich are necessary “to substantiate his claim or which are relevant for the decisions and measures tobe taken under asylum and foreigners law, including the decision and enforcement of possible deportation
to another country”.181 This is not only relevant with regard to past persecution, but also with a view to the
future, since the German asylum procedure includes an examination of “serious concrete risks” to life andlimb which an applicant might face upon return. 182 Such a risk may also consist in a potential serious harm

174

175
176
177

178
179
180
181
182

BAMF, response to information request, e-mail from “Zentrale Ansprechstelle” (central contact point), 28
August 2019.
BAMF, Entscheiderbrief (newsletter for decision-makers) 4/2020, 1.
Federal Government, Reply to parliamentary question by The Left, 19/18498, 2 April 2020, 43.
ECRE, Airport procedures in Germany Gaps in quality and compliance with guarantees, April 2019, available
at: https://bit.ly/2QgOmAH.
Federal Government, Reply to parliamentary question by The Left, 19/18498, 2 April 2020, 44.
Ibid.
Section 24(1) Asylum Act.
Section 15(3) Asylum Act.
Section 60(7) Residence Act.

57

on health grounds or in a risk which might result from a lack of appropriate health care in the country oforigin.
Based on these principles, the guidelines of the BAMF distinguish between two categories with regard to
medical statements:-

Persons claiming a “past persecution,” for whom a detailed (oral) submission is generally deemedsufficient. In addition (and with consent of the applicant), the BAMF may arrange for a medical
examination to further corroborate or refute statements by the applicant. In these cases, the costs
for the medical examination are covered by the BAMF.183-

Persons claiming a ‘future risk”: In contrast, these applicants must submit medical reports tosubstantiate their claim of future risks, defined as possible “serious concrete risks” upon return.
According to the BAMF’s guidelines, such a medical report has to be issued by a qualified
specialist. This means that, as a rule, statements by doctors who are not specialists in therespective medical area should not be accepted. Furthermore, the statements are only accepted
if the specialist is entitled to use the title of “medical doctor” in Germany. This also means thatstatements by other health professionals (such as psychologists or psychotherapists) are
generally not deemed sufficient, and that they may only provide a reason to further examine theapplicant’s claim.184

The BAMF‘s requirements for medical statements are based on legislation which has considerably
tightened the rules for the substantiation of diseases in recent years. In 2016, stricter rules for medical
statements were introduced with regard to the so-called “impediments to deportation” which might resultin a toleration (Duldung) based on national law.185 With the introduction of a new amendment in 2019, thesame rules apply to asylum procedures in which medical reasons are presented which might result in ahumanitarian status.186 At the same time, the requirements for medical certificates have been expanded:
The law now stipulates that a medical certificate should in particular set out: 187- the actual circumstances which have led to the professional assessment of the applicant‘s
condition;- the method of assessment;- the professional-medical assessment of the clinical picture (diagnosis);- the severity of the disease;- the Latin name or the classification of the disease according to ICD-10;- the consequences that are likely to result from the medical condition;- necessary medications, including their active substances and their international name.
Even before the new law came into effect, there have been frequent debates on the standards which
medical reports have to fulfil in order to be accepted by authorities or courts, particularly in cases ofalleged Post-Traumatic Stress Disorder. The Federal Administrative Court found in 2007 that a medical
expertise attesting a Post-Traumatic Stress Disorder has to adhere to certain minimum standards but
does not necessarily have to meet all requirements of an expertise based on the criteria of theInternational Classification of Diseases (ICD-10). Accordingly, if a medical report complies with minimum
standards, it must not simply be disregarded by authorities or courts, but they have to seek further
opinions if doubts remain on the validity of the report submitted.188 This ruling by the Federal
Administrative Court still provides for an important standard in the asylum procedure: While authorities or
183

184

185
186
187
188

BAMF, DA-Asyl (Dienstanweisung Asylverfahren) – Medizinische Untersuchung bei Hinweis auf erlittene
Verfolgung oder erlittenen ernsthaften Schaden in der Vergangenheit (Stand 2/19), available athttps://bit.ly/3iFnYOF.
BAMF, DA-Asyl (Dienstanweisung Asylverfahren) – Krankheitsbedingte Abschiebungsverbote (Stand 2/19),
available in German at: https://bit.ly/3iFnYOF.
Section 60a IIc of the Residence Act.
Section 60 VII 2nd sentence of the Residence Act.
Section 60a IIc 2nd and 3rd sentences of the Residence Act.
Federal Administrative Court, Decision of 11 September 2007 - 10 C 8.07 – (asyl.net, M12108).

58

courts may formally reject medical statements if they do not fully comply with the legal requirements, theycannot always disregard such statements completely. Rather, they may be obliged to make further
enquiries. Nevertheless, lawyers have also pointed out that the requirements for medical statements have
only slightly been loosened by the Federal Administrative Court and it is still difficult to meet thesestandards in practice.189 For example, it is often extremely difficult for asylum seekers to get access to an
appropriate therapy because of a lack of specialised therapists or because authorities reject applications
to take over the costs for therapy (including costs for interpreters). In such cases, it may also prove highly
difficult to even find a specialist to submit a medical opinion.

4. Legal representation of unaccompanied children
Indicators: Unaccompanied Children
1. Does the law provide for the appointment of a representative to all unaccompanied children?
Yes
No
Unaccompanied children who are not immediately refused entry or returned after having entered
Germany irregularly, are taken into provisional care of the youth welfare office (Jugendamt) in themunicipality in which they have had the first contact with authorities or in which they have been
apprehended.190
In some Federal States, the youth welfare office carries out a so-called “clearing procedure“, which
includes an examination of whether there are alternatives to an asylum application, such as family
reunification in a third country or application for a residence permit on humanitarian grounds. 191 Although
the government has repeatedly declared its intention to establish a nationwide clearing procedure, thishas not been introduced so far.
The role of the guardian in the asylum procedure has been described as “unclear”,192 and the law does
not contain any provisions which might help improve this situation. Often, guardians appointed by the
youth welfare offices are not in a position to sufficiently support the children in the asylum procedure,
because of overburdening or because they have no specific knowledge of asylum laws. 193 It has been
noted that the current legal situation is not in line with relevant provisions of the recast Asylum Procedures
Directive and other European legal acts which state that children should be represented and assisted byrepresentatives with the necessary expertise. 194

189

190

191

192

193

194

Deutsches Rotes Kreuz und Informationsverbund Asyl und Migration, ed. Krankheit als
Abschiebungshindernis. Anforderungen an die Darlegung von Abschiebungshindernissen aufgrund vonKrankheit im Asyl- und Aufenthaltsrecht, author: Oda Jentsch, December 2017, 26.
Gesetz zur Verbesserung der Unterbringung, Versorgung und Betreuung ausländischer Kinder undJugendlicher, Official Gazette I of 28 October 2015, 1802. The most important regulations of the law aresummarised in Federal Association for Unaccompanied Refugee Minors, Vorläufige Inobhutnahme – Wasändert sich zum 1.11.2015?, October 2015.
See for example: Handreichung zum Umgang mit unbegleiteten minderjährigen Flüchtlingen in NordrheinWestfalen 2017 (recommendations for the treatment of unaccompanied minor refugees in North RhineWestphalia), available at: https://bit.ly/2JCSRpD.
Gesetz zur Verbesserung der Unterbringung, Versorgung und Betreuung ausländischer Kinder undJugendlicher, Official Gazette I of 28 October 2015, 1802. The most important regulations of the law aresummarised in ‘Federal Association for Unaccompanied Refugee Minors’, Vorläufige Inobhutnahme – Wasändert sich zum 1.11.2015?, October 2015, 30.
Uta Rieger und Nerea González Méndez de Vigo, Kindgerechte Ausgestaltung des Asylverfahrens – Eine
Bestandsaufnahme, in: Deutsches Kinderhilfswerk e.V. (ed.): Sammelband Kindgerechte Justiz, available at:https://bit.ly/2DmvbTE, 62-64.
Stephan Hocks, ‘Die Vertretung unbegleiteter minderjähriger Flüchtlinge’, Asylmagazin 11/2015, 367-373.

59

E. Subsequent applications
Indicators: Subsequent Applications
1. Does the law provide for a specific procedure for subsequent applications?

Yes

No

2. Is a removal order suspended during the examination of a first subsequent application?
❖ At first instanceYes
No❖ At the appeal stageYes
No
3. Is a removal order suspended during the examination of a second, third, subsequent application?
❖ At first instanceYes
No❖ At the appeal stageYes
NoThe law defines a subsequent application (Folgeantrag) as any claim which is submitted after a previous
application has been withdrawn or has been finally rejected. 195 In case of a subsequent application the
BAMF conducts a preliminary examination on the admissibility of the application. The admissibility test isdetermined by the requirements for resumption of procedures as listed in the Administrative Procedure
Act.196 According to this, a new asylum procedure is only initiated if:
1. The material or legal situation on which the decision was based has subsequently changed infavour of the applicant;
2. New evidence is produced which would have resulted in a more favourable decision for theapplicant in the earlier procedure; or
3. There are grounds for resumption of proceedings, for example because of serious errors in theearlier procedure.197
Further requirements are that:198
4. The applicant was unable, without grave fault on his or her part, to present the grounds forresumption in earlier proceedings, particular by means of legal remedy; and5. The application must be made within 3 months after the applicant has learned of the grounds forresumption of proceedings.
Only if these requirements are met, the applicant regains the legal status of asylum seeker and the meritsof the case will be examined in a subsequent asylum procedure. The procedure is the same for third or
further applications.
The legal status of applicants pending the decision on the admissibility of their subsequent application is
not expressly regulated by law. It is generally assumed, though, that a deportation order has to besuspended until the Federal Office has taken a decision on the commencement of a new asylum
procedure. Accordingly, the stay of applicants is to be “tolerated” (geduldet) until this decision has been
rendered.199 However, a deportation may proceed from the very moment that the Federal Office informs
the responsible Foreigners’ Authority that a new asylum procedure will not be initiated. If an enforceable
deportation order already exists, a new deportation order or other notification is not required to enforce

195
196
197

198
199

Section 71 Asylum Act.
Section 51(1)-(3) Administrative Procedure Act (Verwaltungsverfahrensgesetz).
The relevant grounds for this third alternative are listed in Section 580 of the Code of Civil Procedure (“action
for retrial of a case”), to which the Asylum Act makes a general reference. Serious errors according to thisprovision include false testimony by witnesses or experts. Apart from that, Section 580 of the Code of Civil
Procedure contains several grounds which are either not relevant for the asylum procedure or are covered by
the grounds referred to under the first and second alternatives mentioned here. Although it is conceivable thatthe third alternative may apply in certain cases, it hardly seems to be of significance in practice, cf. Kerstin
Müller, AsylVfG § 71, para. 32, in Hofmann/Hoffmann, eds. HK-AuslR (Handkommentar Ausländerrecht),
2008, 1826.
Section 51(2) Administrative Procedure Act.
Kerstin Müller, ‘AsylVfG § 71, para. 44’, in Hofmann/Hoffmann, eds., HK-AuslR (Handkommentar
Ausländerrecht), 2008, 1830.

60

deportation.200 The applicant may also be detained pending deportation until it is decided that asubsequent asylum procedure is carried out.201
The decision on admissibility of a subsequent application can be carried out without hearing theapplicant.202 This means that the BAMF has full discretion in deciding whether to conduct an interview or
not at this stage. Therefore, it is often recommended that subsequent applications, which generally haveto be submitted in person, should be accompanied with a detailed written motivation.
If the BAMF decides not to carry out a subsequent procedure, the application is rejected as“inadmissible”.203 This decision can be appealed before an Administrative Court. It is also necessary torequest an interim measure from the court in order to suspend deportation.
There is no free legal assistance available for subsequent applications or for appealing against rejectionsof subsequent applications.
In contrast, if the Federal Office decides to carry out a new procedure, this will usually be in the form of a“regular procedure” and the applicant regains the status of asylum seeker, including access to reception
conditions and including the other rights and obligations connected with this status. Since March 2016, it
is also possible that subsequent applications are dealt with in the “accelerated procedure”, but this typeof procedure has only been introduced in two branch offices of the BAMF (see Accelerated Procedure).
Furthermore, accelerated procedures should only take place if the applicant has left Germany after his or
her initial asylum procedure had been concluded, so most subsequent applications should not be affectedby this provision.204
23,429 persons lodged subsequent applications in 2019. The decisions on subsequent applications in2019 were as follows:
Subsequent applicants and decisions on subsequent applications: 2019
Nationality

Applications

Decisions

Inadmissible

Admissible
Positivedecision

Negativedecision

Termination /inadmissibility

Syria

1,824

1,815

899

723

18

175

Afghanistan

1,784

2,488

981

623

145

739

Iraq

1,606

1,926

752

175

228

771

Serbia

1,577

1,589

1,227

2

179

181

Nigeria

1,463

1,714

691

67

143

813

Total

23,42926,20814,020

2,594

2,641

6,953

Source: BAMF, Asylgeschäftsstatistik (statistics on applications, decisions and pending procedures), 1-12/2019,available at: https://bit.ly/38DEdqJ.

The statistics show that the majority of subsequent applications fail at the level of the admissibility
examination, before the asylum procedure is reopened (53.5%), or the follow-up procedure is terminated
200
201
202
203
204

Section 71(5) Asylum Act.
Section 71(8) Asylum Act.
Section 71(3) Asylum Act.
Section 29(1)(5) Asylum Act.
This qualification (that only asylum seekers who have left Germany after a first asylum procedure are subject
to this provision) is not contained in the law. However, a representative of the BAMF stated in a committee
hearing in Parliament that the authorities were obliged to make use of this qualification for legal reasons. The
Federal Government later explained that the authorities would “presumably” apply the law in this manner:
Federal Government, Response to a parliamentary question by Member of Parliament Volker Beck, 18/7842,
8 March 2016, 19.

61

later either for formal reasons or because the application is found to be inadmissible at this stage (26.5%).
When looking exclusively at applications decided on the merits (5,235), it appears that almost 50% of
these subsequent applications were successful (i.e. 2,594 positive decisions, equalling to 49.4%).
The 2,594 “positive” decisions resulted in the following status decisions: 205• Asylum or refugee status: 1,255• Subsidiary protection: 329• (National) humanitarian protection/prohibition of deportation: 1,010

F. The safe country concepts
Indicators: Safe Country Concepts
1. Does national legislation allow for the use of “safe country of origin” concept?
❖ Is there a national list of safe countries of origin?
❖ Is the safe country of origin concept used in practice?

Yes
Yes
Yes

No
No
No

2. Does national legislation allow for the use of “safe third country” concept?
❖ Is the safe third country concept used in practice?

Yes
Yes

No
No

3. Does national legislation allow for the use of “first country of asylum” concept?

Yes

No

Both the “safe third country” concept and the “safe country of origin” concept are incorporated in theGerman Constitution (Grundgesetz) and further defined in the Asylum Act.206 The concept of “anotherthird country”, akin to the “first country of asylum” concept, has been incorporated in the inadmissibility
concept of the Asylum Act following the reform entering into force in August 2016 (see Admissibility
Procedure).

1. Safe country of origin
The Constitution defines as safe countries of origin the countries “in which, on the basis of their laws,
enforcement practices and general political conditions, it can be safely concluded that neither politicalpersecution nor inhuman or degrading punishment or treatment exists”.207

1.1. List of safe countries of origin
Member states of the European Union are by definition considered to be safe countries of origin. 208 The
list of safe countries of origin is an addendum to the law and has to be adopted by both chambers of the
Parliament. If the situation in a safe country of origin changes and it can no longer be considered to besafe within the meaning of the law, the Federal Government may issue a decree to remove this country
from the list for a period of 6 months.
At present, the list of safe countries consists of:- Ghana;- Senegal;- Serbia;- North Macedonia;- Bosnia-Herzegovina;- Albania;- Kosovo;
205
206
207
208

BAMF, Monthly asylum report, December 2018, available at: https://bit.ly/2T3P04i, 7.
Article 16a(2)-(3) Basic Law.
Article 16a(3) Basic Law.
Section 29a(2) Asylum Act.

62

-

Montenegro.

Serbia, North Macedonia and Bosnia-Herzegovina were added to the list following the entry into force ofa law on 6 November 2014.209 Albania, Kosovo and Montenegro were added with another law which tookeffect on 24 October 2015.210
A draft law was introduced by the government in April 2016 with the aim of adding the so-called Maghreb
states (Morocco, Algeria, Tunisia) to the list of safe countries of origin.211 However, the law required theapproval of the second chamber of parliament (Bundesrat) which rejected the designation of the three
countries on 10 March 2017.212 Another attempt to add these countries to the list was made in 2018, but
the draft bill was removed from the Bundesrat’s agenda in February 2019 as it became obvious that it
would be rejected again. Removal from the agenda does not mean that the bill has failed, but that it canbe reintroduced at a later date.213 No further developments were reported in 2019 however.

1.2. Procedural consequences
Applications of asylum seekers from safe countries of origin shall be considered as manifestly unfounded,
unless the applicant presents facts or evidence which justify the conclusion that he or she might bepersecuted in spite of the general situation in the country of origin.
Since March 2016, accelerated procedures can be carried out for applicants from safe countries of origin(see Accelerated Procedure). However, this is only possible in branch offices of the BAMF to which a“special reception centre” has been assigned. Only two of these centres were established in 2016 (inBamberg and Manching/Ingolstadt) and in both locations, both accelerated and regular procedures canbe carried out. No exact figures were provided as to how many accelerated procedures had actually takenplace in these centres. Therefore, it can be concluded that the introduction of accelerated procedures has
only had a minimal impact on procedures in general so far. Most procedures from applicants from safecountries of origin are still examined in the regular procedure.
Numbers of applications from asylum seekers from safe countries of origin decreased dramatically inrecent years and have remained on a low level in 2019. The following table shows statistics for asylum
applications by relevant nationalities::Asylum applications by nationals of “safe countries of origin”

209

210
211

212

213

2016

2017

2018

2019

Albania

17,236

6,089

2,941

2,573

Serbia10,273

4,915

2,606

2,718

North Macedonia

7,015

4,758

2,472

2,258

Kosovo

6,490

2,403

1,224

875

Bosnia and Herzegovina

3,109

1,438

870

633

Ghana

2,645

1,134

992

966

Gesetz zur Einstufung weiterer Staaten als sichere Herkunftsstaaten und zur Erleichterung desArbeitsmarktzugangs für Asylbewerber und geduldete Ausländer, BGBl. I, No. 49, 5 November 2014, 1649.
Asylverfahrensbeschleunigungsgesetz, BGBl. I, 23 October 2015, 1722.
Entwurf eines Gesetzes zur Einstufung der Demokratischen Volksrepublik Algerien, des Königreichs Marokko
und der Tunesischen Republik als sichere Herkunftsstaaten, 68/16, available in German at:
http://bit.ly/2kSi5CO.
Bundesrat, ‘Keine Zustimmung: Gesetz zu sicheren Herkunftsstaaten’, 10 March 2017, available at:
http://bit.ly/1owVXpm.
Spiegel, ‘Bundesrat verschiebt Abstimmung über sichere Herkunftsländer’, 15 February 2019, available inGerman at: https://bit.ly/2urOtiw.

63

Montenegro

1,630

730

377

252

Senegal

767

378

366

365

Total

49,165

21,845

11,848

10,640Source: BAMF, Asylgeschäftsstatistik (statistics on applications, decisions and pending procedures), 1-12/2019,available in German at: https://bit.ly/38DEdqJ.

It should be noted that many asylum applications of persons from safe countries of origin are subsequent
applications (e.g. 34.2% for Albania, 58% for Serbia and 50.5% for North Macedonia). Hence the numberof newly arriving asylum seekers from these countries is considerably lower than the numbers provided
above.
To illustrate the developments of protection rates of “safe countries of origin”, the following table includes
decisions on first applications from Albania, Serbia and North Macedonia. The figures include all cases inwhich refugee status, subsidiary protection or (national) humanitarian protection/prohibition of deportation
was granted:
Recognition rates for nationals of selected “safe countries of origin”
2016

2017

2018

2019

Albania

0.4%

1.8%

1.2%

0.9%

North Macedonia

0.4%

1%

0.8%

0.2%

Serbia

0.4%

1%

0.7%

0.1%

Source: BAMF, Antrags-, Entscheidungs- und Bestandsstatistik, 2016, 2017 and 2018 and Asylgeschäftsstatistik(statistics on applications, decisions and pending procedures), 1-12/2019, available at: https://bit.ly/38DEdqJ.

2. Safe third country
The safe third country concept is contained in Section 26a of the Asylum Act.
By definition of the law, all Member States of the European Union are safe third countries. In addition, alist of further safe third countries can be drawn up. 214 In those countries the application of the 1951
Refugee Convention and of the European Convention on Human Rights (ECHR) has to be “ensured”.
The list is an addendum to the Asylum Act and has to be adopted by both chambers of the German
Parliament. The Federal Government is entitled to remove a country from that list if changes in its legal
or political situation “give reason to believe” that the requirements for a safe third country are not met any
longer. At present, the list of further safe third countries consists of Norway and Switzerland.
From its wording, the safe third country concept only applies to the German (constitutional) asylum, but
the Federal Constitutional Court found in a landmark decision in 1996 that its scope extends to refugeeprotection and to other forms of protection as well. 215 Accordingly, asylum seekers can be sent back tosafe third countries with neither an asylum application, nor an application for international or national
protection being considered. Today the safe third country concept has its main impact at land borders.216
Federal Police shall refuse entry if a foreigner, who has entered from a safe third country, requests asylum
at the border. Furthermore, Federal Police shall immediately initiate removal to a safe third country if an
asylum seeker is apprehended at the border without the necessary documents. 217 Asylum applications
may not be accepted or referred to the responsible authority by the Federal Police if entry to the territory

214
215
216
217

Section 26a(2) Asylum Act.
Federal Constitutional Court, Decision of 14 May 1996, 2 BvR 1938/93, 2 BvR 2315/93, BVerfGE 94, 49 (189).
Section 18 Asylum Act.
The border area is defined as a strip of 30 kilometres.

64

is denied, unless it turns out that Germany is responsible for processing the asylum procedure based on
EU law, e.g. because Germany has issued a visa. In practice, the provisions enabling the Federal Police
to send asylum seekers back to the border have been largely ineffective for many years. This is due tothe fact that no systematic border controls took place at land borders and because returns of asylum
seekers can can only be carried out under the Dublin regulation as a matter of principle. However, in 2018a new procedure was introduced which enables the Federal Police to refuse entry at the border. This
procedure is based on administrative regulations only and on agreements with Spain and Greece (i.e. nolegislative changes were implemented). It is only applied at the Austrian-German border, since this is the
only border where controls are in force at the moment (See Access to the Territory).

3. First country of asylum
The “first country of asylum” concept is not referred to as such in German law. However, Sections 27 and29(1)(4) of the Asylum Act refer to cases where a person was already safe from persecution in “anotherthird country” (sonstiger Drittstaat) as a ground for inadmissibility. Such safety is presumed where theapplicant holds a travel document from that country, 218 or has resided there for more than 3 months without
being threatened by persecution.219
Important restrictions to the application of the provision have been removed in 2016. In particular, theformer provision could only be applied if return to the safe “other third country” was possible within 3months. Although this qualification has been removed, the provision has been applied rarely, only 37 times
in 2018 and 38 times in 2019 (see Admissibility Procedure).220

G. Information for asylum seekers and access to NGOs and UNHCR
1. Provision of information on the procedure
Indicators: Information on the Procedure
1. Is sufficient information provided to asylum seekers on the procedures, their rights andobligations in practice?
Yes
With difficultyNo❖ Is tailored information provided to unaccompanied children?

Yes

No

According to Section 24(1) of the Asylum Act, the BAMF:“... [S]hall inform the foreigner in a language he can reasonably be supposed to understand about
the course of the procedure and about his rights and duties, especially concerning deadlines andthe consequences of missing a deadline.”

1.1. Written information
Various other sections of the Asylum Act also contain obligations on the authorities to inform asylum
seekers on certain aspects of the procedure. Accordingly, asylum seekers receive various information
sheets when reporting to the authorities and/or upon arrival at the initial reception centre, 221 including thefollowing:- An information sheet on the rights and duties during the procedure and on the proceedings in
general (“Belehrung nach § 10 AsylG und allgemeine Verfahrenshinweise”);- An instruction on the obligation to comply immediately with a referral to the competent branch office
218
219
220
221

Section 27(2) Asylum Act.
Section 27(3) Asylum Act.
Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, 6.
BAMF, DA-Asyl (Dienstanweisung Asylverfahren) – Belehrungen (internal directives of the BAMF), parts ofthese directives, as at October 2016, were made available by the BAMF upon request: BAMF, Email of 27
February 2017.

65

-of the BAMF and to appear in person immediately or an a date determined for the formal registrationof the asylum application (“Belehrung nach § 14 Abs. 1 und § 23 Abs. 2 AsylG”);222
An instruction on the obligation to comply immediately with a referral to the initial reception centre(“Belehrung nach § 20 Abs. 1 AsylG”)223;
An instruction on the obligation to comply with a decision to be referred to another reception centre,
including the obligation to register with the authorities in case of such a referral (“Belehrung nach§ 22 Abs. 3 AsylG”).224

These information sheets are available in German and around 45 other languages.
In addition, other leaflets and publications by the BAMF are available in several languages, although they
are not necessarily handed out to all asylum seekers. These include:• Information on the appointment for the interview in the asylum procedure (Informationsblatt zum
Anhörungstermin),225• Information on the asylum application (informationsblatt zur Asylantragstellung). 226• The stages of the German asylum procedure (Ablauf des deutschen Asylverfahrens). 227
Furthermore, asylum seekers are handed out instructions concerning the Eurodac Regulation (inaccordance with Article 18 of the Eurodac Regulation) and on the data collected in the course of theasylum procedure by the BAMF. These instructions are available in 44 languages.
In addition, a personal interview as foreseen in Article 5 of the Dublin III Regulation has to be conducted.
This interview shall contribute to a correct understanding of the written information leaflet. 228
The applicant has to sign an acknowledgment of the receipt of the information leaflets. In some reception
centres, further information is handed out or made available through notice boards or posters (e.g.
information on the office hours of authorities, NGOs and other institutions), but there is no systematic
practice for the distribution of such additional information.
It has been a long-standing criticism from lawyers and NGOs that both the written instructions and theoral briefings provided by the Federal Office are “rather abstract and standardised”.229 In particular, they
are not considered suitable to render the significance and content of questions during interviews
sufficiently understandable to applicants. In the “Memorandum to enhance fair and diligent asylum
procedures in Germany”, published by an alliance of 12 German NGOs in November 2016, several
deficiencies were identified in the context of the right to information. 230

1.2. Oral information
The so-called “Orderly-Return-Law”, in force since 21 August 2019,231 established a new provision in the
Asylum Act (Section 12a) to regulate the counselling on asylum procedures (Asylverfahrensberatung).
This section reads:232

222
223
224
225
226
227
228
229

230

231
232

Available on the BAMF website at https://bit.ly/2U0lyyv.
Available on the BAMF website at https://bit.ly/39Lf2Cy.
Available on the BAMF website at https://bit.ly/2xyIVrx.
Available on the BAMF website at https://bit.ly/2UiWc0k.
Available on the BAMF website at https://bit.ly/3bok08E.
Available in English at https://bit.ly/3drFPWF.
Ibid.
Amnesty International et al., ed. Memorandum zur derzeitigen Situation des deutschen Asylverfahrens(Memoranda on current situation of the German asylum procedure), 2005, 21.
Memorandum Alliance, Memorandum für faire und sorgfältige Asylverfahren in Deutschland. Standards zur
Gewährleistung der asylrechtlichen Verfahrensgarantien, November 2016, 14.
Second law to enhance enforcement of the obligation to leave, 20 August 2019, Official Gazette I, 1294.
Non-literal translation by the author.

66

“The Federal Office (BAMF) provides an independent state-run counselling service on asylum
procedures, participation at this service is voluntary for the asylum seekers. The service isprovided in two stages. The first stage consists of group lectures in which all asylum seekers are
given information on the course of the asylum procedure and on return options, before theapplication is made. The second stage consists of individual counselling on asylum procedures
which is provided in individual appointments and is carried out either by the Federal Office or bywelfare organisations.”
Welfare organisations and other non-governmental organisations had been advocating for independentasylum procedure counselling for many years,233 and in 2018 the coalition agreement between the parties
that formed the new German government indeed called for independent and nationwide asylum procedurecounselling services. However, the wording of the new provision has now introduced the concept of an“independent state-run” service and the government insists that this advice service must be offered by
the BAMF exclusively. Therefore, the same authority that decides on the asylum applications is now
obliged by law to offer “independent” advice on procedures. The wording of the new provision has been
introduced “at the last minute” (i.e. after the hearing of experts in the parliamentary committee had takenplace) and therefore the new provision was pushed through parliament almost without debate. 234 The
government failed to provide an explanation on the wording of the new provision and how the latter should
be interpreted.
Following a pilot phase, which took place in certain locations since August 2018, the BAMF is working on
the gradual introduction of its asylum counselling throughout the country since January 2020. Before
beginning their deployment, the BAMF's asylum procedure advisers attend a one-week training course.
During their assignment, they are separated from the department carrying out the asylum procedure inorganisational terms. They receive professional support from the "quality" department. According to the
BAMF’s website, initial results indicate that asylum procedure counselling “helps improve compliance withthe rule of law, as well as contributing to the equity, quality and efficiency of the asylum procedure”.235
The new BAMF “counselling” sessions represent an improvement compared to the situation prior toAugust 2019 when no information was systematically provided to asylum seekers. 236 Nevertheless, the
new system is heavily criticised by NGOs as group counselling sessions tend to be organised within avery short period before the personal interview with the BAMF and the information provided is limited (i.e.
the BAMF tends to provide general information on the asylum procedure, sometimes focusing only on
asylum seekers’ obligations and also on information which has nothing to do with the procedure, such as
the so-called “return options”).237
While the law does foresee the advice services of the second stage to be carried out by welfareorganisations, the government has made it clear that it does not intend to commission NGOs to carry out
an advice service on its behalf. Rather, it claims that welfare organisations are free to run their own
services alongside the counselling offered by the BAMF. 238 At the same time, NGOs have voiced concernsthat funding of independent advice centers could be jeopardised as they might be replaced by the BAMF
services. In a press release of November 2019, the “AMBA”-network,239 which has been providing
233

234
235

236

237

238
239

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, 75.
Preliminary remarks to information request by The Left, 26 May 2020, 19/19535, 2-3.
BAMF, Voluntary, independent, state asylum procedure counselling, 10 th August 2019, available at:https://bit.ly/2NTfUeW.
Markus Kraft, ‘Die ANKER-Einrichtung Oberfranken’, Asylmagazin 10-11/2018, 353, available in German athttps://bit.ly/2P36MEe.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
Federal government, response to information request by The Left, 26 May 2020, 19/19535, 3.
AMBA (Aufnahmemanagement und Beratung für Asylsuchende in Niedersachsen) is a network of the welfareorganisations Caritas, Diakonie, several local NGOs and the Refugee Council of Lower Saxony. Over theyears, member organisation of the network have run advice services for asylum seekers in reception centres
at Friedland, Braunschweig, Osnabrück, Oldenburg and Bramsche; further information available at:67

independent advice services in several reception centres in Lower Saxony for many years, referred togovernment officials who had stated that the BAMF was willing to cooperate with NGO advice services,
but that public funding would not be available any longer for NGO advice services, since advice on asylum
procedures was now considered to be a government task. In particular, funding which had been provided
through the AMIF programme, was now at risk, according to AMBA. 240 The government confirmed in May
2020 that counseling services by NGOs would no longer be funded through the AMIF programme.241
Another point of criticism is that the law does not specify when the individual counselling of the so-called
second stage is supposed to take place. Thus, it is not guaranteed that the individual counselling will takeplace before the asylum interview. This may contradict the purpose of individual asylum counselling whose
core function lies in the preparation of the asylum seeker for his or her interview. 242
In addition to the counselling services as regulated by the asylum act, asylum seekers are orally informed
about “the significance and the proceedings of the interview” and they are instructed about their rights
and obligations at the beginning of the interview. 243 However, the oral briefing at the beginning of theinterview is described as “formulaic” or “cursory”. In some cases, it is carried out by translators only, so
the content of the briefing cannot be controlled. 244
Finally, access to information at the airport is described as particularly difficult, inter alia due to the speedof the procedure. Asylum seekers reportedly undergo the airport procedure without understanding theapplicable rules and steps.245

2. Access to NGOs and UNHCR
Indicators: Access to NGOs and UNHCR
1. Do asylum seekers located at the border have effective access to NGOs and UNHCR if theywish so in practice?
Yes
With difficultyNo
2. Do asylum seekers in detention centres have effective access to NGOs and UNHCR if theywish so in practice?
Yes
With difficultyNo
3. Do asylum seekers accommodated in remote locations on the territory (excluding borders) haveeffective access to NGOs and UNHCR if they wish so in practice?
Yes
With difficultyNo
Access to NGOs is highly dependent on the place of residence. In some reception centres, welfareorganisations or refugee councils have regular office hours or are located close to the centres so asylum
seekers can easily access the offices of such organisations. However, offices of NGOs do not exist in all
relevant locations and in any case, access to such services is not systematically ensured.
In 2016, numerous arrival centres and other offices of the BAMF were opened (see Short Overview of the
Asylum Procedure) and some of these have already been closed or reorganised since then. This is oneof the main reasons why there is no uniform practice concerning the presence of NGOs and/or access tothese centres. In many of the newly established centres, access to NGOs is made even more difficult asthese do not have offices in the town or region where the new centres are located. One exception is the

240

241
242

243

244

245

https://bit.ly/31ZDwae.
Koordination AMBA: Unabhängige Asylverfahrensberatung vor dem Aus? 12 November 2019, available inGerman at https://bit.ly/2W3ajY6.
Federal Government, response to information request by The Left, 26 May 2020, 19/19535, 8.
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, 76.
BAMF, Das deutsche Asylverfahren – ausführlich erklärt. Zuständigkeiten, Verfahren, Statistiken,
Rechtsfolgen (The German asylum procedures – an elaborate explanation. Responsibilities, Procedures,
Statistics, Consequences), December 2012. 17.
Memorandum Alliance, Memorandum für faire und sorgfältige Asylverfahren in Deutschland. Standards zur
Gewährleistung der asylrechtlichen Verfahrensgarantien, November 2016, 14.
ECRE, Airport procedures in Germany Gaps in quality and compliance with guarantees, April 2019, available
at: https://bit.ly/2QgOmAH.

