Definition and Legal Foundations of the Asylum Procedure
The asylum procedure refers to the legally regulated administrative process by which decisions are made regarding the granting of protection under asylum law in Germany. The aim of the asylum procedure is to assess whether an applicant fulfills the requirements for international protection – particularly under the Basic Law (Art. 16a GG) and the Asylum Act (AsylG). The procedure forms a fundamental part of migration and refugee law and is subject to numerous national, European, and international legal provisions.
Legal Framework
Binding by Fundamental Rights and International Law
The right to asylum is enshrined in Article 16a of the Basic Law as a fundamental right in Germany. In addition, the Asylum Act (AsylG) and the Residence Act (AufenthG) are central legal foundations. International provisions, such as the 1951 Geneva Refugee Convention (GRC) and the New York Protocol of 1967, also play a significant role in shaping the asylum procedure. Furthermore, regulations from European directives and ordinances, particularly the Dublin III Regulation and the Qualification Directive, apply.
Jurisdictions and Authorities
In Germany, the Federal Office for Migration and Refugees (BAMF) is primarily responsible for conducting the asylum procedure. At the state and municipal level, immigration authorities are involved in various stages of the procedure, especially regarding the granting of residence and return processes.
Course of the Asylum Procedure
The asylum procedure is divided into different stages, each subject to different legal regulations.
1. Asylum Application and Registration
The asylum procedure begins with the formal application submitted to the BAMF. Prior to this, there is the so-called initial reception facility, where asylum seekers are registered and provided for. Registration as an asylum seeker is a prerequisite for further proceedings.
Duties of the Applicant
There is an obligation to cooperate during the application process. Applicants must provide information concerning their identity, origin, and reasons for fleeing, as well as submit relevant documents. False statements or lack of cooperation can negatively affect the entitlement to protection.
2. Dublin Examination
Before the substantive examination, the Dublin III Regulation is used to determine which member state of the European Union is responsible for conducting the asylum procedure. If another country is responsible, a so-called transfer to the competent country takes place.
3. Substantive Examination of the Asylum Application
If Germany is responsible, a substantive examination of the need for protection takes place according to German law and European secondary law.
Forms of Protection
Within the asylum procedure, the following forms of protection are examined:
- Right to asylum under Art. 16a GG: Applies only in cases of political persecution by the country of origin and excludes entry via a safe third country.
- Refugee status (§ 3 AsylG, Art. 1 GRC): Applies when persecution is based on factors such as race, religion, nationality, political opinion, or membership of a particular social group.
- Subsidiary Protection (§ 4 AsylG): Granted if there is a threat of serious harm, torture, death penalty, or risk of war and refugee status is not established.
- National Prohibition of Deportation (§ 60 subs. 5 and 7 AufenthG): Applies in the case of a specific individual danger to life and limb in the country of origin.
Hearing
The core of the substantive examination is the personal hearing before the BAMF, during which the reasons for fleeing must be presented in detail. Attention is paid to the individuality, plausibility, and credibility of the statements.
4. Decision of the BAMF
After examining the facts and legal situation, the BAMF issues a written decision which contains the granting or refusal of protection. The decision specifies the status granted, any additional stipulations (such as residence requirements), and relevant deadlines.
Legal Consequences and Residence Status
In the event of a positive decision, recognized beneficiaries of protection receive a residence permit, the duration and associated rights of which vary depending on the type of protection. A rejection can result in an obligation to leave the country or the initiation of measures to end the stay, unless prohibitions of deportation apply.
Legal Remedies and Judicial Proceedings
Appeal against Rejection Notices
There is a right to judicial review of BAMF decisions. The administrative courts are responsible; the deadlines and specific requirements depend on the type of rejection (e.g., ‘manifestly unfounded’, ‘unfounded’, ‘inadmissible’). As a rule, an appeal has suspensive effect, meaning deportation is suspended until a court decision is made, unless in urgent cases.
