Hubert Heinhold
Legal Handbook for Refugees
A Practical Guide Through German Asylum and Alien Law
translated by Birgitt Wagner and Dominik Zimmermann
von Loeper
Literaturverlag - E-Mail
Asylum Law remains a very controversial topic in the public discussion. Before the background of the upcoming harmonisation of asylum policies within the European Union one can expect that it will continue to be a topical issue in future as well. German Asylum Law, whose provisions have proven to be extremely complicated to be understood fully even by legal experts, has been subject to several alterations in the past few years. This completely revised new edition of "A guide through Asylum and Aliens Law" accommodates this development. The author Hubert Heinhold has made crucial and considerable additions to the information on material asylum law. He also explains in detail all aspects of general alien law which directly affect refugees.
Just as the previous editions, this new guide is also characterised by a thorough and clear overview over of the individual issues. Heinhold’s careful and problem-oriented way of presentation as well as his precise style, which aims at understandability, serve the important criterium of reader friendliness.
UNHCR welcomes and supports the edition of this book, which can by now be called a standard work without exaggeration. It shows the way through a jungle of provisions and regulations that sometimes seems incomprehensible. It certainly has to be lamented from the point of view of refugee protection that asylum law as well as court rulings have been marked by a restrictive approach. Reading this guide cannot be a pleasure from this perspective. And yet: those who have to deal with the matter of Asylum and Aliens Law, either because they are affected personally, or because they want to support others, can hardly do without this book.
Berlin, January 2000 Jean-Noel Wetterwald
Representative of the UN High Commissioner for Refugees
in the Federal Republic of Germany
This "guide" through German law is not meant to be a theoretical treatise but supposed to provide practical instructions. The previous German editions have addressed first and foremost those providing support – either on a professional or a voluntary basis.
More and more refugees, however, have to find their way through the complicated German laws and provisions on their own. This is the case because financial support has been capped and the number of places where refugees can turn to for informantion and advice has decreased.
Moreover, an increasing number of refugees want to do without a well-meaning yet patronising advisor and take care of their affairs themselves. Therefore a guide in English and French, which are often the languages of communication in the refugees‘ countries of origin, has become necessary. Therefore I gladly followed the proposal of the KARAWANE group in Munich to have translations in these languages done.
I would like to thank KARAWANE, the translators and promoters of this project, especially the UNHCR, which has supported it with a generous amount of money.
The English and French editions are basically identical with the German one except for the chapter headed "Rechtsberatungsgesetz" (Law on Legal Advice) in the German edition, which remained untranslated as it is irrelevant to refugees being the ones directly affected.
I hope that this book will fulfil its purpose, i.e. to inform refugees about their rights, to encourage them to make use of their rights and to facilitate the enforcement of these rights.
Munich, April 2000 Hubert Heinhold
The asylum law is subject to special rules of procedure, most of which are laid down in the Asylum Procedure Act (Asylverfahrensgesetz, AsylVerfG). This law does not apply to quota refugees and displaced aliens.
The Federal Office for the Recognition of Foreign Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge, BAFI) decides on asylum applications and impediments to deportation as defined by § 51 I AuslG. The Federal Office also decides on the existence of deportation impediments as defined by § 53 AuslG, where asylum has been sought. Decisions - with the exception of decisions concerning § 53 AuslG - have been delegated to officers of the Federal Office who are not bound by instructions (§ 5 II AsylVerfG).
According to official doctrine, the office of the Federal Commissioner for Asylum Matters (Bundesbeauftragter für Asylangelegenheiten) was created as a counterbalance to the independence of the Federal Office; the Federal Commissioner is bound by the instructions of the Federal Ministry of the Interior (BMI). It is his job to guarantee that decisions are consistent and to safeguard the interests of the Federal Republic of Germany, which are understood as the discouragement of refugees. He may take part in the asylum procedure (including the finding of deportation impediments in terms of §§ 51 I and 53 AuslG) and may bring an action against decisions of the Federal Office. The Federal Commissioner regularly brings an action against positive decisions of the Federal Office; negative decisions have never been contested.
Both the creation of the office of the Federal Commissioner and his activities in particular have been rightfully and frequently criticized in the past. The "ceterum censeo" of a long-standing asylum lawyer, who used to conclude his speeches with the demand that the Federal Commissioner be abolished, is still valid. The reasons for this are many. Firstly, even from the perspective of legal theory, it is hardly convincing that the already existing imbalance in the struggle between the individual, who is basically in a weaker position, and the state, which is basically in a stronger position, should be further influenced to the detriment of the weaker individual through the medium of a partisan institution, thus placing the individual in an even worse procedural position. The imbalance between citizens and the state exists in principle in asylum law, too. The independence of decisions of the Federal Office’s officers more or less exists only on paper; it can be sufficiently controlled by the usual administrative measures such as advice, training courses, transfers etc. Of course there is no interference, if some few highly respectable persons do in fact insist on independence in their decisions. These persons, however, should not be surprised if they are suddenly given tasks which leave little scope for independent decisions: there are not many politically persecuted persons from Austria, Switzerland or the United States who are seeking asylum! On the other hand, of course, there has to be somebody in charge of these or other "materially unfounded" countries. Since an officer does not have the right to demand responsibility for decisions on specific countries, there are many administrative possibilities of bringing about decisions that are politically desirable in spite of formal independence. Such interference might be regarded as legitimate tricks to which every employer resorts; other requirements, however, go far beyond that. The officers of the Federal Office are not only given a fixed number of cases to be heard, for example, but are also provided with support in the form of - naturally adverse - text elements even regarding countries where assessment is still very controversial. Furthermore, decisions unfavourable to asylum applicants can be found within a very short period of time in the BAFI’s internal information bulletins, whereas favourable ones are only mentioned in conjunction with a negative comment, if at all, a fact that only "partisan" commentators such as we lawyers do not regard as mere coincidence.
Apart from this, mention must unfortunately be made of the fact that the Federal Office does not react to the Federal Commissioner in a way that would normally be typical of an authority whose decisions have been contested. I know of no "Landkreis" administrative authority, or trade, building or sewage authority that would not do everything in its power to defend its decision before the court through its lawyers as well as with the help of experts. For the lawyer, it is a hard battle to win out against the legal competence of the authority’s lawyer and the specialist competence of the authority’s representative.
This does not apply at all to the field of asylum law.
Whenever the Federal Office, as the initial authority, has granted asylum to an asylum seeker, it virtually never defends its own positive decision. In more than 90% of all cases, it does not even appear before the court, although it is the defendant. At most, the Federal Commissioner appears and contests the positive decision, which is not defended by anybody. In most cases, only the asylum applicant defends his recognition and is punished for this by the court, as he has to pay his own necessary expenses (the lawyer’s fees) if the Federal Office loses the lawsuit and the positive decision is revoked. After all, the asylum seeker put himself in the losing position by defending his recognition!
As I have learned from experience as well as from reports by other lawyers, the representative from the Federal Office regularly does not defend his own decision, if he appears before the court at all. At best, a bored officer bides his time, only gives his personal data and declares that he is not filing a motion; on the other hand, the Federal Office's representative often turns out to be an ally of the Federal Commissioner. Although he formally does not stab his own institution in the back - by not filing a motion -, he acts in most cases in a way that tries to dismantle the refugee, who had been granted asylum by his institution. He will try to work out contradictions and bring alleged court rulings to bear against his own decision.
During my 20 years as an asylum lawyer, I have not witnessed a single case in which a representative from the Federal Office took the side of the refugee, in which he pursued the aim of defending his own decision from the outset - something that would be a matter of course, as he is the defending party. In a building-law action, I have never seen a building authority’s lawyer tearing his own decision apart from the first minute onwards, thus supporting his opponent. However, this is exactly what I and all the colleagues I have spoken to have experienced in almost 100% of all cases in the field of asylum law.
There may be various reasons for the way in which the Federal Office and the Federal Commissioner work hand in hand. In the first place, there are the political guidelines; then there are the close interconnections in terms of organisation and administration. Thirdly, the Federal Office does not see itself as the "Federal Office for the Recognition of Refugees", as its name suggests, but as the "Federal Office for the Refusal of Refugees".
The position of the Federal Commissioner must also be rejected for these reasons.
In addition, his own definition of himself also plays a role. Theoretically, it would be his task to promote the uniformity of decisions, i.e. to avoid "freak decisions" and to clarify divergences in judicial decisions by way of appeals. The Federal Commissioner, however, sees himself exclusively as the vanguard in the battle against asylum seekers. He has only been concerned about the harmonization of judicial decisions insofar as it was a question of organizing country-wide refusals; whenever the prevailing opinion has reached positive decisions - something that occurs rarely enough -, he has not objected to divergent opinions. Nor does he shy away from contesting individual positive decisions, e.g. by claiming that the asylum applicant is not trustworthy - even though he cannot judge this, as he did not take part in the Federal Office’s hearing. Through such regularly occurring individual appeals, the Federal Commissioner has impressively proven in the course of the decades of his activities that he does not see his task as limited to clarifying questions of general principle or guaranteeing the uniformity of decisions but rather as preventing positive decisions if possible.
In view of the conduct of the Federal Office and the Federal Commissioner’s struggle against positive decisions, it must be stated that reality in Germany is characterized by an institutionalized imbalance. The refugee is much weaker than the state authorities. The courts usually do not take this into account but aggravate the imbalance even further by refusing to grant legal aid in most cases. This refusal is justified with the argument that preliminary review indicates that the chances of success are not sufficient.
An asylum application has been made if "it can be drawn from the alien’s written, oral or otherwise expressed desire that he is seeking, on the Federal Territory, protection from political persecution or that he requests protection from deportation or other return to a state where he would be subject to the threats defined in § 51 I of the Aliens Act". That’s how an asylum application is paraphrased in § 13 AsylVfG. As its sub-section II makes clear, an asylum application may be restricted to requesting protection against deportation, but not vice versa.