68

arrival centre at Heidelberg where the Federal State of Baden-Württemberg has established an
independent “qualified social and procedural advisory service” in cooperation with welfare organisations.
Within this model, a social worker from an independent organisation functions as contact person for 100
asylum seekers and is explicitly commissioned to offer advice on the asylum procedure (while in manyother reception centres social workers are not necessarily independent and/or they often are neither
qualified nor entitled to offer counselling services on the asylum procedure). Even here, it has provendifficult for the social workers to effectively prepare asylum seekers for the interview in the asylum
procedure since they are often approached with other urgent matters such as social support, family
reunification etc.
Furthermore, interviews are scheduled at very short notice in the arrival centres, at a time when asylum
seekers have to come to terms with other administrative regulations and with their new surroundings in
general. In this situation, it has proven difficult to create an adequate setting for the preparation for theinterview.246 In the light of these problems being described in the context of the “arrival centre” at
Heidelberg, it can be concluded that access to NGOs is even more limited or may be excluded in manyother locations where no similar structures exist. This is particularly the case for the possibilities to accessNGOs before the interview, since fast-tracking of procedures is taking place at a growing number of“arrival centres” and AnkER-centres.
Following an initial period in a reception centre, asylum seekers are usually referred to accommodation
centres or apartments in other places of residence (see Types of Accommodation). Some of theseaccommodation centres are located in remote areas without proper access by means of public transport.
If the place of residence is located far away from the next town, travel costs to get there may also pose aserious problem in practice, since these costs would only be covered from public funds in exceptional
cases. Accordingly, access to NGOs can be severely restricted under such circumstances.
The so-called “geographical restriction” or “residence obligation” (Residenzpflicht) also poses a legal
obstacle for many asylum seekers who wanted to contact an NGO or lawyer. Beyond the obligation tostay in initial reception centres, a general residence obligation is imposed for asylum seekers from safecountries of origin for the whole duration of their procedures (see Freedom of Movement).247 Therefore
the “residence obligation” and the obligation to remain in a particular reception centre pose serious
obstacles for access to NGOs and UNHCR in many cases.
In AnkER centres in Bavaria, access of NGOs depends on the management of the centre. In the AnKER
Regensburg for example, Caritas, Amnesty International, the Refugee law clinic Regensburg andCampus Asyl have access to the facility, while in Manching/Ingolstadt, only Caritas has establishedpresence. In the experience of certain NGOs, asylum seekers are not systematically re-directed to NGOs
for further information. In centres such as Manching/Ingolstadt and Regensburg, NGOs have further
no way of ensuring systematic counselling sessions with every new arrival, since they do not receive theregistration list of residents in the AnKER centre. 248

246

247
248

Johannes Moll, ‘Das verkürzte Asylverfahren im Ankunftszentrum Heidelberg. Ein Modell im Spannungsfeld
von effizientem Verfahren und effektiven Rechtsschutz’, Asylmagazin 12/2016, 412, 415-416.
Section 47(1a) Asylum Act.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.

69

H. Differential treatment of specific nationalities in the procedure
Indicators: Treatment of Specific Nationalities
1. Are applications from specific nationalities considered manifestly well-founded?
❖ If yes, specify which:

Yes

No

2. Are applications from specific nationalities considered manifestly unfounded? 249
Yes❖ If yes, specify which:Albania, Bosnia and Herzegovina, Ghana, Kosovo,North Macedonia, Montenegro, Senegal, Serbia

No

Prioritisation of applications from certain countries was revoked in the second quarter of 2016. 250 It waspartially replaced by a system of “clustering” applications with the aim of prioritising the caseloads fromcountries of origin with a high and from those with a low protection rate. The clustering system was also
abandoned in the first half of 2017. 251 Since then, the branch offices of the BAMF and the arrival centres
decide on their own whether they set any priority in dealing with caseloads, in particular dependent on
availability of staff members with the necessary country expertise and availability of interpreters.
In August 2019 the Federal government reported that average duration of procedures at the BAMF had
been reduced to 3.1 months in general and to 1.9 months in the AnKER-centres.252 However, this does
not correspond with other official statistics which show that in the second quarter of 2019 the average
duration of procedures was at 5.9 months in general and at 3 months in the AnKER-centres.253 As of mid2019, the average duration of procedures was significantly below average for asylum seekers from theEuropean “safe countries of origin” and from Georgia:254- Montenegro. 1.9 months- Albania: Kosovo, North Macedonia: 2 months- Bosnia and Herzegovina: 2.1 months- Serbia: 2.3 months- Georgia: 2.5 months
This seems to imply that asylum applications from “safe countries of origin” are fast-tracked, however thisdoes not seem to be the case for the remaining two “safe countries” (Ghana and Senegal). Proceduresat the BAMF for asylum seekers from these countries were not significantly faster than they were on
average (5.3 months for Senegal, 5.4 months for Ghana).
On the other hand, average duration of procedures was considerably above average for asylum seekers
from these countries of origin:- Tunisia: 7.5 months- Russian Federation: 8.5 months- Somalia: 9.9 months

1. Syria
Due to a policy change in the first months of 2016, the BAMF since then has granted subsidiary protection
instead of refugee protection in a previously unrecorded number of cases. This policy change affected
Syrian nationals in particular, but also asylum seekers from Iraq or Eritrea. For instance, 95.8% of Syrians
had been granted refugee status in 2015, this rate dropped to 56.4% in 2016 and to 35% in 2017. Since

249
250
251
252

253

254

Whether under the “safe country of origin” concept or otherwise.
Federal Government, Reply to parliamentary question by The Left, 18/9415, 17 August 2016, 23.
Information provided by the BAMF, 23 January 2018.
Federal Ministry of the Interior, ‘Anker-Einrichtungen sind Erfolgsmodell (Anker facilities are a model ofsuccess)’, Press release, 1 August 2019, available at: https://bit.ly/38EKKQD.
Federal Government, Response to parliamentary question by The Left, 19/13366, 19 September 2019, 4 and14, available at https://bit.ly/3aLt72G.
Federal Government, Response to parliamentary question by The Left, 19/13366, 19 September 2019, 4-5,
available at https://bit.ly/3aLt72G.

70

then, the percentage of refugee recognitions has increased again, reaching 49.5% in 2019 (compared to41.6% in 2018).
Conversely, the rate of Syrians being granted subsidiary protection rose from 0.1% in 2015 to 41.2% in
2016, 56% in 2017. Since then, it has decreased to 39.7% in 2018 and 33.1% in 2019. The policy change
at the BAMF coincided with a legislative change in March 2016, according to which Family Reunification
was suspended for beneficiaries of subsidiary protection until March 2018. Family reunification is now
possible for beneficiaries of subsidiary protection since August 2018, but limited to a monthly quota of
1,000 visas for relatives of this group. Tens of thousands of beneficiaries of subsidiary protection haveappealed against the authorities’ decisions in order to gain refugee status (“upgrade-appeals”). As aresult, 15.399 “upgrade-appeals” filed by Syrian nationals were pending at the courts at the end of 2019.
This represented roughly three quarters of the total number of upgrade-appeals (20,549) pending atcourts.255
In April 2019 it was reported that the BAMF had in some cases only granted a so-called humanitarian
status (under Section 60 V of the Residence Act) instead of subsidiary protection to Syrian nationals.
These decisions were supposedly based on new internal guidelines by the BAMF, which had concluded
that possible risks upon return would in many cases only result from the poor general circumstances in
Syria, rather than from deliberate acts of certain parties. 256 Following media reports, decisions in which
this legal question was relevant, were suspended by the BAMF. The Ministry of the Interior announced
that it would discuss the matter with the Foreign Office. Finally, the Ministry announced that the internal
guidelines would remain unchanged, so decision-making practice would, as a rule, also remain the same
as before April 2019 – meaning that subsidiary protection was again granted in most cases of Syrian
nationals who were not recognised as refugees. 257
Statistics for 2019 show, that the “humanitarian status” under Section 60 V of the Residence Act was
indeed only granted in 489 cases of Syrian nationals in 2019, thus representing 3.2% of the total numberof decisions. The overwhelming majority of Syrian applicants were granted asylum or refugee status(50.6%) or subsidiary protection (33.1%). Almost all rejections were rejections for formal reasons(inadmissibility or termination of the case). This means that in cases, in which the substance of the casewas examined, 99.9% of Syrian nationals were granted some kind of protection status in 2019. 258

2. Afghanistan
The legal debate concerning decision-making practices has focused on single male adults. The BAMF
generally assumes that “healthy young men who are able to work” can be referred to an internal protection
alternative in big cities in Afghanistan (Kabul, Herat oder Mazar-e Sharif) or in the provinces of Bamiyan
and Panjshir. Because of the alleged existence of an internal protection alternative, the BAMF often does
not fully examine the risks which an asylum seeker might face upon return. The BAMF decisions therefore
have been criticised for regularly lacking a thorough examination of the individual circumstances of thecase.259
Appeals at Administrative Courts against such decisions still have a comparably high success rate, with
8,649 Afghan nationals being granted some form of protection in 2019 in court procedures, in comparison
to 9,103 rejections of appeals and 7.627 court procedures which were abandoned for formal reasons.

255
256

257

258
259

Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, 50.
asyl.net, ‚BAMF setzt Entscheidungen über subsidiären Schutz bei syrischen Asylsuchenden aus‘, 29 April
2019, available in German at: https://bit.ly/320Dmz1.
zeit.de, ‚Horst Seehofer will Asylpraxis für Syrer vorerst nicht ändern‘, 15 May 2019, available in German at:https://bit.ly/2BIYU8X.
Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, 3.
For an overview of decision-making and case law in cases of Afghan asylum seekers, see Susanne Giesler
and Christopher Wohnig, Uneinheitliche Entscheidungspraxis zu Afghanistan, June 2016, available in German
at: http://bit.ly/2G1FSIq.

71

This represents a rate of 48.7% of at least partially successful appeals in those cases, in which thesubstance of the matter was examined. 27,070 appeals of Afghan nationals were pending at the court at
the end of 2019.260

260

Federal Government, Response to parliamentary question by The Left, 19/18498, 2 April 2020, 45.

72

Reception Conditions
A. Access and forms of reception conditions
1. Criteria and restrictions to access reception conditions
Indicators: Criteria and Restrictions to Reception Conditions
1. Does the law make material reception conditions to asylum seekers in the following stages of
the asylum procedure?
❖ Regular procedure
Yes
Reduced material conditionsNo❖ Dublin procedure
Yes
Reduced material conditions
No❖ Admissibility procedure
Yes
Reduced material conditions
No❖ Border procedure
Yes
Reduced material conditionsNo❖ Accelerated procedure
Yes
Reduced material conditions
No❖ Appeal
Yes
Reduced material conditions
No❖ Subsequent application
Yes
Reduced material conditions
No
2. Is there a requirement in the law that only asylum seekers who lack resources are entitled tomaterial reception conditions?
Yes
No
Asylum seekers are entitled to reception conditions from the moment they request asylum (Asylgesuch)in accordance with the Asylum Seekers' Benefits Act (Asylbewerberleistungsgesetz).261 They do notreceive the full benefits, however, until they formally gain the status of an asylum seeker through theissuance of an arrival certificate (Ankunftsnachweis) at the reception centre to which they have been
assigned to.262 In practice, this usually happens within a few days after they have reported to theauthorities. 263
Foreigners remain entitled to these reception conditions, at a minimum, as long as they have the statusof an asylum seeker. After a rejection, asylum seekers usually retain their status for the duration of theappeal proceedings. If the asylum application has been rejected as “manifestly unfounded” or“inadmissible”, however, and their request for suspensive effect is rejected, asylum seekers will lose theirstatus and instead be issued a temporary suspension of deportation, also known as “tolerated stay”(Duldung). In spite of its title, the Asylum Seekers’ Benefits Act does not only apply to asylum seekers,
but also to people with a Duldung and even to certain groups of people who have been granted a
temporary residence permit.
However, following the legislative reforms of August 2019, persons who have already been granted
international protection in another EU Member State, whose asylum application in Germany has been
rejected as inadmissible and whose obligation to leave the territory is enforceable (“vollziehbar
ausreisepflichtig”), may be excluded from all social benefits after a transition period of two weeks.264 Thiscan include persons whose appeal against a return decision is pending, when their emergency appeal
was rejected.
As a rule, asylum seekers receive both non-cash and cash financial benefits only in the town or district towhich they have been assigned to.265 Accordingly, they will not be entitled to benefits in other parts ofGermany, unless they get permission by the authorities to move there.
Assessment of resources
261
262
263
264

265

Section 1 (1a) Asylum Seekers’ Benefits Act.
Section 11 (2a) Asylum Seekers’ Benefits Act.
Section 63 (1) Asylum Act
Third law amending the Asylum Seekers‘ Benefits Act, 13 August 2019, Official Gazette I, 1290, further
amendments to the Asylum Seekers‘ Benefits Act were included in the „Orderly Return Law“ (Second law toenhance enforcement of the obligation to leave), 20 August 2019, Official Gazette I, 1294.
Section 10 and 10a Asylum Seekers‘ Benefits Act.

73

If asylum seekers have an income or capital at their disposal, they are legally required to use theseresources before they can receive benefits under the Asylum Seekers' Benefits Act. 266 This provision does
not seem to be applied often in practice, however.
Asylum seekers are asked to hand over any cash they may possess at registration stage, i.e. before theapplication is formally lodged. They are allowed to keep a maximum of €200 in cash. It is also possiblethat the police carry out body searches on other occasions (e.g. when reporting to the police as asylum
seekers, upon apprehension by the police for other reasons, or for security reasons, in reception centres)
if they have reasons to believe that asylum seekers are in possession of documents or other information
which might be essential for identification purposes. Cash that is found during such occasions is seizedby the authorities, with the exception of the remaining €200 that asylum seekers are allowed to keep.

2. Forms and levels of material reception conditions
Indicators: Forms and Levels of Material Reception Conditions
1. Amount of the monthly financial allowance/vouchers granted to asylum seekers as of 1 January
2020 (in original currency and in €):267❖ Single adult in accommodation centre€139❖ Single adult outside accommodation centre€351
Assistance under the Asylum Seekers' Benefits Act generally consists of “basic benefits”(Grundleistungen). These are meant to cover the costs for food, accommodation, heating, clothing,personal hygiene and consumer goods for the household (notwendiger Bedarf), as well as the personalneeds of everyday life, such as public transport and mobile phones (notwendiger persönlicher Bedarf)268– the latter is often referred to as “pocket money”. In addition, the necessary “benefits in case of illness,pregnancy and birth” have to be provided.269 “Other benefits” can be granted in individual cases (uponapplication) if they are necessary to safeguard the means of existence or the state of health. 270
In 2019, the amount of benefits under the Asylum Seekers’ Benefits Act was adjusted for the first timesince March 2016, even though the law foresees an annual adjustment of rates. This resulted in a
reduction of benefits for many asylum seekers, inter alia by excluding certain costs from the basic benefits
which were considered to be unnecessary for asylum seekers compared to recipients of regular social
benefits (e.g. expenditures for leisure, entertainment, culture). Additionally, asylum seekers who live inapartments on their own no longer receive an automatic reimbursement of costs related to electricity.
Instead, they need to apply for such reimbursement individually. Benefits were also reduced for adults
under 25 who live with their parents.271
One of the most controversial changes introduced in 2019 has been the adjustment of benefits for single
adults who are required to stay in an accommodation centre. Whereas they used to be treated in thesame manner as single adults living outside of these centres, they now only receive an allowance thatamounts to benefits that one receives when living together with another adult, spouse or partner.272 As aresult, their monthly allowance was increased by €1 only. To justify this change, the government argued
that asylum seekers living in an accommodation centre can be expected to run a common household
similarly to adult partners, which was heavily criticised by different actors. Several Social Courts havefound this change of practice likely to be unconstitutional. In summary proceedings they have ordered theauthorities to temporarily pay the same benefits as received by single adults outside of accommodation

266
267
268
269
270
271
272

Section 7 Asylum Seekers' Benefits Act.
This includes hygienic items allowance and pocket money only.
Section 3(1) Asylum Seekers’ Benefits Act.
Section 4 Asylum Seekers’ Benefits Act; for access to health care see below.
Section 6 Asylum Seekers’ Benefits Act.
Sections 3a(1)(3)(a) and 3a(2)(3)(a) Asylum Seekers' Benefits Act.
Sections 3a(1)(2)(b) and 3a(2)(2)(b) Asylum Seekers' Benefits Act.

74

centres.273 However, two Appeal Social Courts have overruled such decisions arguing that courts cannot
order the government to temporarily pay higher benefits in summary proceedings without a statutory
basis.274 They did not decide on the constitutionality of the provision, which would require the interventionof the Federal Constitutional Court on the matter.
Authorities at the regional and local level have important discretionary powers when deciding in what form
basic benefits should be provided. Therefore, the provision of benefits in cash depends on local conditions
and policies. According to the law, asylum seekers who are accommodated in reception centres shallreceive non-cash benefits only. This includes “pocket money” for their personal needs “as long as this ispossible within the acceptable administrative burden”. 275 In practice, however, they will often receive thepocket money in cash. For asylum seekers in other (decentralised) collective accommodation centres,
non-cash benefits “can” be provided “if this is necessary under the circumstances”.276 The same applies
for asylum seekers living on their own, with the exception that they have to be provided with pocket money
in cash. For those living outside of reception centres, the costs for accommodation (rent), heating andhousehold goods have to be provided on top of the above benefits as far as it is “necessary andreasonable”.277
After a second adjustment in January 2020, the current monthly rates are as follows:
Basic benefits for asylum seekers
Single adultSingle adult in
Adult Member of Member ofaccommodation partners household household
centre(each)
18-24
14-17

Member ofhousehold
6-13

Member ofhousehold
0-5“Pocket money”

€153

€139

€139

€122

€80

€99

€86

Further basic
benefits (excl.
costs related toaccommodation

€198

€177

€177

€158

€200

€174

€132

Total

€351

€316

€316

€280

€280

€273

€218

Regular Social
Benefits

€432

-

€389

€345

€328

€308

€250

As indicated in the table above, rates under the Asylum Seekers’ Benefits Act amount to a level of about
80% of regular social benefits – and less than 75% for single adults living in accommodation centres.
Before the amendments were introduced in 2019, asylum seekers were usually granted access to regularsocial benefits after 15 months of benefits received under the Asylum Seekers' Benefits Act. This meant
that, after this period, higher benefits were paid and certain restrictions of the Asylum Seekers' Benefits
Act no longer applied, in particular the limited access to health care. However, the waiting period to accessregular social benefits was extended by an additional 3 months in 2019.278 Consequently, asylum seekers
now have to wait up to 18 months before they are entitled to regular social benefits. Even when receiving
regular social benefits, however, single adults in accommodation centres will continue to receive the lower
rates for adult partners.279
273

274

275
276
277
278
279

Social Court of Frankfurt, Decision S 30 AY 26/19 ER, 14 January 2020; Social Court of Landshut, Decision S
11 AY 3/20 ER, 28 January 2020; Social Court of Freiburg, Decision S 5 AY 5235/19 ER, 20 January 2020;
Social court of Hannover, Decision S 53 AY 107/19 ER, 20 December 2019.
Regional Social Court of Baden-Württemberg, Decision L 7 AY 4273/19 ER-B, 13 February 2020 and Regional
Social Court of Berlin-Brandenburg, Decision L 15 AY 2/20 B ER, 2 February 2020.
Section 3(2) Asylum Seekers’ Benefits Act.
Section 3(3) Asylum Seekers’ Benefits Act.
Section 3(3) 3rd Sentence Asylum Seekers’ Benefits Act.
Section 2(1) Asylum Seekers’ Benefits Act.
Section 2 (1) 4th Sentence Number 1 Asylum Seekers’ Benefits Act.

75

3. Reduction or withdrawal of reception conditions
Indicators: Reduction or Withdrawal of Reception Conditions
1. Does the law provide for the possibility to reduce material reception conditions?
Yes
No
2. Does the legislation provide for the possibility to withdraw material reception conditions?
Yes
No
Reduction of benefits
Since 2016, the grounds for reduction of material reception conditions expressly include asylum seekers.
The amendments introduced to the Asylum Seekers’ Benefits Act in 2019 further extended the possibilities
to reduce benefits. As listed in Section 1a of the Asylum Seekers’ Benefits Act, material reception
conditions can now be reduced for the following categories of persons:280

1

2

Reduction of benefits in accordance with Section 1a Asylum Seekers’ Benefits Act
Paragraph
Analysis
Beneficiaries of benefits who This provision only applies to foreign nationals whose obligation tohave been asked to leave leave the territory is enforceable (vollziehbar ausreisepflichtig) –Germany until a certain date and meaning that it does generally not affect asylum seekers as long as
have not left the country, their asylum procedure is ongoingalthough this would have beenfeasible
Beneficiaries of benefits who This provision only applies to persons whose obligation to leave ishave entered Germany (solely) enforceable (vollziehbar ausreisepflichtig) or who are in possession
for the purpose of receiving of a “tolerated stay” (Duldung). Thus, it also does not affect asylum
benefits
seekers a long as their asylum procedure is ongoing. Even after anegative decision, this provision does not generally apply to asylum
seekers, as it can hardly be deduced that their only motivation forentering Germany was to claim benefits.

3

Beneficiaries of benefits forwhom
removalprocedures
cannot be carried out due toreasons for which they are
responsible

This provision only applies to foreign nationals whose obligation toleave is enforceable (vollziehbar ausreisepflichtig) or whose stay istolerated (Duldung). Asylum seekers can be affected after the asylum
procedure, however, e.g. in cases where an application has been
rejected as “inadmissible” following a Dublin procedure. Benefits forfamily members of beneficiaries must only be reduced if the family
member him- or herself bears responsibility.

4(1)Beneficiaries of benefits who
have been allocated to another
European state within theframework of a European
distribution mechanism

This provision does not apply in the context of Dublin procedures, butrefers to a European distribution mechanism which could be initiatedon an ad hoc basis.

4(2)Beneficiaries of benefits who
have been granted international
protection in an EU Member
State or Dublin State or haveacquired a right of residence forother reasons in such a state.

This provision only applies during the asylum procedure. Upon
termination of the procedure, this category of person is totally
excluded from benefits in certain situations (see below). Some Social
Courts have ruled in summary proceedings that this provision is notapplicable if a return to the Member State is not possible or76reasonable, e.g. for those who were granted international protection
in Greece.281
5

Beneficiaries of benefits who
have failed to cooperate with theauthorities during a subsequentasylum procedure

6

Beneficiaries in the asylum
procedure who violate their
obligation to provide information
about existing assets and fail to
notifyrelevantchanges
immediately
Beneficiaries of benefits whoseasylum application was rejected
as "inadmissible" on the grounds
that another European country
wasresponsiblefortheexamination in accordance with
the Dublin III Regulation

7

This paragraph refers to a number of other provisions in which thefollowing acts are defined as “failure to cooperate”;- Failure to apply for asylum “immediately” after entry into theterritory(Section 13 (3) Asylum Act)- Failure to present or hand over a passport or passport substituteto the authorities (Section 15 (2) no. 4 Asylum Act) ;- Failure to present or hand over other documents necessary forthe clarification of his or her identity (Section 15 (2) no. 5 AsylumAct) ;- Failure to hand over data carriers such as smartphones that could
be important for establishing identity and nationality (Section 15(2) No. 6 Asylum Act);- Failure to undergo the required identification measures(especially taking of fingerprints, Section 15 (2) no. 7 Asylum Act);- Failure to keep the appointment for the formal registration of theirapplication at the BAMF; or- Refusal to provide information about his or her identity or
nationality in the course of the asylum procedure (Section 30 (3)
no. 2 Asylum Act).

This provision was introduced by the 2019 amendments. This
category of persons will now receive reduced benefits following anegative decision from the BAMF, even if an appeal against the latteris still pending before the court. However, this does not apply(retroactively) if the court grants suspensive effect. Some Social
Courts have questioned the constitutionality of this provision insummary proceedings as the reduction of benefits in such cases is
not contingent on a wrongdoing on part of the beneficiary affected.282
Others have ruled the opposite, however.283
In most cases, this provision has a relatively limited scope in practice:
it only applies during the time between an inadmissibility decision inaccordance with the Dublin III Regulation and the issuance of a
Duldung (to which the affected persons will generally be entitled until
the transfer to another European country takes place).

On top of Section 1(a), the Asylum Seekers’ Benefits provides for the reduction of benefits in several otherprovisions, inter alia for asylum seekers who failed to cooperate with the authorities and therefore areresponsible for the fact that an “arrival certificate” could not be issued.284
281

282

283
284

Regional Social Court Nordrhein-Westfalen, Decision L 20 AY 20/20 B ER, 27 March 2020; Social Court Berlin,
Decision S 50 AY 166/19 ER, 23 December 2019.
Social Court Landshut, Decision S 11 AY 79/19 ER, 23 January 2020; Social Court Oldenburg, Decision S 25
AY 3/20 ER, 20 February 2020; Social Court Cottbus, Decision S 21 AY 34/19 ER, 28 January 2020.
Social Court Osnabrück, Decision S 44 AY 76/19 ER, 27 January 2020.
Section 11(2a) Asylum Seekers' Benefits Act.

77

This list of reduction grounds is exhaustive, meaning that benefits cannot be reduced for other reasons.
If one of them is met, the law provides that asylum seekers should only be provided with accommodation,
food and basic necessities, primarily as non-cash benefits. It is only “in special circumstances andindividual cases” that further benefits can be granted on a discretionary basis.285 It has been estimatedthat this may result in the reduction of almost 50% of the benefits in many cases.286 Benefits covering thepersonal needs of everyday life (“pocket money”) can be withdrawn entirely. Furthermore, asylum seekers
are not entitled to benefits covering the costs of clothing and for “durable and non-durable consumer
goods for the household”. Clothes and household goods can only be provided “in kind” and on an ad hoc
basis, if necessary, but these costs are not included in the monthly benefits for the persons concerned.287
Authorities are required to limit the reduction of benefits to a 6 months period. After this time, the decision
to reduce benefits has to be reviewed and can only be extended if the ground for reduction is still
applicable.288 Even before the end of the 6-months time limit, benefits have to be restored to the standard
level if the legal prerequisites for the reduction cease to apply. If benefits are reduced following a rejectionof an application, they can be restored to the standard level at a later stage, e.g. if a subsequent
application leads to the opening of a new asylum procedure, or if it turns out that a deportation is notpossible for reasons which cannot be held against the concerned person.
The decision to reduce or withdraw benefits can be appealed. In light of a decision of the Federal
Constitutional Court of July 2012 on the Asylum Seekers’ Benefits Act, 289 there have been several court
decisions concluding that any reduction of benefits would be unconstitutional and therefore inadmissible,
but these rulings do not represent the general opinion.290 The debate has been revived in November 2019by another decision of the Federal Constitutional Court. In this decision, the Court did not comment on
the Asylum Seekers’ Benefits Act, but made some important observations on the legality of cuts inunemployment benefits and in the social support system in general. 291 The court argued that temporary
sanctions, even to the point of a complete withdrawal of benefits, could be lawful if an unemployed person
did not undertake reasonable efforts to overcome the need for support. However, given the extraordinary
burden resulting from such sanctions, the court also highlighted that legal provisions which reduce
reductions of benefits have to be based on an analysis of their necessity, suitability and reasonableness.
of the regulations. Persons affected by cuts should be able to regain standard benefits once they comply
with reasonable obligations. Moreover, individual circumstances must be taken into consideration.
Sanctions which are imposed for a fixed period of time and regardless of individual circumstances haveto be considered as violating the constitution, according to the Constitutional Court.
As a result of this decision, the legality of the Asylum Seekers’ Benefits Act has been questioned again.292
In several decisions, the Regional Social Court of Lower Saxony-Bremen has ruled that it is“fundamentally debatable” whether Section 1a of the Asylum Seekers Benefits Act on the reduction of
benefits for certain groups is in line with the constitution”.293 Other courts have also questioned the legalityof certain aspects of the Asylum Seekers’ Benefits Act.294 However, these questions have so far only

285
286

287

288
289
290
291
292

293

294

Section 1a(1) Asylum Seekers’ Benefits Act.
Joachim Genge, ‘Das geänderte Asylbeweberleistungsgesetz‘ in Informationsverbund Asyl und Migration (ed),Das Migrationspaket: Beilage zum Asylmagazin 8-9/2019, September 2017, 20.
Regional social administration of the Federal State of Berlin, Directive no. 10/2015, 9 December 2015
(Rundschreiben Soz Nr. 10/2015 über Umsetzung des AsylbLG in der Fassung desAsylverfahrensbeschleunigungsgesetzes), available at: https://bit.ly/2I3Obav.
Section 14(1) and (2) Asylum Seekers’ Benefits Act.
Federal Constitutional Court, Decision 1 BvL 10/10, 1 BvL 2/11, 18 July 2012.
Social Court Stade, Decision S 19 AY 19/17 ER, 10 May 2017.
Federal Constitutional Court, Decision 1 BvL 7/16, 5 November 2019.
Claudius Voigt, “Gesetzlich minimierte Menschenwürde. Das Sanktions-Urteil des Bundesverfassungsgerichts
und seine Auswirkungen auf das AsylbLG”, Asylmagazin 1-2/2020, 12-21.
Regional Social Court for the Federal States of Niedersachsen (Lower Saxony) and Bremen, decision of 19
March 2019 – L 8 AY 4/20 B ER asyl.net: M28258, https://www.asyl.net/rsdb/m28258/; decision of 4 December
2019 -- L 8 AY 36/I9 B ER - asyl.net: M27897, https://www.asyl.net/rsdb/m27897/.
Social Court Landshut, S 11 AY 79/19 ER, decision of 23 January 2020, available in German at:78

been raised in provisional proceedings in which the claimants had asked for interim measures against
certain sanctions. Therefore, these legal issues have only been raised but have not been decided uponby the courts. In any case, issues of constitutionality are a matter for the Federal Constitutional Court andso it has to be expected that it will take several years for suitable cases to be discussed at this level.
Nevertheless, a constitutional complaint about the reduction of benefits under the Asylum Seekers’
Benefits Act before the June 2019 amendment is pending before the Federal Constitutional Court. 295
In practice, reduction of benefits rarely applies to asylum seekers as long as their asylum procedure isongoing. It may, however, still affect former asylum seekers whose application has been rejected as“manifestly unfounded” or “inadmissible” (e.g. in cases of Dublin decisions or protection in another EU
country) and in whose cases no emergency legal protection has been granted. For example, the monthly
cash allowance (“pocket money”) is often withdrawn or substantially reduced if the person has“absconded”, i.e. failed to be present at the appointment for pick-up by the police for a “Dublin transfer”(see Dublin: Procedure). In some cases, Social Courts have argued that a reduction of benefits could be
unlawful as long as no final decision on a possible deportation (or transfer to another Dublin state) has
been made at the Administrative Court. 296 However, such decisions are rare because only a few asylum
seekers appeal against reductions of benefits upon rejection of their asylum application.
A directive issued in the Federal State of Berlin states that minors are generally exempt from reductionsof benefits, because the alleged misconduct cannot be held against them (e.g. if their parents have failed
to provide the authorities with information about their identities). 297 However, this policy is exceptional andin other Federal States it seems to be commonplace that reductions of benefits are imposed on families
as a whole, including children.298
Withdrawal of benefits
Historically, the Asylum Seekers’ Benefits Act did not provide for a complete withdrawal of benefits.
However, following the 2019 amendments, foreign nationals who have already been granted international
protection in another EU Member State are excluded from all benefits under the Asylum Seekers’ Benefits
Act.299 Persons affected by this provision will only receive limited benefits for a maximum of two weeks
and only once every two years (Überbrückungsleistungen). Further benefits may only be provided whennecessary “in exceptional circumstances” to avoid particular hardship.300
This exclusion applies to persons whose asylum application in Germany has been finally rejected andwhose obligation to leave the territory is enforceable (vollziehbar ausreisepflichtig). This can include
persons whose appeal against a return decision is pending, if their request for suspensive effect has been
rejected. The provision does not, however, cover situations in which a deportation is impossible in fact orin law, e.g. if the Member State that has granted protection is not accepting the returnee or if necessary
identity documents are missing. In such cases the person affected has to be issued a Duldung andremains entitled to benefits under the Asylum Seekers’ Benefits Act.

