The RAV has submitted the following detailed statement.
Simultaneously – shortly before the oral hearing – the RAV, the BRAK, the RAK-Berlin, and the DAV sent a summary of the RAV's statement to the members of the Committee on Internal Affairs and Legal Affairs and the lead ministry for their information and consideration. This summary can be found here.
Here is the long version:
Authors:
Lawyer Josephine Koberling, Lawyer Anya Lean, Lawyer Julius Becker, Lawyer Matthias Lehnert, Lawyer Yunus Ziyal, Lawyer Inken Stern, Sebastian Pukrop (Legal Trainee), Lawyer Berenice Böhlo.
I. PRELIMINARY REMARKS
The German government announced in its coalition agreement that it would take measures to ensure that "asylum procedures [...] are fair, swift and legally sound." At the same time, the agreement states the following regarding the goals of the intended asylum law reform: "We want faster decisions in asylum processes as well as a standardization of jurisprudence.".
These initiatives are fundamentally welcome: Experience shows that asylum procedures on the administrative side suffer from enormous shortcomings, both in terms of quality and duration – particularly to the detriment of asylum seekers. This is evident, not least, in the above-average number of court decisions in administrative law that overturn decisions of the Federal Office for Migration and Refugees and grant protection status, revealing the flaws in the administrative asylum procedure at the Federal Office for Migration and Refugees. The same applies, conversely, to the mostly fruitless revocation proceedings following the granting of protection. The respective court proceedings take too long.
The German government has now presented a draft law to accelerate asylum court proceedings and asylum procedures without any prior civil society debate, and this draft law continues to face considerable criticism even after key proposals have already been withdrawn.
However, this proposed law fails to address the crucial reason for the length of asylum procedures, namely the inadequate procedural and decision-making practices of the authorities. According to statistics from the Federal Office for Migration and Refugees (BAMF), in 2021 only 33.1% of appeals were decided negatively – that is, dismissed. Therefore, a significant improvement in quality is needed at the administrative level.
Furthermore, the proposed legislation fails to address the fundamental problem and the root cause of the lengthy asylum court proceedings: the Federal Office for Migration and Refugees (BAMF) generally does not participate in court proceedings. Procedural declarations are then effectively impossible, and BAMF internal guidelines often stipulate that, despite court notification, neither remedial decisions are issued nor the right to an oral hearing is waived. This has led to excessively long durations in asylum court proceedings and systematically prevented any reduction in the length of the procedures.
After the Federal Government announced in its coalition agreement that it would make asylum procedures "fair, swift, and legally sound," the focus has now shifted to curtailing procedural and judicial rights to the detriment of asylum seekers. This further erosion of asylum law, which is apparently intended to compensate for the implementation of the – moreover inadequate – right to residency on an expedited basis, is unacceptable.
The following key points are therefore particularly open to criticism:
1. The proposed legislation will certainly lead to a lengthening of asylum procedures.
- The Federal Office for Migration and Refugees (BAMF) is granted the option of postponing a decision in asylum proceedings for up to 21 months (previously 6 months) if there is an "uncertain situation" in the country of origin. The regulation leaves open the question of when such a situation exists and allows the BAMF to delay decisions to the detriment of asylum seekers for almost two years. In our experience, this primarily affects cases ready for a decision that the BAMF does not wish to decide because it is politically inexpedient. There is no need for such a regulation. The option already exists and the authority uses it extensively to temporarily halt decisions, currently, for example, with regard to the Russian Federation. Furthermore, the BAMF is, for instance, not yet deciding on older asylum applications from Ukrainians whose applicants do not fall under Section 24 of the Residence Act. In the case of Afghanistan, the Taliban takeover also initially led to a halt in decisions. The Federal Office for Migration and Refugees (BAMF) only issued widespread deportation bans once it became clear that the administrative courts overwhelmingly considered the prerequisites for such bans to be met. The new regulation would further legitimize and thus expand this procedurally delaying practice.
- The fact that the existence of prohibitions on deportation is no longer to be examined in subsequent applications violates the requirement, derived from Article 3 of the European Convention on Human Rights, Article 2 Paragraph 2 Sentence 1 of the German Basic Law, and Article 19 Paragraph 4 of the German Basic Law, to examine prohibitions on deportation ex officio at every stage of proceedings. This proposed regulation will result in a failure to examine such prohibitions and will directly lead to a sharp increase in the filing of applications for preliminary legal protection in court. The law will therefore lead directly to more, not fewer, cases.
- A decision issued by the Federal Office for Migration and Refugees (BAMF) during ongoing legal proceedings against an inadmissibility ruling, rejecting an asylum application as unfounded or manifestly unfounded, is automatically incorporated into the legal proceedings (even without a specific claim being raised). This contradicts the principle of party disposition and leads to legal uncertainty. With the reversal of the inadmissibility ruling, the legal proceedings would likely become moot. The intention is to introduce a statutory substitution of issues in dispute. This leads to unnecessary, unwanted, and even longer court proceedings. Furthermore, this does not eliminate the BAMF's obligation to conduct a full substantive hearing, which should, however, take place before issuing a decision.