In general, only persons who are at least 16 years of age can apply for asylum (§ 12 III AsylVfG). If there is no statutory representative residing in the Federal territory, the guardianship court in charge must appoint a guardian. This does not mean, however, that an asylum application of a minor below the age of 16 is irrelevant but that a guardian should be appointed without delay in such cases. Until that time, he must be treated as if he had already filed an asylum application. Measures terminating his residence are inadmissible in the meantime. If you happen to know of such a case, you should by all means contact the youth welfare office and the guardianship court so that the appropriate measures can be taken. If the minor threatened by measures terminating his residence, a lawyer should be consulted!
II) Filing an Asylum Application
Pursuant to § 14 I AsylVfG, the asylum application must be made at the branch office of the Federal Office assigned to the respective reception centre. The refugee must register personally with the reception centre (§ 22 I AsylVfG), which either receives him or refers him to the reception centre that is competent for his country of origin. After having been received, the refugee is obliged to appear in person and without delay or at the date determined by the reception centre at the branch office of the Federal Office for the purpose of filing his asylum application (§ 23 AsylVfG).
As we have seen, the first step is personal appearance at the reception centre assigned to the branch office of the Federal Office. In most cases the refugee initially has no contact with the Federal Office itself but with the administrative office that runs the reception centre, for example the government as a medium-level administration authority. The respective asylum seeker is entered into the so-called EASY computer system, i.e. the asylum application is recorded in the computer and the respective competence is clarified. If the Federal Office does not deal with the respective country of origin at the branch office at which the asylum seeker has registered (and not all branch offices deal with all countries of origin), the asylum seeker is referred to another reception centre before he has even approached the Federal Office. Only there does the refugee come into contact with the Federal Office, and only there can the formal asylum application be filed.
There are different regulations for specified persons pursuant to § 14 II AsylVfG. This section refers to persons who already hold a residence authorisation (Aufenthaltsgenehmigung) with a total validity of more than six months, who are under arrest or official custody, in a hospital, a sanatorium or an asylum or in a youth welfare institution, or to minors who are not yet 16 years of age and whose statutory representative is not obliged to live in a reception centre. These persons have to file their asylum application "at the central office of the Federal Office" (Bundesamt für die Anerkennung ausländischer Flüchtlinge, 90343 Nürnberg). The regulations of §§ 22 and 23 AsylVfG (obligation to register and personal appearance in order to file an application) are not valid for these persons.
The law makes a difference between a formal asylum application and a request for asylum. A request for asylum can also be filed with an aliens authority (which is in itself not competent under the law), with the police (§ 19 AsylVfG) or with the border authority (§ 18 I AsylVfG). In cases pursuant to § 14 I AsylVfG, the aliens authority or the police must refer the refugee immediately to the nearest reception centre so that he can register there. A written asylum application filed there must be passed on to the Federal Office immediately (§ 14 II 2 AsylVfG). In principle, the same is true of the border authority (§ 18 I AsylVfG). However, the alien must be refused entry, if
Pursuant to § 19 III AsylVfG, the aliens authority as well can refuse entry if one of these requirements is given.
An alien applying for asylum is permitted to reside in the Federal territory (§ 55 AsylVfG). This permission to reside expires, however, if he has failed to file a formal asylum application within a period of two weeks (§ 67 I 2 AsylVfG).
If a refugee has entered the country illegally, he acquires permission to reside only after filing the formal asylum application.
3) Personal Filing of an Application at the Federal Office
The assistance of a lawyer is advisable in cases where the asylum application has to be filed in person at a branch office of the Federal Office (§ 14 I AsylVfG). In these cases there is either the problem connected with entry via a safe third country, illegal entry with the possible consequence of criminal liability (the question of whether the rule excluding criminal liability in Art. 31 Geneva Convention on Refugees (GCR) applies is often disputed), or a lengthy illegal residence. Criminal proceedings are also often opened after the filing of the asylum application which poses more problems than the asylum seeker can cope with by himself. Pursuant to Art. 31GCR, a refugee cannot be punished for illegal entry or residence, if he has come directly from a region in which his life or liberty were threatened in a manner relevant to the Asylum Act and if he reports to the authorities immediately, explaining his reasons for illegal entry or residence. In German jurisdiction this means that this privilege only applies to regulations concerning the Aliens Act, i.e. entry as such, whereas the use of a forged passport, for example, may still be punished. A period of 24 hours is generally regarded as fulfilling the requirement of "reporting immediately", but the concrete circumstances are nevertheless decisive. If a refugee enters the country on Friday night, for example, without necessarily having contact with the authorities, it is sufficient that he requests asylum an Monday. Since Art. 31 GCR only presents a personal ground for exemption from punishment, it is nevertheless possible for persons who helped the refugee, to be to punished.
The problem of illegal entry is especially critical for persons filing a follow-up application. In most cases, such persons have been obliged by an administrative act to leave the country and are barred from entering the country if they have been deported (§ 8 II 1 AuslG). Accordingly, an alien who has been expelled from the country or who has been deported is not allowed to re-enter the Federal territory nor to reside there. The law requires that he should first file an application which subsequently restricts the effect of the deportation to a specified period. Of course a refugee cannot file such an application as he is fleeing from an acute emergency situation. He therefore commits a criminal offence by entering the country, which is sanctioned with "imprisonment of up to three years or a fine". Although Art. 31 GCR may guarantee exemption from punishment under certain circumstances, this is of course a debatable point - a debate which takes place during criminal proceedings - and the respective refugee is nevertheless threatened with remand pending deportation. The reason is that § 57 II 1 AuslG lays down that an alien is to be taken into custody awaiting deportation by court order in order to secure his deportation, if he is " obliged to leave the country, the decision being enforceable, because of illegal entry". This regularly applies to a person filing a follow-up application (§ 42 II 1 AuslG), as the filing of such an application does not automatically lead to a (provisional) right of residence.
In some districts, most of them near the border, this legal situation has led to the lamentable practice that almost all asylum seekers are initially imprisoned, probably in order to frighten people off or, to put it in technical terms, to "achieve a deterrent effect".
It is therefore absolutely necessary for the refugee to be aware of the fact that his asylum application involves not only an abstract but also a more or less concrete danger of being arrested, depending on his situation. In these cases it is advisable for the refugee to be represented by a lawyer, but also for him to be accompanied by his lawyer when filing his follow-up application or when reporting to the aliens authority - or that he is at least accompanied by a person providing support. (Unfortunately this is often impossible, because the follow-up application generally has to be filed at the previously responsible reception centre, which is sometimes situated in another town or even Land). If he is accompanied, the refugee has fewer communication problems; the situation can be explained, arguments can be brought forward, and there is someone present who can file objections and resort to legal remedies. All these circumstances may well play a role in the decision as to whether to move for custody awaiting deportation or not; and they are sometimes the reason why this measure is not taken.
The 1993 amendment of the Constitution has made it impossible for anyone entering Germany by land to be granted asylum. Pursuant to Art. 16 a II of the Constitution (GG), nobody can plead the constitutional right of asylum if he has entered the Federal territory from an EU member country or from a "safe third country". All neighboring countries fulfill one of these two requirements. In order to protect the Federal Republic against refugees, the only relevant "gateway for asylum seekers" (as the head of the Frankfurt am Main Federal Border Guard put it during a hearing of the German Bundestag’s Committee on Domestic Affairs on March 23 1993) has been closed by special regulations on entry by air. These special regulations concerning the procedure as well as the way refugees are treated, are laid down in § 18 a AsylVfG. The special airport procedure is hardly in accordance with the principles of a constitutional state in its overall design as well as its practical application, even if the Federal Constitutional Court decided differently in its decision on the airport regulation, explicitly declaring it to be in line with the Constitution.
The airport procedure of § 18 a AsylVfG applies in its wording only to refugees who want to enter from a safe third country pursuant to § 29 a AsylVfG or without a valid passport or surrogate passport. Since the other restrictions in terms of the Asylum Procedure Act apply as well, however, a distinction is usually made between three types of refugees:
The rule laid down in § 18 II AsylVfG applies to the second category of refugees: they are to be refused leave to enter.
To the last category of refugees, the general asylum law applies. They are not submitted to the airport procedure; instead they are referred to the nearest reception centre by the border authority in order to register there (§ 18 I 2 Hs. AsylVfG).
The airport procedure of course applies only to persons who request asylum at the airport. It does not (subsequently) apply to those who manage to enter the country and to request asylum there. It also does not apply to a person who does not request formal asylum at the airport but who only requests protection from deportation (the definition of § 13 I AsylVfG has to be fulfilled here); still, such a person will not be permitted to enter the country. Those who reveal themselves as refugees in the broadest sense will be refused leave to enter because of the view that a request for protection of human rights (which is of course relevant) requires contact with Federal territory, i.e. an entry must already have taken place. I think that this opinion is dubious at least in those cases where a refugee has fled directly from human rights violations, and now is to be deported to the persecuting country. In this case the rejection would lead to his directly being brought to the country in which the human rights violation had taken place. The German authorities effecting this would therefore indirectly be perpetrators of a human rights violation themselves. In this constellation the fact has validity that the precept of respecting human worth and dignity is the overriding principle of our legal order, and that therefore the German authorities are not permitted to take part in a treatment violating human rights by forcedly transferring a person to the country in which he is threatened with such (BVerfGE 67, S. 43; BVerwG of November 03 1987, 9 C 254.86). Only if the rejection does not directly lead to a treatment violating human rights, because the refugee came via a transit country also respecting human rights, there is no German responsibility.
In most cases it might be difficult to differentiate precisely between political persecution pursuant to § 13 I AsylVfG and the danger of a treatment violating human rights. The interpretation that a request for protection is not an "asylum application" pursuant to § 13 I AsylVfG is by no means justified by the fact alone that legal decisions assume a situation of civil war in a country, for example, or because a certain problem has already been decided on negatively as being irrelevant under the Asylum Act. In § 13 AsylVfG, the law only speaks of a person seeking "protection from political persecution" or requesting "protection from deportation ... to a state where he would be subject to threats as defined in § 51 I AuslG" without defining these vague terms more precisely. Even if court rulings have brought out criteria concerning how the term "political persecution" should be defined, this does not mean that these criteria are binding. Each and every judge is free to define the term "political persecution" differently; moreover, the history of asylum law teaches that these terms are subject to changes and that on some points a previously prevailing opinion has become a minority position. Therefore the term "request for asylum" pursuant to § 18 a I AsylVfG is to be interpreted in an broad sense; it includes all measures of persecution as long as it is possible to interpret or to define them as "political persecution". Criteria like persecution by organs of the state, causality between persecution and flight, safety within the country of origin etc. do not play a role!
the airport procedure is applicable to him if, and this is a further and final precondition, he can be accommodated on the airport premises during the procedure. At the moment this is possible in Frankfurt am Main, Munich, Düsseldorf and Berlin.