295
296

297
298
299
300

https://bit.ly/2BQW41q; Social Court of Berlin, S 50 AY 166/19 ER, 23 December 2019, available in German
at: https://bit.ly/2O691an.
Court case file number 1 BvR 2682/17.
Regional Social Court Berlin-Brandenburg, Decision L 15 AY 12/17 B ER, 19 July 2017; Social Court Lüneburg,
Decision S 26 AY 35/17 ER, 12 September 2017.
Regional social administration of the Federal State of Berlin, Directive no. 10/2015, 9 December 2015.
Information provided by GGUA, Münster, 19 June 2018.
Section 1(4) Asylum Seekers’ Benefits Act.
Section 1(4) Asylum Seekers’ Benefits Act.

79

4. Freedom of movement
Indicators: Freedom of Movement
1. Is there a mechanism for the dispersal of applicants across the territory of the country?
Yes
No
2. Does the law provide for restrictions on freedom of movement?

Yes

No

1.1. Dispersal and geographical restriction
The freedom of movement of asylum seekers is restricted and they have no right to choose their place ofresidence. 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.301 This “residence obligation” (Residenzpflicht), legally called“geographical restriction” (räumliche Beschränkung), means that asylum seekers are not allowed to leavethat area even for short periods of time without permission of the BAMF. However, Federal States havethe possibility to extend this geographical restriction to the jurisdiction of other foreigners’ authorities orthe area encompassing a whole Federal State, or even to another Federal State, provided that there isagreement between the concerned Federal States.302 Asylum seekers in Brandenburg for example havethe 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 constituteundue hardship.303 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 theperson has appointments with UNHCR or NGOs.304
The law provides that the geographical restriction shall generally expire after 3 months. 305 However, thisrule is subject to two important derogations:• The geographical restriction remains in force for persons who have an Obligation to Stay in Initial
Reception Centres.306 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.307
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. 308
Distribution of asylum seekers to the Federal States is determined by the following aspects:309
1. Capacities of initial reception centres;
301
302
303
304
305
306
307
308
309

Sections 55(1) and 56(1) Asylum Act.
Section 58(6) Asylum Act.
Section 58(1) Asylum Act.
Section 58(2) Asylum Act.
Section 59a(1) Asylum Act.
Section 59a(1) Asylum Act.
Section 59b(1) Asylum Act.
BAMF, ‘Initial Distribution of Asylum-Seekers (EASY)’, 1 October 2016, available at: http://bit.ly/2DASJOS.
Section 46(2) Asylum Act.

80

2. Competence of the branch offices of the BAMF for the particular applicant’s country of origin. Thismeans 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”,310 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: 2019Federal State

Quota(First) applications in
2019

Actual share in 2019

Baden-Württemberg

13.01 %

14,99010.52 %

Bavaria15.56 %

18,36812.89 %

Berlin5.14 %

8,221

5.77 %

Brandenburg

3.02 %

4,151

2.91 %

Bremen0.96 %

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 %

13,7419.64 %

North Rhine-Westphalia

21.09 %

33,87923.77 %

Rhineland-Palatinate

4.82 %

7,406

5.17 %

Saarland1.20 %

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 thefact 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 requiresthat an asylum seeker has to stay close to a particular hospital). The allocation of the asylum seeker to aparticular area is not a formal decision that can be legally challenged by the individual.

1.2. Obligation to stay in initial reception centres
As a rule, asylum seekers are required to stay in the initial reception centre where they lodged theirapplication for international protection. Initial reception centres can be designated as “arrival centres”(Ankunftszentren), AnkER-centres or as separate institutions, depending on the way reception isorganised 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

310

Section 45 Asylum Act.

81

legislature extended the maximum by another year – i.e. asylum seekers now may be obliged to stay ininitial reception centres for up to 18 months.311
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 theirasylum application has been decided upon and - in case of a rejection - until they leave theterritory.312- Since 2019, under certain circumstances, asylum seekers who have failed to cooperate with theauthorities have to stay in initial reception centres indefinitely. 313- Federal States are allowed to impose an obligation on applicants to stay in initial reception centres
for up to 24 months.314
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 isrejected as manifestly unfounded or dismissed as inadmissible. 315
Since 2019, the Asylum Act also provides for a maximum stay of 6 months in initial reception centres forfamilies 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. 316
However, so far there have not been any court decisions addressing this issue, mainly because it is notentirely 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 theFederal 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 tostay in reception centres for up to 24 months, 317 but it is not clear, if this obligation is still enforced inpractice.
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 otherreasons of public security and order, e.g. to ensure accommodation and distribution, or for othercompelling reasons.318 Moreover, the obligation has to be terminated if a threat of deportation(Abschiebungsandrohung) is enforceable and deportation is not possible within a reasonable period oftime.319 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. 320
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”

311
312
313
314
315
316

317

318
319
320

Section 47(1) Asylum Act.
Section 47(1a) Asylum Act.
Section 47(1) 3rd Sentence Asylum Act.
Section 47 (1b) Asylum Act.
Section 47(1b) Asylum Act.
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.
Section 2(2) Bavarian Reception Act (Aufnahmegesetz), as amended by the Act of 5 December 2017,
available in German at: https://bit.ly/2uE71MT.
Section 49(2) Asylum Act.
Section 49 (1) Asylum Act.
Section 50 (1) Number 1 Asylum Act.

82

(Manching/Ingolstadt, Regensburg, Deggendorf).321 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.322
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 oforigin nationals who cannot be returned e.g. due to health reasons, and 10-11 months for others if they
appeal a rejection.323
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:324❖ 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. 325❖ 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.326
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.327 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 withchildren, 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. 328
Asylum seekers may leave the premises of the initial reception centres (regardless of whether they arecalled 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

321

322

323

324

325

326

327

328

Bayerischer Flüchtlingsrat,‘Abschiebelager
Manching/Ingolstadt’,
available inGermanat:
http://bit.ly/2pnLtRg.
Section 2(2) Bavarian Reception Act (Aufnahmegesetz), as amended by the Act of 5 December 2017,
available in German at: https://bit.ly/2uE71MT.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
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.
Addendum to the Saxon Residence Restriction Extension Decree of 3 May 2019, available in German athttps://bit.ly/2CBBAKl.
Section3
Saxon
Residence
Restriction
Extension
Decree(Sächsische
Wohnpflichtverlängerungsverordnung).
Section(1) Implementing Act to Section 47(1b) of the Asylum Act, available in German at:https://bit.ly/2BcfuO5.
Section(1a) Reception Act, as amended by the Act of 14 Febrary 2019, available in German at:https://bit.ly/2YAXTbC.

83

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. 329 The same is true, forexample, 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 absencefrom the initial reception facility, the person concerned can be deregistered and payment of benefits canbe 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 attachedto 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 otherappointments, including meetings with NGOs or doctors, that are not present in Dependancen. The setup and location of the Dependancen therefore poses an additional barrier to asylum seekers’ access toessential services.330 In most Federal States, applicants need a special permission to travel to other partsof the state or to other parts of Germany (see Residenzpflicht above).

B. Housing
1. Types of accommodation
Indicators: Types of Accommodation
1. Number of reception centres:
Not available
2. Total number of places in the reception centres:
Not available
3. Total number of places in private accommodation:
Not available
4. Type of accommodation most frequently used in a regular procedure:
Reception centre
Hotel or hostel
Emergency shelter
Private housing

Other

5. Type of accommodation most frequently used in an accelerated procedure:
Reception centre
Hotel or hostel
Emergency shelter
Private housing

Other

In general, 3 types of accommodation for asylum seekers can be distinguished:❖ Initial reception centres, including particular types of centres such as arrival centres, special
reception centres and AnkER-centres;❖ Collective accommodation centres;❖ Decentralised accommodation.
Emergency shelters were used in particular in 2015 and 2016 but have mostly been closed down since.
One notable exception was the reception facility at the Berlin arrival centre which continued to operateon the premises of the former airport of Tempelhof where newly arrived asylum seekers were still
accommodated, sometimes for several weeks, under conditions described as “inhumane” by NGOs. In
December 2018, the Refugee Council of Berlin reported that 1,000 asylum seekers were still living inemergency shelters at the Tempelhof facility and in former army barracks, while more than 1,000 placesin newly built facilities were not allocated to asylum seekers due to organisational problems. 331 The

329

330
331

ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
Ibid.
Refugee Council Berlin, ‘Gesamtkonzept zur Integration und Partizipation von Geflüchteten in Berlin: Viel
Worte statt Taten’, 17 December 2018, available in German at: https://bit.ly/2YDmkD3.

84

closure of the facility at Tempelhof was finally announced on 20 December 2018.332 In April 2019,
Tempelhof was replaced by a new arrival centre in Berlin-Reinickendorf.333
Moreover, a waiting room (Warteraum) in Erding was another unique facility, which served as a firstarrival and distribution centre where persons could stay for 72 hours. It was closed at the end of 2019. 334

1.1. Initial reception centres
Following the reform of June 2019, asylum seekers are generally obliged to stay in an initial reception
centre for a period of up to 18 months after their application has been lodged (Aufnahmeeinrichtung).335
An obligation to stay in these centres for a maximum of 24 months can be imposed by Federal Statessince July 2017.336 Furthermore, asylum seekers from safe countries of origin are obliged to stay there
for the whole duration of their procedures (see

332

333

334

335
336

Berlin.de, ‘Senat beginnt Schließung des Flüchtlingszentrums Tempelhof’, 20 December 2018, available inGerman at: https://bit.ly/2uGkGCM.
Berlin.de ‚Neues Ankunftszentrum für geflüchtete Menschen im Berliner Bezirk Reinickendorf ab 29. April
2019‘, April 18 2020, available in German at: https://bit.ly/3f5iDhs.
Süddeutsche.de, ‘Warteraum Asyl außer Betrieb‘, 17 December 2019, available in German at:https://bit.ly/38A98Eu.
Section 47(1) Asylum Act.
Section 47(1b) Asylum Act.

85

Freedom of movement).
The Federal States are required to establish and maintain the initial reception centres. 337 Accordingly,
there is at least one such centre in each of Germany's 16 Federal States with most Federal States having
several initial reception facilities.
As of June 2020, the BAMF website listed 62 branch offices (including branch offices in Arrival and AnkER
centres) and regional offices in 54 locations (down from 58 offices in 50 locations at the beginning of2019).338 In most of these places, an initial reception centre is assigned to the branch office of the BAMF,
or combined with a branch office to constitute an arrival centre or AnkER centre.
Arrival centres
Since 2016, several reception centres have either been opened as arrival centres (Ankunftszentren) or
existing facilities have been transformed into arrival centres. In these centres, the BAMF and otherrelevant authorities apply Fast-Track Processing. The concept of “arrival centres” is not established inlaw, therefore technically the initial reception centres are still functioning as part of the arrival centres,
together with a branch office of the BAMF. As of June 2019, the BAMF lists 19 arrival centres which arelocated across 14 Federal States (down from 22 in 2018): 339- Berlin- Brandenburg: Eisenhüttenstadt- Bremen- Hamburg- Baden-Württemberg: Heidelberg- North Rhine-Westphalia: Bielefeld, Bonn, Dortmund, Mönchengladbach- Saxony: Chemnitz, Leipzig- Lower Saxony: Bad Fallingbostel, Bramsche- Saxony-Anhalt: Halberstadt- Hessen: Gießen- Mecklenburg-Vorpommern: Schwerin- Thuringia: Suhl
- Rhineland-Palatinate: Trier, Speyer- Schleswig-Holstein: Neumünster
AnkER centres
Since August 2018, Bavaria has established and/or rebranded all facilities run by the seven districts of
the Federal State as AnkER centres. 340 These included seven AnkER centres and a number of facilities
attached thereto (Dependancen), the latter serving only for accommodation of asylum seekers to avoid
overcrowding. All steps of the procedure are carried out in the main AnkER centres. The AnkER centre
in Donauwörth was closed at the end of 2019 after regional politicians in the district of Swabia opted fora more decentralised approach to accommodate of asylum seekers.341 Outside of Bavaria, there is one
AnkER centre in Saxony and Saarland, respectively, for a total of 8 AnkER centres:342
AnkER centres & Dependancen in Germany

337
338
339
340

341

342

Section 44(1) Asylum Act.
BAMF, Locations, available at: https://bit.ly/2Z74Uko.
BAMF, Locations, available at: https://bit.ly/2Z74Uko.
Süddeutsche Zeitung, Das sind die sieben neuen Ankerzentren in Bayern, 1 August 2018, available athttps://bit.ly/2MeAYKy.
Bayrischer Rundfunk, Ankerzentren: Augsburger Flüchtlingsrat begrüßt neuen Kurs, 28 June 2019, available
at: https://bit.ly/2NJxyC1.
BAMF, Locations, available at: https://bit.ly/3i38BPN.

86

AnkER centre

Location of AnKER
Dependancen343

Manching/Ingolstadt (Upper
Bavaria)

Ingolstadt: Manchingerstraße
Ingolstadt: Marie-Curie-Straße
Ingolstadt: Neuburgerstraße
Munich: Funkkaserne
Munich: Am Moosfeld
Garmisch
Waldkraiburg
Fürstenfeldbruck

Deggendorf (Lower Bavaria)

Hengersberg
Osterhofen
Stephansposching

Regensburg: Zeißstraße(Upper Palatinate)

Regensburg: Pionierkaserne
Schwandorf

Bamberg (Upper Franconia)-

Zirndorf (Middle Franconia)

Nuremberg: Beuthener Straße
Nuremberg: Witschelstraße
RothNeuendettelsau

Schweinfurt (Lower
Franconia)-

SaxonyDresden-Saarland

Lebach

-

Total

8

Federal State
Bavaria343

17

Anker-Watch.de, ANKER-Zentren und Dependancen, available at: https://bit.ly/3ewPdbE.

87

1.2. Collective accommodation centres
Once the Obligation to Stay in Initial Reception Centres ends, asylum seekers should, “as a rule”, beaccommodated in “collective accommodation” centres (Gemeinschaftsunterkünfte, GU).344 These
accommodation centres are usually located within the same Federal State as the initial reception centre
to which the asylum seeker was sent for the initial reception period.
Prior to the introduction of AnkER centres, when the Federal State of Bavaria operated “transit centres”,
it had been reported that persons who had to be transferred out of the transit centre to GU were in reality
not physically moved out of the centre. Instead a section of the facility was reclassified as GU and people
stayed there; in some cases even the same room was requalified as such, which meant that they formallywere considered to have left the transit centre. Nevertheless, they remained subject to the same houserules of the transit centre.345
According to the “geographical restriction”, asylum seekers are obliged to stay in the district to which they
have been allocated for the whole duration of their procedure, i.e. including appeal proceedings (seeFreedom of Movement). The Federal States are entitled by law to organise the distribution and theaccommodation of asylum seekers within their territories. 346 In most cases, states have referred
responsibility for accommodation following the initial reception period to municipalities. The responsible
authorities can decide at their discretion whether the management of the centres is carried out by the
local governments themselves or whether this task is transferred to NGOs or to facility managementcompanies.

1.3. Decentralised accommodation
For many municipalities the establishment and maintenance of collective accommodation has often notproven efficient, in particular against the background of decreasing numbers of asylum applications fromthe mid-1990s onwards, and especially between 2002 and 2007. Accordingly, many collective
accommodation centres were closed during that period and municipalities increasingly turned toaccommodating asylum seekers in apartments.
Statistics on the year 2019 are not available. For the year 2018, the German Federal Statistical Officerecorded the following numbers for accommodation of “recipients of benefits under the Asylum Seeker's
Benefits Act”. It has to be noted that this law applies not only to asylum seekers, but also to people witha “tolerated stay” (Duldung) and even to certain groups of people who have been granted a temporary
residence permit. Among these groups, there are many people who have been staying in Germany forseveral years and therefore are more likely to live in decentralised accommodation than asylum seekers
whose application is still pending:
Recipients of asylum seekers benefits in the Federal States: 31 December 2018Federal State

Initial reception
centresCollective
accommodation

Decentralised
accommodation

Total

North Rhine-Westphalia

13,522

47,61737,341

98,480Bavaria

7,750

30,124

26,64064,514

Baden-Württemberg

4,099

20,28822,11046,497Lower Saxony

2,583

9,135

28,08839,806

Hesse

1,557

18,194

9,449

29,200

344
345

346

Section 53 Asylum Act.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
Section 10 Asylum Seekers' Benefits Act.

88

Berlin

3,060

6,399

15,63725,096

Saxony763

13,388

7,046

21,197

Rhineland-Palatinate

2,964

2,083

11,491

16,538Schleswig-Holstein

1,394

1,277

13,091

15,762

Brandenburg

1,637

8,721

4,892

15,250Hamburg

2,515

945

7,743

11,203

Sachsen-Anhalt

1,387

3,605

3,753

8,745

Thuringia

418

3,673

3,768

7,859

Mecklenburg-Vorpommern

483

3,044

2,326

5,853

Bremen

16

1,040

2,642

3,698

Saarland

59

959

495

1,513

44,207

170,492

196,512411,211

Total

Source: Statistisches Bundesamt, Empfängerinnen und Empfänger nach Bundesländern: https://bit.ly/2UtNxZW.
This includes both asylum seekers and people with tolerated stay (Duldung).

Although Section 53 of the Asylum Act provides that asylum seekers “should, as a rule, be housed incollective accommodation” following the initial reception period, the above figures show that policies varyconsiderably between the Federal States. 347 In some states such as North Rhine-Westphalia or
Brandenburg, most asylum seekers are indeed living in this type of accommodation. In contrast, there
are other Federal States, including Rhineland-Palatinate, Hamburg or Lower Saxony, in which the
majority of recipients of asylum seekers' benefits are staying in so-called “decentralised accommodation”,
so usually in apartments of their own. 348 The latter might also at least partially be the result of authorities
generally being more restrictive when it comes to issuing (long-term) holders of a tolerated stay withresidence permits, which would entitle them to regular social benefits.

2. Conditions in reception facilities
Indicators: Conditions in Reception Facilities
1. Are there instances of asylum seekers not having access to reception accommodation becauseof a shortage of places?
Yes
No
2. What is the average length of stay of asylum seekers in the reception centres?
3. Are unaccompanied children ever accommodated with adults in practice?

Not available
Yes

No

2.1. Conditions in initial reception centres
There is no common standard for initial reception centres, although Federal States have laid down
standards to varying degrees in regional legislation through the various State Reception Acts
(Landesaufnahmegesetz) and in regulations and directives. Where no standards for the accommodationof asylum seekers exist, the Federal States often refer to other regulations, such as general “sanitationplans” as they exist for other forms of communal accommodation (e.g. residential homes or homelessshelters).

347

348

An analysis of these figures cannot be conclusive since it is complicated by apparent inconsistencies in thestatistics. For example, it is unlikely that at a given date more than 10,000 asylum seekers were staying in theinitial reception centres of the Federal State of North Rhine-Westphalia. Apparently, other types of state-run
accommodation were included in this figure as well.
It is possible, though, that some Federal States subsume smaller types of collective accommodation under“decentralised” housing as well.

89

Many of these centres use former army barracks which have been refurbished. There are substantial
differences in the structure and living conditions, for example, between the AnKER centres and the
Dependancen in Bavaria. In Regensburg for example, the main AnKER centre was built recently and isrelatively modern, while the Dependancen are old former barracks. Particular concerns have been voicedwith regard to Dependancen such as Schwandorf and Stephanposching, which consists of large hallswith no rooms. In the Dependance of Munich Funkkaserne, a former barracks which hosted over 200
people at the end of March 2019, collapsing sinks, a damaged medical room and unsanitary conditions
have been reported, far below standards.349 Following public criticism, the authorities have started
renovation works in the facility of early April 2019 and have transferred several residents to otherfacilities.350
Locations of centres vary significantly. While some of the initial reception centres, arrival centres and
AnkER are situated in or close to big cities (e.g. Berlin, Munich, Regensburg,
Brunswick/Braunschweig, Bielefeld, Dortmund, Karlsruhe), others are located in smaller cities(Eisenhüttenstadt, Neumünster, Halberstadt) or in small towns with some distance to the next city
(Lebach near Saarbrücken). Some initial reception centres (Nostorf-Horst in Mecklenburg-Vorpommern,
Deggendorf or the Dependancen in Garmisch and Waldkraiburg in Bavaria) are located in isolatedareas far away from the next town.351
Initial reception centres have at least several hundred places, while some facilities can host large numbersof persons. The AnkER centre of Bamberg in Bavaria has a capacity of 3,400 places, for example,
although it has never accommodated more than 1,500 persons at one time.352
As far as regulations on accommodation standards in the initial reception centres exist, these show
considerable variety in terms of the required living space and equipment. The Refugee Reception Act ofBaden-Württemberg provides that asylum seekers should have 4.5m² of living space, while otherregulations provide for 6 or 7m² per person.353 A typical room in an initial reception centre has between 2
and 4 beds, there are chairs and a table and each resident has a locker for herself or himself. Size ofrooms may vary, but rooms with a single bed are highly exceptional.
Most initial reception centres have a policy to accommodate single women and families in separatebuildings or separate wings of their buildings. The AnKER centre in Manching/Ingolstadt for example
provides separate rooms for vulnerable persons.
Bath and toilet facilities usually consist of shower rooms and toilets which people have to share. Where
guidelines are available, it is recommended that one shower should be available for 10 to 12 persons, but
in some reception centres the ratio is worse than that, particularly in situations of overcrowding. Cleaningof shared space (halls, corridors) as well as of sanitary facilities is carried out by external companies in
the initial reception centres.
Food is supplied in the initial reception centres and is usually served in canteens on the premises of thecentres. In general, two or more menus are on offer for lunch and the management of the catering facilities
tries to ensure that specific food is provided with regard to religious sentiments. Some, but not all initialreception centres also have shared kitchen space which enables asylum seekers to cook their own food;
349

350

351
352

353

Süddeutsche Zeitung, ‘"Die Regierung muss hier sofort einschreiten"’, 26 March 2019, available in German
at: https://bit.ly/2OGa40d.
Süddeutsche Zeitung, ‘Die Funkkaserne wird angeblich unter Hochdruck saniert’, 5 April 2019, available inGerman at: https://bit.ly/2KA8Rcv.
Refugee Council Bavaria, ‘Abschiebelager Manching/Ingolstadt’, available in German at: http://bit.ly/2pnLtRg.
Markus Kraft, ANKER-Einrichtung Oberfranken – Grundlagen, Kritik und Alternative, Asylmagazin 10-11/2018,
352; ECRE, ‘The Bamberg model and transit camp system in Germany – Op-ed by Aino Korvensyrjä’, 2
February 2018, available at: http://bit.ly/2FIz6KP. See also Bayerischer Flüchtlingsrat, ‘Abschiebelager
Bamberg’, available in German at: http://bit.ly/2IwD471.
European Migration Network, The Organisation of Reception Facilities for Asylum Seekers in Germany, 2013,26.

90

in AnkER centres, for instance, cooking is not allowed. Refrigerators for the use of asylum seekers areavailable in some initial reception centres, but this seems to be the exception. In some centres, themanagement does not allow hot water boilers for asylum seekers as this would be forbidden by fire
regulations. This poses an obstacle to mothers with infants.
The living conditions in many initial reception centres have been criticised by asylum seekers, volunteers
and NGOs – especially in light of the extended obligatory stay in these facilities. Asylum seekers at thearrival centre in Hamburg-Rahlstedt, for example, have reported inter alia a lack of privacy, unclean
sanitary facilities and disturbances at night. The sleeping areas are placed in former warehouses anddivided by thin partitions into several compartments, which do not allow for privacy. Besides reading lamps
attached to each bed, there is one common light for the whole warehouse, which is switched on from
8:00am to 22:00pm.354
More generally, studies published in 2020 have come to the conclusion that the accommodation in initialreception centres is infringing childrens’ rights and constitutes a danger to their mental health. The spatialconfinement, the experience of violence and deportations, as well as the permanent uncertainty cause
psychological stress and have a negative impact on children. 355 Health care and psychosocial support
provided for young refugees in the mass accommodations was described as worryingly inadequate formost of the facilities.356
The NGO “Ärzte der Welt” (Doctors of the World) announced in September 2019 that an advice service
run by the organisation in the AnkER-centre of Manching/Ingolstadt was to be terminated. The NGO
described living conditions in the facility as “morbid” and claimed that adequate treatment, in particulartreatment of persons with psychological disorders, was impossible under the circumstances. Insufficient
protection against assaults, lack of privacy and nocturnal disturbances were impeding mental stabilisationof asylum-seekers at the facility and the NGO was no longer capable to bear responsibility for the mental
health of its patients. Moreover, the organisation claims that there was no system for the identification ofvulnerable persons in place at the facility. 357
Following the COVID-19 pandemic, there has also been rising concern that the conditions in initialreception centres (and other form of collective accommodation) do not allow for sufficient protection
against the virus. In Ellwangen, for example, 50% of the asylum seekers were tested positive.358 For thisreason, some courts have ruled that asylum seekers must be allowed to take residence outside of initialreception centres.359 Whether the obligation to take up residence in initial reception centres will end
because of the virus depends on local circumstances and individual cases – especially since other courts
have decided that the risks caused by COVID-19 do not generally justify an exemption from the obligation
to stay in initial reception centres.360

354

355

356

357

358

359

360

Fluchtpunkt, Mitten in Hamburg, und doch am Rand: Unzumutbare Bedingungen im Ankunftszentrum
Rahlstedt, November 14th 2019, available in German at: https://bit.ly/3iJgGtb.
Terre des hommes, Zur Lebenssituation von minderjährigen Geflüchteten in Aufnahmeeinrichtungen, June
2020, 7, available in German at: https://bit.ly/38Etah0, 7.
Bundesweite Arbeitsgemeinschaft der Psychosozialen Zentren für Flüchtlinge und Folteropfer (BAfF), Living
in a box - Psychosoziale Folgen des Lebens in Sammelunterkünften für geflüchtete Kinder, 2020, 55, available
in German at: https://bit.ly/2W5DaLo.
Frankfurter Rundschau, „Krankmachende Lebensbedingungen“ - Ärzte der Welt zieht sich aus Ankerzentrum
zurück‘, 26 September 2019, available in German at: https://bit.ly/2Z7NyUE.
Frankfurter Allgemeine Zeitung, ‚Jeder zweite Flüchtling in Ellwangen hat Corona‘, 15 April 2020, available inGerman at: https://bit.ly/31ZspxV.
Administrative Court Leipzig, Decision 3 L 204/20.A, 22 April 2020; Administrative Court Dresden, Decision 11
L 269/20.A, 24th April 2020; Administrative Court Münster, Decision 6a L 365/20, 7 May 2020.
Administrative Court Gießen, Decision 4 L 1755/20.GI.A, 20 May 2020, Administrative Court Leipzig, Decision
4 L 211/20.A, 18 May 2020.

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2.2. Situation in collective accommodation centres and decentralised housing
Following the initial reception period, asylum seekers are supposed to be sent to a collective
accommodation centre within the same Federal State. However, responsibility for housing at this stageof the procedure often lies with the municipalities and many different forms of accommodation have been
established. On the local level, accommodation may still consist of collective housing in former army
barracks, in (formerly empty) apartment blocks or in housing containers. At the same time, manymunicipalities have dissolved collective accommodation centres from the 1990s onwards and are now
permitting asylum seekers to rent an apartment on the housing market or in council housing. As mentioned
in Types of Accommodation, decentralised accommodation is more common in some regions than inothers, so whether asylum seekers are housed in collective accommodation or in apartments depends
heavily on the situation of the municipalities.
Studies have repeatedly shown that living conditions of asylum seekers differed considerably between
regions and sometimes even within the same town. For example, some municipalities have a policy ofgenerally allowing asylum seekers to live in apartments, which they have to find and rent on their own. In
some areas, this is almost impossible in practice for many asylum seekers, since rents are unaffordable
in privately owned apartments and space in council housing is extremely limited. This may lead to asituation in which asylum seekers have to stay in collective accommodation centres although they aretechnically not required to do so.
Because different policies are pursued on regional and local level, it is impossible to make generalstatements on the standards of living in the follow-up accommodation facilities.
It has also been pointed out that living conditions in individual apartments are not necessarily better thanin accommodation centres (e.g. if apartments are provided in run-down buildings or if decentralised
accommodation is only available in isolated locations). Nevertheless, the collective accommodation
centres, and particularly the bigger ones (often referred to as “camps” by critics) are most often criticisedby refugee organisations and other NGOs.
While occupancy rates have improved in recent years, some aspects of collective accommodation centres
continue to be identified as problematic by asylum seekers and NGOs. Facilities are often isolated or inremote locations. Many temporary facilities do not comply with basic standards and do not guarantee
privacy.361 According to reports this has led to serious health problems for some asylum seekers,
especially in cases of long stays in collective accommodation centres. In facilities in which food isprovided, asylum seekers are sometimes not allowed to prepare their own food and/or no cooking facilities
exist. The quality of food is often criticised where food is handed out in the form of pre-packed meals.362
Concerns have also been raised around limited space and equipment for recreation, including for children,
in some facilities. In some centres, no separate and quiet space is available for children, for example todo their homework for school.363
Furthermore, many facilities lack qualified staff, thus highlighting the crucial role played by NGOs andvolunteers, particularly regarding counselling and integration. A lack of communication between
authorities and NGOs and/or volunteers has also been flagged problematic.364

361

362
363
364

ProAsyl, ‘Ein Leben ohne Privatsphäre? Sammelunterbringung darf nicht zum Dauerzustand werden!’, 10January 2017, available in German at: http://bit.ly/2kWyi5U.
Ibid.
Ibid.
For both positive and negative examples of cooperation, see Robert-Bosch-Stiftung, Die Aufnahme vonFlüchtlingen in den Bundesländern und Kommunen - Behördliche Praxis und zivilgesellschaftliches
Engagement, 2015, available in German at: http://bit.ly/2kIKN9M.