- Furthermore, the law introduces a special "review of facts" by the Federal Administrative Court while simultaneously restricting the appeal options for those affected. The Federal Administrative Court is now expected to issue uniform rulings on certain factual issues. However, a leading decision cannot be binding for a multitude of cases, as these often exhibit significant individual differences. Moreover, such a leading decision cannot remain binding for an extended period, since, according to the jurisprudence of the Federal Constitutional Court, asylum proceedings in volatile situations in the country of origin must always be reviewed on a daily basis. Thus, by the time a decision of the Federal Administrative Court is published, the situation on which the decision was based may have already changed completely. Therefore, instead of relieving the burden on the courts, an increased workload for the administrative courts, particularly the Federal Administrative Court, is to be expected.
2. Legal representation is severely restricted.
- In asylum proceedings before the Administrative Court, motions for recusal against individual judges should no longer lead to the interruption of the proceedings until a decision is reached.
- The accusation apparently underlying these proposals against lawyers—that they are (or intend to be) delaying proceedings through recusal motions—lacks any empirical basis. Recusal motions are always filed carefully, only when warranted, and therefore very rarely. A small survey among colleagues working in immigration law revealed that such a motion is filed only in exceptional cases—and not infrequently, then, successfully. There is no justification for further special asylum law provisions.
- As a result, the law cements and exacerbates the already significant disparity between asylum seekers seeking legal protection and those seeking legal protection in other areas of life, creating a two-tiered legal system. The empirical fact that a large number of BAMF (Federal Office for Migration and Refugees) decisions are at least partially overturned by administrative courts will remain unchanged. We search in vain for internal control processes, further training for staff, improved quality standards for interpreters in proceedings, increased resources, and broadened grounds for appeal—all of which would lead to improved decision-making practices and ultimately to faster processing and lessen the workload of the administrative courts. The necessity and effectiveness of the proposed legislative changes cannot be empirically substantiated. Our experience with the asylum procedure shows that improving the quality of BAMF decisions and asylum procedures in the aforementioned sense would be far more likely to accelerate and simplify the process than steadily eroding the rule of law for asylum seekers and restricting their right to asylum.
II. DETAILS OF THE DESIGN
1. Section 12a AsylG-E: Asylum procedure counselling
a. Previous Legal Situation
Under the previous legal situation (§ 12a AsylG), "voluntary, independent state-provided asylum procedure counseling" is provided. This procedural counseling takes place in two stages according to § 12a sentence 2 AsylG: First, a group discussion with information on the asylum procedure, and second, individual asylum procedure counseling, which is conducted either by the Federal Office or by welfare organizations (§ 12a sentence 3 AsylG). This provision was inserted into the AsylG on August 15, 2019 (entry into force: August 21, 2019). The regulation also serves to implement the requirements of the EU Procedures Directive (Directive 2013/32/EU), in particular Articles 19 and 20.
This existing regulation is open to criticism because, even three years after its introduction, far from all asylum seekers participate in individual asylum procedure counseling. Such counseling is desirable, however, as it improves the quality of personal hearings due to better preparation of those affected, thus helping to save time, is also desirable from a rule-of-law perspective, and ultimately increases the acceptance of the Federal Office's decisions among those affected. The focus should be on individual counseling; while general group discussions providing information about the asylum procedure are also fundamentally positive, they are likely to have only a minor impact on the quality of asylum procedures.
A particularly problematic aspect of the existing regulation is that the Federal Office itself is supposed to provide both "state" and "independent" procedural counseling. While the existing regulation does allow welfare organizations to participate at the second stage of procedural counseling, this is only optional, and counseling by the Federal Office itself is guaranteed to be at least equally valid. However, "state" counseling by the very authority that makes the decision in the asylum procedure cannot be considered independent, meaning that the current regulation on asylum procedural counseling is fundamentally flawed.
b. Reform proposal and evaluation
This structural flaw in Section 12a of the Asylum Act will be rectified by the proposed amendment. Section 12a, paragraph 1 of the draft Asylum Act no longer refers to "state-run" but rather to "independent, free, individual, and voluntary" asylum procedure counselling. While welfare organizations are not explicitly mentioned in the provision, it is clear that they, in particular, are intended to be responsible for providing procedure counselling in the future. They are to be supported with public funds for this purpose (Section 12a, paragraph 1 of the draft Asylum Act).
It is also positive that the procedural advice can be carried out until the Federal Office makes a final and unappealable decision and thus also includes the legal proceedings (§ 12a para. 2 sentence 2 AsylG-E), even if the draft is somewhat misleadingly worded at this point.
It is also welcome that, as part of the procedural consultation process, the data of particularly vulnerable refugees will be transmitted to the Federal Office. It is hoped that this will lead to greater application of the procedural safeguards intended for particularly vulnerable refugees (§ 12a para. 3 AsylG-E). However, this does little to change the fundamental situation that special protection needs are often not even recognized in the first place.
Furthermore, the draft does not definitively clarify whether individual procedural advice constitutes legal advice within the meaning of the Legal Services Act (RDG) or merely the provision of abstract information. This is a matter of debate under current law. Clarification on this point is required. While Section 12a Paragraph 2 Sentence 1 of the draft Asylum Act stipulates that the foreigner's specific circumstances must be taken into account, the precise scope of procedural advice remains unclear even under this wording and will therefore continue to be a source of contention.