If the refugee cannot be accommodated on the airport premises, the regular asylum procedure applies (if he is not rejected pursuant to § 18 II AsylVfG).
2) Questioning by the Federal Border Guard
In practice, the airport procedure will often have already begun in the airplane. The Federal Border Guard (Bundesgrenzschutz, BGS) makes "preliminary controls" directly in the airplane while it is still on the runway, if it is a so-called "plane relevant for refugees". The arriving persons are subject to a first control, and are sometimes not even allowed to leave the plane (for example, if the requirements of § 18 II AsylVfG are met).
If they reveal themselves here, or at a later entry control, or somewhere in the transit zone, as refugees, they are subject to a first questioning by the Federal Border Guard. Mostly this procedure starts with identification measures. The refugees’ photographs and fingerprints are taken and they are questioned regarding their personal data. Mostly they are also physically searched in order to possibly find documents or for reasons of "the refugees’ and other people’s security". Even if this procedure is not conducted in an especially military way, as often has been criticized, it still frightens many refugees as they have to undergo what they fled from - police measures - first thing after arriving. They see themselves being treated like criminals and are frightened that the aim of the procedure is to send them back to their country of origin (a fear that is absolutely justified in many cases).
After these police measures - sometimes directly afterwards, sometimes only some hours or days later (this mostly depends on when an interpreter is available) - the refugees are questioned by officers of the Federal Border Guard on their itinerary and on the motives of their flight. The questioning on their itinerary has the aim of establishing whether the refugee came via a safe third country or from a safe country of origin. It also has the aim of obtaining as much information as possible, which is then accumulated and evaluated in order to establish possible countermeasures barring the flight routes. This is clearly the main focus of the questioning by the border police. Questions on the reasons and motives for fleeing, however, are regularly pushed into the background by the border police and are very superficial. On the other hand, there are often details, for example on physical abuse or torture, which have gone by the board during the questioning by the Federal Office, but which can be found in the BGS records. Although in most cases this can clearly be seen from the records, it does unfortunately not prevent some judges from regarding the asylum applicant as unreliable if there are discrepancies between these statements and later those with the Federal Office or with the court.
During this questioning time and also during the following time of the Federal Office procedure and a possible court procedure, the refugees are accommodated in special living quarters on the airport premises. They are not allowed to leave the fenced-in area and are practically imprisoned.
The aim of the questioning by the Federal Border Guard is to establish whether the requirements for a refusal of leave to enter are fulfilled, i.e. most of all entry from a safe third country (§ 26 a AsylVfG), or because the requirements for safety from persecution elsewhere in terms of § 27 AsylVfG are manifestly fulfilled. If the border guard assumes that these requirements are met, the refugee will be refused leave to enter (§ 18 a I 6, § 18 II AsylVfG). An airport procedure is not conducted in these cases. Still, some refugees have to remain in the airport living quarters for days and weeks because their return to the third country is not possible for technical reasons, or because their identity has not been established clearly, or because the third country refuses to take them back.
4) The Actual Airport Procedure
If a refugee is not refused entry, and if he came from a safe third country pursuant to § 29 a AsylVfG or does not possess a valid passport or surrogate passport, the actual airport procedure takes place. That means that the Federal Office first
conducts the personal hearing, and then the BGS takes the decision on whether the refugee is permitted entry or not (§ 18 a I 5 AsylVfG). If the refugee already has a lawyer or if the airport social service (Flughafensozialdienst) has found one for him, the refugee may of course use the assistance of a lawyer. There is explicitly no obligation for the BGS, however, to provide a lawyer as early as at this stage. Pursuant to § 18 a I 5 AsylVfG, the obligation to give the refugee the opportunity to contact a lawyer exists only after the hearing has taken place. This regulation, which has explicitly been approved of by the Federal Constitutional Court, does not aim so much at the lawyers but at protection against refugees. It assumes that the hearing is objective (which it is not), and that the BGS or the Federal Office give neutral advice; it also ignores the empirical fact that refugees, who usually depend on the help of "professional refugee smuggling gangs", already have been advised - in many cases wrongly, unfortunately. The Court knows exactly what is going on and lets the refugees walk into a trap, thus pursuing the aim of reaching more easily a "manifestly unfounded rejection" and a refusal of leave to enter.
If the airport branch office of the Federal Office turns down the asylum application as manifestly unfounded, the asylum seeker is not only notified of the Federal Office’s decision together with the notification announcing deportation, which is immediately enforceable, but also of the refusal of leave to enter by the BGS (§ 18 a III 1 AsylVfG). Both decisions are served to the refugee by the border authority.
If the Federal Office does not decide that the application is manifestly unfounded, or if it informs the BGS that it is not able to decide the case within a short time, for example because the case is especially difficult or because further investigation is necessary, or if it has not taken a decision on the asylum application within two days after the date of its being filed, the alien is to be permitted to enter the country (§ 18 a VI AsylVfG). The same is true where an application for the granting of temporary relief has been filed (§18 a IV AsylVfG) after the Federal Office’s decision that the asylum application is manifestly unfounded and where the Administrative Court has granted the appeal or has not taken a decision on the application within a period of two weeks.
An asylum seeker who comes from a safe third country, and who has not been referred to the Federal Office by the border authority in order to file his asylum application there, has to file an "urgency motion" (Eilantrag) pursuant to § 123 VwGO against the Federal Republic of Germany, represented by the relevant headquarters of the Federal Border Guard. The application has to be aimed at the refugee being referred to the Federal Office in order to file an asylum application there, and at the Federal Office carrying out the asylum procedure as well as at the deportation not being enforced prior to the court decision pursuant to § 18 a AsylVfG.
If the Federal Office turns down the asylum application as manifestly unfounded, the action has no suspensive effect. An application for an order of suspensive effect is dispensable in the airport procedure as, pursuant to § 18 a V AsylVfG, an urgency motion for permission of entry is necessary, thus making it possible to obtain temporary legal protection that way. The application, which may be filed with the border authority (§ 18 a IV 2 AsylVfG), has to be filed within three days (§ 18 a IV 1 AsylVfG); the action has to be filed within two weeks. Where an application is filed in due time, the refusal of leave to enter must not be enforced prior to the court decision (§ 18 a IV 6 AsylVfG).
According to the "airport decision" of the Federal Constitutional Court, the refugee has, upon request, to be given a further four days' grace for substantiation without special reasons existing or being put forward.
The Administrative Court has to decide on the application within a period of two weeks. The general principles concerning the rejection of an application as manifestly unfounded apply here as well. We do not wish to withhold the fact, however, that lawyers experienced in the airport procedure complain that the relevant courts often apply stricter criteria.
An appeal against adverse decisions of the Administrative Court is not possible (§ 80 AsylVfG). As long as the refugee is still on the airport premises, however, a second application pursuant to § 123 VwGO or an application for variation of the order pursuant to § 80 VII VwGO is admissible if new facts or evidence are presented, leading to sufficient chances of success.
If the applications have been rejected, an appeal to the Constitutional Court remains as the only possibility, which possibly has to be supplemented by an application for an injunction with the Federal Constitutional Court. If the refugee is threatened by deportation, in the meantime, an application for an injunction stating that the deportation must not be enforced prior to the Federal Constitutional Court’s decision has to be filed with the Federal Constitutional Court. The asylum applicant remains accommodated on the airport premises until the decision has been taken.
6) Criticism of the Airport Procedure
The airport procedure in a constitutional state is dubious because of the way the refugees are accommodated, because the procedure is dominated by police measures and because of the difficulties in ensuring the assistance of a lawyer. The psychological situation of refugees - especially that of unaccompanied minors and of traumatized persons - is not taken into account. Additionally, the court procedure seems inadequate: regularly, the Administrative Court decides only on the basis of the written "urgency motion" without hearing the applicant in person. Although a lawyers' airport emergency service has successfully been introduced in Frankfurt/Main, the enormous time pressure and the refugees’ psychological situation still make a proper and complete statement of arguments quite difficult. This is all the more true for other airports where representation by a lawyer is rather an exception. Many rejections, also at the airport, are therefore based on the refugee’s alleged unreliability. Judging someone’s reliability, however, requires most of all a personal impression, which the judge does not have when taking a written decision.
All in all, the airport procedure is dominated by the state’s interest in protection against refugees; the asylum seeker is a more or less speechless and helpless object of a governmental measure. The existing legal protection - which is quite scanty anyway - creates the illusion of a rule of law that cannot be fulfilled in reality under the circumstances of the airport procedure. The airport procedure still does not fulfil the requirements of refugees’ and human rights protection.
7) Table: The Airport Procedure
IV) Follow-up Application; Secondary Application
The "follow-up application" (Asylfolgeantrag) and the "secondary application" (Asyl-Zweitantrag) have to be distinguished from the first asylum application. Making a Follow-up Application means that the refugee files another asylum application after the first one has been withdrawn, or after it has been rejected without right of appeal (§ 71 AsylVfG).
It therefore makes no difference whether the refugee has left the country, or if he has been residing in the country all the time. The decisive factor is that an asylum procedure has already been carried out. There is no higher court ruling on whether there has to be a coherence in time, however defined, or whether it is sufficient that the refugee filed an asylum application at some time in the past (e.g. 20 years ago). I am of the opinion that such a link has to be required according to the intention of this regulation. I think that it is inappropriate to apply the stricter regulations of the follow-up procedure, if the refugee has returned to his country of origin after the first asylum procedure, for example, or if he has not returned but has lived in Germany for a long time so that there is no link between the previous and the current asylum procedure at first glance. In my opinion it is relatively easy to draw the line: if there is no connection between the current and the previous asylum procedure, the rules of the first asylum procedure are to be applied. The necessary link is interrupted by the granting of a residence authorization, or by departure, after which the refugee has resided not only temporarily in a foreign country (it might be possible to apply § 27 III AsylVfG accordingly). However, this is my personal opinion, as I said before, and a higher court has not yet decided on this matter.