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2.3. Physical security
In addition to overall living conditions, the security of residents can also be an issue of concern. According
to official statistics, 128 attacks on accommodation facilities took place in 2019, compared to 173 in 2018.
In addition, 1,620 attacks on individual asylum seekers or refugees were recorded in 2019. Most of these
attacks are classified as racially motivated crimes.365
According to statistics compiled by NGOs, the number of attacks on reception centres during 2019 wassignificantly higher – namely 913 attacks on facilities, including 3 arson attacks, compared to 1,535 attacks
including 9 arson attacks in 2018.366 Nevertheless, NGO statistics also show a significantly lower numberof attacks (198) on individual asylum seekers or refugees, therefore discrepancies may partially be
explained by differences in counting methods.
In many facilities, spatial confinement and lack of privacy led to a lack of security, particularly for womenand children.367 To counter this problem, most Federal States have developed violence protection
concepts in recent years.368
Fences are used around premises, particularly for large-scale centres, former industrial buildings orformer army barracks.
In some facilities asylum seekers have to report to staff upon leaving and upon return. Visitors have toreport to staff and there are only limited visiting hours. In some cases, no overnight stays are allowed for
visitors, even for spouses (see Access to Reception Centres).369

2.4. Duration of stay
The duration of stay in initial reception centres has been generally set at a maximum of 18 months
following the reform in 2019 (see Freedom of Movement). Following the initial reception period, a stay inother collective accommodation centres is also obligatory, until a final decision on the asylum applicationis reached.370 This often takes several years since the obligation applies to appeal procedures as well. In
addition, people whose asylum applications have been rejected are now obliged to stay in collective
accommodation centres as long as their stay is “tolerated”. 371 It has been argued that a stay in collective
accommodation which lasts several years increases health risks, especially with regard to mental
disorders.

365

366

367

368

369
370
371

Federal Government, Reply to parliamentary question by The Left, 19/18269, 19 March 2020, available inGerman at: https://bit.ly/38ArLYP .
Mut Gegen Rechte Gewalt, ‘Chronik flüchtlingsfeindlicher Vorfälle’, July 4th 2020, available in German at:https://bit.ly/3f43DQT .
ProAsyl, ‘Ein Leben ohne Privatsphäre? Sammelunterbringung darf nicht zum Dauerzustand werden!’, 10January 2017, available in German at: http://bit.ly/2kWyi5U.
Bundesinitiative Schutz von geflüchteten Menschen in Flüchtlingsunterkunften, Schutzkonzepte vonBundesländern, available in German at https://bit.ly/3eYOMqZ.
Ibid.
Section 53(2) 1st Sentence Asylum Act.
Section 61(1d) Residence Act.

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C. Employment and education
1. Access to the labour market
Indicators: Access to the Labour Market
1. Does the law allow for access to the labour market for asylum seekers?
❖ Asylum seekers in initial reception centres❖ Asylum seekers no longer in initial reception centres❖ If yes, when do asylum seekers have access the labour market?

Yes
No
Yes
No
3 months

2. Does the law allow access to employment only following a labour market test?
3. Does the law only allow asylum seekers to work in specific sectors?
❖ If yes, specify which sectors:

Yes

No

Yes
No
No self-employment

4. Does the law limit asylum seekers’ employment to a maximum working time?
❖ If yes, specify the number of days per year

Yes

No

5. Are there restrictions to accessing employment in practice?

Yes

No

1.1. Time limit for the right to work
Access to the labour market for asylum seekers has been subject to further restrictions in recent years.
The applicable legislation was amended again in 2019 by the Skilled Workers’ Immigration Act(Fachkräfteeinwanderungsgesetz) which entered into force in March 2020. As a result, the regulatory
system has become more restrictive and complex.
Prior to March 2020, asylum seekers were barred from access to employment as long as they were underan obligation to stay in an initial reception centre. Outside these centres, they could be permitted to takeup employment after having stayed in the federal territory for 3 months.
Access to employment for asylum seekers in reception centres
Since March 2020, the general rule still is that asylum seekers in initial reception centres are not allowed
to take up employment.372 This limitation has been severely extended as the result of the extension of the
Obligation to stay in Initial Reception Centres. For most adult asylum-seekers, the time-limit before
accessing employment is now 18 months, up to 24 months in some Federal States. Nevertheless, someasylum seekers with a permission to stay (Aufenthaltsgestattung) in initial reception centres are entitledto an employment permit after 9 months in the asylum procedure under certain conditions. 373 This applies
to asylum seekers whose procedure is still ongoing before the BAMF or where an appeal is pending.
Once their asylum procedure has been running for 9 months, they are entitled to access employment
pursuant to Section 61(1) of the Asylum Act if the further requirements are met.374 However, asylum
seekers from safe country of origins are excluded by law from such possibilities. Hence, the law
establishes an unequal treatment for the latter category. Since asylum seekers from safe countries oforigin are generally obliged to stay in initial reception centres for the whole duration of the procedure, they
have effective been excluded from access to the labour market.
Former asylum seekers with a tolerated stay (Duldung), who are still obliged to stay in reception centres,
may only be allowed to take up employment after a waiting period of 6 months at the discretion of theauthorities. This can apply to those whose application has been rejected as inadmissible or manifestly
unfounded while their appeal is still pending before the administrative courts - but for whom the request
for suspensive effect was rejected.
372
373
374

Section 61(1) 1st Sentence Asylum Act.
Section 61(1) 2nd Sentence Asylum Act.
Section 61(2) 5th Sentence Asylum Act.

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Access to employment for asylum seekers staying outside of reception centres
Outside of reception centres, asylum seekers with a permission to stay (Aufenthaltsgestattung) are notallowed to take up employment during the first 3 months of their stay on the territory, after which they canbe permitted to do so on a discretionary basis. 375
Before the 2020 amendment of the Asylum Act, asylum seekers were not allowed to work on a selfemployed basis for the whole duration of their asylum procedure, since the permission to pursue selfemployment requires a regular residence permit. The asylum seeker's permission to stay
(Aufenthaltsgestattung) does not qualify as such.376 However, the new Section 4a(4) Residence Act now
provides that it is at the discretion of the responsible authorities to permit any economic activity including
self-employment for those with a permission to stay (Aufenthaltsgestattung) or tolerated stay (Duldung).
This only applies to those living outside of initial reception centres, though. 377

1.2. Restrictions on access to the labour market
On top of the restrictions mentioned above, there are additional limitations to the access to the labour
market in practice. Firstly, asylum seekers have to apply for an employment permit each time they wantto take up employment. To that end, they have to prove that there is a “concrete” job offer, i.e. an employer
has to declare that the asylum seeker will be employed in case the employment permit is granted, and adetailed job description must be shared with the authorities.
Secondly, employment is only granted upon approval of the Federal Employment Agency. 378 There are a
few exceptions to this rule, e.g. for internships and vocational training. 379 Such approval depends interalia on a “review of labour conditions”, i.e. an examination of whether labour rights are complied with andwhether wages correspond to regional standards.
The so called “priority review” which was previously applied in practice and which consisted in checking
whether another job-seeker would be more suited for the position (i.e. German citizens or foreigners witha more secured residence permit) has been abandoned following the 2020 reform.
Recent statistics on the number of employed and unemployed asylum seekers are not available. Available
statistics from the Employment Agency include the number of unemployed persons per nationality, without
distinguishing on the basis of legal status.

2. Access to education
Indicators: Access to Education
1. Does the law provide for access to education for asylum-seeking children?

Yes

No

2. Are children able to access education in practice?

Yes

No

As a matter of principle, the right and the obligation to attend school applies to all children in Germany,
regardless of their status. However, since the education system falls within the responsibility of theFederal States, there are some important distinctions in laws and practices.
For example, compulsory education ends at the age of 16 in several Federal States, therefore children in
those states do not have the right to enter schools when they are 16 or 17 years old. Furthermore, it has
375
376
377
378
379

Section 61(2) 1st Sentence Asylum Act and Section 61(2) 5th Sentence Asylum Act.
Section 21(6) Residence Act.
Section 61(1) 1st Sentence Asylum Act.
Section 61(1) 2nd Sentence Number 2 and Section 61(2) 1st Sentence Asylum Act.
Section 32(2) Employment Regulation (Beschäftigungsverordnung).

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frequently been criticised that parts of the education system are insufficiently prepared to address the
specific needs of newly arrived children. While there are “best practice” examples in some regions for the
integration of refugee children into the education system, obstacles remain in other places, such as lackof access to language and literacy courses or to regular schools.
In 2016, an association of various NGOs (regional refugee councils, Federal Association for
Unaccompanied Refugee Minors, Youth without Borders) started a campaign called “School for all”
(Schule für alle) to draw attention to the fact that children in many initial reception centres have only hadvery basic schooling and no access to the regular school system for the duration of their stay in thesefacilities (see Freedom of Movement: Obligation to Stay in Initial Reception Centres). Furthermore, theNGOs have criticised the fact that access to education services was severely limited for asylum seekers
above the age of 16, many of whom have not finished school in their countries of origin and therefore
need access to the school system in order to gain a degree. 380
These problems continue to exist today. Half of all federal states exempt asylum-seeking children fromcompulsory education until they have been assigned to a municipality (Bavaria, Hesse, MecklenburgVorpommern, Lower Saxony, North Rhine-Westphalia, Rhineland-Platinate, Saxony, SaxonyAnhalt).381 Thus, as long as they stay in initial reception centres, they will not have access to the regularschool system. Some initial reception centres do provide educational offers, but they are not comparable
to regular schools.
Problems with access to the education system have particularly been reported with regard to initialreception centres renamed as AnKER centres in Bavaria in 2018. The general policy foresees theprovision inside the AnkER centres of both schooling for children aged 6-16 and professional school(Berufschule) for persons aged 16-21. The AnKER centre in Regensburg is one of the only facilities
allowing children up to the age of 16 to go to regular schools. This was originally only made possible
because the authorities did not manage to build the necessary facilities on time, but has stayed that way.
However, persons aged 16-21 are provided education in containers in the centre, not at school. 382
The AnKER centre in Manching/Ingolstadt does not allow access to regular schools and classes are
therefore provided within the facility. The classes mainly focus on German language, but also cover maths
and other subjects. A certificate is provided upon completion of the course. However, asylum seekers do
not undergo examinations at the end of the year since people stay for shorter periods. If an asylum seeker
wishes to access regular schools, a test assessing his or her capacity to attend classes in regular schools
is conducted, namely to assess German language level. 383 This was done following successful litigationin March 2018, when Manching/Ingolstadt was a “transit centre”, which led authorities to grant access toregular schools for six children from Kosovo, after an Administrative Court had decided that children fromthese centres with sufficient German language skills had the right to attend the regular school system. 384
The problem of a lack of access to the education system in initial reception centres may have been
mitigated to a certain extent by the legal clarification, introduced in 2019, according to which the generalmaximum time-limit for a stay in initial reception centres has been placed at six months for families withminor children. Because of this amendment, children should be allocated to decentralised accommodation
after a few months (possibly earlier than the maximum six-months time-limit allows), which should in turnresult in them having access to regular schools at their new place of residence.

380
381

382

383
384

See the campaign at: http://kampagne-schule-fuer-alle.de/.
Deutsches Kinderhilfswerk, „Beginn der Schulpflicht für asylsuchende Kinder“ - Datengrundlage für den
Strukturindikator zum Recht auf Bildung, available in German at: https://bit.ly/3iNtUFq.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
Ibid.
Süddeutsche Zeitung, ‘Flüchtlingskinder aus Transitzentrum dürfen reguläre Schule besuchen’, 9 March 2018,available in German at: http://bit.ly/2Dzi9fX.

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Asylum seekers generally have access to vocational training. In order to start vocational training, theyneed an employment permit.385 However, the fact that asylum seeker's permission to stay
(Aufenthaltsgestattung) are issued for a 6-month-period frequently renders the access to vocational
training impossible. Training contracts usually have to be concluded for a duration of two or three years.
Hence potential employers are often hesitant to offer vocational training to asylum seekers since there isa considerable risk that the training cannot be completed if the asylum application is rejected.
Studying at university is generally permitted for asylum seekers, but only possible with practical difficulties.
The Federal States’ laws that regulate access to higher education do not impose any restrictions withregards to a foreigner’s residence status. Thus, asylum seekers with a permission to stay
(Aufenthaltsgestattung) or tolerated stay (Duldung) legally have the same access to university as otherforeigners. However, the higher education laws set requirements with regard to qualifications (university
entrance qualification), knowledge of the German language and health insurance coverage, which are
difficult to meet in practice for asylum seekers. Additionally, they are also not entitled to students’ financial
aid when in possession of a permission to stay (Aufenthaltsgestattung).

D. Health care
Indicators: Health Care
1. Is access to emergency healthcare for asylum seekers guaranteed in national legislation?
Yes
No
2. Do asylum seekers have adequate access to health care in practice?
Yes
LimitedNo
3. Is specialised treatment for victims of torture or traumatised asylum seekers available inpractice?
Yes
LimitedNo
4. If material conditions are reduced or withdrawn, are asylum seekers still given access to health
care?
Yes
LimitedNo
The law restricts health care for asylum seekers to instances “of acute diseases or pain”, in which“necessary medical or dental treatment has to be provided including medication, bandages and otherbenefits necessary for convalescence, recovery, or alleviation of disease or necessary services
addressing consequences of illnesses.”386 Furthermore, vaccination and “necessary preventive medical
check-ups” shall be provided.387 The law further contains a special provision for pregnant women andwomen who have recently given birth. They are entitled to “medical and nursing help and support”,
including midwife assistance.388 In addition, the law states that further benefits can be granted “if they are
indispensable in an individual case to secure health”. 389
The term “necessary treatment” within the meaning of the law has not conclusively been defined but isoften considered to mean only medical care that is absolutely unavoidable. However, the wording of thelaw suggests that health care for asylum seekers must not be limited to “emergency care” since the law
refers to acute diseases or pain as grounds for necessary treatment. Accordingly, it has been argued thata limitation of treatment to acute diseases is not in accordance with the law. If chronic diseases cause
pain, they have to be treated as well.390 There remains a dispute, however, as to what treatment isnecessary in these cases, i.e. if the treatment of pain requires treatment of the causes of the chronic
disease, or if a more cost-effective treatment option (usually medication) that eliminates the pain, at least
temporarily, is sufficient. It has been reported that necessary but expensive diagnostic measures or

385
386
387
388
389
390

Section 32(2)(1) Employment Regulation.
Section 4(1) 1st Sentence Asylum Seekers‘ Benefits Act.
Section 4 Asylum Seekers' Benefits Act.
Section 4(2) Asylum Seekers‘ Benefits Act.
Section 6(1) Asylum Seekers' Benefits Act.
Higher Administrative Court Baden-Württemberg, Decision 7 S 920/98, 4 May 1998.

97

therapies are not always granted by local authorities, which argue that only “elementary” or “vital” medicalcare would be covered by the law.391
Even if a chronic disease is not causing pain momentarily, asylum seekers might still be entitled totreatment, if it is indispensable to secure health pursuant to Section 6(1) of the Asylum Seekers’ Benefits
Act. Recently, some Regional Social Courts have argued that this provision must be interpreted broadlyin accordance with the constitution. Thus, apart from a few exceptions, especially in the case of minor
illnesses or short stays, a level of benefits must be established that corresponds to regular healthinsurance.392
A common problem in practice is caused by the need to obtain a health insurance voucher(Krankenschein). These vouchers or certificates are usually handed out by medical personnel in the initialreception centres, but once asylum seekers have been referred to other forms of accommodation, theyusually have to apply for them at the social welfare office of their municipality. Critics have pointed outthat the ambiguity of the scope of benefits under the law leads to varying interpretations in practice frommunicipality to municipality and may result in bureaucratic arbitrariness by case workers at the social
welfare offices, who usually have no medical expertise. 393 394The necessity to distribute health insurance
vouchers individually also imposes significant administrative burden on the social services.
In response, the Federal States of Berlin, Brandenburg, Bremen, Hamburg, Schleswig-Holstein andThuringia issue “normal” health insurance cards to asylum seekers, enabling them to see a doctor without
permission from the authorities. In some Federal States (North Rhine-Westphalia, Lower Saxony andRhineland-Palatinate) the health insurance card for asylum seekers has been introduced in principle,
but it has only been implemented in a few municipalities.395 Other Federal States (e.g. Bavaria andBaden-Württemberg, Saxony, Mecklenburg-Vorpommern) have announced that they will notparticipate in the scheme.
It has to be pointed out, however, that even in a Federal State like Brandenburg, where almost allmunicipalities are issuing health insurance cards, the policy does not apply to asylum seekers in initialreception centres, which fall under the responsibility of the Ministry of the Interior. Due to the recently
extended obligation to stay in these centres, this affects many asylum seekers for a substantial amountof their asylum procedure (see Obligation to stay in initial reception centres). This means that they cannot
access a medical professional of their choice as they depend on the medical personnel present in theinitial reception centres. While nurses are present daily in initial reception centres Eisenhüttenstadt andDoberlug-Kirchhain, medical doctors are only on site three days a week. 396 A further practical problem
reported is the fact that the medical staff is very restrictive in referring patients to medical specialists. This
makes it almost impossible for asylum seekers to meet the legal requirements for the proof of medical
conditions in asylum procedures, which explicitly requires a qualified certificate from a medical
specialist.397
Similarly, in Bavaria, access to health care is rendered extremely difficult for asylum seekers living in
AnKER Dependancen. There is often no general practitioner in the Dependancen and residents havetherefore to receive care in the main AnkER building, which can be located miles away. Moreover, thedoctor present in an AnKER centre is usually a general practitioner and does not provide medical reports,
391

392

393
394

395

396
397

Georg Classen, Leitfaden zum Asylbewerberleistungsgesetz (Guideline to the Asylum Seekers’ Benefits Act),
September 2018, 13, available in German at: https://bit.ly/3ef7zwI.
Regional Social Court Hesse, Decision L 4 AY 9/18 B ER, 11th July 2018; Regional Social Court MecklenburgVorpommern, Decision L 9 AY 13/19 B ER, 28th August 2019.
Gesundheit für Geflüchtete, Healthcare vouchers, available at: https://bit.ly/2BXoxme.
Georg Classen, Leitfaden zum Asylbewerberleistungsgesetz (Guideline to the Asylum Seekers’ Benefits Act),
September 2018, 13, available in Germant at: https://bit.ly/3iJEDAB.
See overview of Federal States, see Gesundheit für Geflüchtete, Regelung in den Bundesländern, available
at: https://bit.ly/2U7GRRL.
Information provided by local social workers of Komm Mit e.V. June 2020.
Section 60(7 in conjunction with Section 60a(2c) Residence Act.

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while access to specialised doctors can only take place following a referral from the general practitioner. 398
As seen above, this problem is not specific to AnKER centres, but also prevalent in other reception
centres.
According to Section 1a of the Asylum Seekers Benefits Act, reception conditions can be reduced forreasons defined in the law (see Reduction or Withdrawal of Reception Conditions). Even if benefits havebeen reduced, however, asylum seekers remain entitled to medical treatment pursuant to Section 4 of the
Asylum Seekers’ Benefits Act. However, treatment pursuant to Section 6(1) of the Asylum Seekers’
Benefits Act is not accessible in these cases.
Following the reform of the Asylum Seekers’ Benefits Act in 2019, asylum seekers are entitled to social
benefits as regulated in the Twelfth Book of the Social Code (Sozialgesetzbuch) only after 18 months,
thus extending the waiting period by an additional 3 months. 399 Once people are entitled to the “standard”
social benefits, this includes access to health care under the same conditions that apply to German
citizens who receive social benefits.
Specialised treatment for traumatised asylum seekers and victims of torture can be provided by somespecialised doctors and therapists and in several specialised institutions (Treatment Centres for Victimsof Torture – Behandlungszentren für Folteropfer). Since the number of places in the treatment centres islimited, access to therapies is not always guaranteed. Access to around 40 % of applicants is refused,
and others have to wait an average of 7,3 months to start treatment. The treatment centres have to covermost of the costs for therapies (93 %) through donations or other funds since therapies are often notcovered by the health and social authorities. 400 Large distances between asylum seekers’ places ofresidence and treatment centres may also render an effective therapy impossible in practice.

E. Special reception needs of vulnerable groups
Indicators: Special Reception Needs
1. Is there an assessment of special reception needs of vulnerable persons in practice?
Yes
No

In 2019, a provision was introduced requiring Federal States to take appropriate measures to ensure theprotection of women and vulnerable persons when accommodation asylum seekers in initial reception
centres.401 Even before this provision was introduced, authorities were required to provide specific support
to those with special reception needs in accordance with Reception Conditions Directive.402 Special needs
should be taken into account as part of the admission procedure to the initial reception centres, and social
workers or medical personnel in the reception centres can assist with specific medical treatment.
However, the Asylum Act does not foresee a systematic assessment procedure for vulnerable persons.
Some Federal States have introduced policies that establish systematic screening of all asylum seekers
for special reception needs.403 For example, asylum seekers at the arrival centre in Berlin undergo ashort interview with the social services of the Federal State inter alia to identify special reception needs(see also Identification).

398

399

400

401
402
403

ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
However, the reduction of benefits may apply for more than 18 months (i.e. without any time limit) to persons
who have “abused the law to affect the duration of their stay”.
Bundesweite Arbeitsgemeinschaft der Psychosozialen Zentren für Flüchtlinge und Folteropfer (BAfF),
Versorgungsbericht - Zur psychosozialen Versorgung von Flüchtlingen und Folteropfern in Deutschland,
August 2019, available in German at: https://bit.ly/2O68bKK, 146-147.
Section 44(2a) Asylum Act.
Section 21 et seq. Directive 2013/33/EU.
Protection concepts of different Federal States are available in German at: https://bit.ly/2DpE4f3.

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In Rhineland-Palatinate, the regional government has adopted a protection concept which also includes
methods for the identification of vulnerabilities. 404 This includes the following measures:-

Accommodation of possible vulnerable persons (i.e. persons who are suspected to have special
needs) in separate areas of the reception centres where social services can provide better careand easily identify vulnerabilities;-

If special reception needs have been established, vulnerable persons shall be accommodated indesignated (i.e. separate) “protection areas” with easy access to social services;-

If necessary, vulnerable persons shall be able to lock their rooms. Single women shall beaccommodated in areas to which male residents have no access and where, if possible, social
services and supervision are only carried out by female staff members;-

Separate rooms for LGBTI persons shall be provided upon request or if considered necessary by
the reception centre’s management staff,-

Persons with physical disabilities shall be accommodated in barrier-free parts of the centres andshall be provided with adequate equipment. If necessary, they shall be accommodated outsideof the reception centres in specialised facilities for persons with disabilities.

According to the authorities in Brandenburg, asylum seekers in the Federal State undergo a firstscreening on arrival in the initial reception centres. Staff is required to report any obvious reception needs
and asylum seekers can fill out a questionnaire regarding special reception needs on a voluntary basis.
In the next days, trained staff of the psychosocial services at the facilities is supposed to carry out a 20minute interview with asylum seekers to identify certain criteria that indicate a particular need forprotection or assistance.405 NGOs criticise, however, that this concept is insufficient as only certain groups
undergo the second screening in practice and that the special reception needs of physically healthy men
with mental health issues are likely to remain undetected.406

1. Reception of unaccompanied children
Unaccompanied children should be placed in the care of a youth welfare office which has to seek
“adequate accommodation”.407 Unaccompanied children do not generally stay in the place in which they
have arrived, but they can be sent to other places throughout Germany as part of a distribution system(see Legal Representation of Unaccompanied Children).
Latest available figures for unaccompanied minors reflect the situation in 2018: during that year, 5,817
newly arriving unaccompanied minors were placed in the care of a youth welfare office (in comparison to44,935 in 2016).408 The total number of unaccompanied children and young adults under the care of youth
authorities has also been decreasing significantly in recent years, from 64,045 at the end of 2016 to
31,184 in November 2019.409 Out of these, 62,8% were older than 18 years but still fell under thecompetence of youth welfare offices because they were entitled to youth welfare measures. Figures also

404

405

406
407
408

409

410

Konzept zum Gewaltschutz und zur Identifikation von schutzbedürftigen Personen in den Einrichtungen derErstaufnahme in Rheinland-Pfalz, available in German at: https://bit.ly/2FsmG7V.
Zentrale Ausländerbehörde Brandenburg, ‚Konzeption der Zentralen Ausländerbehörde für die Feststellung
und die Berücksichtigung der Belange Schutzbedürftiger i.S.v. Art. 21 ff. RL 2013/33/EU in derErstaufnahmeeinrichtung (EAE) des Landes Brandenburg‘, December 2019, available in German at:https://bit.ly/31XjQn9.
Information provided by local social workers of Komm Mit e.V., June 2020.
Section 42(1) Social Code, Vol. VIII.
Federal Governmen, Bericht über die Situation unbegleiteter ausländischer Minderjähriger in Deutschland(Report on the situation of unaccompanied foreign minors in Germany), Parliamentary report no. 19/17810,
05 March 2020, available in German at: https://bit.ly/38Q1VQU, 13.
Figures based on unpublished statistics by the Federal Administrative Office (Bundesverwaltungsamt):
Federal Association for Unaccompanied Refugee Minors, Die Situation unbegleiteter minderjähriger
Flüchtlinge in Deutschland, December 2019, available in German at: https://bit.ly/3fePy32, 3Federal
AssociationforUnaccompanied
Refugee
Minors,Die
Situation
unbegleiteterminderjähriger Flüchtlinge in Deutschland, December 2019, available in German at: https://bit.ly/3fePy32,

100

show that unaccompanied children were sent to all 16 Federal States, with numbers only roughly
corresponding to the distribution system of the Königsteiner Schlüssel. Only the city state of Bremen
shows a significant deviation from this quota system, with the actual number of children and young adults
staying in Bremen in November 2019 amounting to 317% of the Federal State’s quota. Two other Federal
States (Hamburg: 140% and Hessen: 137%) were also considerably over their quota, while all East
German States except Berlin (Mecklenburg-Vorpommern, Brandenburg, Saxony, Saxony-Anhalt,
Thuringia) did not fully meet the quota allocated to them under the distribution key.
A study of the Federal Association for Unaccompanied Refugee Minors, published in December 2019,shows significant disparities between regions as far as reception conditions for unaccompanied children
are concerned.410 Around 1,100 persons working in youth welfare institutions and NGOs had participatedin an online survey for this study. The authors of the report observe that reception conditions forunaccompanied children have generally improved in recent years due to a significant decrease in thenumber of newly arriving asylum seekers. Nevertheless, they also conclude that a good quality ofaccommodation and of other supportive measures for unaccompanied children is still not ensured in allparts of Germany. According to the authors, the data indicates that especially the Federal States ofHamburg, Bremen and Berlin have to undertake systematic efforts in this regard. Moreover, a major
point of concern for them are municipalities where unaccompanied minors will primarily be housed inregular collective accommodation once they turn 18. This happens most frequently in the Federal Statesof Bavaria, Thuringia, North Rhine-Westphalia and Brandenburg. As an encouraging improvement,
they point out that temporary housing (youth hostels, hotels, emergency shelters) have continued to
decline in all forms of assistance and are now only very rarely used to accommodate young people. 411

2. Reception of LGBTI persons
The situation of LGBTI persons in reception centres and other collective accommodation centres has
been frequently discussed, after many reports had emerged about LGBTI persons being harassed andattacked by other asylum seekers. In several cities, authorities and/or NGOs have opened specialised
accommodation centres for LGBTI persons.412 Regional guidelines for protection against violence inrefugee accommodation centres regularly refer to LGBTI persons as a particularly vulnerable group. 413
Special protection measures should be taken following an individual assessment of the situation. For
example, the guidelines for the Federal State of North Rhine-Westphalia state that vulnerable persons,such as pregnant women, single women, families and LGBTI persons should be given priority when(single) rooms are allocated in accommodation centres. Furthermore, LGBTI persons together withvictims of trafficking and persons who have suffered from severe violence, are listed among persons forwhom “other accommodation”(i.e. not in collective accommodation centres) can be necessary, again
following an individual assessment of the situation. 414

410

411

412

413

414

Federal Association for Unaccompanied Refugee Minors, Die Situation unbegleiteter minderjähriger
Flüchtlinge in Deutschland, December 2019, available in German at: https://bit.ly/3fePy32,
Federal Association for Unaccompanied Refugee Minors, Die Situation unbegleiteter minderjähriger
Flüchtlinge in Deutschland, December 2019, available in German at: https://bit.ly/3fePy32, 84.
Queer.de, ‘München schafft Schutzräume für LGBTI-Flüchtlinge’, 19 January 2017, available in German at:
http://bit.ly/2jByQkW; Die Welt, ‘Hamburg bietet Wohnungen für schwule Flüchtlinge an’, 4 August 2016,
available in German at: http://bit.ly/2DBL6rI.
For protection concepts of different Federal States see Bundesinitiative Schutz von geflüchteten Menschen in
Flüchtlingsunterkunften, Schutzkonzepte von Bundesländern, available in German at: https://bit.ly/38MVVYX.
Ministry of the Interior for North Rhine-Westphalia, Landesgewaltschutzkonzept für Flüchtlingseinrichtungendes Landes Nordrhein-Westfalen, March 2017, available at: https://bit.ly/2ul7CCQ.

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F. Information for asylum seekers and access to reception centres
1. Provision of information on reception
The law imposes an obligation on authorities to provide general information on rights and obligations ofasylum seekers:“Within 15 days of the filing of an asylum application, the reception centre shall inform theforeigner, if possible in writing and in a language which he can reasonably be assumed tounderstand, of his rights and duties under the Asylum Seekers Benefits Act. With the informationreferred to in the first sentence, the reception centre shall also inform the foreigner about who isable to provide legal counsel and which organizations can advise him on accommodation andmedical care. ”415
In practice, the initial reception centres hand out leaflets which contain information on where and whenasylum seekers can receive advice or assistance. In general, though, asylum seekers are expected tocontact the social services in the reception centres in order to get more detailed information on reception
conditions.
Since 2019, Section 12a of the Asylum Act ensures that asylum seekers receive free of charge counsellingon the asylum procedure (see Provision of information on the procedure). This does not include
information on reception conditions, however.

2. Access to reception centres by third parties
Indicators: Access to Reception Centres
1. Do family members, legal advisers, UNHCR and/or NGOs have access to reception centres?
YesWith limitationsNo

UNHCR is entitled by law to visit foreigners, including those in detention and in airport transit zones. 416
Any restriction of access to reception centres for UNHCR would therefore be considered illegal.
There is no general rule for other third parties. Access of other organisations or individuals to reception
centres can be restricted by house rules issued by the owner of the premises or by the management of
the facilities. For instance, visits can generally be restricted to daytime hours, even for spouses in somefacilities. In Bavaria for example, very strict visiting rules apply in some AnKER centres, whereby family
members and lawyers must be announced 3 days in advance. There have also been cases in which
NGOs staff or volunteers were banned from entering premises of reception or accommodation centres.
In practice, the geographical location of reception centres can pose a considerable obstacle to visits. In
addition, many accommodation centres do not have an office or another room in which confidentiality of
discussions between an asylum seeker and a visitor is ensured.

G. Differential treatment of specific nationalities in reception
Asylum seekers from Safe Countries of Origin are subject to special reception conditions. Asylum seekers
from these countries are obliged to stay in initial reception centres for the whole duration of theirprocedure. Since asylum seekers are barred from access to the labour market as long as they are obliged

415
416

Section 47(4) Asylum Act.
Section(9) Asylum Act.

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to stay in an initial reception centre, these provisions also mean that these groups are effectively excluded
from employment for the duration of their stay in these centres.
Moreover, given that the distribution of asylum seekers takes into account the capacities of the BAMF toprocess specific applications, people may be faced with different reception conditions due to theirnationality. In Bavaria, for example, the AnkER centre of Manching/Ingolstadt accommodates nationalsof Moldova, while nationals of Nigeria are usually accommodated in the Dependancen of Garmisch andMunich Funkkaserne, since their applications are processed by the BAMF in Munich. Moldovan asylum
seekers are accommodated in the Dependance of Schwandorf, while Ethiopian nationals areaccommodated in the Regensburg Pionierkaserne Dependance.417

417

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

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Detention of Asylum Seekers
A. General
1.
2.
3.
4.