Further Legal Remedies
Appeals or revisions to the Higher Administrative Court or the Federal Administrative Court may be possible against decisions of the administrative courts under certain conditions. The prospects of success and requirements depend on the relevant legal matter.
Special Types of Procedures and Special Provisions
Airport Procedure
The so-called airport procedure is a special case of the asylum procedure that applies to applications filed at airports under certain conditions, such as when asylum seekers enter via safe third countries or do not possess valid documents. In this case, expedited examination takes place before entry into Germany.
Unaccompanied Minor Asylum Seekers
Special provisions apply to unaccompanied minors regarding procedural support, hearing, and accommodation. They are entitled to legal representation via guardianship and to a higher standard of protection.
Subsequent and Repeat Applications
Applicants whose applications have been rejected can, under certain conditions, submit subsequent applications, for example in case of a later change in facts or legal situation. However, these are subject to special admissibility requirements and are examined separately.
Significance of the Asylum Procedure in the Rule of Law
The asylum procedure is a central component of the rule-of-law protection for those persecuted for political or human rights reasons. It ensures a formalized, individualized, and transparent review process and serves to uphold international obligations, particularly with regard to the principle of non-refoulement (prohibition of return to states of persecution).
Literature and Further Regulations
The relevant legal sources and statutes include in particular:
- Basic Law for the Federal Republic of Germany (Art. 16a GG)
- Asylum Act (AsylG)
- Residence Act (AufenthG)
- Geneva Refugee Convention (GRC)
- Dublin III Regulation (EU)
- European Qualification Directive
Further information can be found in current commentaries on asylum law, publications from the Federal Office for Migration and Refugees, as well as relevant case law from the administrative courts.
Note: This article provides a comprehensive, structured overview of the asylum procedure and does not replace case-specific legal advice. The presentation takes into account the legal status and legislative framework up to the year 2024.
Frequently Asked Questions
What is meant by the so-called Dublin procedure and what legal consequences does it have for asylum seekers?
The Dublin procedure is a key legal instrument in the European asylum system, based on the Dublin Regulation (EU) No. 604/2013. It determines which member state of the European Union (as well as some associated states) is responsible for examining an asylum application. The goal is to avoid multiple applications in different countries and to ensure that every case is substantively assessed. Legally, the procedure is primarily based on the so-called Dublin III Regulation, which also takes the so-called Eurodac system for identification into account.
For asylum seekers, this means that, for instance, if they were first biometrically registered in Italy and then seek asylum in Germany, they are in most cases transferred back to Italy, as Italy is responsible for the asylum procedure under the country of first entry principle. However, it is possible to raise objections (e.g., humanitarian reasons, family ties) during a personal interview, which can lead to a transfer of responsibility to another member state in individual cases. The affected persons receive a transfer decision against which legal remedies can be lodged within a short deadline. If no objection is filed in time or the procedure is not successfully challenged before national courts, the transfer to the responsible state will take place and the asylum application will not be examined in Germany.
When and how does the personal hearing in the asylum procedure take place and what are the legal requirements?
The personal hearing is a key element of the asylum procedure and is regulated by § 25 AsylG (Asylum Act). It usually takes place after the asylum application is filed at the Federal Office for Migration and Refugees (BAMF). The hearing represents the most important opportunity for asylum seekers to comprehensively and extensively present the reasons for their flight.
Legally, the BAMF is obliged to follow up on all submissions carefully and to have the hearing conducted by a qualified and trained person. There is a right to an individual, linguistically adequate translation; misunderstandings or errors can result in the procedure being incomplete. Minors or particularly vulnerable persons may also be entitled to a so-called procedural advisor or legal representative. During the hearing, the entire course of flight must be described in detail, evidence should be presented, and any grounds for protection (e.g., political persecution, imminent death penalty, risk of inhuman treatment) stated. There is generally no legal entitlement to the participation of a lawyer, but it is possible with prior arrangement. The information provided during the hearing is crucial for the later decision and is recorded in a protocol, which forms the basis for further proceedings.
What legal options exist after a negative asylum decision?