Organizations offering procedural advice should also be legally granted access to initial reception facilities so that those affected can actually access the advice in an easy and low-threshold manner.
Finally, it would be desirable to have a legal clarification that procedural advice can also be used in subsequent and revocation proceedings. This too is unclear under the current regulations and is a source of conflict.
c. Recommendation:
Since the draft legislation does not go far enough, it is recommended that the amendments be incorporated with the following objectives:
- Clarification that individual procedural advice constitutes legal advice within the meaning of the Legal Services Act (RDG) and not merely the abstract provision of information
- Access to initial reception facilities for organisations for the purpose of asylum procedure counselling
- Clarification that asylum procedure counselling can also be used in subsequent and revocation proceedings
2. Section 17 of the Asylum Act (draft): Use of an interpreter by means of video and audio transmission
a. Previous legal situation
Previously, the regulation stipulated that at the hearing “an interpreter, translator or other language mediator must be called in, who […] has to translate”.
b. Reform proposal and evaluation
In exceptional cases, it should now also be possible to involve others via video and audio transmission.
Regarding the use of the necessary technology, the new regulation addresses data protection concerns that need to be clarified in practice and have not yet been.
It should be noted that both the quality of interpreters and the relationship of trust between interpreters and applicants are already a problem in the status quo.
These problems are exacerbated by the proposed reform, or at least not resolved. The proposal seems to acknowledge the issue of reduced quality through such practices, even though it also suggests that translation via this method should only be possible "in exceptional, suitable cases." The regulation's aim, however, is to simplify the process when a suitable translation cannot be provided locally. Such a simplification is detrimental to applicants, as it hinders the development of a relationship of trust and eliminates the necessary proximity that can be crucial for capturing nuances in a translation.
Finally, the question arises as to how and where the BAMF intends to identify the "suitable cases" before the hearing, especially since – and particularly in the cases mentioned – the special need for protection is often only expressed or recognized over time (often only after sensitive consultation).
c. Recommendation:
The explicit consent of the person concerned is mandatory for any involvement of an expert. This consent must be recorded as an oral statement at the beginning of the hearing and attached to the hearing transcript as a verbatim transcript. The person making the request should be given the opportunity to explain why they would prefer not to have a personal translation.
3. Section 24 of the Asylum Act (draft): Decision period
a. Draft Reform and Assessment
The draft law transposes the decision deadlines stipulated in Article 31, paragraphs 3-5 of Directive 2013/32/EU (Asylum Procedures Directive) into national law. The new regulation is welcome, as it creates clarity and legal certainty for those affected, authorities, courts, and advisors. The regulation also addresses those bodies that "cooperate" with the Federal Office by providing current information on the general situation or specific circumstances, or to whose instructions and decision-making guidelines the Federal Office refers. They, too, are required to ensure compliance with the newly introduced deadlines.
The Federal Office's (BAMF) option to postpone decisions for up to 21 months if there is an "uncertain situation" in the country of origin, such that a decision cannot reasonably be expected, is too vague in its proposed form and opens the possibility of delaying decisions to the detriment of asylum seekers for almost two years. In our experience, this primarily affects cases ready for a decision that the BAMF does not want to decide because it is politically inexpedient. For example, the BAMF currently does not decide on older asylum applications from Ukrainians whose applicants do not fall under Section 24 of the Residence Act. In the case of Afghanistan, the Taliban takeover also initially led to a halt in decisions. The BAMF only issued deportation bans across the board once it became clear that the administrative courts overwhelmingly considered the prerequisites for such bans to be met. The new regulation would legally secure and thus expand this procedurally delaying practice.
b. Recommendation:
The possibility for the Federal Office to postpone the decision for up to 21 months if there is an “uncertain situation” in the country of origin, such that a decision cannot reasonably be expected, should be rejected.
4. Section 25 of the Asylum Act (draft): digital hearing
a. Reform proposal and evaluation:
The hearing constitutes the core of the official asylum procedure. It must take place in a protected environment and involve appropriate questioning to obtain highly personal data. This is not possible in a digital hearing.
b. Digital hearing
The following initial situation must be taken into account:
- Many applicants are not "digital natives." This means that appropriate technical resources and supportive, technically skilled personnel would need to be brought in to assist them. However, the information involved is sensitive and touches upon the core of data protection and the security interests of those affected. Establishing the necessary basic trust is made more difficult by the hurdle of video conferencing. For example, recounting a refugee's or describing torture via video conference requires a protected and confidential environment.
- The proposed regulation raises significant practical implementation problems in addition to legal issues and should be rejected.
- There is also no need for regulation. If the procedure is to be completed within six months, the hearing (see Section 47 Paragraph 1 of the Asylum Act) must take place at the reception center. It is unclear why the interviewer and the applicant should be seated in two different rooms at the same location to conduct a hearing that would undoubtedly be of lower quality.
c. Recommendation:
A hearing via video conference may be conducted in cases of admission and only at the express request of the person seeking protection and with their explicit verbal consent. A decision without a personal hearing may only be made at the request of the person seeking protection and with individually written consent.