Indicators: General Information on Detention
Total number of asylum seekers detained in 2019:
Number of asylum seekers in detention at the end of 2019:
Number of pre-removal detention centres:
Total capacity of detention centres:

Not available
Not available
12
Around 600

Responsibility for detention, including detention pending deportation (Abschiebungshaft), lies with theFederal States. Available statistics on detention pending deportation do not contain information on thenumber of people who have applied for asylum while in detention.
Asylum seekers are generally not detained as long as their application is not finally rejected and as longas they have a permission to stay (Aufenthaltsgestattung). In cases of applications which have been
rejected as inadmissible or manifestly unfounded, a deportation order may take effect regardless of legal
remedy, unless a court grants an interim measure suspending such a deportation. However, if applicants
are detained at this point, they do not have the legal status of asylum seekers, as the asylum seekers’
permission to stay ceases to be valid once a deportation order becomes enforceable. 418 Accordingly,
within the meaning of German law, detention is only ordered once an asylum application has been finallyrejected. Therefore, detention pending deportation does not affect asylum seekers within the scope of thelaw.
However, it has to be noted that in Dublin cases asylum applications are rejected without any examinationof the substance of the case and applicants are referred to another Member State to carry out their asylum
procedure. Detention of asylum seekers therefore occurs in Dublin cases in order to prepare the transfer
to the responsible Member State. More precisely, transfers are usually preceded by arrests and police
custody, which usually lasts for a very short period of time since many people are transferred on the sameday. In 2019, 8,423 persons were transferred following a Dublin procedure, compared to 9,209 in 2018
(see

418

Section 67 Asylum Act.

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Dublin).
Available statistics seem to confirm this assumption, as they indicate that the number of Dublin transfers
preceded by detention is relatively low. For instance, in the Federal State of Hessen, 297 persons weredetained in the detention facility of Darmstadt-Eberstadt between March 2018 and June 2019, but only
79 persons (26%) were detained on the basis of Article 28 of the Dublin Regulation. 419 Findings from asurvey published in 2018 indicate a similar picture: The Federal State of North Rhine-Westphalia
reported that 573 persons were held in its detention facility in Büren in the first half of 2018 for the purposeof deportation, out of whom only 173 persons (30%) were detained following a Dublin transfer order. 420 In
the Federal State of Hamburg, there were 101 persons in detention pending deportation in the first halfof 2018, but only 12 Dublin detainees. 421 In the Federal State of Lower Saxony, between 1 January and
17 August 2018, only 29 persons had been detained prior to their Dublin transfer.422 Since several Federal
States do not distinguish between detention cases in Dublin procedures and detention based on othergrounds, these figures do not necessarily represent the overall situation. Nevertheless, these statistics
indicate that the majority of persons in detention pending deportation either have never applied for asylum
or are no longer asylum seekers at the time of detention. They also suggest that only a comparatively
small number of Dublin transfers (8,423 in 2019) is preceded by detention.
One exception is the situation at the German-Austrian border, where detention orders seem to be issued
frequently by the Federal Police, including in Dublin cases. The only available figures were collected forthe period between February and July 2017. During that period, the Federal Police requested courts toissue 364 detention orders in Dublin cases, of which 344 were eventually issued by the courts.423 Anotherindicator is the number of Dublin transfers which were carried out without the concerned persons having
applied for asylum in Germany. In 2019, 550 of such transfers took place. 424 These cases were probably
managed by the Federal Police, but it is not clear how many persons were detained prior to their transfer
or if these transfers were carried out immediately after a short-term arrest.
Moreover, the number of deportations from Germany (i.e. returns and/or Dublin transfers) has remained
relatively stable in recent years:

2015
20,888

Number of deportations: 2015-2019
2016
2017
2018
25,37523,966
26,1142019
22,097

Source: Federal Government, Reply to parliamentary question by The Left, 18/7588, 18 February 2016, 18/11112, 9
February 2017, 19/800, 20 February 2018, 19/18201, 19 March 2020.

In the first three months of 2020, 4,088 people were deported from Germany to their countries of origin
or other European countries under the Dublin Regulation, most of them to Italy, France, Serbia, Albania
and Georgia according to a response from the Federal Ministry of the Interior to a parliamentary
information request.425 This marks a decrease compared to the same period of last year, when 5,613
deportations were carried out, which mainly results from the stop of deportations due to health measuresrelated to the corona virus pandemic.
Nevertheless, an alleged “enforcement deficit” had become the subject of a heated political debate and a“media obsession” in 2018, as the authorities were being criticised for their failure to carry out
419

420
421
422
423
424
425

Government of the Federal State of Hesse, Response to information request by The Left, 20/773, 16
September 2019, available at https://bit.ly/2VSjyJJ, 2.
Federal Government, Reply to parliamentary question by The Left, 19/5817, 16 November 2018, 7 and 10.
Ibid, 15 and 17.
Ibid, 12.
Federal Government, Reply to parliamentary question by The Left, 19/273, 14 December 2017, 27.
Federal Government, Reply to parliamentary question by The Left, 19/17100, 29 February 2020, 33.
Federal Government, Response to an oral question submitted by Ulla Jelpke, MP (The Left),Question no.
5/66, 6 May 2020.

105

deportations.426 Statistics in 2018 indicated that only 26,114 out of 57,000 deportations were effectively
carried out.427 More detailed figures were published for 2019: according to the Government’s statistics,
32,482 scheduled deportations did not take place for a variety of reasons. The most prominent reasons
were as follows:
Failed deportations in focus: 2019
Reasons for cancellation or abandonment of deportation
measuresDeportations

Dublin transfers

Revocation of deportation order by local authorities (before
persons to be deported were handed over to the Federal Police)

7,424

9,975

Failure by local authorities to hand over persons to be deported
to the Federal Police (reasons unknown)

4,561

6,446

Resistance of persons to be deported

351

1,341

Refusal of pilots or other flight personnel to transport the person
to be deported

211

385

Refusal of Federal Police to take over persons to be deported
from local authorities

132

305

Cancellation of flights (for technical reasons, strikes etc.)

282

80

Medical concerns

71

64

Legal actions (appeals or interim measures)

92

13(Attempted) suicides or self-harm

15

14

Refusal by receiving states to accept deported persons

133

Source: Federal Government, Reply to parliamentary question by The Left, 19/18201, 19 March 2020, 29-37.

The above statistics show that in the overwhelming majority of cases, the reasons for the failure ofdeportations can be found at the level of local authorities, although it is not clear which exact
circumstances led to the cancellation of deportation measures in such cases. The Federal Government
has no information on the number of cases in which persons to be deported were responsible for thecancellations (e.g. by absconding) and there are numerous other possible reasons for the cancellation ofdeportation attempts (such as medical reasons, organisational problems etc.). It is also likely that persons
can simply not be found on the date of the scheduled deportations, due to them staying at another placerather than because they are deliberately avoiding to be arrested.428 Nevertheless, despite the lack of
empirical evidence, the comparatively high number of cancellations of deportation attempts is usuallyassociated with the absconding of the persons concerned.
Against this background of an alleged “enforcement deficit”, requests for a more frequent use of detention
pending deportation were introduced into the political debate, subsequently resulting in a new legislation
which came into force in August 2019 through the Second Act for an improved enforcement of theobligation to leave the country (Zweites Gesetz zur besseren Durchsetzung der Ausreisepflicht, also
known as the “Orderly Return Act”/Geordnete-Rückkehr-Gesetz). As far as arrest and detention of
persons to be deported are concerned, this Act introduced the following changes:
•

426
427

428

Authorities were granted new powers to access and enter private apartments in order to searchfor persons to be deported (Section 58 Residence Act).

Deutsche Welle, How do deportations work in Germany?, 16 July 2018, available at: https://bit.ly/2Hhh3uM.
Deutsche Welle, ‘More than half of deportees go missing’,15 July 2018, available at: https://bit.ly/2unuSQS;
Spiegel, ‘Mehr als die Hälfte aller Abschiebungen 2018 gescheitert’, 24 February 2019, available in German
at https://bit.ly/2tDb5we.
Brief analysis of Dr. Thomas Hohlfeld (assistant to the parliamentary group of The Left) of the Federal
Governments reply 19/17100, 20 March 2020, 5.

106

•

•

•
•

It is now expressly regulated in the law that authorities carrying out a deportation are entitled toarrest the person concerned. Thus, this short-term custody (Festhalten) is now legallydistinguished from “detention” and is not subject to a court order. It has to be limited to the“inevitable” period of time which is necessary to transport the persons to be deported to the airport
or to a border control point (Section 58 IV Residence Act). This new provision creates a legal
basis for what has already been common practice.
The grounds for detention pending deportation were re-organised and expanded in the text of thelaw, in particular by adding new criteria to the definition of „risk of absconding“ (Section 62
Residence Act, see below: Legal framework of detention).
A new legal instrument was established with a form of “detention to enforce the obligation tocooperate” with authorities (Mitwirkungshaft. Section 62 VI Residence Act).
Furthermore, the law also allows for the execution of detention pending deportation in regularprisons (with certain reservations and limited to a transition period until June 2022), but this new
regulation did not have any immediate impact.

In spite of the sometimes-heated political debate and the new legislation, specialised pre-removal
detention facilities existed only in eight Federal States in 2019 (see Place of detention). 429 The capacityof these detention facilities was still relatively low at the end of 2019 and did not increase significantly inrecent years. The high number of deportations and the comparably low capacity of pre-removal detention
facilities indicate that the vast majority of deportations and Dublin transfers are carried out within a few
hours or during the same day. This enables the authorities to put persons who are obliged to leave thecountry in short-term custody and no formal detention order has to be issued by a court.
If an asylum application is lodged after a person has been taken into detention pending deportation, thisdoes not necessarily lead to a release and detention may be upheld for a period of 4 weeks (see Grounds
for Detention). The personal interview may take place in detention during that period. There are no special
rules applicable for an interview in detention and the asylum applicants have the same rights andobligations as any other interview carried out in a branch office of the BAMF. All interviews with detained
applicants are conducted by the BAMF in person.

B. Legal framework of detention
1. Grounds for detention
Indicators: Grounds for Detention
1. In practice, are most asylum seekers detained❖ on the territory:Yes❖ at the border:
Yes

No
No

2. Are asylum seekers detained in practice during the Dublin procedure?
Frequently
RarelyNever

3. Are asylum seekers detained during a regular procedure in practice?
Frequently
RarelyNever

According to the law, there is only one basis for the detention of asylum seekers whose application is still
pending. This relates to asylum applications which are lodged by people who are already in detention, inparticular those:- In pre-trial detention;- In prison (following a conviction for a criminal or other offence); or- In detention pending deportation (Abschiebungshaft).

429

Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCji.

107

An asylum application lodged after a foreigner has been detained for the purpose of removal does notalways lead to release from detention, as detention is legally possible under certain circumstances.
However, it has to be noted that detention pending deportation, ordered solely on the grounds of illegal
border crossing, is in itself not a sufficient reason to uphold such detention in case that an asylum
application has been lodged. In addition, the authorities have to prove that there are further reasons forthe prolongation of detention, such as a risk of absconding or an illegal stay for a duration of one month.
If the lodging of an asylum application does not lead to release from detention, a detained person may be
kept in detention for 4 weeks or until the BAMF has decided upon the case. Detention may even be upheld
beyond that period if another country has been requested to admit or re-admit the foreigner on the basisof European law, i.e. the Dublin Regulation, or if the application for international protection has been
rejected as inadmissible or as manifestly unfounded. 430

1.1. Pre-removal detention (Abschiebungshaft)
The German Constitution provides that detention may only be ordered by a judge. The responsible
authorities may only take a person into custody if there is reason to believe that this person is trying toabscond in order to avoid deportation and if a judge cannot be requested to issue a detention order
beforehand. In such cases, the detention order has to be subsequently obtained from a court as soon as
possible.
A judge may issue a detention order as “preparation of detention” (Vorbereitungshaft) in cases of persons
who have been expelled (usually following a criminal conviction) and in cases of persons who have been
given a deportation order on the grounds that they pose a risk to national security. 431 In most cases,
however, a detention order is issued for the purpose of “safeguarding the deportation” (Sicherungshaft).
This type of detention is defined in Section 62(3) of the Residence Act. This provision has undergone amajor amendment in August 2019 as part of the so-called Second Act for an improved enforcement of theobligation to leave the country (Zweites Gesetz zur besseren Durchsetzung der Ausreisepflicht, also
known as the “Orderly Return Act”/Geordnete-Rückkehr-Gesetz). Section 62(3) of the Residence Act now
states that a foreigner shall be placed in detention pending deportation “if:432- there is a risk of absconding;- the foreigner is required to leave the country on account that he/she entered the territory
unlawfully;- a deportation order has been issued pursuant to Section 58a [against persons who have been
expelled or who have been found to pose a risk to national security] but is not immediately
enforceable”.
Risk of absconding
With the 2019 amendments, two new sub-paragraphs 62(3a) and 62(3b) Residence Act were introduced
which contain an extensive definition of the grounds which may lead to the assumption of the risk ofabsconding (Fluchtgefahr). According to section 62(3a) a risk of absconding is to be assumed (as arefutable assumption), if433
1. the foreigner is providing the authorities with misleading information about his or her identity or
has done so in connection with the planned deportation or with possible impediments todeportation and has not corrected false information on his/her own initiative, in particular bywithholding or destroying documents or by claiming a false identity;
2. the foreigner has been asked to remain at the disposal of the authorities at a certain place in
430
431
432
433

Section 14(3) Asylum Act.
Section 62(2) Residence Act.
Unofficial translation by the author, with minor abridgements.
Unofficial translation by the author, with abridgements.

108

order to carry out an official hearing or a medical examination and has not been present at thisplace without good reason;
3. the deadline set for leaving the country has expired and the foreigner has changed his or her
place of residence without notifying the foreigners‘ authority of an address at which he or she canbe reached, in spite of having been informed about his/her obligation to do so;
4. the foreigner has been banned from (re-)entering Germany and has not been granted an
exceptional permission to enter Germany in spite of such a ban;
5. the foreigner has avoided deportation in the past;
6. the foreigner has expressly declared that he or she will resist deportation.
Section 62(3b) of the Residence Act then defines ‘specific indications’ for a risk of absconding as follows:
1. The foreigner has provided the authorities with misleading information about his or her identity
in a manner which might result in an impediment to deportation and has not corrected this pieceof information on his/her own initiative, in particular by withholding or destroying documents or byclaiming a false identity;
2. the foreigner has paid substantial amounts of money, in particular to a third person [a smuggler
or a trafficker] and it can be concluded under the individual circumstances that he or she will resist
deportation, because otherwise his or her expenditures would have been of no avail;3. the foreigner poses a significant risk to life and limb of third persons or to “significant legal
interests of national security”;
4. the foreigner has been sentenced repeatedly to at least one prison term for intentional criminal
offenses;
5. the foreigner has failed to obtain a passport or has refused or omitted to cooperate withauthorities to fulfil other legal requirements for the clarification of his/her identity. The foreignermust have been informed in advance about the possibility of detention in case he or she did notcomply with the aforementioned obligations;
6. the foreigner has repeatedly failed to comply with an obligation imposed by the authorities totake up residence in a particular region or place [residence obligation] or with other obligations
imposed by the authorities to safeguard and enforce the deportation order;
7. a foreigner who has entered the country legally but is now obliged to leave, cannot beapprehended by the authorities, because he or she does not have a place of residence at which
he or she is predominantly staying.
It has been noted that the relationship of the newly introduced sub-paragraphs 62(3a) and 62(3b)Residence Act is not entirely clear. 434 The Explanatory Memorandum to the new Act states that the“indications” listed in Section 62(3b) aim to define the more concrete grounds, whereas the “assumptions”
listed in Section 62(3a) “allow for a more reliable prognosis” on whether a person is trying to avoid
deportation.435 This seems to imply that the “assumptions” listed in sub-paragraph 3a are supposed toserve as additional grounds for detention, while the concrete evidence as listed in Section 3b would
434

435

Stefan Keßler, Freiheitsentzug ad libitum? Die Auswirkungen des „Hau-Ab-Gesetzes II“ auf die
Abschiebungshaft, in: Das Migrationspaket, Beilage zum Asylmagazin 8-9/2019, available in German at:https://bit.ly/3boa7HM, 44-54 (45).
Explanatory memorandum to draft bill, Parliamentary document 19/10047, 10 May 2019, 39.

109

provide the basis for a possible detention order as “objective criteria”. However, the wording of the law
does not support this interpretation: According to the law, a detention order can be based both on the“assumptions” of sub-paragraph 3a and on the “indications” of sub-paragraph 3b. The 2019 amendments
therefore simply seem to have expanded the list of possible grounds for detention, rather than clarifying
the preconditions for detention orders.
The new provisions have been criticised for their contradiction with the principle of detention as a "lastresort". Furthermore, it has been pointed out that the concept of a “refutable assumption” as it is now set
out in paragraph 3a is vaguely worded and places the full burden of proof on the individual who has toprovide evidence that he/she is not trying to evade deportation. Furthermore, Article 15 of the Return
Directive (2008/115/EC) does not refer to the concept of a “refutable assumption“ as sufficient grounds
for a detention order. For this reason, it is doubtful whether the amendments, in particular the concept of
the “refutable assumption” of sub-paragraph 3a are in line with the Return Directive. 436
Detention in the context of the Dublin procedure
Section 2(14) of the Residence Act further contains special provisions for detention in the course of
Dublin procedures (also referred to as Überstellungsgewahrsam/transfer detention). As a general rule,
this section provides that most of the grounds for detention referred to above have to be regarded in thecontext of this provision as well: thus, the grounds listed in Section 62(3a) of the Residence Act shall apply
accordingly to constitute a “refutable assumption for a risk of absconding within the meaning of Article 2of the Dublin III Regulation.” The grounds listed in Section 62 (3b) No. 1-5 of the Residence Act shall be
regarded as objective criteria for a risk of absconding within the meaning of Article 2(n) of the Dublin III
Regulation.
With the general reference to the “risk of absconding” as defined in Section 62, the expansion of possible
grounds for detention is now applicable to the transfer detention in Dublin cases as well. NGOs haveraised doubts as regards the compliance of this provision with the Dublin III Regulation.437 According to
the latter, Member States may detain the person concerned only if there is a significant risk of absconding
and on the basis of an individual assessment (Article 28 II of the Dublin III Regulation). In contrast, German
law now lists numerous grounds for detention, some of which are vaguely worded thus raising the question
as to whether they constitute significant reasons to assume a risk of absconding.
In addition, Section 2(14) of the Residence Act defines two other criteria for a “risk of absconding”:
1. An asylum seeker has left another Dublin Member State before his or her asylum procedure(or Dublin procedure) had been concluded in this state and if there is no indication that he or she
is going to return to the responsible Member State in the near future.
2. An asylum seeker has repeatedly applied for asylum in another Dublin Member State (orseveral other Dublin Member States) and has left this state before the asylum procedure had
been concluded.438
Through the introduction of another amendment in 2019, which is similar to an existing provision on
detention pending deportation, the authorities are now expressly given the competence to temporarily
detain people if there is a risk of absconding and if a court order cannot be obtained immediately. Thiscan be regarded as providing a legal basis for what has been common practice. In these cases, authorities
have to present the case to a court as soon as possible (Section 2 XIV 4th sentence of the Residence
Act).
436

437
438

PRO ASYL, Stellungnahme zum Entwurf eines Zweiten Gesetzes zur besseren Durchsetzung derAusreisepflicht (BT-Drucksache 19/10047), 29 May 2019, available in German at https://bit.ly/2WqrSlt, 16.
Ibid., 5.
PRO ASYL, Stellungnahme zum Entwurf eines Zweiten Gesetzes zur besseren Durchsetzung derAusreisepflicht (BT-Drucksache 19/10047), 29 May 2019, available in German at https://bit.ly/2WqrSlt, 5.

110

1.2. Custody pending departure (Ausreisegewahrsam)
According to the Section 62b of the Residence Act, “custody pending departure” can be carried out in thetransit zones of airports or in other facilities “from where a direct departure is possible without having tocross a long distance to reach a border crossing point”.439 This form of detention is limited to a period of
10 days and shall apply in cases in which a deadline for leaving the country has expired and in which an
immediate deportation (i.e. a deportation within the time-limit of 10 days) is feasible. The foreigner must
further have “displayed a behaviour which leads one to assume that he/she will make the deportation
more difficult or impossible.” An amendment which took effect in August 2019 as part of the Second Act
for an improved enforcement of the obligation to leave the country (Zweites Gesetz zur besseren
Durchsetzung der Ausreisepflicht, also known as the “Orderly Return Act”/Geordnete-Rückkehr-Gesetz)
now further defines the grounds for this assumption. According to this provision, it is to be assumed thata foreigner is likely to obstruct deportation measures, if:
1. he or she violated his or her legal obligations to cooperate;
2. he or she misled the authorities on his or her identity or nationality;
3. he or she has been convicted of intentionally committing a criminal offence (with the exception of
offences which are subject to a fine of up to 50 daily rates)
4. he or she has exceeded the deadline allowed for voluntary departure by more than 30 days.”
Custody pending departure is subject to the same rules as the regular pre-removal detention procedure.
A court order is therefore necessary and the detention can only be carried out in specialised facilities. 440
In 2019, custody pending departure has only been carried out in a few places (Dresden/Saxony,
Hamburg, Hannover-Langenhagen/Lower Saxony and in a new facility at the airport of BerlinSchönefeld, which is located on the territory of Brandenburg).441

1.3.

Detention to enforce cooperation (Mitwirkungshaft)

The amendments introduced in 2019 through the “Orderly Return Act” (Geordnete-Rückkehr-Gesetz)
have also established a new ground of detention to “enforce cooperation” with authorities(Mitwirkungshaft, Section 62 (6) Residence Act). This form of detention may only be applied in thefollowing cases:- Failure to appear in person at the diplomatic mission or at a meeting with authorised officials of
the foreigner’s assumed state of origin;- Failure to appear in person for a medical examination for the purpose to establishing theforeigner’s ability to travel.
The maximum period foreseen for this detention ground is 14 days and is subject to a court order, whichmeans that the authorities may not carry out short-term arrests on the basis of this provision. There was
no information or case-law available as to whether this ground for detention was implemented since itentered into force in August 2019. In January 2020 media reports seemed to suggest that the new“detention to enforce cooperation” had not been used yet,442 but it was not entirely clear from these reports
which type of detention they were referring to.

1.4. De facto detention at the airport
Asylum seekers can be apprehended and de facto detained in the transit zone of an international airport.
Although they are confined within the premises of a dedicated facility for the duration of the airport

439
440
441

442

Section 62b(2) Residence Act.
Section 62b(3) Residence Act.
Initiative 100 Jahre Abschiebehaft, Berlin-Schönefeld (Brandenburg), available
https://bit.ly/3aa9Ze4.
br.de,Bericht: ‚Kein Bundesland nutzt "Geordnete-Rückkehr-Gesetz"‘, 3. January 2020.

inGermanat:

111

procedure, according to the Federal Constitutional Court, being held at the transit zone is not considered
as detention in terms of the law.443
In practice, the applicant receives a decision of placement in the facility. For example, persons placed in
the detention centre of Munich Airport receive a “notification of residence in the airport facility”(Bescheinigung für den Aufenthalt in der Flughafenunterkunft) for the purpose of the airport procedure
under Section 18a of the Asylum Act. This notification expressly states that this form of residence is not a
freedom-restrictive measure. The fiction of non-entry into the territory is maintained, even if the person
has been transferred to a hospital or to court. Police officers have to escort the person wherever he or
she goes outside the facility for the fiction to be maintained. 444

443

444

Federal Constitutional Court, Decision of 14 May 1996, 2 BvR 1516/93. See also Federal Supreme Court,
Decision V ZB 170/16, 16 March 2017, available in German at: http://bit.ly/2oRx9B4.
See also: ECRE, Airport procedures in Germany: Gaps in quality and compliance with guarantees, May 2019,available at: https://bit.ly/2ZgTn2H.

112

2. Alternatives to detention
Indicators: Alternatives to Detention
1. Which alternatives to detention have been laid down in the law?

2. Are alternatives to detention used in practice?

Reporting duties
Surrendering documents
Financial guarantee
Residence restrictions
Other
Yes

No

The section on pre-removal detention in the Residence Act opens with a general clause on the principle
of proportionality:“Detention pending deportation is not permissible if the purpose of the detention can be achievedby other, less severe but equally sufficient means. The detention shall be limited to the shortest
possible duration. Minors and families with minors may be taken into detention awaiting
deportation only in exceptional cases and only for as long as it is adequate considering the wellbeing of the child.”445
In spite of this provision, lawyers and NGOs have frequently criticised that detention pending deportation
is imposed by the responsible local courts “too often and too easily” and a high number of detention orders
were overturned by higher courts upon appeal. 446 In court decisions, alternatives to detention are rarely
discussed.447
Furthermore, the “geographical restriction” which normally applies to asylum seekers for a period of 3
months, can be re-imposed if “concrete measures to end the foreigner’s stay are imminent” (see Freedomof Movement).448 The law also contains a general provision according to which “further conditions andsanctions” may be imposed on foreigners who are obliged to leave the country. 449 In particular, thesesanctions may consist of reporting duties, but also of an obligation to consult a counselling service for
returnees.450 Passports of foreigners obliged to leave the country can be confiscated. 451 The authorities
may also ask foreigners who are obliged to leave the country to deposit a security to cover the costs of a
possible deportation.452 However, the law does not allow for security deposits which may be used as bailand confiscated in cases of “absconding”.453
Responsibility for carrying out removal procedures lies with local or regional authorities or, when the
person reaches the airport, with the Federal Police. Therefore, no common approach to the use ofalternatives to detention could be adequately ascertained. 454

445
446

447
448
449
450
451
452
453

454

Section 62(1) Residence Act.
Die Rechtsberaterkonferenz, 50 Forderungen zum Flüchtlings-, Aufenthalts, Staatsangehörigkeits- undSozialrecht, November 2017, available in German at: http://bit.ly/2HOWd2J, 32-34. See also preliminary
remark of parliamentary group of The Left in Federal Government, Reply to parliamentary question by The
Left, 19/5817, 16 November 2018, 2; See also the statistics of the pilot project of the Refugee Council of Lower
Saxony at Judicial Review of the Detention Order.
Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCji.
Section 61(1)(c) Residence Act.
Section 61(1)(e) Residence Act.
Section 46(1) General Administrative Regulations relating to the Residence Act.
Section 50(5) Residence Act.
Section 66(5) Residence Act.
Ministry of the Interior of the Federal State of Schleswig-Holstein, Interministerielle Arbeitsgruppe (IMAG)"Alternative Abschiebungshaft“ (Report of a working group “alternative detention pending deportation”), 25
March 2014, 5.
Janne Grote, The use of detention and alternatives to detention in Germany. Study by the German National
Contact Point for the European Migration Network (EMN), Working paper 59, July 2014.

113

Obligations resulting from the ‘tolerated stay for persons with undetermined identity’
A whole range of obligations can be imposed on foreigners in connection with the newly established“tolerated stay for persons with undetermined identiy” (Duldung für Personen mit ungeklärter Identität,also known as ”Duldung light/toleration light”). This new document was introduced in August 2019 as partof the Second Act for an improved enforcement of the obligation to leave the country (Zweites Gesetz zur
besseren Durchsetzung der Ausreisepflicht, also known as the “Orderly Return Act”/Geordnete-RückkehrGesetz). Persons who are issued this document have to fulfil several obligations which are summarised
in section 60b of the Residence Act and which include inter alia:--

Obligation to cooperate with German authorities and with authorities from the country of origin inmeasures aimed at obtaining a passport;
obligation to make a declaration according to which the foreigner is prepared to leave Germany
voluntarily, if the issuing of a travel document is dependent on such a declaration;
obligation to make a declaration according to which the foreigner is prepared to perform military
service in the country of origin, if the issuing of a travel document is dependent on such a
declaration;
obligation to pay fees for the issuing of travel documents.

Persons affected by this provision shall only be issued the “tolerated stay for persons with undetermined
identity” until they adhere with the obligations referred to above. In general, the main legal consequencesof this new kind of tolerated stay are:- reduced social benefits (benefits according to Section 1a of the Asylum Seekers‘ Benefits Act);- obligation to reside in a place assigned by the authorities (Wohnsitzauflage according to Section
61 (1d) of the Residence Act);- no right to work;- no possibility to consolidate the stay, i.e. obtain a residence permit.
The new provision of Section 60b of the Residence Act generally does not apply to asylum seekers aslong as the (regular) asylum procedure is pending, because they are not subject to the obligation to obtaina passport during this period. It may apply, however, to persons whose asylum application has been
rejected as “manifestly unfounded” or as “inadmissible”, even if their appeal is still pending.455 The latter
category may also include Dublin cases, but these are less significant in this context than it is in thecontext of deportation to countries of origin, since the existence of passports or other travel documents is
usually no obstacle to Dublin transfers. As a result, the new provision is mainly relevant for rejectedasylum-seekers or persons who have never applied for asylum.

3. Detention of vulnerable applicants
Indicators: Detention of Vulnerable Applicants
1. Are unaccompanied asylum-seeking children detained in practice?
Frequently
Rarely❖ If frequently or rarely, are they only detained in border/transit zones?
2. Are asylum seeking children in families detained in practice?
Frequently
Rarely

Never
Yes

No

Never

According to German law, minors and members of other vulnerable groups must not be detained while
they have the status of asylum applicants. However, asylum seekers may lose this status as a result ofa Dublin procedure and hence be detained for the purpose of a Dublin transfer (see section on Grounds
for Detention).

455

Kirsten Eichler, Das Sanktionsregime der „Duldung light“, in: Das Migrationspaket, Beilage zum Asylmagazin
8-9/2019, available in German at: https://bit.ly/3boa7HM, 64-72,

114

Section 62(1) of the Residence Act contains the following provision regarding the detention of children
and families:“Minors and families with minors may be taken into detention awaiting deportation only in
exceptional cases and only for as long as it is adequate considering the well-being of the child.”
In 2019, 3,806 minors (under 18 years) were deported to third countries and 1,489 minors weretransferred to another state under the Dublin Regulation.456 These measures usually involve that children
are taken into custody for a few hours on the day the transfer takes place. Furthermore, 1,337 minors
were returned to neighbouring countries after being refused entry on the territory, out of which 222 wereregistered as unaccompanied minors.457 The immediate returns (Zurückweisungen) or removals(Zurückschiebungen) are usually preceded by an arrest and a short-term apprehension.
With the exception of these short-term apprehensions, detention of minors ordered by a court seems to
be exceptional. By way of illustration, the regional government of the Federal State of Hesse informed
the Parliament that detention of minors for the purpose of deportations was “excluded”.458
Other available information on the matter refer to the period between 2015 and the first half of 2018. In
response to a parliamentary question, most Federal States reported that, during that period, they did notdetain children as a matter of principle. According to these statistics, no children were thus detained during
this period. Only the Federal State of North Rhine-Westphalia reported that one minor had beendetained, but he was released immediately when his minority had been established. 459 As regards thereported cases of minors being detained in the State of Lower Saxony, it turned out to be an error,
according to the regional government.460 It is important to note, however, that statistics on detention ofminors have not been made available by all Federal States in response to the request referred to here.
In practice, however, detention of (possible) minors may occur in cases in which the age of the persons
concerned is uncertain or disputed. The Refugee Council of Lower Saxony highlighted a case of an
unaccompanied minor who had been detained by way of judicial order in the detention facility of
Hannover-Langenhagen immediately after he had arrived from the Netherlands in February 2020.
Detention was ordered by a judge despite the fact that the police had recorded his statement that he was
16 years old. An age assessment which took place in the detention centre later on came to the conclusionthat it could not be excluded that the person concerned was younger than 18. As a result, the detention
order had apparently been in breach of a directive from the Federal State which stipulates that minors
should not be held in detention pending deportation as a matter of principle. 461
An activist from North Rhine-Westphalia further reported in an interview conducted at the end of 2019 thatin some cases detained persons have entered the detention facility of Büren as adults (following an age
assessment), but have left it as children, because they were found to be of minor age when travel
documents were issued by the authorities of the country of origin. In one of these cases, a person detained
as an adult was later found to be only 14 years old. The persons concerned were released from detention.
Nevertheless, they remain registered as adults in the detention centre‘s statistics, which leads to the false
impression that no minors have been detained, according to the interviewee. 462

456
457
458

459
460

461

462

Federal Government, Reply to parliamentary question by The Left, 19/18201, 19 March 2020, 13-14.
Federal Government, Reply to parliamentary question by The Left, 19/18201, 19 March 2020, 17.
Government of the Federal State of Hesse, Response to information request by The Left, 20/773, 16
September 2019, available in German at https://bit.ly/2VSjyJJ, 7.
Federal Government, Reply to parliamentary question by The Left, 19/5817, 16 November 2018, 14-15,
Neue Osnabrücker Zeitung, „Ministry reports false numbers on detention pending deportation“, 29 November
2018, available in German at: https://bit.ly/2VDXpx5.
Flüchtlingsrat Niedersachsen, ‚Unbegleiteter minderjähriger Flüchtling seit 13 Tagen rechtswidrig inAbschiebungshaf‘t, Press release of 3 March 2020, available in German at: https://bit.ly/2YZedDC.
ze.tt, ‚Eingesperrt ohne Straftat: So sind die Bedingungen in einem Abschiebegefängnis‘, 14 December 2019,available in German at https://bit.ly/2T0KZ3g.

