Asylum Procedure Act – Legal Foundations and Significance
Das Asylum Procedure Act (AsylVfG) was a central law in German asylum law that regulated the implementation and process of the asylum procedure. The Asylum Procedure Act entered into force on January 1, 1982, and was replaced in August 2015 by the Asylum Act (AsylG). The terms, which are often used synonymously, now usually refer to the Asylum Act; however, the historical and legal context of the Asylum Procedure Act remains of great importance for asylum law in Germany.
Historical Legal Development
Introduction and Objectives
The Asylum Procedure Act was introduced with the goal of standardizing and rendering the asylum procedure legally secure. It implemented the requirements of the fundamental right to asylum under Art. 16a para. 1 of the Basic Law (GG), and in particular regulated the process for applying for and examining asylum applications.
Transition to the Asylum Act
With the Act Revising the Right of Residence and the Termination of Residence of July 27, 2015, the Asylum Procedure Act was transferred into the so-called Asylum Act on October 24, 2015. The essential foundations and many structures remained in place, but numerous terminological changes and substantive adjustments took into account new political and legal challenges.
Substantive Focus of the Asylum Procedure Act
Regulation of the Asylum Procedure (§§ 1-14 AsylVfG)
The Asylum Procedure Act regulated, in particular, the following aspects of the procedure:
- Filing an application: The initial written or oral asylum application at the competent branch of the Federal Office for Migration and Refugees (BAMF).
- Procedure sequence: Examination of the application in an administrative procedure by BAMF, hearing of the asylum seeker, verification of identity and origin.
- Dublin procedure: Clarification of responsibility when applications are filed in several EU member states (Dublin III Regulation).
- Obligations to cooperate: Obligation for applicants to cooperate, e.g., in clarifying identity.
- Temporary residence permit: Legal status during the pending asylum procedure.
- Decision and legal remedies: Legal consequences of the BAMF decision and possibilities of filing lawsuits with the administrative courts.
Legal Consequences of a Decision (§§ 31-38 AsylVfG)
The Asylum Procedure Act distinguished between various forms of protection and types of decisions by the BAMF:
- Recognition of refugee status
- Subsidiary protection
- Prohibition of deportation
- Rejection as manifestly unfounded
- Rejection as unfounded
Each decision entailed its own consequences under residence and administrative law. In cases of rejection, there were possibilities for legal protection through appeals and preliminary legal protection.
Dublin Procedure and Competence Review
The Asylum Procedure Act referred to the applicability of the European Dublin Regulations, in particular the rules governing responsibility for examining asylum applications if an applicant had previously been registered in another EU third country.
Provisions on Residence
The statutory permission to stay during the ongoing asylum procedure as well as the termination of residence after a final rejection were comprehensively regulated in the Asylum Procedure Act. It included special provisions concerning residence requirements, access to the labor market, and social benefits for asylum seekers.
Procedural and Trial-Specific Features
Administrative procedure and hearing
The asylum procedure under the Asylum Procedure Act was conducted as a special administrative procedure. A central role was played by the personal hearing of the asylum applicant. In this hearing, the grounds for fleeing, identification documents, and risks were discussed and recorded as far as possible.
Judicial review
After completion of the administrative procedure, it was possible to file legal remedies (action before the administrative court) against decisions of the BAMF. Disputes about the outcome of the proceedings were litigated before the administrative courts; in certain cases, an action had suspensive effect.
Expedited procedure
In cases of rejection as “manifestly unfounded,” a particularly short time limit for filing lawsuits was granted for the application, and expedited proceedings allowed for swifter processing compared to standard procedures.
Significance for Today’s Asylum Law
Even after the replacement by the Asylum Act (AsylG), the Asylum Procedure Act continues to be relevant:
- Transitional rules and legacy cases: Decisions made prior to the Asylum Act’s entry into force continue to be governed by the Asylum Procedure Act.