5. Section 31 Asylum Act (draft): Decision of the Federal Office for Migration and Refugees (BAMF)
Here: Amendment to paragraph 3 sentence 2:
In paragraph 3 sentence 2, after the words "is recognized", the word "or" is replaced by a comma, and after the words "is granted", the words "or has been decided by the Federal Office in an earlier procedure on the existence of the conditions of Section 60 paragraphs 5 and 7 of the Residence Act" are inserted.
Paragraph 3 is amended by adding to and expanding sentence 2. Previously, paragraph 3 stipulated that if protection status is granted under the Asylum Act, no further deportation prohibitions need to be examined. This makes sense, as international protection goes beyond the humanitarian protection afforded by the Residence Act.
Under the new legal situation, decisions on deportation bans should no longer be made even if these have already been rejected in a previous procedure.
This has led to a situation where, in cases of inadmissible subsequent asylum applications, decisions regarding prohibitions on deportation can no longer be made, even if such prohibitions exist. An explicit request for a determination of the prohibitions on deportation would have to be made.
a.
In practice, applicants not represented by legal counsel would hardly consider explicitly requesting the granting of deportation prohibitions as part of a subsequent application, especially since the substantive legal distinction – in particular between Section 4 of the Asylum Act and Section 60 Paragraph 5 of the Residence Act – requires a comprehensive knowledge of European and national case law.
The proposed change would have had the following effect in 2021, for example:
For Afghans without legal representation whose asylum applications had previously been rejected and who submitted a subsequent application after the Taliban took power, a deportation ban could be granted under current law without them having to explicitly request it. Rather, by submitting their asylum application, they expressed their desire for protection from the dangers and severe consequences of returning to Afghanistan.
Under the new legal framework, such a subsequent application would only address refugee status and subsidiary protection. If the Federal Office for Migration and Refugees (BAMF) does not consider the requirements for these to be met, deportation bans would not be examined due to the lack of an application. The subsequent asylum application of the group of people mentioned in the example above would be rejected.
The BAMF would have an additional significant duty to provide advice under the planned amendment to the law, since Section 25 Paragraph 1 of the Administrative Procedure Act stipulates that the authority should encourage the submission of declarations, the filing of applications or the correction of declarations or applications if these were obviously omitted or incorrectly submitted or filed only accidentally or due to lack of knowledge.
b.
Furthermore, the current regulation, which always requires a decision on the existence of prohibitions on deportation when an application is rejected, complies with national and European legal requirements. According to these requirements, prohibitions on deportation must be examined ex officio at every stage of proceedings. This is mandated by the content and significance of the applicant's rights under the European Convention on Human Rights, the violation of which is threatened – in this case, Article 3 ECHR – as well as under the Basic Law – in particular Article 2, Paragraph 2, Sentence 1. Finally, Article 19, Paragraph 4 of the Basic Law, in conjunction with the threatened violation of the right to life and physical integrity, also precludes the threatened deportation. The provision of Article 19, Paragraph 4 of the Basic Law establishes a genuine (subjective) fundamental right that grants individuals the right to the most effective possible legal protection. In particular, irreparable consequences of sovereign acts must be avoided as far as possible through genuinely effective and comprehensive legal protection. However, comprehensive legal protection is no longer guaranteed if, within the framework of a subsequent asylum application that initially prevents deportation, prohibitions on deportation are not examined, even if they are invoked. The Federal Office for Migration and Refugees (BAMF) could reject the application, and the immigration authority, which would be bound by the BAMF's examination of country-specific prohibitions on deportation (§ 42 Asylum Act), could deport the individual without any prohibitions on deportation ever being examined.
This unacceptable outcome would not be altered even by an explicit application for a deportation ban, which is already possible under current law pursuant to Section 51 of the Administrative Procedure Act (VwVfG), although it does not prevent deportation. Furthermore, the review of such applications currently takes significantly longer than six months on average. Therefore, in many cases, the review process must be secured through preliminary injunctions, placing an additional burden on the administrative courts.
c.
Including the examination of prohibitions on deportation ultimately also serves to expedite the proceedings, since prohibitions on deportation (which originate from the Residence Act) would have to be examined at the latest when the enforceability of a return decision is questioned.
d. Recommendation:
The proposed amendment should be rejected.
6. Section 37 Asylum Act (draft): Consequence of a successful preliminary injunction in the case of inadmissibility decisions
Currently, a decision rejecting an asylum application as inadmissible due to the granting of international protection in another member state (so-called third-country decision) is invalid if an application for preliminary legal protection is granted. This rule is now to be abolished. According to the explanatory memorandum to the law, the aim is to prevent endless loops triggered by the BAMF issuing another third-country decision.
However, the repeal of this provision leads – contrary to the proclaimed purpose of the law – to a significant lengthening of procedures. Based on legal experience, most applications for preliminary injunctions in the context of third-country decisions are granted due to threatened violations of Article 3 ECHR / Article 4 Charter of Fundamental Rights. In these cases, according to the case law of the European Court of Justice, Germany is obligated to conduct a new asylum procedure anyway. This generally also occurs if a third-country decision becomes ineffective as a result of the granting of preliminary injunction proceedings. The legal consequence of granting preliminary injunction proceedings thus leads in practice to a reduction in the workload of the courts and an acceleration of procedures. Abolishing it would be counterproductive.