115

A few Federal States have regulations in place for the detention of other vulnerable groups (such as
elderly persons, persons with disabilities, nursing mothers, single parents), but most do not have any
special provisions for these groups and detain them in practice. The same applies to de facto detention
at airport detention facilities, which is applied inter alia to pregnant women, victims of torture and persons
with medical conditions.

4. Duration of detention
Indicators: Duration of Detention
1. What is the maximum detention period set in the law (incl. extensions):❖ Pre-removal detention❖ Custody pending deportation

18 months
10 days

2. In practice, how long in average are asylum seekers detained?

Not available

The maximum duration of pre-removal detention (Abschiebungshaft) is 6 months, subject to a possibilityof extension to a total of 18 months if the person hinders removal. 463
The maximum time limit for the duration of the custody pending departure (Ausreisegewahrsam) is 10
days.464
In the detention facility of Darmstadt-Eberstadt (Federal State of Hesse/Hessen), 297 persons weredetained for an average duration of 24 days between March 2018 and June 2019. The length of detention
ranged from 1 to 145 days.465 More detailed statistics on duration of detention are only available for 2018:Federal States provided the following data for the first half of 2018 in response to a parliamentary
request:466
Average duration of pre-removal detention: 1 January – 30 June 2018
Detainees < 2 weeks

2-6 weeks

6 weeks – 3-6 months
3 months

6-12
months12-18
monthsBavaria

688

231

299

135

0

0

0

Berlin

6

6

0

0

0

0

0

Bremen

25

3

19

3

:

0

0

Hamburg

123

52

48

23

:

0

0

Lower
Saxony

632

388

195

49

:

0

0

North RhineWestphalia

573

91

260

197

:

25

0

RhinelandPalatinate

86

70

16

0

0

0

0

Saarland

31

12

13

6

0

0

0

Saxony

11

5

6

0

0

0

0

SaxonyAnhalt

36

18

16

1

1

0

0

Thuringia

6

1

5

0

0

0

0

463
464
465

466

Section 62(4) Residence Act.
Section 62b(1) Residence Act, as amended by the Law of 20 July 2017.
Government of the Federal State of Hesse, response to information request by Die Linke, 20/773, 16
September 2019, available at https://bit.ly/2VSjyJJ, 2.
Federal Government, Response to parliamentary question by The Left, 19/5817, 16 November 2018, 52-58.

116

Source: Federal Government, Response to parliamentary question by The Left, 19/5817, 16 November 2018, 14.

It has to be noted that figures were not made available by all Federal States and are not necessarily
comprehensive (e.g. some states did not submit any statistics on detention between 3 to 6 months). The
figures are further not always in line with available data on the number of detainees reported elsewherein the same parliamentary response.467 Nevertheless, they show that detention for a period of less thansix weeks seems to be the rule, while cases of detention lasting longer than 6 months seem to be
exceptional and were only recorded in the Federal State of North Rhine-Westphalia at the time.

C. Detention conditions
1. Place of detention
Indicators: Place of Detention
1. Does the law allow for asylum seekers to be detained in prisons for the purpose of the asylum
procedure (i.e. not as a result of criminal charges)?
Yes
No
2. If so, are asylum seekers ever detained in practice in prisons for the purpose of the asylum
procedure?
YesNo

1.1. Pre-removal detention centres
Detention pending deportation is usually carried out in specialised detention facilities. Since July 2014,
when the CJEU ruled that detention for the purpose of removal of illegally staying third-country nationals
has to be carried out in specialised detention facilities in all Federal States of Germany, 468 most Federal
States which did not have specialised facilities before have announced that the necessary institutions
would be established; deportees were sent to facilities in other Federal States in the meantime.
Until August 2019, the use of specialised detention facilities for pre-removal detention was also prescribedby law. However, the relevant provision of Section 62a (1) of the Residence Act was amended as part ofthe so-called “Orderly Return Act”.469 Since then, the first sentence of this provision reads:
Persons in detention pending deportation have to be accommodated separately from prisoners[Strafgefangene, i.e. persons detained in the penal system].
This means that detention pending deportation can also be carried out in regular prisons. This provision
is in effect until June 2022, since the “Orderly Return Act” foresees that from 1 July 2022 the wording of
the provision will again be: “As a rule, detention pending deportation is to be carried out in specialised
detention facilities.”470.
In the Explanatory Memorandum to the Orderly Return Act, the government states that the new provision
shall enable the Federal States to create up to 500 additional places for the purpose of detention pending
deportation. The stated reason is an alleged acute shortage of such places in the light of a high numberof third-country-nationals who are obliged to leave the country. In light of this situation, the government

467

468

469

470

Information on number of detainees in the first half of 2018 deviates, for example, for the Federal States ofBavaria, Lower Saxony and Rhineland-Palatinate.
CJEU, Joined Cases C-473/13 and C-514/13 Bero v Regierungspraesidium Kassel & Bouzalmane v
Kreisverwaltung Kleve, Judgment of 17 July 2014.
Full title: „Second Act for an improved enforcement of the obligation to leave the country”/Zweites Gesetz zur
besseren Durchsetzung der Ausreisepflicht, also known as the “Orderly Return Act”/Geordnete-RückkehrGesetz.
Article 6 of the “Second Act for an improved enforcement of the obligation to leave the country”.

117also claims that the new provision is in line with European legislation, namely Article 18(1) of the Return
Directive which allows for a derogation from the standards for conditions of detention in emergency
situations.471
Critics and serious doubts have been raised as to whether Germany is currently facing such an
emergency situation. Even if a rising number of persons in detention pending deportation were to berecorded or expected, Federal States would still have enough time and opportunity to raise capacities of
specialised institutions accordingly. Thus, the mere inaction of authorities to that end should not justify abreach of European law.472
In any case, the new provision does not seem to have had any immediate effect. According to a media
report published in January 2020, no Federal State has made use of the possibility to carry out detention
pending deportation in regular prisons until the end of 2019. Moreover, most Federal States have madeit clear that they did not intend to make use of the provision in the future. Some Federal States had pointed
out that regular prisons do not have the capacity to accommodate other detainees. Only two Federal
States (Mecklenburg-Western Pomerania and Saxony-Anhalt) were “discussing” whether or not toapply the provision while other States have raised doubts as regards its compliance with European law.473
Plans for a combined facility, which nevertheless takes into account the separation of prisoners and preremoval detainees, were announced in Bavaria during the summer of 2018. According to media reports,
both detention facilities are to be built on the same site in the town of Passau. However, the facility for
detention pending deportation will be separated from the other buildings by a wall and it will be separately
accessible from the outside. Completion of the new facility is scheduled for the end of 2022 at theearliest.474
To this day, several pre-removal detention centres are former prisons turned into specialised facilities e.g.
Büren in North Rhine-Westphalia, Eichstätt and Erding in Bavaria. Darmstadt-Eberstadt in Hesse.
At the end of 2019, facilities for detention pending deportation existed in nine Federal States:
Pre-removal detention facilities in Germany: 2019Federal State

Location

Maximum capacity

Baden-Württemberg

Pforzheim

51

Bavaria

Eichstätt
ErdingMunich Airport (“Hangar 3”)

96
35
30

BremenBremen13

Hamburg

Hamburg Airport

20

Hesse

Darmstadt-Eberstadt
Frankfurt Airport

20

Lower Saxony

Hannover (Langenhagen)68

North Rhine-Westphalia

Büren

175

Rhineland-Palatinate

Ingelheim am Rhein

32

SaxonyDresden

58

471

472

473

474

Federal Government, Explanatory memorandum to the Second Act for an improved enforcement of theobligation to leave the country, Parliamenty document no. 19/10047, 42-43.
Stefan Keßler, Freiheitsentzug ad libitum? Die Auswirkungen des „Hau-Ab-Gesetzes II“ auf die
Abschiebungshaft, in: Das Migrationspaket, Beilage zum Asylmagazin 8-9/2019, available in German at:https://bit.ly/3boa7HM, 44-54 (53).
Spiegel Online, ‚Seehofers Abschiebe-Maßnahme verpufft‘, 3 January 2020, available in German at:https://bit.ly/2LlOf54.
Passauer Neue Presse, ‚JVA Passau wird mit Neubau eigenständig‘, 3 August 2018, available in German at:https://bit.ly/3cG3bH6.

118

Total12598

Source: Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCjiand Federal Government, response to parliamentary request by FDP, 19/11676, 16 July 2019, available in German
at: https://bit.ly/2xSS26T, 16.

The detention facility at Eisenhüttenstadt in the Federal State of Brandenburg was temporarily closed in
March 2017 following a report by regulatory authorities which found various structural defects affecting
fire safety and other security measures. The facility had not been reopened at the end of 2019. The
Federal State of Saxony-Anhalt has announced that a former prison in Dessau-Roßlau will be converted
into a detention facility, but it is considered unlikely that this facility will be opened before the end of
2020.475 Further pre-removal detention facilities are under construction in Bavaria in the towns of Hof(extension of prison, opening scheduled for 2021)476 and Passau (new facility functioning both as a prison
and a pre-removal detention facility, opening scheduled for 2022).477 Another facility is expected to openin Schleswig-Holstein (Glückstadt) in 2020.478 This detention facility is to be commonly used by theFederal States of Schleswig-Holstein, Hamburg and Mecklenburg-Western Pomerania. The Federal
States of Thuringia and Berlin do not intend to build facilities of their own and only make use of detention
facilities in other Federal States.479
Other types of detention facilities
The Federal State of Berlin has established a specialised facility for “persons posing a risk” only(“Gefährder”, i.e. terrorist suspects) with a capacity of 8 to 10 places.
As regards custody pending deportation under Section 62b of the Residence Act (Ausreisegewahrsam),the pre-removal detention facilities in Dresden, Hamburg and Hannover-Langenhagen are used for that
purpose.480 In July 2019 the Federal State of Brandenburg opened a short-term detention facility (only
for the purpose of the Ausreisegewahrsam under Section 62b, and reportedly limited to a maximum stayof 48 hours) at the airport of Berlin-Schönefeld, which is located on the territory of Brandenburg.481
According to the Berlin Refugee Council the Federal State of Berlin may also use the facility at Schönefeld
airport for short-term detention.482

1.2. Airport detention facilities
As mentioned in Grounds for Detention, asylum seekers subject to the airport procedure are de facto
detained in facilities near the airport, as their stay is not legally considered to be deprivation of liberty.
Since such facilities are managed by the different Federal States, they can differ in typology and even in
name.483

475

476

477

478

479

480
481

482

483

mdr.de, ‚Eröffnungstermin für Dessauer Abschiebegefängnis unklar', 18 June 2019, available in German at:https://bit.ly/2VszTV9.
jvb-bayern.de, ‚Abschiebungshaft - Erweiterung der Justizvollzugsanstalt Hof‘, 10 December 2019, available
in German at: https://bit.ly/2XzxavH.
Passauer Neue Presse, ‚JVA Passau wird mit Neubau eigenständig‘, 3 August 2018, available at:https://bit.ly/3a7b06I.
ndr.de, Abschiebehaft in Glückstadt ist beschlossene Sache, 21 June 2019, available in German at:https://bit.ly/2RC8XRG.
welt.de, „Die Kapazität genügt nicht dem tatsächlichen Bedarf“, 7 October 2019, available in German athttps://bit.ly/2Z2nPNQ.
Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCji.
Initiative 100 Jahre Abschiebehaft, Berlin-Schönefeld (Brandenburg), available in German at:https://bit.ly/3aa9Ze4.
Flüchtlingsrat Berlin, 100 Jahre Abschiebehaft – 100 Jahre Haft ohne Straftat, 8 May 2019, available inGerman at: https://bit.ly/2RScKuz.
ECRE, Airport procedures in Germany Gaps in quality and compliance with guarantees, April 2019, available
at: https://bit.ly/2QgOmAH.

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For example, the airport detention facility at Frankfurt Airport, located in the the “Cargo City Süd”, alarge complex of buildings in a restricted area near the airport, is entitled “initial reception centre”(Erstaufnahmeeinrichtung). The centre has a maximum capacity of 105 places. On the other hand, thefacility at Munich Airport is located in the “visitors’ park” (Besucherpark) of the airport and its
denomination is “airport facility” (Flughafenunterkunft).
Detention facilities used for the airport procedure are not to be confused with pre-removal detention
centres which may be located close to the airport e.g. Munich Airport Hangar 3.

2. Conditions in detention facilities
Indicators: Conditions in Detention Facilities
1. Do detainees have access to health care in practice?
Yes❖ If yes, is it limited to emergency health care?
Yes

No
No

National law only provides basic rules for detention centres. As a result, conditions differ very muchthroughout the country.484 The Federal States are responsible for the organisation of these detention
facilities.
The competent authorities for the management of the centres are the prison authorities under the Ministryof Justice or the (regional) police authorities. Therefore, members of staff are usually either prison staff orpolice officers or employees of the administrative part of the police or the prison services. By way of
exception, the Munich Airport Hangar 3 detention centre opened in September 2018 is directly managed
by the newly funded Bavarian State Office for Asylum and Returns (Bayerisches Landesamt für Asyl undRückführungen). No centre is managed by external companies but, in some cases e.g. Munich Airport
Hangar 3, the authorities cooperate with private security companies to take over certain tasks.
As facilities vary greatly in terms of size and equipment, it is not possible to describe the overall conditionsin the detention centres. The paragraphs below describe the situation of a few institutions only and do notclaim to provide a comprehensive overview of the detention conditions in Germany. An overview offacilities and a collection of reports in German on detention conditions can also be found at “100 Jahre
Abschiebehaft” (100 years of custody pending deportation), a website run by activists campaigning forthe general abolishment of detention pending deportation:
Darmstadt-Eberstadt, Hesse: The facility was opened at the beginning of 2018. Right before the facility
started operating, the State Parliament passed a law which sets out some basic principles for the facility. 485
These include the following: (a) Detainees are allowed to move freely within the facility during the day andthey shall have access to open-air spaces. Restrictions of movement shall be possible only to upholdsecurity and order in the facility; (b) The facility shall make all possible efforts to provide rooms andopportunities for spare time activities and also for work (which should be remunerated).
The Regional Government of the State of Hesse gave the following details in response to a parliamentary
information request in September 2019:486- Detainees are allowed at least two hours of yard exercise (one hour in the morning and one in
the afternoon).
- Other activities include: Games and reading, manufacturing prayer mats, common prayer,
cooking and common meals; most detainees only participate in the common prayer and in the

484
485

486

Jesuit Refugee Service, Detention in Europe: Germany, available at: www.detention-in-europe.org.
Official Gazette for the Federal State of Hesse, Gesetz über den Vollzug ausländerrechtlicher
Freiheitsentziehungsmaßnahmen(VaFG), 18 December 2017, available at: https://bit.ly/2Cael74.
Government of the Federal State of Hesse, Response to information request by The Left, 20/773, 16
September 2019, available in German at https://bit.ly/2VSjyJJ, 4-6.

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subsequent communal meals; apart from common cooking activities, detainees are not allowed
to prepare their own meals;
Work opportunities are limited to simple jobs such as cleaning of common rooms, distribution of
fresh clothes;
Detainees are provided pocket money amounting to €20 per week, every two weeks they canorder products such as (additional) food and beverage, hygiene products and magazines; within
the facility cigarettes and tobacco can be bought; other products, in particular pre-paid phonecards are only available upon application;
Meals without pork and vegetarian meals are provided; tea and coffee can be made at any time;
One social worker is available for every 20 persons; communication with the social services andwith medical staff usually takes place with the help of translation devices or staff members who
serve as interpreters; interpreters from outside the facility can be drawn upon if necessary.

In June 2018, local activists accused the staff of the facility of brutality against detainees. They claimed
that “ill-treatment, restraining of detainees and incommunicado detention” were “commonplace” at thefacility. Authorities rejected these allegations and claimed that isolated incidents had been generalised
and exaggerated by local activists. According to a police spokeswoman, physical violence had only beenused in one case when a baton and pepper spray were employed to restrain a detainee.487
In a newspaper report of January 2020, local activists are quoted in the report as referring to several
detainees who went on hunger strike to protest against poor detention conditions and because theyreceived no medical care. The facility‘s management rejected the allegations and pointed out that a doctor
was regularly available in the facility. 488
Büren, North Rhine-Westphalia: In January 2018, the facility of Büren was visited by the National
Agency for the Prevention of Torture, an independent body monitoring places of detention in order toprevent violations of the UN Convention Against Torture. The National Agency published a report on 30
October 2018 in which it severely criticised the detention conditions in Büren. 489 Following issues wereraised:- “Restrictive basic approach”: The staff reported that a number of criminals and “persons posing
a risk” (i.e. terrorist suspects) were amongst the detainees and they stated they did not havesufficient information on the possible risks that detainees might pose. According to the National
Agency this has resulted in an extension of restrictive measures affecting all detainees. For
instance, as opposed to the previous years, detainees were generally locked in their cells not onlyat night but also from 7 a.m. to 2 p.m. When they were allowed to leave their cells, the areas of
the facility in which they were allowed to move freely were restricted. The National Agency notedthat “a remarkable high number” of “special security measures” were in place at the Büren facility
in comparison to the pre-removal detention facilities of other Federal States. The report concludes
that the detention regime that is applied in Büren has become similar to the regime that is appliedin a regular penal prison.
-

487

488

489

At the time of the visit, several detainees, including two persons considered to be “persons posing
a risk” (i.e. terrorist suspects), were kept in solitary confinement cells which are designed as
regular prison cells. The National Agency highlighted that the current existing regulations for
solitary confinement in the regular prison system cannot be applied to pre-removal detention
facilities. Accordingly, the report concluded that the solitary confinement of the Büren facility did
not have a legal basis in the Federal State’s legislation.

Wiesbadener Tagblatt, ‚Critics of the detention centre in Darmstadt-Eberstadt – the police rejects allegations‘,
available in German at https://bit.ly/2ITG4hW.
fr.de, ‚Hessen: Abschiebe-Gefängnis in Darmstadt hat immer wieder mit Vorwürfen zu kämpfen, 14 February2020‘, available in German at https://bit.ly/2T4vK9s.
Nationale Stelle zur Verhütung von Folter. Unterbringungseinrichtung für Ausreisepflichtige Büren, Besuch
vom 24./25. Januar 2018, available in German at https://bit.ly/2CQ6Bbl.

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The National Agency also expressed concerns regarding the special security measures that are
applied, as they are not based on a thorough individual assessment and do not offer sufficient
safeguards to comply with the principles of necessity and proportionality.

-

Other points raised in the National Agency’s report related to the lack of privacy, the lack ofpsychological care and the lack of documentation of a case in which a detainee has been
physically restrained.

The government of the Federal State of North Rhine-Westphalia had been given the opportunity tocomment on the report’s findings before its publication. 490 In that context, the government announced thatsome measures were taken to raise awareness of the facility’s staff, but it rejected the report’s allegations
according to which special security measures had no legal basis or were disproportionate.
In December 2018, the regional parliament of North Rhine-Westphalia adopted a series of amendments
to the Federal State’s law on the enforcement of detention pending deportation. 491 The most importantamendment consists of a detailed list of “regulatory measures”, ranging from a temporary limitation or
deprivation of the use of internet, TV and mobile phones to temporary limitations or suspension of freedomof movement within the facility (Section 19). Another new section of the law regulates “accommodation in
special cases”, which refers to persons considered to pose a risk and to which limitations can be imposed
without any time-limit (Section 20). Furthermore, the use of mobile phones with a camera function wasbanned.
In a statement submitted to a parliamentary committee, the Refugee Council of North Rhine-Westphalia
highlighted that the new restrictions are very similar to the restrictions used in the regular prison system.492
The support group “Hilfe für Menschen in Abschiebehaft Büren” shared this view and further criticised thatcomplaint mechanisms and legal measures to challenge the new security measures were insufficient.493
Detention conditions at the Büren facility were described in detail in an interview with Frank Gockel at theend of 2019, a local activist and member of the support group “Hilfe für Menschen in Abschiebehaft Büren”
which offers advice for detainees on a weekly basis:494- Upon arrival detainees have to undress completely to be checked (mouth, ears, nose, anus). This
check can be carried out by force if the person refuses to undress.
- Most cells are equipped with a table, bed, television, locker, chair, toilet and a sink.
- Cells are open for at least eight hours a day, the courtyard is accessible for one or two hours aday. Leisure activities include table tennis, billiard and a gym. In some areas there is a common
kitchen for four to five people and an internet access which four people share.
- Visits can take place between 9:30 a.m. and 7 p.m., but the facility is located far out of town andthere is no connection to public transport (nearest bus stop is 8 km away).
- Against persons who act in breach of the house rules various sanctions can be imposed. This
usually means that persons remain locked in their cells for the most part of the day and therefore
have no contact to other detainees. In more serious cases, detainees may be banned from allleasure activities and they may even be placed under 24-hour surveillance. For persons who posea risk to themselves or to others, specially secured cells are available, in which persons may betied to a bed frame. The latter measure requires a court order, according to the regional

490

491

492

493

494

Ministerium für Kinder, Familie, Flüchtlinge und Integration des Landes Nordrhein-Westfalen, Statement of 28
September 2018, available in German at: https://bit.ly/2EUuxgn.
Gesetz- und Verordnungsblatt des Landes Nordrhein-Westfalen (GV. NRW.), Ausgabe 2018, 18 December
2018, No. 32, 770, available in German at: https://bit.ly/2H2pmLu.
Flüchtlingsrat Nordrhein-Westfalen, Stellungnahme: Referentenentwurf Gesetz zur Änderung desAbschiebungshaftvollzugsgesetzes Nordrhein-Westfalen, 9 August 2018, available in German athttps://bit.ly/2XxduGq.
Hilfe
für
MenscheninAbschiebehaft
Büren,
Stellungnahme
zur
Anhörungzum
Abschiebungshaftvollzugsgesetz, 7 November 2018, available in German at: https://bit.ly/2UmjGiG.
ze.tt, Eingesperrt ohne Straftat: So sind die Bedingungen in einem Abschiebegefängnis, 14 December 2019,available in German at: https://bit.ly/2T0KZ3g.

122

government and it has not been applied in many cases (below 10 cases since 2015, according
to the government, more than 10 cases according to the interviewee).
Pforzheim, Baden-Württemberg: A Protestant priest reported in May 2019 that the facility did not havea room to hold religious ceremonies.495 According to the Refugee Council of Baden-Würtemberg, theregional government had stated that there had been no demand for religious services at the facility. The
Refugee Council described this statement as false, referring to several incidents in the past where
detainees had asked to hold a religious service, but the priest was only allowed to visit one person at atime. The Refugee Council also criticised that medical care had not always been guaranteed. For
example, a priest had organised an urgent appointment at an ophthalmologist for a detainee, but theperson concerned had not been allowed to leave the facility for this appointment.496
Eichstätt, Bavaria: Following a fact-finding mission conducted in April 2019, ECRE made the following
observations on the conditions at the Eichstätt facility: The pre-removal detention centre (Einrichtung fürAbschiebungschaft) of Eichstätt was converted from a prison, open since 1900, to a dedicated facility in2016. Male and female quarters are separate. The female quarters are supervised by female security
guards only. The living units are divided into rooms, including single rooms and rooms with a number ofbeds. There are common showers, in which detainees also do their own laundry. People are generally
free to move within the facility, except during lunch and dinner. During lunch (starting 11:15 and until
13:00) and dinner, the men are locked in their rooms (a head count also takes place during dinner).
Women are not locked in their rooms.
Reports about self-harm are frequent, usually to prevent removal. Tensions were frequent but have
reduced since the opening of additional detention facilities in Bavaria in 2018. Disciplinary measures canbe taken if a person violates rules e.g. withdrawal of shopping rights, access to television etc. inaccordance with prison rules. Detainees can also be isolated for a certain period of time, for their own
safety. However, where isolation is used, it is for very short periods of time. 497
In a report published in May 2019, the European Committe for the Prevention of Torture (CPT)summarised detention conditions at Eichstätt as follows (based on a visit to the facility in August 2018):„While material conditions at the facility in Eichstätt were generally very good in terms of state of
repair, living space, access to natural light, ventilation and equipment, the environment did nottake into account the specific situation of immigration detainees, with a number of restrictions thatappeared unnecessary.[…].
Moreover, due to the applicable legislation on the execution of prison sentences, the regime for
immigration detainees held at the establishment was – to all intents and purposes – comparable
to that of sentenced prisoners. The only significant differences concerned the fact that thedetainees were not obliged to work and that they could usually have more contact with the outside
world and spend more time outside their cells. However, male detainees – in contrast to female
detainees – did not benefit from an open-door regime (indoors); [...].“498
According to the CPT‘s report, common rooms with sports equipment or television were only accessible
for a maximum of two and a half hours per day, while the outdoor exercise yard could only be accessedin the afternoon. While detainees were allowed to make phone-calls and were provided wih free-of-charge
495

496

497

498

bnn.de, ‚AG Abschiebehaft Pforzheim klagt über Umgang mit Betroffenen‘, 10 May 2019, available in German
at: https://bit.ly/3fMY5uY.
Flüchtlingsrat Baden-Würtemberg, Misstände in der Abschiebehaft werden geleugnet, Stellungnahme desFlüchtlingsrats Baden-Württemberg zur Berichterstattung über die Abschiebehaft Pforzheim, 17 May 2019,available in German at: https://bit.ly/3dVHgfF.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
Report to the German Government on the visit to Germany carried out by the European Committee for thePrevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 13 to 15 August 2018,
9 May 2019, available at: https://bit.ly/2JJiN0z, 27.

123phone cards for that purpose, they did no have access to the internet. Persons who behaved violently or
who had either attempted or threatened to commit suicide can be referred to security cells at the Eichstättfacility. The facility‘s director stated that persons were not referred to these cells for disciplinary reasons,but only if the pose a risk to themselves or to others. The CPT criticised that conditions in the security
cells were “akin to solitary confinement”, since people were locked up for 24 hours a day without accessto outdoor exercise and they often were not allowed to make phone calls or receive visits. 499
Munich Airport Hangar 3, Bavaria: Following a fact-finding mission conducted in April 2019, ECRE
described the facility at the airport as follows: “Hangar 3” was inaugurated on 10 September 2018 undera temporary contract running until 31 December 2019. The facility only hosts adult men. The detention
centre is located inside a large hangar, previously used by Air Berlin. The facility is surrounded by a 4meter fenced with barbed wire on top, resembling a cage, inside the hangar. The living units are organisedin blue containers and each set of containers is surrounded by a second fence within the fenced facility
in the hangar. Immediately next to the hangar (at the front) there is a small open air space, again
surrounded by a high fence. Detainees can access this yard at any time of the day, but only under escort,
as the open air area is locked. Within the open space area there is one blue container which is completely
empty.
There are 21 container rooms with two beds per container and a separate room for the toilet and showers.
All container windows have metal bars. The container rooms have a picture of the detainee and his nameon the front door. The showers and toilets were in good condition and clean during a visit of ECRE in April
2019. The policy of the management is to accommodate one person per container, but according to thesocial worker, whenever there is a fear or indication of possible self-harm they try to have such person
accompanied by another detainee. The container rooms all have two beds.
In the middle of the facility, there is a common area with metal benches and tables, ping pong and baby
soccer tables, a chess board, and a common room (container) with a small TV and a table without chairs
and no decorations. A number of books are also available. The common area is open from 09:00 to 21:00.
There are no other leisure activities available and people cannot purchase anything during their stay in
the Hangar 3, given that detention is usually short. Small necessities, e.g. cigarettes, are provided to themupon request.500

3. Access to detention facilities
Indicators: Access to Detention Facilities
1. Is access to detention centres allowed to❖ Lawyers:
Yes❖ NGOs:Yes❖ UNHCR:Yes❖ Family members:
Yes
1.

LimitedLimitedLimitedLimited

No
No
No
No

Access to pre-removal detention centres

Section 62a of the Residence Act states: “Upon application, staff of relevant support and assistanceorganisations shall be permitted to visit detainees awaiting deportation if the latter so request.” Accessof NGOs to detention centres varies in practice.
The Refugee Council of Baden-Württemberg has compiled the following information on counselling
services in some facilities:501
499
500

501

Ibid. 28 and 31.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
Flüchtlingsrat Baden-Würtemberg, Misstände in der Abschiebehaft werden geleugnet, Stellungnahme desFlüchtlingsrats Baden-Württemberg zur Berichterstattung über die Abschiebehaft Pforzheim, 17 May 2019,available in German at: https://bit.ly/3dVHgfF.

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Ingelheim, Rhineland-Palatinate: An ecumenical counselling center has its own office in thefacility with regular opening hours;
Hannover-Langenhagen, Lower Saxony: The Refugee Council of Lower Saxony offers advice
regularly in a conference room in the facility.
Eichstätt, Bavaria and Erding, Bavaria: The Jesuit Refugee Service is offering consultation
services regularly either in common rooms or in the rooms of the social services in the facility.

In contrast, the facility at Pforzheim, Baden-Würtemberg, did not provide priests and other persons
offering advice with a separate room. Therefore, visits had to take place in small visitor’s rooms (“visitor
cells”). The regional government claimed that there was no separate room for “capacity reasons” and that
this was common practice in detention centres. This statement was refuted by the Refugee Council basedon the information provided above.
Büren, North Rhine-Westphalia: The support group “Hilfe für Menschen in Abschiebehaft Büren”
reported in January 2018 that the general access to the detention centre, as well as the access to certain
particular detainees, was “massively impeded” by the authorities.502 The group reiterated its criticism in astatement to a parliamentary committee in November 2018.503
Darmstadt-Eberstadt, Hesse: According to the law which sets out basic principles for the facility,504
individuals are not allowed to use mobile phones with a camera function but should be allowed to makephone calls, receive and send letters, read books and papers, watch TV and listen to radio. However, they
have to pay for these services themselves if costs arise. Visitors are allowed during visiting hours, while
lawyers and consular representatives may visit at all times.
Eichstätt, Bavaria: Amnesty International volunteers and the Jesuit Refugee Service visit the detention
centre. Detainees are informed when the NGOs are present in the facility through announcements throughthe intercom. Moreover, every person is given a mobile phone without camera upon arrival, and has anallowance of 30 minutes per day for calls with numbers notified to the management of the centre. Callswith lawyers are exempted from the 30-minute rule.505
Munich Airport Hangar 3, Bavaria: The Munich Refugee Council has asked for permission to accessthe facilities on a weekly basis, but permission has not been granted yet. If detainees do not have a lawyer
and want one, they can contact a lawyer by phone. There are 3 phones available for the detainees, which
they can use for free for 30 minutes per day. However, no lists of lawyers who can be contacted seem to
be available to the detainees. Lawyers can access the facility but have to announce their arrival inadvance.506

2.