A Secondary Application means that the refugee files an asylum application in the Federal Republic of Germany after a previous asylum procedure has unsuccessfully been terminated in a so-called safe third country (§ 71 a AsylVfG).
A follow-up or a secondary application can only lead to a new asylum procedure if the factual and legal position has subsequently changed in favour of the refugee either because of new facts, because of new evidence, or because there are reasons for re-opening the case pursuant to § 580 Code of Civil Procedure (ZPO). The follow-up or the secondary application is non-admissible if these requirements are not met; a follow-up procedure will not be carried out. The decision on this matter can be issued very quickly, sometimes in the course of a few hours, in most cases within one or two weeks. The occasional idea held by some refugees that the first asylum procedure can be followed immediately by the follow-up procedure is an illusion. Often a follow-up procedure does not even gain time, as such an application neither prevents the preparation of the deportation nor the deportation itself.
For a follow-up or secondary application to have chances of success - or even to be taken seriously in the first place - it is necessary to give full and detailed information on the new facts or evidence. In practice, elementary mistakes are made at this stage. Often the follow-up application consists of only a few sentences, sometimes it even only repeats the first application's arguments. This makes it easy for the Federal Office to qualify the follow-up application as being irrelevant, and to deal with it within a couple of days. The right approach is already to explain in detail the new facts and evidence that have arisen since the decisive point in time (i.e. the last hearing in the previous asylum procedure) in the new asylum application. It is not sufficient to argue that the situation in the country of origin has deteriorated further; it has to be explained in concrete terms what the changes are like in the particular case. There has to be proof of the deterioration (e.g. by new information), and it has to refer to the refugee's case. It must be argued, for example, that the president of the country has been overthrown and that the group the refugee belongs to is now being persecuted. Such a classical situation will rarely exist. It happens more often that an already existing danger has intensified. In this case, the refugee's previous arguments and their assessment by the Federal Office or the court in the first procedure should be taken up and briefly outlined; after that, it has to be explained in detail why the situation looks different today than, say, half a year ago. If, for example, the court has argued that one could not speak of group persecution yet, and if you are of the opinion that this could be verified today, you will have to bring out exactly this fact and prove it by referring to new information or court rulings. If the court has argued that there is a flight alternative within the country of origin, and if you are of the opinion that this alternative does not exist any more, you should concentrate on that and explain in concrete terms that the situation has changed in contrast to the time of the first asylum procedure. It would be a mistake to attack the previous decision as wrong. This way the application will not be successful! It is better to start from the assumption that the previous decision had been correct, and to proceed by way of argument, for example, that previous knowledge of the situation is outdated by now. Most importantly, it must not be omitted to relate the general changes to the concrete case. If a refugee is from Kurdistan, for example, he should not argue that "the Kurds are now persecuted more than ever"; he should rather already explain as convincingly as possible in the follow-up application itself why he would be persecuted in case of a return although he would not have been persecuted half a year ago (as the first binding decision stated) - for example by establishing that members of the family have been arrested, that the Turkish government has directed its attention to the village of origin, or that the police has asked for him.
If a refugee invokes new evidence, it has to be presented immediately (it is not enough merely to announce it); furthermore, it has to be explained that this new evidence is relevant and why. This is of course easy in cases when the evidence itself proves an imminent danger of political persecution, if for example a warrant of arrest can be presented now that had previously not been in the refugee's possession. In this case it is sufficient to argue that the refugee did not have the warrant of arrest at the time of the first procedure, and that the danger of persecution, which had always been claimed, then could not be verified adequately. Things get more difficult if the new evidence is possibly only an indication of the previous arguments' correctness, but not sufficient to prove the existence of the political persecution itself. If the refugee has claimed, for example, that he had been politically active and thus subject to persecution, and if he was not believed in the first asylum procedure, a membership card of an opposition party now available can be a piece of evidence leading to a more favourable decision. In this case you have to argue that the court did not believe the applicant that he had been politically active at all and thus in danger of persecution. As he is now able to verify his political activities by the subsequently received membership card, this casts doubt upon the court's conclusion that he had not been in danger. The argument has to be presented in this way, for example like that: "In the previous asylum procedure, the court did not believe that the applicant had been politically active at all, and therefore came to the conclusion that in case of a return to his country of origin he would not be in danger relevant in terms of asylum. This assumption can now be refuted. The applicant has now received a piece of evidence proving his membership of party X. The first court's assumption that the applicant had not been politically active at all is therefore not tenable any more. Therefore the court's conclusion that the applicant will not be persecuted in case he returns to his country of origin also has no effective basis. Had the applicant already been able to present his membership card in the first procedure, the judge would have been convinced of his political activities. Since members of the party X are persecuted according to information from ... (to be detailed), the court would have reached a different decision already in the first procedure. Therefore the membership card, which has been received only now, is a new piece of evidence appropriate for leading to a different, positive decision. Therefore the follow-up asylum application is relevant."
Sometimes the definition of "new facts" will be disputed. Somebody who withheld in the first asylum procedure that he had been member of the radical party Y can in principle not base his follow-up application on this fact even if he had good reasons to withhold this membership. The situation can (but need not) be judged differently if this new argument is based on new pieces of evidence; for example, if the refugee argues that he did not mention his membership of the party Y because he did not have any evidence for this fact, and that for specified reasons he would not have been believed to have held this membership anyway. Now, however, there is a witness he previously did not have any contact with or a document by which he can verify his activities. The chances are quite good in this case that the follow-up application will be regarded as relevant, if the activities for this party are linked with the previous general argument: the decisive point is the political activity leading to the danger of persecution. A great part of this activity can now be proven. Still, it is a great risk; generally, everything should be mentioned in the first asylum procedure even if some aspects cannot be verified!
The follow-up application often is based on new facts as well as on new evidence. In this case both are to be explained in detail. If the new facts are activities after the flight, it is not sufficient to claim that the applicant had "continued to be politically active as a member of the opposition". The applicant's activities meantime rather have to be explained in concrete terms as well as that the authorities of his country of origin have probably got to know of these, and how, and that they would now cause political persecution. These activities after the flight not only have to be already named in concrete terms in the follow-up asylum application but also to be verified, i.e. by presenting documents (e.g. leaflets, the registration of demonstrations with the authorities, photographs or affidavits).
It is disputed in how far a change in German court rulings can lead to the carrying out of a follow-up procedure. A change in the local Administrative Courts' rulings is never sufficient; at the most, a general change in judicial decisions by the higher courts is seriously discussed. Therefore a follow-up application should not be limited to such changes, but it should at least also present the changed facts that led to the change in court rulings: that is to say, for example, to argue that the situation in the country of origin has drastically changed, thus leading to a change in court rulings in the meantime. Therefore the change in facts also has to be presented.
Anyway: a follow-up application with chances of success will always have to consist of several pages, and will have to deal with the arguments of the first asylum procedure as well as with the current situation in the country of origin.
It has to be taken into account that new facts and evidence have to be asserted within a period of three months after knowledge has been gained of the essential circumstances (i.e. the new facts or evidence). The passing of this deadline alone leads to the follow-up application becoming inadmissible.
It is difficult to calculate this period of three months if it applies to activities after the flight, that means opposition activities in Germany. According to the prevailing opinion, this period of three months starts anew for each and every action, i.e. handing out leaflets, participating in a demonstration, or organizing an event. If these court rulings are taken seriously, the Federal Office would continually have to be inundated with follow-up applications. In my opinion this is neither practical nor legally convincing: often one single activity - for instance the participation in a demonstration - will not be sufficient to justify a danger after returning to the country of origin. Often only the sum of activities will cause greater danger. The persecuting country may well regard activities like participating once or twice in a demonstration or publishing a leaflet as pardonable, unimportant, and only aimed at reaching a right of residence in Germany, whereas on the other hand a multitude of such activities will give the persecuting country the impression that the applicant is an opponent to be taken seriously. The multitude of activities, or activities which are extraordinarily emphasised in the view of the persecuting country, thus lead to a qualitative change in assessment. The point at which such a change takes place cannot be established in abstract terms. A change can be caused by the taking on of a leading role, by such a function becoming known, but also by extremely numerous and sustained activities. This leaves scope for assessment which has to be used in favour of the refugee, according to the principle of the asylum law that the danger of persecution only has to be substantiated. A refugee may have been elected president of an opposition organization, for example, or he may have been addressed and warned by an embassy employee during his tenth demonstration, a fact he regards as causing a qualitative change from previously irrelevant activities after the flight to relevant ones. I think that if the refugee now files a follow-up application, not only the single activity has to be taken into account but also the previous activities, which may not be left out only because the 3-months-deadline has passed. As I said before, however, this is my opinion and not necessarily that of standing case law. The absurdity of the opposite opinion becomes obvious if its practical effects are considered with the help of a concrete example. Taking as given, for instance, that a state does not yet regard one single participation in a demonstration as political opposition, whereas the fifth participation may well be considered as such (which, however, only takes place one year after the first one), the political activist still would have to file a follow-up application after the first protest march, which he as well as the Federal Office regard as irrelevant. He would have to carry out four manifestly unfounded follow-up procedures for the previous demonstration participations being taken into account in the fifth follow-up procedure: without the four senseless follow-up applications, the majority opinion would not take into account the previous demonstrations, which took place more than three months before. It is obvious that such judicial decisions can be justified neither with reasons to be found in the asylum law, nor with reasons of procedural economy, but at the most with considerations of employment policy.
Another reason for not leaving out previous activities only because of the 3-month deadline is, in my opinion, founded on the character of the follow-up asylum application: the follow-up asylum procedure is nothing but a retrial, even if there are some special regulations. The law itself makes this clear by referring to the regulations of a retrial in terms of § 51 VwGVfG. According to general law, a retrial is nothing but a continuation of the first trial; the retrial opens again an already closed door and makes it possible to re-examine the case which has already been closed. It is not compatible with this system that single aspects are to be left out.