7. Section 73 Asylum Act (draft): Revocation and withdrawal
a. Current legal situation
The current legal situation provides that an erroneous recognition as a person entitled to asylum or the granting of refugee status can be revoked under certain circumstances – in particular, the law mentions incorrect information or the concealment of essential facts (§ 73 para. 2 AsylG).
A revocation can occur if there has been a fundamental change in circumstances in the country of origin (§ 73 para. 1 AsylG). At the latest three years after the decision on the asylum application becomes legally binding, the competent authority must review, pursuant to § 73 para. 2a AsylG, whether the conditions for a withdrawal or revocation are met.
Corresponding regulations exist for the withdrawal and revocation of subsidiary protection (§ 73b AsylG) and the determination of national prohibitions on deportation (§ 73c AsylG). Obligations to cooperate in ongoing asylum proceedings are comprehensively regulated in § 15 AsylG, § 15a AsylG governs the evaluation of data carriers, and § 16 AsylG regulates the securing, determination, and verification of identity.
In practice, past reviews have led to revocation only in very few cases. In the withdrawal and revocation proceedings initiated and decided in the first half of 2018, the reviewed protection status was upheld in 99.3% of cases (Bundestag printed matter 19/38393). Even in the subsequent review of identity documents of beneficiaries of protection, only 0.5% of the submitted documents were identified as forgeries. Reform is therefore urgently needed: to free up capacity at the Federal Office for Migration and Refugees (BAMF) – which is needed elsewhere – and to spare many affected individuals another stressful and ultimately unnecessary procedure.
b. Regarding the draft bill:
First, it is welcome that Sections 73a et seq. propose a reorganization and clearer regulation, regulating the elements of the offense and the procedures separately in their respective provisions. A slight departure from the legislative error of 2018 is also welcome. In particular, for the reasons stated above, it is also welcome that the – contrary to EU law – review of the rules after three years is to be abolished.
However, some of the following points in the reform proposals are problematic:
This concerns, firstly, the grounds that can lead to a revocation pursuant to Section 73 Paragraph 1 of the Asylum Act (draft), which are listed here as examples. In particular, the reacquisition of citizenship (No. 2) cannot and must not automatically lead to a revocation: The possibility of reacquiring citizenship is often an expression of existing administrative inconsistencies or conflicting practices in the persecuting state.
The references in Section 73b of the draft Asylum Act (AsylG-E) to the obligations to cooperate in Sections 15 and 16 of the Asylum Act (AsylG) are also to be rejected: Obligations to cooperate should, in principle, be rejected after recognition or granting of protection status. A specific regulation is needed here that takes into account the already established need for protection. EU law provides for obligations to cooperate, for example, in Article 4(1) of the Qualification Directive, albeit within extremely narrow limits. Insofar as EU law concerns the revocation, termination, or refusal to extend protection status, this is regulated in Articles 14(1) and 19(4) of the Qualification Directive. These articles already stipulate that in the case of false representation or concealment, protection status may be revoked (Article 19(3)(b) of the Qualification Directive). EU law clearly stipulates that Member States must demonstrate the corresponding prerequisites. Article 44 of the Asylum Procedures Directive provides – without differentiating between withdrawal and revocation – for the revocation of refugee status upon discovery of new information. The indiscriminate, automated, and mandatory review of asylum applications under German law is alien to European law.
For the constellation of revocation and withdrawal relevant here, Article 11(1)(e) and Article 19(3)(b) and (4) of the Qualifications Directive must be considered. A prerequisite for revocation under Article 11(1)(e) of the Qualifications Directive is the cessation of the circumstances on which a person was granted protected status, the burden of proof for which lies with the Member States pursuant to Article 11(2) of the Qualifications Directive.
Furthermore, under Union law, protected status may be withdrawn if the granting of protected status was based on a misrepresentation or concealment of facts, including the use of false or forged documents. Article 19(4) of the Qualifications Directive stipulates that the Member States must provide such evidence.
It must therefore be concluded that, in both cases of revocation and withdrawal, EU law places the burden of proof on the Member States and does not link it to the actions of the data subjects. A revocation or withdrawal that is treated as a de facto sanction for failure to cooperate is contrary to EU law.
Section 73b Paragraph 4 of the draft Asylum Act is problematic and unnecessary: According to this provision, the binding nature of the decision on the asylum application is to be suspended within the framework of naturalization proceedings until the revocation or withdrawal becomes legally binding. This should be rejected. There is also no need for such a regulation, since the residence permit itself does not automatically lapse upon revocation or withdrawal, and thus, as a rule, a legal entitlement to naturalization will continue to exist.
Finally, the one-month period for submitting a statement in Section 73b Paragraph 6 of the draft Asylum Act is practically too short. This applies particularly to cases where new documents are to be submitted. The period should generally be set at three months.
c. Recommendation:
Section 73 of the draft Asylum Act (AsylG-E), paragraphs 1 to 4 and 6, should be deleted
. Section 73b of the draft Asylum Act (AsylG-E), paragraph 2, should be amended to include the revocation and withdrawal of subsidiary protection.