Access to airport detention facilities

Access to airport detention facilities is also regulated by the relevant Federal State and is often difficult
due to their location. At the “initial reception centre” (Erstaufnahmeeinrichtung) of Frankfurt/Main Airport,
for example, the centre is located in a restricted area of the airport cargo. The Church Refugee Service(Kirchlicher Flüchtlingsdienst am Flughafen) run by Diakonie is present in the facility and provides
psychosocial assistance to asylum seekers in the airport procedure, as well as reaching out to lawyers
depending on available capacity.
502

503

504

505

506

Hilfe für Menschen in Abschiebehaft Büren, ‘Schwere Menschenrechtsverletzungen in der Abschiebehaft
Büren‘, 24 January 2018, available in German at: https://bit.ly/2pYgn3k.
Hilfe
für
MenscheninAbschiebehaft
Büren,‘Stellungnahme
zur
Anhörungzum
Abschiebungshaftvollzugsgesetz’, 7 November 2018, available in German at: https://bit.ly/2UmjGiG.
Official Gazette for the Federal State of Hesse, Gesetz über den Vollzug ausländerrechtlicher
Freiheitsentziehungsmaßnahmen(VaFG), 18 December 2017, available at: https://bit.ly/2Cael74.
ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at:https://bit.ly/2W7dICZ.
Ibid.

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At the “airport facility” (Flughafenunterkunft) of Munich Airport, the Church Service (Kirchliche Dienste)
has access but no permanent presence on the premises; staff of the service travel thereto from the airport
terminal when necessary.507

D. Procedural safeguards
1. Judicial review of the detention order
Indicators: Judicial Review of Detention
1. Is there an automatic review of the lawfulness of detention?
2. If yes, at what interval is the detention order reviewed?

Yes

No

4 weeks

Under German law, only a judge is competent for the order and the prolongation of detention. The
responsible courts are the District Courts (Amtsgericht) and their decision can be challenged at a Regional
Court (Landgericht), in another instance at High Regional Courts (Oberlandesgericht) and under certain
conditions before the Federal Supreme Court (Bundesgerichtshof) as final instance.
The authorities therefore have to apply to the court for a detention order. The application has to lay out
the detailed reasons for the necessity of detention and the complete authorities' file should be presented
to the court. The foreigners should be heard by the court and they shall be able to call witnesses. In casesof detention pending deportation, this may be particularly relevant if the detention order is based on analleged risk of absconding and the foreigners have to prove that they have an address at which they canbe reached by the authorities. Before the hearing at the court, the foreigner has to receive a copy of therequest for detention (Haftantrag) which the authorities have filed. This copy has to be orally translated if
necessary.508 Case law also states that the foreigner shall have sufficient time to prepare an answer tothe content of the authorities' request. This means that it can be sufficient to hand out the request
immediately before the hearing if the content is simple and easily understandable. In other cases, if thecontent is more complicated, it can be necessary that the foreigner is handed out the authorities' request
in advance of the hearing.509 The court has to inform the foreigner on all possible legal remedies against
the detention order and this information has to be translated if necessary.
Detention pending deportation can only be ordered or prolonged if there is a possibility for the deportation
to be carried out in the near future. The maximum duration of detention therefore has to be expressly
stated in the detention order. Once this date has expired, the detained person either has to be releasedor an automatic judicial review of detention takes place.
In spite of the safeguards outlined above, the system of ordering detention pending deportation has been
severely criticised by lawyers for alleged violations of the standards applicable to detention. In particular,
it has been noted that judges frequently issue orders for detention pending deportation even if authorities’
applications for detention orders do not lay out sufficient reasons as to why detention is necessary. 510 The
Convention of Legal Advisors (Rechtsberaterkonferenz), a group of lawyers cooperating with German
welfare organisations on asylum matters, notes that currently detention pending deportation is again
ordered “too often and too easily”. According to them, this development began with a political ‘climate

507

508
509
510

ECRE, Airport procedures in Germany Gaps in quality and compliance with guarantees, April 2019, available
at: https://bit.ly/2QgOmAH.
Federal Supreme Court, Decision V ZB 67/12, 18 April 2013.
Federal Supreme Court, Decision V ZB 141/11, 1 July 2011.
This is a recurrent concern. See Peter Fahlbusch, Haft in Verfahren nach der Dublin II-Verordnung,Asylmagazin 9/2010, 289-295.

126change’ in 2016 and public debate based on “misleading, partly wrong information” on the number of
persons who were obliged to leave the country. 511
In December 2019, a local activist from North Rhine-Westphalia claimed in an interview that both the local
authorities (which apply for a detention order), and the local courts (which decide upon these applications),
often “have no idea of what they are doing”. Both institutions therefore would often ignore the most basic
standards and procedural guarantees.512 Common mistakes included:- Court decisions are based on outdated laws;- The application for a detention order is not handed out to the person concerned and is nottranslated;- An interpreter has to be present at the court hearing and he/she must have sufficient language
skills both in the language of the person concerned and in German. This is not always taken careof in practice.
Because these standards were often ignored, an estimated 50% of complaints to higher courts weresuccessful and the detention orders issued by the local courts were found to be unlawful, according to
the activist.
Other sources seem to confirm that local courts often do not sufficiently examine whether the detention
order is necessary and proportionate and it has been further reported that basic procedural standards
were sometimes violated.513 The Federal Supreme Court has therefore frequently ruled such detention
orders as unlawful. Recent decisions of the Federal Supreme Court in which a detention order was ruled
unlawful include cases where:- A lawyer was not given the opportunity to attend a hearing; 514- Authorities had not given sufficient reasons to justify the duration of detention by simply statingthat a Dublin transfer to Italy “might take place in between 6 and 8 weeks”. The authorities haveto explain which organisational steps justify the period of detention they have applied for. 515- The authorities were not able to justify the necessity and the proportionality of a 21 days preremoval detention period;516- The court had wrongfully assumed that a delay in presenting identity documents was in itself
constituting a “risk of absconding”.517
Many other court decisions collected in the case law database of asyl.net also demonstrate that court
orders issued by local courts are frequently overturned by higher courts. 518
The lawyer Peter Fahlbusch (from Hannover) has published statistics on the cases that were represented
by his law firm. According to these numbers, half of the detention orders that had been issued by local
courts had been overturned in further proceedings from 2011 to April 2020. According to information
submitted by Peter Fahlbusch, the firm represented 1,982 clients who were in detention pending
deportation during this period. In 982 of these cases (49.5%), higher courts found detention orders to be

511

512

513
514

515

516

517

518

Die Rechtsberaterkonferenz, 50 Forderungen zum Flüchtlings-, Aufenthalts, Staatsangehörigkeits- undSozialrecht, November 2017, available in German at: http://bit.ly/2HOWd2J, 32-34.
ze.tt, Eingesperrt ohne Straftat: So sind die Bedingungen in einem Abschiebegefängnis, 14 December 2019,available at https://bit.ly/2T0KZ3g.
Stefan Keßler, Abschiebungshaft, socialnet.de, 14 January 2019, available in German at: https://bit.ly/2TiNCji.
Federal Supreme Court, Decision XIII ZB 34/19, 12 November 2019, asyl.net: M27939, available in German
at https://bit.ly/2Z96SBc; and Federal Supreme Court, Decision V ZB 79/18, 6 December 2018, available inGerman at: https://bit.ly/2EQAPeO.
Federal Supreme Court, Decision V ZB 62/18 - 24 January 2019, asyl.net: M27471, available in German at:https://bit.ly/2YXsIrw.
Federal Supreme Court, Decision V ZB 54/18, 22 November 2018, available in German at:https://bit.ly/2IWq4vP.
Federal Supreme Court, Decision V ZB 151/17, 13 September 2018, available in German at:https://bit.ly/2SL9wqg.
A collection of the most important court decisions in that regard can be found in German at:https://bit.ly/2HieAjB.

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unlawful. For the clients affected, this had resulted in about four weeks of detention on average (26.6
days). Peter Fahlbusch reports that these figures have remained almost the same over the years. 519
The Refugee Council of Lower Saxony also recorded a high number of unlawful detentions for the period
between August 2016 and November 2019. During this time the organisation assisted 282 detainees inproceedings at Regional courts with the aim of examining the legality of detention orders issued by local
courts. In 179 of these cases (63%) the higher courts decided that detention had been unlawful. 520 In
relation to the overall numbers of persons who had been in detention pending deportation in the period
outlined above (588) the ratio of unlawful detentions was 30%.

2. Legal assistance for review of detention
Indicators: Legal Assistance for Review of Detention
1. Does the law provide for access to free legal assistance for the review of detention?
Yes
No
2. Do asylum seekers have effective access to free legal assistance in practice?
Yes
No
If asylum applications are lodged by persons in detention, applicants shall immediately be given an
opportunity to contact a lawyer of their choice, unless they have already secured legal counsel. 521
The Constitutional Court ruled in May 2018 that barriers to a lawyer’s access to the Eichstätt facility were
not in line with the constitution. In this case, the management of the facility had advised her that the next
available opportunity to contact her client was on the day of deportation. 522
In general, persons in detention pending deportation have the right to contact legal representatives, family
members, the competent consular representation and relevant aid and support organisations.523
However, an applicant usually has to cover the costs for legal representation for the purpose of judicial
review of detention and representation in the asylum procedure. There is a possibility to apply for legal
aid in the context of judicial review of detention, but this is rarely granted since legal aid is dependent on
how the court rates the chances of success.

E. Differential treatment of specific nationalities in detention
No information on differential treatment of specific nationalities was found in the course of the research
for this update.

519
520

521
522
523

Peter Fahlbusch,Aattorney, Information provided on 9 May 2020.
Flüchtlingsrat Niedersachsen, ‚Rechtswidrige Abschiebungshaft in Niedersachsen: Kein Ende in Sicht‘, Press
release of 13 November 2019, available in German at: https://bit.ly/2Lo4E9b.
Section 14(3) Asylum Act.
Federal Constitutional Court, Decision 2 BvQ 45/18, 22 May 2018.
Section 62a II of the Residence Act.

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Content of International Protection
A. Status and residence
1. Residence permit
Indicators: Residence Permit

1. What is the duration of residence permits granted to beneficiaries of protection?
❖ Refugee status❖ Subsidiary protection❖ Humanitarian protection

3 years
1 year
1 year

According to Section 25(2) of the Residence Act, both refugees and subsidiary protection beneficiaries
are entitled to a residence permit (Aufenthaltserlaubnis). According to Section 26(1) of the Residence Act,the duration of residence permits differs for the various groups:- Three years for persons with refugee status;- One year for beneficiaries of subsidiary protection, renewable for an additional two years;- At least one year for beneficiaries of humanitarian protection.
Responsibility for issuing the residence permits lies with the local authorities of the place of residence ofthe beneficiary of protection.
Renewal of residence permits is generally subject to the same regulations as apply to issuance. 524
Therefore, residence permits have to be renewed as long as the reasons which have led to the firstissuance persist. The refugee status, the subsidiary protection, and the status or the so-called “prohibitionof deportation” (Abschiebungsverbot) which is the basis of national protection status, have to be formally
revoked by the BAMF, otherwise the residence permit has to be issued and/or renewed. 525

2. Civil registration
2.1. Registration of child birth
If a child is born in a hospital, the hospital automatically informs the local civil registry office. If the birth ofa child takes place outside a hospital, parents themselves have to inform the civil registry office. In bothcases, parents or persons authorised by the parents have to formally register the birth afterwards andthey have to collect the certificate of birth “within a reasonable timeframe” after the date of birth. This
timeframe is defined as a period of up to 3 months. 526
The issuance of the certificate of birth is dependent on a number of documents which parents usually
have to submit. These include, among other documents:▪ Passport or identity card from the country of origin. Asylum seekers (for as long as the asylum
procedure is ongoing) and people with refugee status are not obliged to submit these documents
if this would involve getting in contact with the authorities from their countries of origin. Instead,they have to submit the asylum seeker’s permission to stay (Aufenthaltsgestattung) or the
residence permit respectively. However, these documents do not necessarily serve as evidence
for “proof of identity”;▪ Birth certificates of parents in original document and an officially certified translation;

524
525
526

Section 8(1) Residence Act.
Sections 73a to 73c Residence Act.
Humboldt Law Clinic Grund- und Menschenrechte, Geboren, registriert – und dann? Probleme bei derGeburtenregistrierung von Flüchtlingskindern in Deutschland und deren Folgen. Working Paper no. 16/2018,available in German at: http://bit.ly/2pw1DIn, 10-11.

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▪

If the parents are married, a marriage certificate or marriage contract in original document and an
officially certified translation.

If one of these documents cannot be submitted, the civil registry office may accept a declaration “in lieu
of an oath”, but no general rules exist for this procedure, so acceptance of such a declaration is dependent
on the individual circumstances and on the practice of the local civil registry office. An overview of theprocedure in English has been published by the German Institute for Human Rights. 527
Problems occur in particular if the parents do not have a passport or birth certificate from the country oforigin and if the authorities find that the identity of the parents has not been sufficiently clarified by othermeans. In these cases, many civil registry offices regularly refuse to issue birth certificates. However, they
may issue other documents instead. A recent study by the Humboldt Law Clinic found that offices havevarious strategies to deal with these cases of “unclarified identity”:528❖ Most civil registry offices issue a confirmation that birth has been registered (“extract from the
Birth Registry” / Auszug aus dem Geburtenregister) which is an official document that has thesame legal effect as a birth certificate.
❖ Other civil registry offices issue substitute documents such as an “attestation” that the office has
been notified of the birth. The legal effect of these substitute documents is unclear;❖ There have also been reports that a few civil registry offices do not issue any documents in casesof “unclarified identity” of the parents, although this may include cases in which the parents refuse
to accept an alternative document and legal measures for the issuance of a ‘proper’ birthcertificate are pending.529 It is also possible that parents refuse a document if it does not refer tothe father of the child but only contains the name of the mother; this happens in cases in which
the parents cannot produce sufficient evidence that they are married. 530
Refusal by German authorities to issue birth certificates to new born children has frequently been criticised
as a violation of the Convention on the Rights of the Child. In order to safeguard access to the healthsystem and to social benefits for newborn children, the German Institute for Human Rights has repeatedly
asked authorities to issue birth certificates or, alternatively, “extracts from the Birth Registry” as a“minimum obligation”.531
The birth certificate is formally required to claim a number of rights and services, including:- Registration with health insurance services, including family insurance i.e. extension of parents’insurance on children;- Child allowances of at least €204 per month available to all families staying in Germany,
regardless of legal status;- Parental allowances for persons in employment who stop working for a certain period after thechild is born. Allowances amount to a standard 65% of monthly income and up to one 100% ofmonthly income for people with lower wages and they are provided for a period of up to 14 months
if both parents divide these periods between them;- Change of the parents’ tax status, in connection with registration at the (residents’) registration
office.
- In cases of unmarried couples, recognition of paternity of the child’s father.

527

528

529
530

531

Deutsches Institut für Menschenrechte ‘How to register your newborn - Information for refugees’, 2nd ed., 20
July 2017, available at: http://bit.ly/2c5Esku.
Humboldt Law Clinic Grund- und Menschenrechte, Geboren, registriert – und dann? Probleme bei derGeburtenregistrierung von Flüchtlingskindern in Deutschland und deren Folgen, Working Paper 16/2018.
Ibid, 18.
Deutsches Institut für Menschenrechte, ‘Die Politik muss dafür sorgen, dass Kinder von Geflüchteten
Geburtsurkunden erhalten’, 1 June 2016, available in German at: http://bit.ly/2GQQvOM.
Deutsches Institut für Menschenrechte “Keine Papiere – keine Geburtsurkunde? Empfehlungen für die
Registrierung von in Deutschland geborenen Kindern Geflüchteter”, Position paper, December 2018, available
at https://bit.ly/39Qtrxm, 2.

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Failure to obtain a birth certificate from the civil registry office regularly results in difficulties with accessto rights and services. In a study on difficulties with the registration of new born children, authors from the
Humboldt Law Clinic refer to the following problems which have been reported in the course of theirresearch: problems with health insurance and/or access to hospitals or medical practitioners; (temporary)
denial of child allowances; problems with payment of parental allowances; problem with registration of
new born children at local residents’ registration offices.532 These difficulties were apparently also
encountered by persons who had been issued an “extract from the Birth Registry”, even though thisdocument is supposed to replace the birth certificate officially. All of these difficulties were further
encountered by persons who were issued other substitute documents instead of a birth certificate. 533

2.2. Registration of marriage
There is no obligation in German law for a marriage which has been concluded in another country to beregistered again at a German civil registry office. Instead, marriage certificates from other countries are
generally considered to be sufficient evidence of the validity of a marriage in legal affairs. However,German authorities and courts often ask for certificates of legalisation of marriage from other countries.
This legalisation usually has to be carried out by the German embassy in the respective country. 534
An important restriction on the legal recognition of marriages concluded in other countries was introduced
in 2017. The new Law on combating child marriages which took effect on 22 July 2017 contains thefollowing measures:535- Marriages concluded in another country are considered invalid in all cases in which one or bothof the spouses was younger than 16 years old at the time of marriage;- The validity of marriages concluded in another country can be challenged by the authorities andnullified in cases in which one or both of the spouses was between 16 and 18 years old at thetime of marriage. However, the marriage has to be recognised by the German authorities if bothspouses have reached the age of 18 years in the meantime and both declare that they want toremain married. Furthermore, the marriage may also be recognised in exceptional cases in whichannulment of the marriage would cause “serious hardship” to the minor involved.
Rights and obligations in connection with marriage are dependent on whether the competent authorities
recognise the marriage certificates or other documents from the country of origin as sufficient evidence
for the validity of the marriage in question.
Problems with recognition of marriages concluded in another country occur regularly in practice, inparticular if the couple does not have an official marriage certificate or if the German embassy is unable
to carry out the legalisation of a foreign marriage certificate. However, these difficulties do not occur in thecontext of the registration of such marriages in Germany, but in connection with other areas in which theformal recognition of the validity of a marriage is important.

532

533

534

535

Humboldt Law Clinic Grund- und Menschenrechte, Geboren, registriert – und dann? Probleme bei derGeburtenregistrierung von Flüchtlingskindern in Deutschland und deren Folgen. Working Paper no. 16/2018,17-18.
Deutsches Institut für Menschenrechte, Keine Papiere – keine Geburtsurkunde? Empfehlungen für die
Registrierung von in Deutschland geborenen Kindern Geflüchteter, December 2018, available in German at:https://bit.ly/2FJynpL.
Leaflets on the legalisation of documents in various countries can be found on the homepage of the Foreign
Office, available in German at: http://bit.ly/2DKI4kL.
An overview of the new law has been published by Terre des Femmes, ‘Die wichtigsten Änderungen im
Rahmen des Gesetzes zur Bekämpfung von Kinderehen’, December 2017, available in German at:
http://bit.ly/2DLyGgG.

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3. Long-term residence
Indicators: Long-Term Residence
1. Number of permanent residence permits issued to beneficiaries in 2019:14,208

Refugee status
After a certain period, a permanent status, “settlement permit” (Niederlassungserlaubnis) or alsotranslated as “permanent residence permit”, can be granted. However, the preconditions for this are more
restrictive since August 2016.536-

After three years, persons with refugee status can be granted a Niederlassungserlaubnis if they
have become “outstandingly integrated” into society.537 The most important preconditions are thatthey have to speak German on an advanced level (level C1 of the Common European Frameworkof Reference for Languages, CEFR), have to be able to cover the “overwhelming part” of the costof living and have to prove that they have sufficient living space for themselves and theirfamilies;538-

After five years of stay in Germany (into which period the duration of the asylum procedure isincluded), persons with refugee status can be granted a Niederlassungserlaubnis under certain
conditions. Most importantly, they have to be able to cover for the “better part” of the cost of living,have to speak basic German (level A2 of the CEFR) and have to prove that they have sufficientliving space for themselves and their families.

Under these provisions of the Residence Act, 14,028 persons were granted a Niederlassungserlaubnis in
2019. This represents a sharp increase in comparison to 2018 (1,807 persons).539
In both cases, the Niederlassungserlaubnis can only be granted if the BAMF has not initiated a procedure
to revoke or withdraw the status. In general, the Niederlassungserlaubnis shall be granted as long as the
local authorities do not receive a notification from the BAMF about the initiation of a revocation procedure.
This approach had been introduced in 2015 in order to simplify procedures, since before that date thelocal authorities as well as the refugees always had to wait for a formal notification from the BAMF,
regardless of whether the BAMF actually carried out a so-called “revocation test” or not. However, theinitial precondition of a mandatory notification from the BAMF has been re-established in 2019 for allcases in which persons have been granted protection status in 2015, 2016 and 2017, as a consequenceof an extension of the time-limits of the so-called “routine revocation procedures” for these cases (seebelow: Cessation and review of protection status). Therefore, persons who were granted refugeeprotection between 2015 and 2017 and apply for a Niederlassungserlaubnis either after three or after five
years of stay, now need a formal notification from the BAMF confirming that no revocation or withdrawal
procedure is going to be initiated.540
Subsidiary protection and humanitarian protection
Beneficiaries of other types of protection (subsidiary or national) do not have privileged access to a
Niederlassungserlaubnis. They can apply for this status after five years, with the duration of the asylum
procedure being taken into account.541 However, they have to meet all the legal requirements for the

536
537

538
539

540
541

Section 26(3) Residence Act.
Government's explanatory memorandum to the Integration Act. Cf. Melina Lehrian and Johanna Mantel,“Neuerungen durch das Integrationsgesetz” (“Amendments by the Integration Act”, Asylmagazin 9/2016, 293.
Section 26(3) Residence Act
Federal Government, Responses to parliamentary questions by The Left, 19/19333, 25 March 2020, 37, and19/8258, 12 March 2019, 47.
Amendment to Section 26(3) Residence Act, entered into force on 21 August 2019.
Section 26(4) Residence Act.

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Niederlassungserlaubnis,542 such as the requirement to completely cover the cost of living and to possess
sufficient living space for themselves and their families. In addition, they have to prove that they havebeen paying contributions to a pension scheme for at least 60 months (which generally means that theymust have had a job and met a certain income level for 60 months).
A total of 9,918 permanent residence permits were issued in 2019 based on this general provision (2018:
5,731), but the statistics do not indicate how many were issued specifically to persons with a protection
or a humanitarian status.543

4. Naturalisation
Indicators: Naturalisation
1. What is the waiting period for obtaining citizenship?
2. Number of citizenship grants to beneficiaries in 2019:8 years
Not available

Like other foreign nationals, refugees and beneficiaries of subsidiary protection can apply for German
citizenship subject to a number of conditions. Most of these conditions apply to all foreign nationals whowish to become German citizens:544❖ Applicants must have stayed legally in Germany for 8 years without interruptions. The duration of
a former asylum procedure can be included in this waiting period if the applicants have been
granted refugee status or subsidiary protection status. The residence period can be reduced to 7
years if applicants have attended an integration course successfully, and it can be reduced to 6
years if applicants have integrated particularly well into society;❖ Applicants must be able to cover the cost of living for themselves and their families;❖ Applicants must have sufficient German language skills (level B1 of the Common European
Framework of Reference for Languages);❖ Applicants must pass a “naturalisation test” to prove that they have sufficient knowledge ofGermany’s legal and social system, as well as living conditions in Germany; and❖ Applicants must not have committed serious criminal offences.
In contrast to other foreign nationals, refugees are not required to give up their former nationality. The
local authorities responsible for naturalisation therefore regularly ask the BAMF whether the reasons,which originally have led to the granting of refugee status, are still valid or whether a revocation procedure
has to be initiated. In many cases, even if a revocation procedure was carried out, loss of refugee status
would only be a formal act, since a foreign national who fulfils all the other requirements for citizenshipwould usually be entitled to stay in Germany and to naturalisation. Nevertheless, it is often recommended
that refugees who apply for naturalisation consult an advice centre and/or a lawyer in order to avoid
problems which might result from a revocation of the refugee status.
Fees for naturalisation are €255 for an adult person and €51 for children.
In 2019, 128,905 persons received German citizenship, but available statistics do not differentiate
between residence and/or protection statuses. 545 The countries of origin of persons granted citizenshipsuggest that only a comparably small number of them were beneficiaries of international protection (e.g.
3,860 former Syrian nationals, 4,645 former Iraqi nationals, 3,805 former Iranian nationals, 2,675 former
Afghan nationals).

542
543
544

545

Section 9 Residence Act.
Federal Government, Reply to parliamentary question by The Left, 19/633, 5 February 2018, 50.
Section 10 German Nationality Act (Staatsangehörigkeitsgesetz). An overview on the naturalisation procedure
is available in English on the BAMF website: http://bit.ly/2ms1va9.
Federal Statistical Office, „Bevölkerung und Erwerbstätigkeit: Einbürgerungen 2019“, Fachserie 1. Reihe 2.1- 2019, 3 June 2019, available in German at: https://bit.ly/2WmylNY.

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5. Cessation and review of protection status
Indicators: Cessation
1. Is a personal interview of the beneficiary in most cases conducted in practice in the cessation
procedure?
Yes
No
2. Does the law provide for an appeal against the first instance decision in the cessation
procedure?
Yes
No
3. Do beneficiaries have access to free legal assistance at first instance in practice?
Yes
With difficultyNo

5.1. 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;
4. Has obtained a new nationality upon application and enjoys the protection of the state whose
nationality he or she has obtained; or
5. 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 theresidence 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 areavailable 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 casesof 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.

5.2. Revocation (Widerruf) based on change in circumstances
More importantly, the Asylum Act also contains a “ceased circumstances” clause in Section 73(1), and theprocedure for the respective loss of status is called revocation (Widerruf) in German. Responsibility forthe revocation procedure lies with the BAMF. The law contains two provisions for the necessary
procedures:a) 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 examinessummarily whether preconditions for a revocation might apply. A revocation under this provision can bebased 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 withholdingof essential facts. The BAMF can summarily decide not to initiate revocation procedures for certain groupsof refugees (see Long-Term Residence).

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According to Section 73(2a) Asylum Act the routine revocation test has to take place three years “at thelatest” 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 finallyconcluded in the years 2015, 2016 and 2017.546 For these cases, the time limit has now been set at aperiod between four and five years. For instance, the BAMF has been set a deadline at the end of 2019to 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 20152017.547b) 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 haveceased to exist and the refugee “can no longer refuse to claim the protection of the country of which heis a citizen, or if he, as a stateless person, is able to return to the country where he had his usual
residence”.548 Accordingly, revocation of the status cannot be based only on a change of circumstancesin 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.549 Case law has established that trauma or mental
disorders which result from persecution constitute compelling reasons within the meaning of thisprovision.550
Revocation is also possible if refugees, after they have been granted the status, are found to havecommitted 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 inwriting that revocation or withdrawal is intended.
As a consequence of legislation which entered into force in December 2018, refugees (and persons withother 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 alawyer is usually not sufficient),- Obligation to cooperate with the authorities in clarifying identities (including obligation to handover 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.551

546
547

548
549
550

551

Section 73(7) Asylum Act
Explanatory memorandum to draft bill, 19/10047, 10 May 2019, available in German at https://bit.ly/39iOnvK,48.
Section 73(1) Asylum Act.
Section 73(1) Asylum Act.
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.
Michael Kalkmann, ‘Das Gesetz zur Einführung der Mitwirkungspflicht in Widerrufsverfahren’, Asylmagazin
1-2/2019, 6.

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The law expressly states that these measures have to be necessary and should be carried out only if theconcerned 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 toapproach the authorities of their country of origin, i.e that they cannot obtain passports or otheridentification 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.552
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 tocooperate in an examination of whether grounds for a withdrawal or revocation exist”. In practice, themajor 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 thatthese “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. 553 The German NGO PRO ASYL
has therefore criticised the examination procedures for creating uncertainty in thousands of cases, in spiteof the “extremely small” number of cases in which protection status is revoked or withdrawn in the end.554
If the BAMF decides to revoke or withdraw the status, the refugee has two weeks’ time to appeal thedecision 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 thisprocedure, they would usually have to pay the fees themselves. It is possible to apply for legal aid, whichis granted under the normal conditions, i.e. the court decides upon legal aid after a summary assessmentof 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 lengthof 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 reasonscorresponding 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. 555 The
BAMF estimates that a further 480,000 such procedures will be carried out until 2021. 556
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
552

553

554
555

556

Kirsten Eichler, GGUA Flüchtlingshilfe: ‘Einführung von Mitwirkungspflichten im Widerrufs- undRücknahmeverfahren‘, 12 December 2018, available in German at at: https://bit.ly/3auqFxR.
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.
Ibid.
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.
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.

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a case which has become known as the “Franco A. scandal” in 2017. In April 2017, two German soldiersand 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 thatthe group had planned to carry out terrorist attacks on prominent German politicians. According to publicprosecutors, Franco A. had assumed the fake identity in order to shift responsibility for the planned attacks
on refugees.557 The trial against Franco A. has yet to start, following years of legal disputes over thequestion of whether he would eventually be charged with “preparation of a serious crime posing a risk tothe state”. 558
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 conducteda 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. 559
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 headof 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 theallegations 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.560 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 in2018 and to 205,285 in 2019.561 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

557

558

559

560

561

164,796 (96.7%)

Deutsche Welle, ‘German soldier charged with plotting to kill politicians while posing as refugee’, 12 December
2017, available at: http://bit.ly/2FVuyRy.
Spiegel Online, Bundesanwaltschaft beharrt auf Terrorverdacht im Fall Franco A., 20 June 2018, available inGerman at: https://bit.ly/2K5fJ1d.
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.
Deutsche Welle, Bremen migration office scandal much smaller than first thought, available athttps://bit.ly/2WNXlvk.
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.

137

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

53,18953,541

Iraq

154

33

14

11,38911,590Afghanistan

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

84,07985,052

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: 562
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. 563
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%). Thisrate 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.564

562
563
564

BAMF, Aktuelle Zahlen, December 2019, available at https://bit.ly/3dNKylQ, 14.
BAMF, Aktuelle Zahlen, December 2019, available at https://bit.ly/3dNKylQ, 14.
Federal Government, Responses to parliamentary questions by The Left, 19/18498, 2 April 2020, 46, and19/8701, 25 March 2019, 47.

138

6. Withdrawal of protection status
Indicators: Withdrawal
1. Is a personal interview of the beneficiary in most cases conducted in practice in the withdrawal
procedure?
Yes
No
2. Does the law provide for an appeal against the withdrawal decision?

Yes

No

3. Do beneficiaries have access to free legal assistance at first instance in practice?
Yes
With difficultyNo

The grounds for withdrawal of refugee status are defined in Section 73(2) of the Asylum Act. According tothis provision, refugee status “shall be withdrawn if it was granted on the basis of incorrect information
or withholding of essential facts and if such recognition could not be based on any other grounds.”
There are similar grounds for withdrawal of subsidiary protection defined in Section 73b(3) of the Asylum
Act. This status shall be withdrawn where “misrepresentation or omission of facts or the use of false
documents were decisive for the granting of subsidiary protection status”. In addition, subsidiary
protection status shall also be withdrawn, if the foreigner “should have been or is excluded” due to
exclusion clauses as apply to eligibility for this status e.g. serious criminal offences, risk to the generalpublic or to security.
The procedure for withdrawal of protection status is identical to the revocation procedure, and usually theexamination of the various grounds is carried out as a combined “revocation and withdrawal procedure”.
Therefore, the information given above on procedures and on statistics for the revocation procedures also
applies to withdrawal of protection (see section on Cessation: Revocation).
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 lengthof stay, degree of integration, employment situation, family ties). Therefore, it is possible that even after
loss of status another residence permit is issued. Since this is decided on the local level, no statistics areavailable concerning the number of cases in which people were granted a new residence permit after
revocation or withdrawal of protection status.

B. Family reunification
1. Criteria and conditions
Indicators: Family Reunification
1. Is there a waiting period before a beneficiary can apply for family reunification?
Yes❖ If yes, what is the waiting period?

No

2. Does the law set a maximum time limit for submitting a family reunification application?
For preferential conditions: refugee status
Yes
No❖ If yes, what is the time limit?
3. Does the law set a minimum income requirement?