Those who want to play safe, however, should take each single aspect as a reason for a follow-up procedure, even if they know exactly that this aspect by itself is not sufficient.
Another important point is that the courts also demand that new details must be presented within a period of three months while a follow-up procedure is being carried out; this includes the court procedure as well. Thus it is not possible to wait for the hearing in order to present extensive lists of activities during the hearing; the Federal Office or the court have to be given timely information on new activities, which have to be verified as well!
Quite frequently, new facts or evidence become known only after the hearing has taken place. Therefore they cannot be included in the current procedure but only if an appeal is allowed. What is to be done?
An immediate follow-up application is not admissible because the first procedure has not been terminated yet. A follow-up application "in reserve", in case the result of the first procedure is adverse, will in practice not be accepted by the Federal Office but be sent back. The Federal Office is of the opinion that a follow-up application can only be filed after the first procedure has been terminated without right of appeal; after that, it has to be filed within a period of two weeks. This time-limit of two weeks is derived on the analogy of the request for a resumption of proceedings, where a time-limit of two weeks exists. In this case it is absolutely vital to keep in mind that the follow-up application has to be filed immediately after the first procedure has been terminated without right of appeal, in order not to let this deadline pass. In addition to that, I recommend that the Federal Office be informed beforehand of the new facts and evidence in such a case. As is known, the officers of the Federal Office are independent. Nobody can guarantee that the Federal Office's director's interpretation of the law mentioned above is also shared by the local independent officer, who might regard a follow-up application filed within a period of two weeks after the termination of the first procedure as inadmissible because it has been made too late.
3) Filing the Application in Person
In most cases, the follow-up application is to be filed personally with the branch office of the Federal Office which is assigned to the reception centre where the asylum seeker had to stay at the time of the previous asylum procedure (§ 71 II AsylVfG; the exceptions are laid down). This often means in practice that the refugee has to leave his current place of residence, and return to his previous reception centre in order to personally file his follow-up application there. It is important that an already formulated follow-up application can be presented; furthermore, the aliens authority now responsible has to be informed of the filing of a follow-up application so that a deportation becomes inadmissible for the time being. It will be best to do this in writing and to include a copy of the follow-up application.
The filing of a follow-up application does, other than in the case of the first asylum application, not result in a right of residence. It only leads to a temporary impediment to deportation. This may have far-reaching consequences.
A person filing a follow-up application, who has re-entered the country illegally, has to leave the country by virtue of the law because of the illegal entry (§ 42 II No.1 AuslG). Therefore he can be taken into custody awaiting deportation (§ 57 II No.1 AuslG). Persons filing a follow-up application who are still in the country are not re-granted a right of residence; their residence is only accepted. If the requirements for custody awaiting deportation exist, an arrest is not averted by the follow-up application. In these cases it is important whether the follow-up application has been filed within a period of two years after a notification announcing deportation or a deportation order, issued after the first asylum procedure, has become enforceable, or if it has been filed later. If the two years have not passed yet, a new time-limit and a new notification announcing deportation or a deportation order are not required in order to enforce deportation (§ 71 V 2 AsylVfG). An informal notification of the aliens authority by the Federal Office, even by telephone, that a follow-up procedure will not be carried out, is sufficient for the aliens authority to be able to enforce the previous notification announcing deportation or deportation order. There are aliens authorities who call the Federal Office after a follow-up application has been filed, and press for a quick decision in order to obtain a notification pursuant to § 71 V AsylVfG by telephone - by acclamation, so to speak -, so that they then can deport the refugee at dead of night without his having an opportunity of appeal. Others wait at least for the (internal) written notification; and yet others concede a subsequent deadline for leaving the country voluntarily. Some make it even possible to file an application for the granting of temporary relief, although they would not be obliged to do so. Therefore it is important to know the local practice. You should contact the aliens authority and talk freely about how they intend to act. (And you should not believe everything they say!)
If the follow-up application has not been filed within two years, the Federal Office has to issue a new request for departure and a new notification announcing deportation. This is effected by formal notification, against which it is possible to file an appeal.
4) Relationship between Follow-up Application and Impediments to Deportation pursuant to § 53 AuslG
The relationship between impediments to deportation pursuant to § 53 AuslG and the filing of a follow-up application has still not been decided on by the highest court.
By now there is unanimity that the Federal Office is competent to examine impediments to deportation if an asylum application had been filed, and if new impediments to deportation are asserted now. The Federal Office, however, examines in most cases of follow-up applications only the existence of protection under the Asylum Act, and rarely decides explicitly on the existence of reasons for a new trial pursuant to § 53 AuslG. Usually, though, there is a casual sentence to be found in the adverse notification, which court rulings predominantly regard as being sufficient: § 53 AuslG has indirectly been examined as well, they say. I consider this to be dubious at least in those cases where, in addition to reasons relevant under the Asylum Act, reasons for a new trial pursuant to § 53 AuslG have explicitly been asserted. This mistake has no consequences, however, as by virtue of its office the court is obliged to take into account the existence of impediments to deportation, and also to take a definite decision. Therefore it may not return the decision to the Federal Office because of the formal defect that the application pursuant to § 53 AuslG has not explicitly been decided upon, but it has to decide itself on the existence of impediments to deportation pursuant to § 53 AuslG.
5) Follow-up Application Restricted to § 53 AuslG
A "follow-up application" restricted to § 53 AuslG is also possible. In this case, it should be made clear that an examination of the decision on the asylum application is not desired. This application has to be filed with the Federal Office as well, if it has been preceded by an asylum application. This isolated application does not follow § 71 AsylVfG but only the regulations of § 51 VwVfG. There are no differences in requirements as regards content (new facts or new evidence); yet there is a relevant difference, as § 51 V VwVfG applies to this isolated application as well. It makes it possible for the authority to change a previous decision under the requirements of § 48 I VwVfG or § 49 I VwVfG also in those cases, where the requirements for a resumption of proceedings are not met. In other words: it may be decided that an impediment to deportation exists if the previous decision has proved to be wrong from today's point of view, even if the time-limit of three months has expired, or if there are no new facts or evidence available. This regulation takes into account the fact that a direct reference to the Constitution is regularly given if impediments to deportation pursuant to § 53 AuslG exist: human dignity is regularly affected. As all German authorities are prohibited from being involved in a treatment violating human rights, or to subject or to expose someone to treatment violating human rights in full knowledge of the situation (and for formal reasons only), protection against deportation can be granted in such cases, even if the formal requirements for a resumption of proceedings are not fulfilled. The authorities, however, make use of this possibility only in exceptional cases; the danger has to be absolutely concrete and imminent.
As mentioned before, the filing of a follow-up application (or alsso of an isolated application for a resumption of proceedings pursuant to § 53 AuslG) does not result in a secure residence status, but only in a very unstable and temporary one. As long as the Federal Office has not taken a positive decision that a follow-up procedure or a resumption of proceedings will be carried out, the refugee is exposed to permanent uncertainty because deportation might be enforced any time.
Persons who have filed a follow-up application often receive a document produced by the authority itself with the title "Follow-up Asylum Applicant" from the aliens authority until such a decision has been taken; some receive a "border crossing certificate" (Grenzübertrittsbescheinigung), some a statutory suspension of deportation (Duldung) and some even an extension of their previous certificate confirming the permission to reside (Aufenthaltsgestattung). Refugees are usually not allowed to work during this time.
Follow-up asylum applicants only have a legal claim to a certificate confirming permission to reside after the Federal Office has taken its decision that a follow-up procedure is to be carried out. If the application is restricted to the ascertainment of impediments to deportation pursuant to § 53 AuslG, and if this application is not manifestly irrelevant from the beginning (which it would be if, for example, previous arguments were repeated, if a deterioration of the situation is not even claimed, or if individual reasons are not presented etc.), the refugee has a legal claim to the issuing of a statutory suspension of deportation (Duldung). The Federal Office then has to take a decision without serving the applicant a notification pursuant to § 71 V 2 AsylVfG beforehand.
As there is a multitude of possible combinations of cases, legal protection is complicated as well. In most cases the main problem is the necessity of applying for temporary legal protection as well.
a) First Procedure Terminated More Than Two Years Ago
The easiest combination is that the first procedure was enforceably terminated more than two years ago, thus making it necessary that a new request for departure and a notification announcing deportation be issued. Before that there is no danger of the refugee being deported (still, he might well be taken into custody awaiting deportation, if the requirements for deportation are fulfilled, as § 71 VIII AsylVfG explicitly states). An action brought against the formal notification is admissible, which does not have any suspensory effect, though, so that an application pursuant to § 80 V VwGO has to be filed for a suspensory effect of the action to be ordered.
b) Follow-up application within a period of two years after the termination of the first procedure
If the follow-up asylum application has been filed within the two-year period, the previous notification announcing deportation or the deportation order are enforceable even before the passing of a formal decision, that is to say, the refugee can be deported. Therefore the necessity arises to apply for temporary legal protection.
Preventive legal protection is possible if it is clear that the enforcement authority (this can be the aliens authority or the central deportation authority) is taking concrete steps in order to enforce deportation, and if they declare, or only hint at, their intention to enforce deportation despite the follow-up application, and if it has to be feared that the notification pursuant to § 71 V 2 AsylVfG, which is necessary in any case, will reach the aliens authority beforehand (possibly by telephone), so that an effective legal protection would not be possible any more if this notification is waited for. In this case an application pursuant to § 123 VwGO has to be filed to obtain an order temporarily prohibiting the aliens authority from deporting the follow-up applicant. The application not only has to outline the reasons of the follow-up application, but also why there is fear that an application for legal protection at a later point in time will not be successful any more. For example, the state reached by preparations for deportation at the moment have to be described, or that the aliens authority secretively refuses to give any concrete pieces of information. For an example look to
The necessity of obtaining preventive legal protection will be an exception, however. In most cases the aliens authority will be prepared to wait until the refugee has been served notification that a follow-up procedure will not be carried out, or they will at least promise to inform the person affected about the BAFI's decision, and give him sufficient time to apply for temporary legal protection before the deportation is enforced.