Section 73b, paragraph 4, of the draft Asylum Act (AsylG-E) should be deleted.
Section 73b, paragraph 5, of the draft Asylum Act (AsylG-E) should be amended by partially deleting the reference to the duty to cooperate and clearly defining the burden of proof for the Federal Office for Migration and Refugees (BAMF).
Section 73b, paragraph 6, of the draft Asylum Act (AsylG-E) should be amended by setting the deadline at 3 months.
8. Section 74 of the Asylum Act (draft): Bias of judges
a. Reform Proposal and Assessment
Currently, a motion to recuse a judge pursuant to Section 54 Paragraph 1 of the Administrative Court Procedure Act (VwGO) in conjunction with Section 47 Paragraph 1 of the Code of Civil Procedure (ZPO) means that the challenged judge may only perform urgent actions before the motion is resolved. An exception to this is Section 54 Paragraph 1 VwGO in conjunction with Section 47 Paragraph 2 ZPO. Accordingly, a recusal motion for bias after the commencement of oral proceedings does not prohibit the judge from presiding over the case if this would lead to a postponement of the hearing. Therefore, a delay caused by a recusal motion filed during oral proceedings is already precluded by current legislation.
b. Proposed Regulation:
The proposed regulation extends the exceptional period of Section 47 Paragraph 2 of the Code of Civil Procedure to three days before the start of the oral hearing. If, in this case, the decision on the motion to recuse leads to an adjournment of the hearing, the oral hearing can also take place with the participation of the challenged judge.
c. Commentary:
This extension is incomprehensible. The chamber to which the single judge belongs decides on the motion to recuse. It is unclear why a chamber decision should not be possible even three days before the start of the oral hearing. Even on the day of the oral hearing or shortly beforehand, it is not apparent why the chamber could not decide on a motion to recuse. According to Section 45 Paragraph 3 of the Code of Civil Procedure, the chamber has a quorum as long as a member other than the judge being challenged is present. Judges designated as substitutes in the business allocation plan are also considered members with a quorum, so that a chamber being without members is virtually impossible.
Only in the unlikely event that no member of the chamber is present must the next higher court decide. However, the regulation stipulates that the decision on the recusal must lead to an adjournment of the hearing. As explained, this scenario is extremely unlikely, rendering the regulation ineffective and therefore unnecessary.
The length of the deadline is not explained in detail in the draft legislation or its explanatory memorandum and appears arbitrary. In practice, the presiding judge rarely takes any actions that could give rise to bias until shortly before the oral hearing. Legal aid applications are often decided only shortly before the hearing, and further statements are often not made at all. Therefore, extending the deadline would mean that even in cases of obvious bias, the case would have to proceed with the judge in question. It is already stipulated that a motion for recusal made during the oral hearing does not necessarily lead to the judge's exclusion.
Current legislation already provides for a broad exception to the prohibition on a challenged judge from acting in court, so an expansion of this special procedural right is not justified and must therefore be rejected. Procedural law and the guarantees it contains are intended to ensure equality of arms between the plaintiffs and the court, which is inherent in the special procedural relationship. It must be borne in mind that the court serves the plaintiffs, not the other way around. These procedural guarantees would be further eroded by the proposed amendment. It should also be noted that in other areas of law (see Section 25 of the Code of Criminal Procedure), exceptions to the prohibition on acting in court after a challenge are linked to the commencement of the oral hearing, as this is justifiable from a procedural economy perspective. A further expansion, however, is no longer justifiable, particularly in light of the fundamental right to a judge established by law, Article 101, Paragraph 2, Sentence 1 of the Basic Law.
d. Recommendation
§ 74 AsylG-E is to be rejected.
9. § 77 AsylG-E: Written procedure
a. Reform proposal and evaluation
To date, there is no special asylum law provision on this matter. A decision in written proceedings can only be made with the consent of all parties involved, based on the provisions of the Administrative Court Procedure Act (VwGO, § 101 para. 2 VwGO).
aa. Written Procedure
The proposed regulation stipulates that in all cases, legal action against decisions under the Asylum Act can be decided in written proceedings if the person concerned is represented by a lawyer. An exception applies only to Section 38 Paragraph 1 of the Asylum Act (asylum applications rejected without grounds) and Section 73b Paragraph 7 of the Asylum Act (new version, revocation or withdrawal of an existing international protection grant). An oral hearing must be held upon request, and the parties involved must be informed of this. According to the explanatory memorandum, the regulation is intended to simplify procedures and only applies to factually straightforward legal proceedings of minor significance. It is intended to apply only to proceedings in which the entitlement to protection is not at issue, which is to be ensured by the exceptions.
Firstly, the draft's justification is flawed in several assumptions. For one thing, the entitlement to protection is not only at risk in decisions pursuant to Section 38 Paragraph 1 of the Asylum Act and Section 73b Paragraph 7 of the Asylum Act (new version). Rather, this is also the case when an asylum application is rejected as inadmissible pursuant to Section 29 of the Asylum Act or as manifestly unfounded pursuant to Section 30 of the Asylum Act.