- Development of asylum law: Numerous court decisions and commentaries refer to provisions of the Asylum Procedure Act, especially in the context of legal development.
Key Provisions and References
The essential substantive and procedural provisions of the Asylum Procedure Act are now regulated almost identically in the Asylum Act (AsylG) (notably §§ 12ff. AsylG). Other important legal sources in the context of the asylum procedure were and are the Residence Act (AufenthG), the Asylum Seekers Benefits Act (AsylbLG), as well as relevant EU regulations and the Geneva Refugee Convention (GFK).
Literature and Further References
The Asylum Procedure Act has been extensively discussed in numerous commentaries and handbooks on asylum law. Its systematic classification within the context of constitutional, EU, and international legal requirements continues to form an important part of the academic and practical analysis of German asylum law.
Note: This article refers to the legal situation regarding the Asylum Procedure Act as well as its development into the Asylum Act and provides a structured overview of the most important aspects, regulations, and effects on the German asylum procedure.
Frequently Asked Questions
Which time limits must be observed under the Asylum Procedure Act when submitting an application and during further proceedings?
The Asylum Procedure Act (officially Asylum Act – AsylG) stipulates various deadlines that are binding for both applicants and authorities. Generally, after arrival in Germany, there is an obligation to file the asylum application “immediately” (§ 13 AsylG), but at the latest within two weeks after allocation to a reception facility (§ 22 para. 1 sentence 1 AsylG). The Federal Office for Migration and Refugees (BAMF) is required, after the application is filed, to conduct the personal interview, the so-called hearing, if possible within two weeks (§ 24 para. 1 AsylG). After the hearing, BAMF should generally make a decision within six months (§ 24 para. 2 sentence 2 AsylG). If applicants are transferred to another EU Member State in accordance with the Dublin III Regulation, a period of six months, or—if detention applies—a maximum of twelve months, applies for the transfer (§ 29 AsylG in conjunction with Art. 29 Dublin III Regulation). If the asylum application is rejected, there is a two-week period from service of the decision to file an appeal in the case of a normal rejection (“simple rejection notice”), and only one week in cases of so-called “manifestly unfoundedness” (§ 74 AsylG). There are also special deadlines for submitting evidence, statements, and for procedural acceleration, which must be observed during the proceedings.
What rights and obligations apply to asylum seekers during the asylum procedure under the Asylum Procedure Act?
During the asylum procedure, applicants under the AsylG have various rights and obligations. They are required to appear in person at the Federal Office and participate in the interview (§ 23 AsylG), to submit all relevant documents and evidence (§ 15 para. 1 AsylG), and to file a written or oral asylum application (§ 14 AsylG). The obligation to cooperate also includes providing BAMF truthfully with travel data, identity information, and reasons for fleeing (§ 15 para. 2 AsylG). Rights include, among others, entitlement to accommodation and meals in a reception facility (§ 44 AsylG), the opportunity to be heard and request access to files, as well as the right to consult legal counsel (§ 25 AsylG). During the procedure, there is generally a right to reside in Germany until the asylum procedure, including any legal proceedings, has concluded (§ 55 AsylG). Asylum seekers also enjoy protection against deportation while the application is being processed, unless it involves safe third countries or specific grounds for exclusion (§ 34a AsylG).
How does the Asylum Procedure Act regulate the process and conduct of the hearing at BAMF?
The hearing is the central element of the asylum procedure, regulated in detail in the AsylG (§ 25 AsylG). It usually takes place at the branch office of BAMF responsible for the individual. During the hearing, the applicant has the opportunity to give a detailed account of the escape route, reasons for fleeing, and all individual circumstances that led to the application. There is an obligation to provide truthful and complete information. The hearing must be conducted in a language the applicant understands; qualified interpreters are provided for this purpose. The statements are recorded, and the protocol is presented to the applicant for review and signature. The applicant has the right to bring a lawyer or other legal counsel to the hearing. The hearing protocol is a key document in the decision-making process. If new circumstances arise after the hearing, the applicant is required to inform the Federal Office immediately (§ 25 para. 3 AsylG). Witnesses may also be questioned as part of the hearing. The purpose of the hearing is to determine the credibility of the story and it forms the basis for the official decision.