It is still disputed how temporary legal protection can be obtained in this combination of factors. One legal opinion says that it is required to file an application pursuant to § 123 VwGO against the aliens authority, the other legal opinion thinks that such an application has to be filed against the Federal Office with the aim of temporarily taking back the notification. A minority believes that in this combination of factors an application pursuant to § 80 V VwGO is suited for an appeal, so that a provisional right of residence is obtained. If you know exactly which opinion is favoured by the competent court (NB: sometimes the different chambers interpret the law differently), you can chose the appropriate means of appeal; otherwise it is advisable to file all means of appeal side by side. It doesn't cost anything, and the judges will be happy that they are able to close three file references with one case.
Quite often a premature deportation does not have to be feared because the necessary documents are still missing; thus the refugee can wait for the actual decision of the Federal Office to be taken. In such a case there are again several possibilities:
c) The Federal Office's new decision
1. The most positive decision is to grant protection under the Asylum Act or to confirm the existence of impediments to deportation. In this case the decision taken in the first procedure is partly reversed and, for the rest, repeated. The means of appeal are regularly the same as in the first procedure, temporary legal protection is normally not necessary. For the means of appeal, which can also refer to a partial rejection (e.g in terms of § 16 GG), see
2. If the Federal Office has taken the view that new facts and evidence exist (with the effect that a follow-up application has been carried out), and if it still did not come to the conclusion that a danger of persecution exists, a notification is served, which deals with the contents of the follow-up application but is nevertheless negative. If a new request for departure and a notification announcing deportation are included, the means of appeal do not differ from those of the first asylum application
Often in this combination of factors, however, a new request for leaving the country and a notification announcing deportation are missing, so that temporary legal protection becomes necessary in addition to filing an action; in this case a combined application - see above - is advisable
In most cases there will be no decision as regards content but the "carrying out of an asylum procedure" will be "rejected". In this case also, temporary legal protection in addition to an action is necessary. The applications are the same as in the combination of factors mentioned under No 2, as the Federal Administrative Court has decided that the court is not permitted to refer the application back to the Federal Office, if they have wrongly refused to carry out an asylum procedure, but that the court has to take a substantive decision. The action therefore is aimed here as well at the granting of protection and not at the carrying out of a follow-up procedure
If the follow-up asylum application has been rejected as irrelevant by the Federal Office, and if this decision has been sustained by the court in expedited proceedings, the refugee is in principle obliged to leave the country; deportation is imminent. The only remaining means of protection is a complaint about infringement of the Constitution (Verfassungsbeschwerde), usually together with an application for a temporary injunction, a petition or church asylum.
V) The Hearing with the Federal Office (BAFI)
The hearing takes places with the Federal Office. It is the central and most important part of the asylum procedure as far as an authority is concerned. The Federal Office's decision is to a great extent founded on this hearing. The refugee can be accompanied by an attorney as well as by another person providing support.
He is also permitted to employ an interpreter of his choice - at his own expense, however (§ 17 II AsylVfG).
Unfortunately many refugees are not aware of the great significance of the hearing, as some procedural records show. Even if most of the criticism is aimed at the Federal Office, the refugee has to know about this great importance: the hearing is the opportunity for him to explain the reasons for his flight. He has to be aware of the fact that it will be of great disadvantage for his cause if he refrains from presenting detailed information; superficial records will create the impression with the court as well that the case is irrelevant. A refugee has to be courageous enough to insist on the taking down of facts, which are important in his opinion, in the court records - even against the BAFI officer's wishes. Unfortunately some asylum seekers believe that they can win the officer's goodwill by means of conformity and agree to a quick and superficial procedure without protesting. Others assume that the officer accepts the refugee's point of view if he rarely checks back. They do not take into account that short and superficial procedural records are nothing but a reason for the Federal Office to turn down the asylum application more easily. It is important to tell the truth without exaggeration, but also without a false sense of shame. "Without exaggeration" not only means that the refugee should not exaggerate, for instance, by turning a "slap on the face" into "torture", but also that he should not present the overall political situation in his country of origin in an exaggerated way. Of course the asylum seeker does have a subjective point of view. Perhaps he regards a government as being dictatorial which is considered, in the popular German view, to be nothing but an "authoritarian state". Differing political judgement like this does not do any harm; to present governmental actions and the overall political climate in a way that does not correspond to reality, however, does. Generally a refugee should rather refrain from giving too much detail on the general political situation. Information like this is usually well-known to the Federal Office, although their point of view may be different from the refugee's. General explanations as such, however, are of importance if (and only if) they give the necessary background to the refugee's concrete fate, his political activities and the persecution he has suffered, or if they clarify the way he acted. If this is the case, the background has to be portrayed, but only referring to the actual case. If, for instance, someone was arrested for possessing a gun, it would be wrong to give this fact only because the conclusion here in Germany would be that the illegal possession of arms is a punishable offence, which may lead to imprisonment. In this example it is important to give the additional information that everybody carries a gun in the country of origin, that, if caught, people only have to hand in their guns at the most without having to fear further sanctions, but that the possession of a gun is taken as pretext to imprison a person who is regarded as being a political opponent. Therefore this general piece of information is important in order to make clear the political dimension of the imprisonment. If, on the other hand, a political activist of a well-known opposition party is arrested because he took part in an illegal demonstration, an account of the overall political situation, and an analysis and criticism of the respective dictatorship will only make the Federal Office's officer impatient and lead to a shortening of the hearing at another point. Thus it is necessary to analyse and to bring out in every single case which facts are important and absolutely have to be included in the argument. The focal point is what the refugee has experienced himself, or what he has done. I have often witnessed that asylum seekers, of whom I knew - through other accounts - that they were high-ranking members of the opposition, sat in the Federal Office's hearing, hardly saying a word or restricting their explanation to the fact that they had been the regional representative of the opposition group X, and that they had fought the government. They believed that they had said everything essential by saying this. After all, it was known that their group was an opposition group, and that activists of this organisation were persecuted. Some also may have believed that their function, e.g. being a member of the party leadership, was commonly known and sufficient to guarantee being granted asylum. They were highly esteemed leading personalities in their group and did not think that they needed to emphasize their role. When asked what they had done concretely, sometimes answers were given like: "I've been politically active", "everything that goes with it, demonstrations, leaflets etc.". In most cases this is not sufficient for the Federal Office and for the courts, or it provokes an action by the Federal Commissioner at the least. In such a case, too, it is necessary and vital to give a detailed account of all activities, covering each on its own; not only all parts of the activities have to be mentioned, like printing and distributing leaflets, organizing demonstrations etc, but also the details of the organisatorial work, like the election of a chairman, the structures of the organisation and so on. The more detailed and vivid this account, the more credible it will be. A detailed account increases the weight of a statement because it emphasizes the refugee's importance and his role with regard to the way his listeners feel about it, too.
The account also has to be accurate. The asylum seeker has to differentiate between what he did or experienced himself, and what he has been told by third persons or what he knows in general. The statement "Then I filed an application for a passport and organized a "professional refugee smuggler" to whom I paid $ 2000" will normally be understood in a way that the refugee himself submitted an application for a passport to the competent authorities, and that he himself paid to the smuggler $ 2000. If it becomes clear in the course of the hearing that he was wanted by the police and therefore could not submit the passport application in person, and that not he himself but another party member or a relative organized the smuggler, telling him that he paid him $ 2000, the first inconsistency has arisen. It takes great efforts later on to clear up this contradiction and to restore the refugee's credibility, which had been damaged by self-contradictions.
It is vital to be precise when talking about time. If a definite date has been named, it has to be correct. The same is true for periods of time, for example, how long someone was imprisoned. If a refugee is unsure with an exact date or time, he must not commit himself to a precise date even if he is urged to do so. A rough statement ("in summer") is better than an exact date which later turns out to be wrong. It is easier to gain understanding for the fact that a politically persecuted person cannot give any precise information than to explain, conversely, why someone who gave precise but wrong information about times and dates is nevertheless credible.
During the hearing things may have to be mentioned that the refugee would rather withhold. Sometimes the refugee does not want to give certain details because he fears to endanger other persons by this. If this is the case, he should openly say so and stick to his position even if he is promised that nobody gets to see the Federal Office's procedural records. Such firmness is not wrong because reality indeed looks different: the records are not only read by the interpreter, but later by the judge and the court staff, sometimes as well by the aliens authority and secret services. Even if the confidentiality of the hearing is probably guaranteed in general, a reasonable officer or judge will accept such a position. Still, I do not want to hide the fact that this sometimes is not the case, and that the refusal to give the details asked for may result in a disadvantage for the refugee.
The situation is different if the refugee does not want to come out with some facts for reasons of shame or other personal motives. Many people are not able to talk about traumatic experiences because this would mean to open up old wounds. Many people are not able to talk about sexual abuse - especially in all details, as is required. Sometimes codes of honour or cultural norms, often the presence of strangers or, even more often, the husband or children, do not permit a statement. In such a case it might be possible to improve the hearing's conditions for the person concerned e.g. by insisting that a woman is heard alone, that a female interpreter and a female BAFI officer carry out the hearing, or by giving some other kind of assistance. If conditions cannot be improved sufficiently, e.g. if it does not help a girl enough that her father has left the room, because a female interpreter is just simply not available, it might be possible for her to at least hint at what she has been through, and to submit a written statement.
If you know of a person who seems to have had traumatic experiences, it is most important that he or she does not go to the hearing without a person providing support. When preparing for the hearing, one should not avoid talking about traumatic experiences, as they are of great importance especially with regard to the hearing. If you are yourself concerned, do not go to the hearing on your own! There are possible ways of how to handle such a situation, and the presence of an person providing support insisting on the refugee's rights makes it easier to cope with the situation. A woman has the right to be heard by a female officer, something that might help in particular if she has been victim of rape or sexual harassment. If the person concerned has suffered torture, he or she can insist that the hearing is carried out by an officer specially trained for such cases. By now there are such specially trained officers (male and female) for women, persons who were physically abused, or minors. According to internal BAFI instructions, these officers will continue the hearing if the refugee wants this. And this is his or her right! Sometimes it might be easier to write down what one cannot say aloud, because then the person concerned does not have to talk about his or her "shame". This sometimes helps, sometimes medical or psychological support is necessary. The person accompanying the refugee to the hearing should take care of that.