Secondly, these cases are often based on a particularly difficult legal and factual situation. Qualified rejection under Section 30 of the Asylum Act is subject to high hurdles, which means that the BAMF's factual explanations must be especially comprehensive. This also applies to decisions under Section 29 of the Asylum Act. Furthermore, the legal situation is often extremely complex, as evidenced by the numerous referrals to the European Court of Justice in recent years.
These proceedings often reveal that an oral hearing leads to a different outcome, and the decisions of the Federal Office for Migration and Refugees (BAMF) are overturned. Furthermore, the consequences of a qualified rejection are significantly more far-reaching (see Section 10 of the Residence Act, work ban, etc.), meaning that not only the right to protection but also other legal rights are affected. Waiving an oral hearing in such cases would unfairly disadvantage those affected and is unjustifiable.
Furthermore, courts are already permitted under Section 84 Paragraph 1 of the Administrative Court Procedure Act (VwGO) to decide cases by court order without an oral hearing if the matter does not present any particular difficulties of a factual or legal nature and the facts are clear. According to the explanatory memorandum to the draft legislation, however, the new regulation is intended to cover only factually and practically straightforward legal proceedings. These are already covered by Section 84 Paragraph 1 and Section 101 of the VwGO. A special regulation under asylum law is therefore unnecessary.
Furthermore, the draft is far too vague. It is unclear when a request for an oral hearing should be made. This ambiguity could lead to the loss of procedural rights or to new, much longer proceedings.
Finally, it is also unclear why the existing regulations are insufficient. In principle, given a clear set of facts and a straightforward legal situation, it is not apparent why an asylum seeker represented by legal counsel should not agree to a decision in written proceedings if it appears expedient. Reversing this right to decide whether or not to hold an oral hearing is incompatible with the procedural guarantees of Article 103 Paragraph 1 of the Basic Law. This is particularly true in asylum proceedings, as the credibility of the plaintiff's statements and the credibility of the plaintiffs can, due to the lack of evidence, be assessed almost exclusively in oral proceedings, which are therefore of particular importance (see Federal Constitutional Court, Judgment of May 14, 1996 – Case No. 2 BvR 1516/93, para. 124). This is also due to inadequate and generalized fact-finding by the Federal Office for Migration and Refugees (BAMF).
The amendment should be repealed.
bb. Inclusion of New Decisions
Currently, there is no provision that allows for the inclusion of a new decision in ongoing asylum proceedings. The principle of party disposition applies. The plaintiff decides whether and to what extent an action will be brought against an administrative decision. This is reflected in Sections 81 and 82 of the Code of Administrative Court Procedure (VwGO), which stipulate that a plaintiff must file the action themselves and can determine what and to what extent the action is being brought. Furthermore, Section 88 of the VwGO stipulates that the court cannot exceed the scope of the claim and is bound by the wording of the motions.
The regulation stipulates that a new decision issued by the Federal Office for Migration and Refugees (BAMF) during ongoing legal proceedings, rejecting an asylum application as simply or manifestly unfounded, automatically becomes part of the proceedings. This applies provided the original legal proceedings were directed against the rejection of an asylum application as inadmissible. The rationale is to expedite the procedures. In particular, it addresses situations where a Dublin procedure has been initiated and the rejection decision becomes unlawful due to the expiration of the six-month transfer deadline during the ongoing legal proceedings. In such cases, the BAMF should be able to conduct a substantive review within the ongoing legal proceedings. The rejection decision then automatically becomes part of the legal action.
This regulation is extremely problematic and violates fundamental legal principles of administrative jurisdiction. The principle of party disposition stipulates that plaintiffs themselves, through an act initiating legal proceedings, can determine whether and to what extent a legal act is challenged (or the issuance of such an act is sought). This principle is reflected in Section 81 of the Code of Administrative Court Procedure (VwGO), which makes the commencement of court proceedings dependent on the formal initiation of the action; in Section 82 VwGO, which requires the plaintiff to specify the scope of their claim; in Section 88 VwGO, which binds the court in its decision to the claim; and in Section 92 VwGO, which allows plaintiffs to withdraw an action (see Kopp/Schenke, Section 119, para. 4; Sodan/Ziekow, Section 88, para. 1). The automatic inclusion of a new and entirely different administrative decision in legal proceedings would fundamentally violate the principle of party disposition. There is no apparent sufficient justification for this.
Furthermore, the stated goal of accelerating proceedings is not guaranteed. The automatic inclusion of the rejection notice does not end the legal proceedings, but rather prolongs them. Numerous lawsuits are not pursued because those affected do not appeal negative (substantive) decisions by the Federal Office for Migration and Refugees (BAMF). Legal proceedings are now automatically initiated against all negative decisions issued as inadmissible following a rejection, whether the individuals concerned want them or not. This also includes proceedings in which deportation bans are granted. The (involuntary) plaintiffs cannot then obtain a residence permit pursuant to Section 25 Paragraph 3 of the Residence Act (AufenthG) because this is blocked during the ongoing asylum appeal proceedings pursuant to Section 10 Paragraph 1 of the Residence Act (AufenthG). Given the automatically occurring and detrimental consequences for those affected and the judiciary, this regulation appears downright absurd.