What is meant by the so-called “residence requirement” under the Asylum Procedure Act and how is it legally implemented?
The residence requirement (§ 12a AsylG) is an obligation regulated in the Asylum Procedure Act that means asylum seekers are generally required to remain within a specific area—usually the region to which they have been assigned. The exact regional restriction is often to a federal state or a specific district and is intended, among other things, to manage distribution and ensure accessibility for authorities and courts. Leaving this area is generally not permitted unless the competent immigration authority grants an exemption. Violations may result in regulatory or even criminal penalties (§ 95 para. 1 no. 7 AufenthG in conjunction with § 56 AsylG). The residence requirement ends when the mandatory residence period in the reception facility ends or as soon as the asylum application has been conclusively decided.
How are repeat or subsequent applications handled under the Asylum Procedure Act?
The Asylum Procedure Act distinguishes between first-time and subsequent applications. Subsequent applications (§ 71 AsylG) are those filed after a final rejection of a first asylum application. Such applications only lead to a new procedure if new evidence or changed circumstances (especially new facts or evidence not available and not assertable in the first procedure) credibly show that the applicant faces renewed persecution or serious danger. The Federal Office for Migration and Refugees first checks whether the requirements for conducting another asylum procedure are met; otherwise, the application will be rejected as “manifestly unfounded.” There is usually no suspensive effect of a repeated subsequent application, unless the court expressly orders it pursuant to an urgent application under § 80 para. 5 VwGO. Resumption of the proceedings can also take place under § 51 VwVfG on the basis of grounds for reopening. Different rules may apply for subsequent applications with regard to accommodation and obligations to cooperate.
How does the Asylum Procedure Act regulate the right to access files and legal counsel for the asylum seeker during the proceedings?
The right of access to files is regulated in the Asylum Procedure Act (§ 29 para. 1 VwVfG in conjunction with § 17 AsylG) as well as complementarily in the Administrative Procedure Act. Accordingly, asylum seekers or their legal adviser have the right to inspect the complete case files at the Federal Office or the responsible court, unless overriding legitimate interests of third parties or public concerns preclude this. Access to files in particular includes the protocol of the hearing and all documents relevant to the procedure. The asylum seeker may be represented or advised throughout the entire procedure—both during the hearing and in any court proceedings—by a lawyer or another authorized person (§ 25 para. 6 AsylG). However, the costs of a lawyer are only covered in exceptional cases (if the person is recognized as in need or appointed by the court). A legal counsel can be involved during the hearing and beyond, provided that their presence does not impede the course of the procedure.
What is the significance of the requirement for expedited processing in the Asylum Procedure Act?
The Asylum Procedure Act contains an explicit requirement for expedited proceedings (§ 24 para. 2 sentence 2 AsylG), according to which the proceedings are to be conducted “as swiftly as possible” in order to keep the residence period of applicants without a final residence status as short as possible. The Federal Office for Migration and Refugees is generally required to make a decision within six months after the hearing has been completed, although exceptions are possible in particularly complex cases or in the case of subsequent applications. The requirement for expedited proceedings aims to reduce integration barriers and enable a prompt clarification of residence status, both in the interests of the applicants and the public administration. If, for internal or objective reasons, the process cannot be concluded within the set timeframe, the BAMF must document and justify this. The requirement for expedited proceedings also reflects a provision of EU law, in particular Directive 2013/32/EU (Asylum Procedures Directive). Affected parties may file a “failure-to-act action” (Untätigkeitsklage) under § 75 of the Administrative Court Procedure Code (VwGO) in cases of unreasonably long procedure durations.