A person providing support who takes part in a hearing should insist on the refugee's non-verbal utterances being taken down in the procedural records as well, if he - or more often she - has reached a point where he or she cannot continue and starts to cry, for instance. The judge deciding on the case later on can understand the hearing's situation better if the records state: "When asked about the actual torture he has suffered, the applicant is unable to continue speaking. He looks down to the ground and finally starts to cry. When explained the importance of a detailed description, he finally writes down his experiences (see enclosure 1 to the protocol)." If the records only state succinctly that "the applicant handed in a written statement as enclosure 1", his emotions, which are important for the refugee's credibility, do not become clear. This is only one example of how a person accompanying a refugee can provide support - many more are possible.
In some cases, in particular where severe traumata have been suffered, such relatively easy solutions do not help. Psychology and medicine state that severely traumatized persons in particular, or children who have had to flee from a situation of persecution to a world that seems completely alien and hostile to them, are not able to express their experiences in language or to give a consistent statement. In such cases a detailed statement given later is unavoidable, which often can be made only after psychological treatment. Nevertheless it is very helpful if at least an indication is given hinting at abuse etc. can be found in the hearing's records.
That leads us to the psychology of the hearing situation, which is a vital point. Unfortunately the Federal Office's officers and most of all the courts do not regard this as an important factor. They cannot understand the situation of a refugee after he has arrived in Germany. Mostly they think that the refugee should come gushing out with everything, now that he has reached the "safe haven" of the country of asylum. They do not comprehend that someone could be afraid in the hearing situation. I know from experience that fear is often the refugees' central feeling during the hearing. The situation is strange to them. They are afraid that they might act in the wrong way, especially because they hope to be helped. This creates pressure for conformity, to deliver what is apparently expected from them, and at the same time caution not to reveal everything because it is known after all that most applications are rejected. The situation is extremely difficult for the refugee, and only few master it perfectly. It can already be of help if a refugee is accompanied to the hearing. To be there together with a trustworthy person is at least psychologically supportive, and at least there is someone who is on the refugee's side.
Sometimes a supporter can help to ease the atmosphere during the hearing; sometimes a supporter may be important because it becomes inevitable to intervene to express a difference of opinion. Maybe the BAFI officer has heard the refugee making a statement about having been tortured, but refuses to take down the details in the records. "We all know about this, everybody knows what torture in a Turkish prison looks like," he might for example say. In such a case it is vital to intervene. The threat by the refugee's supporter that he will leave the room and complain with the officer's superior, for instance, might lead to the details of the applicant's statement being taken down and recorded. It is essential to insist on such a point because the mere statement of having been tortured in prison might not be taken notice of, as I know from experience; details which are later presented to the court after having been asked can then be dismissed as "enhanced argument" (gesteigertes Vorbringen). Therefore the BAFI officer has to be pressed to take down such details, which will later be important, even if he declares that this is not necessary because he already believes the refugee, and even if he says that everything amounts to a positive decision for him. Such a statement cannot be relied on, unfortunately. Even if the officer really means it in that moment, it can happen that he decides differently when later writing down his decision after having read the record (because he does not remember the concrete situation of the hearing any more), it can happen that another BAFI officer decides upon the case only on the basis of the record and without having a personal impression, or that the Federal Commissioner brings action against the positive decision because of a "sketchy statement lacking a detailed account".
2) Taking down a record of the hearing
Often there are arguments about the taking down of the record. The Federal Office's record is not taken down word by word. Usually the officer lets the refugee talk, and then summarizes the statement. Sometimes important details are lost in the course of this, even without adverse intentions. Therefore it is important to insist on the taking down of all aspects that seem essential. Do insist that the officer takes down the questions and answers carefully and not in summary. It is preferable to have an argument about the taking down of a statement, and to insist that everything appearing relevant is written down - if necessary by threatening not to sign the record - than to be regarded as unreliable because the statement is said to be sketchy. The BAFI officer wants the record to be signed. If it is not signed, it shows that the refugee has not given his agreement to the content of the record and that there has been an argument about this. Thus it will not be possible later to accuse him of contradicting himself or of "enhanced argument". Once the record has been signed, on the other hand, it cannot be corrected any more because of the phrase at the end that the statement has been taken down completely and correctly.
In most cases the BAFI officer lets the refugee talk, and then summarizes and takes down the statement section by section. In this case you know what has been taken down and can intervene immediately. Some officers, however, only write down the refugee's statements, then dictate the record after the hearing and give it to the refugee after it has been written - that means after some hours of waiting. As nobody knows how the officer has summarized the asylum seeker's statements, it would be good if the person accompanying the refugee could wait as well. Of course it is easier in such a case to arrange a definite appointment with the BAFI officer in order to read (and then to sign) the record, for example the next day. It might also be possible to arrange that the record to be sent by mail to the refugee and the person who accompanied him. After having read them together, necessary corrections can be made; the record is then signed and sent back. It's worth a try! The BAFI officers are not monsters, and mostly quite co-operative. The few who are not should already have been put under pressure during the hearing if the accompanying persons do not avoid arguments and thus gain acceptance for the refugee's own idea of how the record should be taken.
Sometimes it can also be observed that the Federal Office does not finish the record immediately and also does not have them signed (not to speak of a re-translation into the refugee's language), but sends them to the refugee together with the (mostly adverse) decision. In my opinion this is not a procedure in accordance with the rules. It should be insisted on during the hearing that the refugee is given an opportunity to read the minutes, and to approve of them by way of his signature before the decision is taken. A blank signature of the record - obtained with the argument "You have heard what I've just dictated" - is not correct either. The refugee and the person accompanying him should refuse to co-operate in such a way and insist on the correct procedure being carried out. Even if this might not be successful (in the end, the officer decides how the hearing is carried out), it can convincingly be argued later in the court procedure that the BAFI procedure had not been correct, that a translation back into the refugee's language had been refused, and that therefore a later, differing statement does not necessarily present a contradiction; an error or an incorrect taking down of the statement might be the reason instead.
All this advice is of course useless if the refugee has already been heard. In such a case the already existing record has to be checked for completeness and correctness. If the refugee thinks that important aspects have been taken down incorrectly or been left out, the Federal Office should immediately be informed of the necessary corrections. It would be wrong to present these corrections only to the court.
3) Essential contents of the record
The essential points, which must be presented and taken down in the record, are:
The hearing begins with seemingly trivial questions on the family situation and especially on the refugee's education, training and working life. Sometimes an inconsistency arises later on when talking about the reasons for the flight; e.g. if the refugee has said that he had worked until he left the country. If he states later on that he had been imprisoned for some time before his flight, and that he had gone into hiding after being released from prison, this already creates an apparent inconsistency between the details in tabular form on the first pages of the record; and later substantive statements. It takes great efforts to explain later on that there is no contradiction, but that the refugee did already mention his imprisonment and hiding at the time of the tabular details. Some judges regard this as a contradiction which cannot be solved. Therefore it is vital to insist that a note is taken down together with the tabular details of these dates (e.g. by means of an asterisk and an explanation), stating that the account is valid save for the following explanations or imprisonment periods, or that there is a clarifying introduction at the beginning of the substantive part of the record.
The most important piece of evidence, which is presented all too rarely in practice, are WITNESSES. Often the refugee can name other persons who either live as well in Germany as asylum seekers, or who have obtained asylum in another country. As the Federal Office does not carry out hearings of witnesses (although it would be obliged to under the law), these persons' statements have to be presented in writing; at least their names and addresses should be given.
There are many rumours among asylum seekers as to which kind of statement will be successful. Some refugees succumb to the temptation of presenting certain circumstances untruthfully or of making "improvements" later on. They forget, however, that hardly anybody can "lie" so well that he can stick to the lie throughout the whole procedure. Most people get mixed up, often they cannot supply the necessary details or accounts of single experiences contradict others. When making improvements, there is the danger that the whole statement is regarded as being a "heightened argument" and therefore as being untrustworthy.
Therefore it is advisable not to make any false statements and not to exaggerate. A truthful statement giving an account of not so serious persecutions will more easily be successful than an exaggerated one.
VI) General obligations to co-operate
In § 15 AsylVfG, the law specifies a number of OBLIGATIONS TO CO-OPERATE. A violation of certain co-operation obligations is a binding reason to reject an unfounded asylum application as "manifestly unfounded" pursuant to § 30 III AsylVfG. This is of great importance because time-limits for filing an appeal and for leaving the country are shortened this way.
For the individual obligations to co-operate, please read the legal text. The provisions of § 15 II 5 AsylVfG (obligation to provide all relevant documents) and § 15 II 1 AsylVfG (obligation to provide information upon request in writing) are of great importance for the material asylum law. Sometimes these provisions are used for abandoning the procedure pursuant to § 33 AsylVfG. Therefore it is essential to answer letters by the Federal Office immediately, or to give them to an attorney or person providing support.
1) Extent of obligations to co-operate
The asylum seeker is often questioned on his itinerary, before the actual hearing on his asylum application takes place. This questioning has the aim to establish whether there had been safety from persecution elsewhere in a third country, or if the refugee has entered via a safe third country, with the consequence of the asylum application being regarded as irrelevant pursuant to § 29 AsylVfG.
If the refugee does not possess a passport of his country of origin, he is often, even before the hearing, presented with a form so that he can file an application for a passport of his country of origin. The refugee's photograph is taken as well, sometimes using the dress common in the country of origin (shador or veil for women). In my opinion, it is from a human point of view unbearable that at this point in time people are faced with the request to provide travel documents for a return to the country of origin, and it is also dubious from a legal point of view; apart from that, it has to be stated that at least forced co-operation in such repatriation measures cannot be demanded. A woman from an Islamic country, who seeks asylum for the very reason that as a woman her human rights are infringed by the legal and moral order of the country, is not obliged to have her photograph taken wearing a shador, because of the asylum procedure. Since the Federal Office defends this practice, at least one point becomes clear: it feels more under an obligation to the interests of the state, a smooth return of the refugee to his or her country of origin, than to the interests of the refugees, namely respect for human dignity. The legal obligation of § 43 b AsylVfG (obtaining travel documents for the return back to the home country as early as possible) also can be so understood that a decision pursuant to §§ 34 ff AsylVfG has to be taken beforehand. This is already logical from the legal system. At any rate, the legal provision is open to interpretation. Only such an interpretation corresponds with the character of asylum law and with human dignity!