Yes

No

Persons with refugee status enjoy a privileged position compared to other foreign nationals in terms offamily reunification, since they do not necessarily have to cover the cost of living for themselves and theirfamilies and they do not have to prove that they possess sufficient living space. In order to claim thisprivilege, refugees have to notify the authorities within 3 months after the refugee status has become

139incontestable (final) that they wish to be reunited with a close family member.565 The application has to behanded in at the embassy of the country where the family members are staying. In addition, the local
authorities at the place of residence of the refugee living in Germany should be notified that an application
for a visa for the purpose of family reunification has been filed at the embassy.
Persons eligible for family reunification under this provision are:1. Spouses or “registered partners” i.e. partners in a same-sex partnership which has beenregistered in Germany or is equivalent to a registered partnership in Germany;
2. Minor unmarried children;
3. Parents of unaccompanied children, if no other parent with entitlement to custody is living inGermany.
If refugees are entitled to family reunification under this provision, the local authorities usually have todeclare that they have no objections against the issuance of a visa to the family members. The German
embassy in the country where the family members are staying then has to issue the necessary visa.
If family members of refugees apply for family reunification later than 3 months after status determination
has become final, “normal rules” for family reunification apply. In particular, refugees living in Germany
have to prove that they can cover the cost of living for themselves and their families and that they havesufficient living space.566 For family reunification of spouses, a further requirement is that both spouses
have to be at least 18 years of age.567
One important privilege applies regardless of whether the procedure for family reunification is initiatedwithin the three-month period or at a later date: Spouses of refugees who wish to immigrate to Germany
by means of family reunification do not have to prove that they have basic German language skills. 568
In 2018 the right to family reunification was effectively abolished for beneficiaries of subsidiary
protection and was replaced with a provision according to which 1,000 relatives shall be granted a visa
to enter Germany each month.569 This means that the privileged conditions that apply to family
reunification for refugees do not apply to beneficiaries of subsidiary protection and have been replacedwith a “humanitarian clause” which places family reunification at the discretion of the authorities.
This is regulated in Section 36a of the Residence Act, according to which only members of the “immediatefamily” (spouses, registered partners, minor unmarried children, parents of unaccompanied children) are
eligible for family reunification. In order to be included in the monthly quota of 1,000 visa, “humanitarianreasons” shall be decisive, which are listed in the law as follows:
1. Long duration of separation of family members,
2. Separation of families with at least one (minor) unmarried child,
3. Serious risks to life, limb or personal freedom of a family member living abroad,
4. Serious illness, need for care or serious disabilities of a family member living abroad.
In addition, welfare of the child and “integration aspects” (e.g. language skills, ability to provide for meansof living) may be taken into account.570
The monthly quota for visa has not been reached since the introduction of the new regulation for
beneficiaries of subsidiary protection, due to a complicated procedure involving three different authorities:
Embassies or consulates – often in cooperation with IOM – have to carry out an interview with the family
members who have applied for visa; then the local alien’s offices in Germany have to decide whether the
565
566
567
568
569
570

Section 29(2)(1) Residence Act.
Sections 27(3) and 29 Residence Act.
Section 30(1)(1) Residence Act.
Section 30(1)(3) Residence Act.
Section 36a Residence Act; Section 104(13) Residence Act.
Detailed information on the legal requirements and the procedure can be found at: https://familie.asyl.net.

140necessary humanitarian criteria are fulfilled; and then they have to pass on the visa applications to theFederal Administrative Office (Bundesverwaltungsamt) which theoretically should select the most urgent
1,000 cases per month.571 In practice, this selection does not take place since procedures at the local
authorities are lengthy, resulting in less than 1,000 applications per month. As a result, the Federal
Administrative Office usually authorises all cases submitted by the local authorities and informs theembassies or consulates that visas may be issued. In the first 18 months (from August 2018 to January2020) only 14,404 visas were granted to family members of beneficiaries of subsidiary protection, whichequals to 80 % of the total of 18,000 visas that the law would have foreseen for this period. 572 Around22,000 requests for appointments at the embassies were pending at the end of 2019. Since it is likely thatmany persons have asked for appointments several times, the actual number of persons applying for visa
for this purpose is likely to be lower. 573 Nevertheless, the figures show that many family members ofbeneficiaries of subsidiary protection are facing a waiting period of another year or more, even if themonthly quota of 1,000 visa would be reached in full from now on.
The long waiting periods have particularly problematic effects on family reunification procedures of
unaccompanied minors. In several decisions the Administrative Court of Berlin,574 has argued that theright to family reunification (i.e. reunification with one’s parents) ends when the subsidiary protection
status holder becomes an adult.575 The delay in procedures, in particular on the part of local authorities,
might put reunification of young persons with their parents at risk. 576 In order to safeguard the right tofamily reunification, the Administrative Court of Berlin has repeatedly asked authorities to prioritise
procedures of unaccompanied minors who were approaching their 18th birthday.577
The suspension of family reunification for beneficiaries of subsidiary protection coincided with a steep risein decisions in which asylum applicants were granted subsidiary protection instead of refugee status. At
the same time, suspension of family reunification resulted in tens of thousands of beneficiaries ofsubsidiary protection appealing against the authorities’ decisions in order to gain refugee status(“upgrade-appeals”). Courts decided upon 18,433 such cases in 2019. 3,145 upgrade-appeals weresuccessful in 2019, with Administrative Courts granting asylum or refugee status. In 11,370 cases
upgrade-appeals were rejected by Administrative Courts or procedures were abandoned for other reasons(settlement out of court and/or withdrawal of appeal; see Differential Treatment of Specific Nationalities in
the Procedure). 20,549 cases of such appeals were pending at the end of 2019. 578
For Syrian refugees, some regional programmes for family reunification are still in place. These
programmes are reserved for first and second degree relatives of persons living in Germany with refugee
status or another legal residential status. In contrast to the “normal” family reunification procedures, thefamily members living in Germany have to act as sponsors by declaring that they will cover the cost ofliving of their relatives (either from their own resources or with the help of external sponsors). In 2019 and2020 such programmes were in place in the Federal States of Berlin (until end of 2020), Brandenburg
571

572

573

574

575
576

577

578

A description of the procedure in English has been published by Initiative "Familienleben für alle", available athttps://bit.ly/2V6QzBg.
PRO ASYL, ‚18 Monate Gnadenkontingent beim Familiennachzug: Nicht einmal der Minimalkonsens wird
erfüllt‘, 28 February 2020, available in German at: https://bit.ly/2R8jGTR.
Federal Government, Reply to oral question by The Left, Plenary protocol 19/139, 17412, 14 January 2020,
available in German at https://bit.ly/3dV6njk.
Appeals or other legal measures in family reunification cases have to be directed against the German Foreign
Office which is responsible for issuing the necessary visa. Therefore the Administrative Court of Berlin is thecompetent court of first instance for family reunification matters.
Administrative Court of Berlin, Decision 38 K 27.18 V, 29 March 2019, available at https://bit.ly/2VGrPQW.
An account of a case in which a 17-year-old Syrian could only be reunited with his mother following a „lastminute“ court intervention can be found here: Pro Asyl, Aus der Praxis: Familiennachzug – Zustimmung in
letzter Minute, 2 January 2020, available at https://bit.ly/39VrQp9.
Administrative Court of Berlin, Decision 38 L 502.19 V, 16 January 2020, available in German at:https://bit.ly/34NRMC0; Decision 38 L 442.19 V, 26 November 2019, available at: https://bit.ly/3cDid0d. For an
overview of jurisprudence on this subject, see German Red Cross: Nachzug zu subsidiär Schutzberechtigten,besonders Minderjährige vor Eintritt der Volljährigkeit: Fachinformation des DRK-Suchdienstes zum
Familiennachzug (FZ) von und zu Flüchtlingen, February 2020, available in German at https://bit.ly/2wuFwK8.
Federal Government, Reply to parliamentary question by The Left, 19/18498, 2 April 2020, 50-51.

141

(until 2024), Hamburg (until end of November 2020), Schleswig-Holstein (until end of June 2020) andThuringia (until end of December 2020). The programme in the Federal State of Berlin is the only one
which is also available to family members of Iraqi refugees.579
No exact figures are available on the number of visas granted to family members of refugees for family
reunification purposes. According to a media report, about 26,000 visa were granted in 2019 to family
members from the seven most important countries of origin of refugees.580 However, this figure includes
both cases of family reunification with refugees and with persons who have a residence permit in Germany
for other reasons. Therefore, this number represents only a vague indicator for the actual number of visa
issued to family members of refugees.
The German embassy in Kabul was closed after being severely damaged in an attack on 31 March 2017.
The embassy had not been reopened for visitors as of the end of 2019, so it was still not possible to apply
for visas for family reunification purposes. Applications for visa for family reunification purposes have tobe submitted to one of the German embassies in New Delhi (India) or Islamabad (Pakistan).581

2. Status and rights of family members
If family members are already in Germany and have applied for asylum at the same time as the person
granted protection, they are usually granted the protection status at the same time, often as part of thesame decision, within the concept of “family asylum”. These provisions apply to refugees and beneficiaries
of subsidiary protection accordingly.582
Family members who immigrate to Germany by means of family reunification are entitled to a residence
permit with validity of at least one year. The maximum period of validity must not exceed the period ofvalidity of the residence permit held by the beneficiary of protection. 583 At first, the right of residence isgenerally dependent on the status of the beneficiary of protection, so residence permits of family members
are prolonged as long as this person enjoys protection status. However, after a period of three years,
spouses may gain entitlement to a right of residence which is independent of the beneficiary of protection.
Accordingly, they can be issued a residence permit of their own in case of a divorce. 584

C. Movement and mobility
1. Freedom of movement
No restrictions on the freedom of movement within Germany exist for refugees and beneficiaries ofsubsidiary protection. They can travel at any time to any destination within Germany, without having to
ask for permission by the authorities, in contrast to the so-called “residence obligation” which applies toasylum seekers during the early stages of the procedure (see Reception Conditions: Freedom of
Movement).

579
580

581

582
583
584

An overview of regional programmes can be found at: http://resettlement.de/aktuelle-aufnahmen/.
Migazin.de, ‚Kontingent für Familiennachzug für 2019 nicht ausgeschöpft‘, 14 January 2020, available inGerman at: https://bit.ly/3j9iQCE.
Informationsverbund Asyl und Migration, ‘Bearbeitung von Visaanträgen afghanischer Staatsangehöriger’,available in German at: http://bit.ly/2GfN3zh.
Section 26(5) Asylum Act.
Section 27(4) Residence Act.
Section 31 Residence Act.

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However, since August 2016, refugees and beneficiaries of subsidiary protection are generally obliged totake up their place of residence within the Federal State in which their asylum procedures have been
conducted. This has been regulated by the “residence rule” of Section 12a of the Residence Act.585
Further to the obligation to reside in a Federal State, authorities can impose further restrictions and oblige
beneficiaries to take up a place of residence in a specific municipality within the Federal State. Thisobligation is now applied in seven Federal States: Bavaria, Baden-Württemberg, North RhineWestphalia, Hesse, Saarland, Saxony and Saxony-Anhalt, with some regional distinctions. For
instance, in the Federal State of Saxony, the obligation to live in a particular place is limited to a one-year
period, as opposed to the possible three year-period applied in other states.586 Furthermore, the Federal
States of Lower Saxony and Rhineland-Palatinate introduced “negative” regulations according to which
refugees can be asked not to move to certain municipalities. This regulation is effective for three towns in
Lower Saxony (Salzgitter, Delmenhorst and Wilhemshaven) and one in Rhineland-Palatinate(Pirmasens) which are faced with structural economic difficulties and already house a comparably highnumber of migrants and refugees. The “city states” (Berlin, Hamburg, Bremen) and several smaller
Federal States (Brandenburg, Mecklenburg-Vorpommern, Schleswig-Holstein, Thuringia) have notintroduced any further restrictions beyond the obligation to take up residence in the respective Federal
State.587
The obligation to live in a certain Federal State or in a certain municipality remains in force for a maximum
period of three years, but it can be lifted for certain reasons e.g. for family-related reasons or for educationand employment purposes.
The regulation of Section 12a of the Residence Act only applies to beneficiaries of protection who havebeen granted a residence permit based on protection status since 1 January 2016. The residence rule
shall not apply if a beneficiary of protection (or one of his or her family members) can take up a job inanother place, if this job provides for a sufficient income to cover the cost of living. It also has to be lifted,
if a beneficiary of protection takes up vocational training or university education in another place.
Furthermore, the rule shall not apply if family members (spouses, registered partners or minor children)
live in another place.588
According to the official explanatory memorandum, the residence rule is supposed to promote sustainable
integration by preventing segregation of communities. 589 However, it has been questioned whether theway in which the provision has been put into effect is suitable for achieving the intended aim.590 A study
by the Technical University of Dresden on existing “residence rules” was published in March 2018. The
author points out that it will take more time to assess the positive or negative effects of the regulations
introduced in 2016. At the same time, she concludes that the new measures should not be expected tohave too many regulatory effects on the labour and housing markets and on integration efforts of refugees.
This is because the number of persons affected by the new regulations was rather low in comparison tothe overall migrant and refugee communities in Germany. Furthermore, she argues that integration
processes are generally difficult to regulate by law.591

585

586
587

Not to be confused with the “geographical restriction” or “residence obligation” (Residenzpflicht) as describedabove. The residence rule is part of the so-called Integration Act of 31 July 2016, Official Gazette I no. 39(2016) of 5 August 2016, 1939.
Welt.de, ‚Dort wohnen, wo der Staat es will‘, 1 March 2019, available in German at https://bit.ly/2XiTGZH.
Melina Lehrian, Zwei Jahre Wohnsitzregelung nach Artikel 12a AufenthG – Ein Überblick zur Umsetzung der Regelung in den einzelnen Bundesländern. Asylmagazin
12/2018, 416-423, available at https://bit.ly/2V7T1rn.

588
589
590

591

Section 12a(5) Residence Act.
Explanatory memorandum, Bundestag Document no. 18/8614, 42-43.
Clara Schlotheuber and Sebastian Röder, Integrative (?) Zwangsmaßnahme (!), Die neue Wohnsitzregelungnach § 12a AufenthG, Asylmagazin 11/2016, 364-373.
Nona Renner, Die Wohnsitzauflage als Mittel deutscher Integrationspolitik? Das Beispiel Sachsen, MIDEMPolicy Paper 01/18, Dresden, available at: http://bit.ly/2HSpzgM.

143

A brief analysis of the impact of the residence rule was published in January 2020.592 This paper is basedon the “IAB-BAMF-SOEP survey”, a representative study on the living conditions of refugees which has
been carried out on an annual basis since 2016. In this analysis, the situation of refugees who are subject
to the residence rule is compared to other refugees, in particular those that were granted refugee status
at an earlier date, before the introduction of the regulation. The duration of stay in Germany as well asother regional and individual factors were taken into account in order to avoid possible distortions. The
main findings of this analysis are:• Refugees who are subject to the residence rule are less likely to be employed;• Refugees who are subject to the residence rule are less likely to live in private accommodation(as opposed to collective accommodation);• It could not be ascertained whether the residence rule had a positive or negative impact on
refugees’ German language skills or on their (successful) participation in integration courses.
In a ruling of 4 September 2018, the High Administrative Court of North Rhine-Westphalia decided that
the Federal State’s regulation on the residence obligation for refugees was illegal. According to the court,
the wording of the directive was too restrictive as it stated that refugees “should, as a rule” be obliged toreside in the town or district to which they had been accommodated during the asylum procedure. 593
Although the decision was restricted to North Rhine-Westphalia, it highlights that authorities generally
have to conduct an individual assessment to determine whether a residence obligation is useful „toenhance the prospects of a sustainable integration“.594 Apart from this ruling, few cases have become
known in which courts were asked to decide on the legality of the residence rule.
The residence rule for persons with protection status had originally been introduced for a period of three
years, so it would have run out at the end of July 2019. The explanatory memorandum to the integration
act of 2016 had stated that the decision on whether the rule would be discontinued or extended should
be based on an evaluation of its impact. Although this evaluation never took place, a new law was
introduced in the spring of 2019 and entered into force on 12 July 2019. 595 This law has now made theresidence rule permanent. The main principles of the regulation remain unchanged, as only a few
clarifications were introduced (e.g. concerning the continuation of the residence rule after an authorised
move to another Federal State). Furthermore, a new sanction was introduced for persons who have
moved to another place without permission while they were subject to the residence rule: In these cases,
the obligation to stay in the assigned place of residence can now be extended “by the (same) period oftime at which the foreigner has not complied with the obligation”.596 Again, the explanatory memorandum
to the law states that an evaluation of the impact of Section 12a of the Residence Act is supposed to takeplace within three years.597

2. Travel documents
Persons with refugee status are entitled to “travel documents for refugees” (“Reiseausweis fürFlüchtlinge”) in accordance with Article 28 of the 1951 Refugee Convention. The travel document for
refugees is either automatically issued together with the residence permit after status determination has
become final, or it is issued upon application. The document shall adhere to European standards 598 andtherefore has to include a storage medium with the facial image, fingerprints etc. 599
592

593
594

595

596
597
598

599

Institut für Arbeitsmarkt- und Berufsforschung (IAB): Wohnsitzauflagen reduzieren die Chancen auf
Arbeitsmarktintegration, IAB-Kurzbericht 2/2020, January 2020, available in German at: https://bit.ly/34rH7wL.
High Administrative Court North Rhine-Westphalia, Decision 18 A 256/18, 4 September 2018.
Claudius Voigt, ‘Zum Urteil des OVG Nordrhein-Westfalen: Rechtswidrige pauschale Wohnsitzzuweisung’,Asylmagazin 12/2018, 454-458.
Act to remove the time-limit of the integration Act (Gesetz zur Entfristung des Integrationsgesetzes), Official
Gazette I, No. 25, 11 July 2019, 914.
Section 12a(1)(3) Residence Act.
Explanatory memorandum to draft bill, 25 March 2019, 19/8692, 9.
Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features andbiometrics in passports and travel documents issued by Member States, OJ L385/1.
Section 4(4) Residence Regulation (Aufenthaltsverordnung).

144

The duration of the travel document for refugees is “up to three years”. Alternatively, it can be issued asa preliminary travel document, i.e. without an electronic storage medium, for “up to one year”.600 A
prolongation of the document is not possible, so refugees have to apply for a new document once the old
one has expired.
Beneficiaries of subsidiary protection can be issued with a “travel document for aliens” (“Reiseausweis
für Ausländer”) if they do not possess a passport or a substitute document and if they cannot bereasonably expected to obtain a passport or a substitute document from the authorities of their country oforigin.601 This is a general provision which applies to beneficiaries of subsidiary protection as well as toother aliens with residence status in Germany.
While it is generally accepted that refugees and their family members cannot be reasonably expected toobtain a passport from the authorities of their country of origin, 602 this is not the case for beneficiaries ofsubsidiary protection. Guidelines by the Federal Ministry of Interior stipulate that persons who cannot bedeported for legal or humanitarian reasons generally cannot be expected to travel to their countries oforigin if this is necessary to obtain a passport. 603 This applies to beneficiaries of subsidiary protection as
well. However, if it is possible to obtain a passport from an embassy in Germany, beneficiaries ofsubsidiary protection are generally required to do so. If they argue that this is impossible for them, they
have to apply for a “travel document for aliens” on individual grounds and have to demonstrate that theycannot be reasonably expected to get a passport on individual grounds.
The duration of the “travel document for aliens” is usually equivalent to the validity of the residence permit
that a foreign citizen has in Germany.604 For beneficiaries of subsidiary protection this is one year with an
option of renewal(s) for two years (see Residence Permit).

D. Housing
Indicators: Housing
1. For how long are beneficiaries entitled to stay in reception centres?

No limit605

2. Number of beneficiaries staying in reception centres as of 31 December 2019:

Not available

Neither refugees nor beneficiaries of subsidiary protection are obliged to stay in reception centres or otherforms of collective accommodation centres. However, in many places, particularly in the big cities, it often
proves very difficult for beneficiaries to find apartments after they have been granted protection status.
Therefore, it has been reported that many beneficiaries stay in collective accommodation centres for long
periods. This can pose a problem for municipalities since it is not clear on which legal basis they arestaying in those centres and which institution has to cover the costs. 606

600
601
602

603

604
605

606

Section 4(1) Residence Regulation.
Section 5(1) Residence Regulation.
Verfahrenshinweise der Ausländerbehörde Berlin (Guidelines for the Aliens Office Berlin), 12 September 2016,
available at: http://bit.ly/2m1sjCe, 492.
Federal Ministry of Interior, Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz (General Administrative
Guidelines for the Residence Act), 26 Oct. 2009, no. 3.3.1.3.
Section 8 Residence Regulation.
They are allowed to stay in reception centres until they secure housing – although this should not beinterpreted as an entitlement but rather as a necessity.
In most Federal States, the municipalities receive support for accommodation of asylum seekers from theFederal State’s budget, but it is not regulated whether this applies to recognised refugees as well. According
to a media report, the Federal State of Thuringia has declared that it will cover the municipalities’ costs if
refugees are housed in collective accommodation centres: mdr.de, ‘Federal State opens accommodation
centres for recognised refugees’, 27 May 2017, available in German at: http://bit.ly/2notjRc.

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No recent statistics or studies on the housing situation of refugees are available. An analysis, based on asurvey conducted in the second half of 2016, showed that 52% of persons who had come to Germany asasylum seekers between 2013 and the end of January 2016 were living in “individual accommodation”(i.e. not in collective accommodation centres).607 However, this study (like other reports on this subject)does not clearly distinguish between the status of persons who had taken part in the survey, so it is notclear how many persons with refugee or subsidiary protection status were among the group of persons
still housed in collective accommodation centres.
Some figures are available for the Federal State of Bavaria, but only for the situation in 2018: In Bavaria,
27.7% of persons living in accommodation centres in January 2018 were considered to be “false
occupants” (Fehlbeleger), which is the bureaucratic term for persons who are allowed to leave the centres,
but have not found an apartment yet. This refers to 8,330 beneficiaries of international protection (out ofa total of 30,075 persons living in accommodation centres throughout Bavaria on 31 January 2018) who,in theory, were not obliged to live in this type of accommodation. 608
A study by the Federal Institute for Research on Building, Urban Affairs and Spatial Development
published in October 2017 deals inter alia with the housing situation of beneficiaries of international
protection in 10 municipalities throughout Germany. The main findings of this study include thefollowing:609“Integration into the housing market does not equal integration into society:In municipalities in which the placement of refugees in the regular housing market succeeds,
there is often a lack of prospects for suitable jobs and training positions. In addition, it is difficult
for refugees to overcome distances to integration courses, doctors, shopping facilities and friends,
as they are dependent on public transport, which has shortcomings in rural regions. These factors
complicate the sustainable integration of refugees into society…
A tense housing market situation impedes the integration of refugees on the housing market:
In large cities and university cities with tense housing markets, many refugees live in emergency
and collective accommodation with no quality of living for long periods of time. The integration
into the housing market is only successful to a certain extent and the construction of new social
housing is progressing slowly. In many cities, the fluctuation reserves of the housing market are
exhausted and the bottlenecks in part lead to a "black market" for finding accommodation incertain areas…
Placement in flats is not generally better than housing in collective accommodation:
The decentralised accommodation of refugees in flats contributes particularly to the integration
into the housing market if the refugees can take over the rental agreements. In practice, it is notalways an improvement over placement in collective accommodation. In some places the flats
are occupied by many people who have not chosen to share rooms, bathroom and kitchen. The
living standard is sometimes lower than in small hostels and privacy is severely limited.”
If refugees or beneficiaries of subsidiary protection cannot provide for the costs, the rent for a room or anapartment is covered by the local social welfare office or the local job centre, but only up to an “adequate”
level. What is considered “adequate” depends on the local housing market, so beneficiaries of protection
have to inquire with the local authorities to what amount rent will be reimbursed.

607

608

609

BAMF, Die Wohnsituation Geflüchteter. BAMF-Kurzanalyse 2/2018, available in German athttps://bit.ly/2JXqCip.
Bavarian Ministry for Labor, Social Affairs, Family and Integration, Faktenblatt Asyl, Januar 2018, available at:https://bit.ly/2G3J5ZQ.
Bundesinstitut für Bau-, Stadt- und Raumforschung, Integration von Flüchtlingen in den regulären
Wohnungsmarkt, 21/2017, October 2017, available in German at: https://bit.ly/2IPH6HW.

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If beneficiaries of protection have an income, but are still living in collective accommodation, authorities
regularly impose fees as a contribution to the operational costs of the centres. It has been reported thatsome municipalities charge excessive fees which may clearly exceed the costs for an apartment in thearea. In one case (the town of Hemmingen in Niedersachsen/Lower Saxony), authorities may charge
fees up to a maximum of €930 for a place, according to the local statutes. These seemingly excessive
costs result from a calculation which includes all operational expenses for the centres, such as costs forsocial services as well as security and maintenance. In practice, the fees may lead to a situation in which
refugees have to pass on their complete income to the local authorities in exchange for a place in a sharedroom.610
Many local organisations and initiatives try to support refugees in finding apartments. One initiative
operating for the whole of Germany, “Living Together Welcome” (Zusammenleben willkommen, formerly“Refugees Welcome/Flüchtlinge willkommen”) runs an online platform providing assistance for people
who want to share a flat with asylum seekers and refugees.
Since August 2016, refugees and beneficiaries of subsidiary protection are generally obliged to take up
their place of residence within the Federal State in which their asylum procedures have been conducted.
Furthermore, under Section 12a of the Residence Act authorities can oblige them to take up place ofresidence in a specific municipality within the Federal State (see section on Freedom of Movement). Oneof the provisions introduced in the context of the new law refers explicitly to refugees and beneficiaries ofsubsidiary protection who still live in a reception centre or another form of temporary accommodation after
their status has been determined. They can be obliged to take up their place of residence in a “specificplace” in order to provide themselves with “suitable accommodation”.611 The Federal States which haveapplied this regulation so far refer beneficiaries of international protection to a municipality, not to aparticular apartment.

E. Employment and education
1. Access to the labour market
Persons with refugee status and beneficiaries of subsidiary protection have unrestricted access to thelabour market, including self-employment, under the same conditions as German citizens. 612 They areentitled to all supportive measures offered by the labour agency. This includes qualification offers andtraining programmes, but also costs which may result from the need to have professional qualifications
recognised.
Recognition of professional qualifications has been often described as a major practical obstacle foraccess to the labour market. This does not only affect refugees but other immigrants as well. The German
government therefore has set up an information portal offering advice on the necessary procedures(“Recognition in Germany”).
Available official statistics on unemployment only distinguish between nationalities, but not between
residence statuses of persons concerned. Therefore, it is not possible to determine how many
beneficiaries of international protection have successfully integrated into the labour market.
A “brief analysis” on the integration of refugees into the labour market was published in February 2020. It
is based on the “IAB-BAMF-SOEP-survey”, a long-term study on the living conditions of persons who

610

611
612

Frankfurter Rundschau, ‚Wohngebühren für Flüchtlinge: Monatlich bis zu 930 Euro‘, 12 August 2019, available
at: https://bit.ly/2JXqCip.
Section 12a(2) Residence Act.
Section 25(2) Residence Act.

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have come to Germany as asylum seekers between 2013 and 2016. 613 The main conclusions of the study
include the following:---

About 50% of the persons surveyed has found employment within five years after the arrival,
which implies that integration into the labour market is taking place faster in comparison to earlier
years.
60% of the persons surveyed were either in employment or were attending an educational
institution or were taking part in qualification or integration measures in the second half of 2018.
The major part of the remaining 40% were actively seeking a job or were on maternity/parental
leave.
Of persons surveyed who were in employment, 44% had jobs categorised as “unskilled labour”
while 52% had jobs which required a certain qualification. 5% were in employment characterised
as “specialised” or “highly specialised” occupations. Because of the comparably high number of
unskilled occupations, the income of persons surveyed was considerably lower than the average
income of persons who were born in Germany (between 54 and 74%, depending on the agegroup).

It has to be noted that this study does not distinguish between the residence status of the persons
surveyed. Therefore, it is not clear how many of the persons surveyed have been granted protection
status. Nevertheless, the analysis provides at least an indication for the situation of persons withprotection status, since a high percentage of persons who have arrived as asylum seekers between 2013
and 2016 have been granted protection.

2. Access to education
Persons with refugee status and beneficiaries of subsidiary protection are entitled to take up vocational
training as well as school or university education, if they can prove that they have the necessary
qualifications. They can also receive support for the costs of living for the duration of training or studies
under the same conditions as German citizens.
According to the brief analysis mentioned in Access to the Labour Market, 23% of persons surveyed (i.e.
persons who arrived in Germany as asylum seekers between 2013 and 2016) had attended one of thefollowing educational institutions:614- Schools, further education: 8%;- Vocational training institution: 14%;
- Universities, colleges: 2%.
As noted above, the study does not distinguish between the protection status (and/or the residence status)of people surveyed, but it can provide an indication to the situation of persons with protection status.

F. Social welfare
Both refugees and beneficiaries of subsidiary protection are entitled to social benefits, in particularunemployment benefits, on the same level as German nationals.
Beneficiaries of international protection are entitled to benefits, starting from the first day of the monthafter the recognition of their status has become legally valid i.e. usually with the arrival of the decision by
the BAMF. Problems with access to social benefits may occur during the period when persons have
613

614

Herbert Brücker, Yuliya Kosyakova and Eric Schuß - Institut für Arbeitsmarkt- und Berufsforschung, Fünf Jahre
seit der Fluchtmigration 2015: Integration in Arbeitsmarkt und Bildungssystem macht weitere Fortschritte, IABKurzbericht 4/2020, 4 February 2020, available in German at: https://bit.ly/3aZDosE.
Ibid.

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already been granted protection status but still only have the asylum seeker’s permission to stay
(Aufenthaltsgestattung) because they have not yet received the residence permit (Aufenthaltserlaubnis)
which officially confirms that they have protection status. This may lead responsible authorities to denysocial services for the first couple of weeks following the recognition of the status. However, persons
concerned would in any case be entitled to the (lower) asylum seekers’ benefits during this period andthey can claim payments to which they would have been entitled at a later date.615
For persons who are registered as unemployed, the responsible authority is the job centre or Employment
Agency. This institution is responsible for the disbursement of unemployment benefits as well as for theprovision of other benefits and measures for integration into the labour market; job training measures,support with job applications, specific language courses etc. For persons who are not registered as
unemployed (e.g. because they have reached the age of retirement or are unable to work on healthgrounds), the responsible authority is the Social Welfare Office.
Since August 2016, beneficiaries of protection are generally obliged to take up their place of residence
within the Federal State in which their asylum procedures have been conducted for a maximum period of
three years (see Freedom of Movement). In several Federal States beneficiaries of protection are also
obliged to reside in a specific municipality, also for a maximum period of three years. This obligation canbe lifted for certain reasons e.g. for family-related reasons or for education and employment purposes. Aslong as the obligation is valid, social benefits are generally only provided in the respective Federal Stateor in the respective municipality.

G. Health care
Persons with refugee status and beneficiaries of subsidiary protection have the same status as German
citizens within the social insurance system. This includes membership in the statutory health insurance,
if they have a job other than minimal employment (i.e. a low-paid part time job). If they are unemployed,
the job centre or the social welfare office provides them with a health insurance card which entitles themto the same medical care as statutory health insurance.

615

Georg Classen, Ratgeber für Geflüchtete in Berlin, 2nd ed., November 2017, available in German at:https://bit.ly/2DOV0X5, 156-157.

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ANNEX – Transposition of the CEAS in national legislation
Directives and other CEAS measures transposed into national legislation
Directive

Deadline fortransposition

Date of transposition

Directive 2011/95/EU
Recast Qualification
Directive

21 December 2013

1 December 2013

Act for the Transposition of the Directive 2011/95/EU

http://bit.ly/1eVWZfC (DE)

Directive 2013/32/EU
Recast Asylum
Procedures Directive

20 July 2015

20 October 2015
6 August 2016

Asylum Procedures Acceleration Act
Integration Act (provisions on inadmissibility only)

http://bit.ly/1PVCs9T (DE)

Directive 2013/33/EU
Recast Reception
Conditions Directive

20 July 2015

5 November 2014

Act on classification of further states as safe countries oforigin and on the facilitation of access to the labour market
for asylum seekers and tolerated foreigners

http://bit.ly/1RtIQIb (DE)20 October 2015

Asylum Procedures Acceleration Act

http://bit.ly/1PVCs9T (DE)

1 August 2015

Act on the redefinition of the right to stay and on thetermination of stay

http://bit.ly/1IbaPmO (DE)Regulation (EU) No
604/2013
Dublin III Regulation

Directly applicable
20 July 2013

Official title of corresponding act

Web Link

Note that the Asylum Procedures Directive and the Reception Conditions Directive have only partially been transposed by the corresponding acts referred to here.

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