If an asylum seeker receives a negative asylum decision, various legal avenues are available. German law, according to § 74 AsylG, provides for the possibility of filing a lawsuit against the negative decision. The lawsuit must be submitted in writing to the competent administrative court and – as a rule – must be filed within two weeks of delivery of the decision; in certain cases of rejection, such as “manifestly unfounded”, the deadline is shortened to one week.
The lawsuit can request a review of the administrative decision, especially whether the BAMF has wrongfully refused asylum, refugee protection, subsidiary protection, or prohibitions on deportation. Judicial review covers not only substantive correctness but also procedural legality of the notice; procedural errors or deficiencies in the hearing also have an impact. In case of a rejection as “manifestly unfounded”, an additional urgent application under § 80 subs. 5 VwGO must be filed to restore the suspensive effect of the lawsuit and prevent deportation during the proceedings. The chances of success depend essentially on the individual justification, the evidence situation, and compliance with all procedural requirements. Legal representation by counsel is strongly recommended, though not compulsory.
What forms of protection are recognized under German asylum law and what rights derive from them?
German asylum law distinguishes four key forms of protection: asylum under Article 16a GG, refugee protection under § 3 AsylG in conjunction with the Geneva Refugee Convention, subsidiary protection under § 4 AsylG, and national prohibitions of deportation pursuant to § 60 subparagraphs 5 and 7 AufenthG (Residence Act).
Asylum under Article 16a GG provides constitutional protection from political persecution in Germany; it is rarely granted and is significantly restricted by the so-called safe third country concept. Refugee protection is based on international agreements and is granted to persons who face serious harm in their home country because of race, religion, nationality, political opinion, or membership of a particular social group. Subsidiary protection applies where neither asylum nor refugee protection is granted, but there are serious individual dangers in the country of origin, such as war or violations of human rights.
Finally, there are national prohibitions on deportation if return in the specific individual case would entail significant danger to life, limb, or liberty, e.g., due to serious illness or individual threats.
Each form of protection is linked to different rights such as residence permits, family reunification, integration support, or access to the labor market, with the scope and time limits varying depending on the protection status.
What are the legal requirements for taking evidence in the asylum procedure?
The asylum procedure in Germany is characterized by the so-called official investigation principle, enshrined in § 24 AsylG. This means that the Federal Office for Migration and Refugees is required to investigate all circumstances relevant for the decision ex officio, regardless of whether the applicant submits evidence. However, the asylum seeker is obliged to actively cooperate in establishing the facts of the case and to provide any available evidence, such as documents, witness testimony, or other means of proof, to the best of their ability.
Special rules apply in the examination of identity and nationality: If no documentation can be provided, this must not automatically disadvantage the applicant if plausible reasons are presented. The credibility of the account is assessed on a case-by-case basis, taking into account the applicant’s personality, the consistency of statements, and the general situation in the country of origin. Expert reports and information, e.g. from the Foreign Office, UNHCR, or NGOs, are regularly used as sources for country-specific knowledge. The burden of proof for the requirements of protection status generally lies with the applicant, while the BAMF is obliged to conduct a fair and comprehensive investigation.
What are the consequences of a final rejection of an asylum application with regard to residence rights?
If an asylum application is rejected with final effect, the applicant’s right of residence in Germany expires upon the decision becoming legally binding, unless there are other reasons under residence law. The applicant is then generally required to leave the country (§ 59 AufenthG, § 34 AsylG) and is given a deadline for departure, after which deportation may be enforced. The competent immigration authority can carry out the deportation unless there is a reason for temporary suspension (e.g. inability to travel, lack of documents, serious personal reasons). Until deportation, the residence permit is void; only the so-called “toleration” (Duldung) remains in effect for the period of “suspended deportation.” During this phase, access to social benefits is restricted and access to the labor market is only exceptionally possible through individual permits. A renewed asylum application (subsequent application) is possible, but legally promising only if there is new and significant evidence or facts. The conclusion of the asylum procedure with a legally binding rejection therefore fundamentally restricts all options under residence law in the German legal system.