2) Language analysis and obligations to co-operate
The Federal Office also justifies the so-called language analyses with reference to co-operation obligations. The Federal Office questions asylum seekers in their (alleged) mother tongue on general topics, but also on e.g. geographic facts and the political situation in their alleged country of origin. The tapes are then given for analysis to an alleged language expert. The objective of these language analyses is to obtain information on the actual country of origin. Although the refugees have up to now been presented a paper stating that they voluntarily take part in the language analysis, the Federal Office has always taken the view that the language analyses are justified by co-operation obligations. In my estimation this is dubious, as the real aim of the language analyses is not to support the "elucidation of the facts of the matter" - i.e. the facts relevant for the asylum procedure -, but to establish which country the refugee can be deported to. It has to be admitted, however, that this legal opinion can be the subject of discussion.
It is beyond discussion, though, that the language analyses, in the way they have been carried out so far by the Federal Office, are of highly dubitable value. Only occasionally are actual academics entrusted with these language analyses; in most cases they are carried out by anonymous language services or interpreters, who have declared themselves an eminent authority. The language analyses carried out in this manner are usually ridiculous forms, their content sketchy and without any scientific value whatsoever. They are not worth the paper they have been written on. Their actual function might not so much be to establish the refugee's origin than to try absolutely new ways. What is behind it is the vision of objectively measuring personal fate, independent from the individual statement: the asylum procedure's weak point, the subjective statement and the also subjective reception of this statement, are to be eliminated in favour of language, cultural and ethnic habits, cultural and geographic knowledge, and perhaps some time in the future looks or even genes. Some time in the future the refugee will be told: "You're not a Hutu, they have different genes!"
It does not make much sense to refuse to take the dubious language test, if it has been ordered by the Federal Office. In case of a refusal, this would probably lead to a "manifestly unfounded" decision, which would be upheld by most judges because the refugee has evaded the chance to clear up existing doubts. Therefore I give the advice not to refuse to take a language test if ordered to do so.
On the other hand, however, there is no reason to carry out such a test with the Federal Office on a voluntary basis. Should the respective form be presented to you, do not sign it. The Federal Office then has to decide whether to carry out the dubious language test on the shaky legal basis of § 15 AsylVfG, or not.
If the language test has not been carried out, and if the asylum application nevertheless has been rejected as manifestly unfounded because the Federal Office is of the opinion that the refugee came from another country, the omission of a language test can be reprimanded as a lack of elucidation during expedited proceedings. There is no reason why the Federal Office should carry out language tests in some doubtful cases - however doubtful they may be -, and omit this in other cases, resorting to common sense. Either these language tests are a sensible way of finding the truth - then they have to be used in all cases; or they are the pseudo-scientific hobby of some high-ranking officials in the Federal Office - then this waste of money must come to an end.
3) Obligation to indicate address
When talking about obligations to co-operate, § 10 AsylVfG must be mentioned as well. Pursuant to § 10 I AsylVfG, the refugee has to ensure during the asylum procedure that communications of the Federal Office can reach him at all times. He has to inform the Federal Office of any change of address without delay. At the time of application, every asylum seeker is to be informed of these provisions in writing (§ 10 VII AsylVfG).
In the past, the provision has led to the Federal Office abandoning a great number of applications because the refugee could not be contacted and did not fulfil his obligation to co-operate. The Federal Constitutional Court put an end to this abuse. Now it is not only required that the refugee be informed about his duties in general, but also in a language he understands, and with an additional explanation of administrative structures. The information has to be so comprehensive that the refugee can understand, from his own situation, in which case he is obliged to inform the Federal Office of a change of address.
The Constitutional Court's changed ruling has had the effect that, on the one hand, the Federal Office no longer makes use of the possibility to abandon an asylum procedure, except for exceptional cases, and that this provision is no longer abused in a systematic way. On the other hand, the Federal Office has introduced a text module stating that the asylum seeker was informed in his language and in an understandable manner. The usage of this text module does of course not mean that in reality the refugee was informed properly, and that he really understood everything.
Therefore it is important to make clear once again that the Federal Office immediately has to be informed of a change of address. Should you happen to live in collective accommodation, please inform newcomers about this regulation.
If the Federal Office has not been informed of a change of address, and if it is plausible that the refugee was not informed properly, it has to be argued that the information was not provided in accordance with the regulations, even if the respective text module exists in the hearing's record. Indeed it is the widespread practice of the Federal Office that alleged statements by the refugee, or information given by the BAFI, are introduced into the record with the help of text modules as a matter of routine - statements or information which have never been said, or the subject of which has never even been touched on. This, however, has to be presented to the court in concrete terms.
TiP
Pursuant to § 47 AsylVfG, asylum seekers are obliged to live "for a period of up to six weeks, but no longer than three months," in the reception centre responsible for receiving them. The six weeks exist only on paper, and even the 3-month time-limit is often ignored; sometimes only with the trick that after three months individual corridors or rooms are no longer defined as a "reception centre". An argument about this point is quite useless, as § 53 AsylVf states that, as a rule, the refugee also has to be accommodated after this time in collective accommodation.
The law does not explicitly require that reception centres take into account the refugees' family situation, in particular the domestic community of spouses and parents with their children who are still minors. Such a provision can only be found in §§ 50 IV 2, 51 II AsylVfG, relating to the time after the stay in the reception centre. The protection of marriage and family as laid down in Art. 6 GG also applies at this time. Yet in practice it will not be possible to obtain legal protection. By the time a decision has been taken, the 3-month time-limit will have expired in most cases.
Although there are binding legal provisions for chicken farming and the owning of animals in general concerning the living space and the circumstances these creatures have to put up with, such provisions do not exist for asylum seekers. In the past, the accommodation of refugees in gymnasiums, damp mass accommodations and even an underground car park was considered fit for human habitation. Neither does accommodation these days, in many cases, comply with the most simple minimum standards. Such a deplorable state of affairs can (and has to!) be taken up on a local and individual level and, if necessary, be done away with by filing an application for an injunction. It is not possible to give general advice because of the differences in facts and conditions. The decisive point is to make a connection between the duration of the stay and the physical conditions of accommodation. Certainly it is tolerable to be accommodated in a dormitory for a short while. If families are deprived of any kind of intimacy for years on end, however, it means violating the human dignity of these persons! Such a violation can also arise from house rules. In most communal accommodation, visitors are only admitted at a specified time of the day. If there are no common rooms that can be used by everybody, or no rooms giving an opportunity to withdraw, such regulations result as well in a violation of human dignity. Personal dignity is defined as the right of self-determination in liberty and independence, and as the right "not to be treated like an object, even if this results from good intentions and not from disrespect for the person" (BVerfGE 30, 40). House rules like those mentioned above violate personal dignity, as they ignore the inner and at the same time social right of value and respect that becomes every human being. Many refugees are not prepared to file an action for better accommodation conditions as they are afraid of harassment - and often quite rightly so. Therefore it is important to take into account the practical effects of an intervention on a court level in every single case. A court application has often led to a "remedying" of the matter in a way that the persons concerned were distributed to an accommodation far away in a sparsely populated region.
As § 53 I AsylVfG states accommodation in a collective accommodation as the rule, there is no direct legal entitlement to move out of such an accommodation. Pursuant to § 53 I 2 AsylVfG, though, the interests of the refugee are to be taken into account when deciding on his having to stay in communal accommodation. Especially if the person concerned has lived in Germany for a long time and if he has got work, the interest of the refugee to leave communal accommodation and to move into a flat of his own can outweigh the public interest of accommodating him collectively. In legal terms, a rule and an exception are given here; therefore it needs weighty circumstances in order to reduce the exercise of discretion to nil. Here I'll have to give a short explanation: for the jurist. "Discretion" means that there is no binding rule for taking a certain decision. The decision is open. Theoretically a yes can be as correct as a no. The result in a concrete case is determined by weighing up all relevant circumstances. In most cases, the interests of the individual are on the one side, and those of the state are on the other. If this procedure of balancing has been carried out correctly, i.e. all relevant facts, on the whole, have been properly taken into account, the decision is lawful and the court cannot alter it, even if it comes to the conclusion that some of the interests were weighed too heavily and others too lightly. The court may (and must) correct a discretionary decision only if discretion has been reduced to nil, or if decisive circumstances have not been taken into consideration at all. In the latter case, the authority has fallen short of its discretion. Therefore, if discretion is not carried out belatedly before the court, the court will annul the decision. The authority has to weigh the case once again. This is also true for an incorrect discretionary weighing. Only if the court comes to the conclusion that there is but one correct decision in the case before it, the court may replace the authority's decision with its own.
In a decision on accommodation, a long-time residence and a poor situation in the collective accommodation are important points; in addition to that, other, individual aspects have to be present, like e.g. the possibility that the refugee bears the costs of living himself through work or family support, the family situation (e.g. the adult son lives in a neighbouring city), the chance of obtaining his own flat at some relative's place, circumstances related to the labour market (a company apartment or a long way to go to reach work), arguments of health or similar points. Only if all these circumstances are in favour of the asylum seeker, can it be expected that the courts assume a reduction of discretion to nil. And even then such a procedure is often useless, as some judges effectively refuse to make a decision by delaying it for months, sometimes even years.
I remember a case when a wife had filed an allocation application pursuant to § 50 IV 3 AsylVfG, in order to be with her husband. Although there is a binding legal provision, the Administrative Court did not decide on her injunction application for more than one year, thus refusing the woman what was her right!
In practice, the sad chapter of accommodation especially shows what terrifying distance has developed between the asylum procedure and the basic values of our legal system, namely the respect of human dignity.