Whether the newly introduced rule, according to which the defendant, the Federal Republic of Germany, must always bear the costs in such proceedings upon withdrawal, is in the taxpayers' interest will not be assessed further here. Furthermore, the BAMF's flat-rate cost allocation in the event of immediate withdrawal of the action after the inclusion of the new administrative act will lead to unforeseeable costs for the BAMF. To date, a majority of courts reject the BAMF's obligation to bear costs when an action against a Dublin decision is settled due to the expiration of the transfer deadline. The flat-rate cost allocation therefore works to the BAMF's detriment. This should also apply if a second proceeding against the negative substantive asylum decision is initiated and the action against the first decision is withdrawn. It remains unclear whether the amount in dispute also automatically increases through an expansion of the subject matter of the dispute, thus causing even higher costs for the BAMF.
Furthermore, a decision on the merits of an asylum application also requires that a corresponding hearing has taken place. Such a hearing must be conducted in accordance with the provisions of Directive 2013/32/EU. It cannot be held retrospectively in a public court hearing, as this would violate the confidentiality requirements of the hearing (see Federal Administrative Court 1 C 41.20 – judgment of March 30, 2021). This means that even in cases where the Federal Republic of Germany is not initially responsible for examining the asylum application, the Federal Office for Migration and Refugees (BAMF) must always conduct a hearing on the substantive grounds for asylum so that a negative decision can be issued after the transfer deadline has expired in the ongoing legal proceedings. This requires an additional time expenditure of approximately three hours per applicant, as the hearing on the substantive grounds for asylum generally takes considerably longer than the hearing on the admissibility of the asylum application. The regulation would therefore lead to a significant increase in workload for the BAMF and not to an acceleration of the asylum procedure.
Furthermore, the question arises as to what happens if the circumstances change after the Dublin decision has been issued, which is the case for numerous countries of origin. In this case, another hearing might be necessary to reach a proper decision. This would slow down the process even further.
This regulation is therefore not only a massive and unjustified infringement on the procedural rights of those affected. It will also very likely lead to a greater burden on the courts and the Federal Office for Migration and Refugees (BAMF), thus further slowing down the process.
The regulation should be repealed.
Article 103 Paragraph 1 of the Basic Law guarantees the parties to the proceedings that they have the opportunity to comment on the facts underlying a judicial decision before it is issued, and thereby influence the court's decision-making process.
Article 103 paragraph 1 of the Basic Law (cf. Article 6 paragraph 1 of the European Convention on Human Rights) does not directly give rise to a right to an oral hearing (cf. BVerfGE 5, 9 <11>; 21, 73 <77>; 36, 85 <87>; 60, 175 <210>; 89, 381 <391>; 112, 185 <206>). Rather, it is for the legislature to decide how the right to be heard is to be granted (cf. BVerfGE 9, 89 <95 f.>; 60, 175 <210 f.>; 67, 208 <211>; 74, 1 <5>; 89, 381 <391>) (- 1 BvR 367/15 – ).
b. Recommendation:
The proposal should be rejected in its entirety.
10. § 78 AsylG-E: Legal remedies
a. Current Legal Situation:
Section 78 of the Asylum Act (AsylG) essentially determines when a judgment of the administrative court is final and on what grounds an appeal against the judgment of the administrative court is admissible. It constitutes a special procedural law in asylum proceedings that is more restrictive than the Code of Administrative Court Procedure (VwGO). This is because Section 78 Paragraph 3 of the Asylum Act significantly restricts the grounds for granting leave to appeal in asylum law compared to the more general provisions of Section 124 of the Code of Administrative Court Procedure.
b. Draft law and assessment
The proposed amendment by inserting Section 78 Paragraph 8 of the Asylum Act introduces a special "factual review" and at the same time restricts the possibilities for appeal for those affected.
The aim of the new regulation is to expedite court proceedings and standardize jurisprudence in asylum cases. According to the explanatory memorandum accompanying the draft legislation, a uniform, nationwide legal framework on asylum and deportation-related issues should enable asylum seekers to assess the chances of success of their legal action at an early stage and make a decision based on this assessment. This should ultimately reduce the number of unsuccessful lawsuits and relieve the burden on the courts.
This expectation is, in our view, unfounded. Firstly, minor discrepancies in individual circumstances often give rise to decisions in one direction or the other. A guiding principle applicable to a multitude of cases can therefore hardly be established. Secondly, it remains unclear how new developments in the country of origin can be taken into account in deviation from the guiding principles. However, according to the jurisprudence of the Federal Constitutional Court, this is necessary on a daily basis in a volatile security situation. Consequently, instead of clarity and uniformity, there will be uncertainty and disputes.
Instead of relieving the burden on the courts, an increased burden on the administrative courts, particularly the Federal Administrative Court, is to be expected. If one asks how the asylum procedure can be made fairer for asylum seekers, this can be achieved primarily by improving legal remedies, not by shortening them.
c. Recommendations
The proposed amendment should be rejected.
To make the procedures fairer and more uniform, we recommend instead expanding the grounds for appeal. According to prevailing legal opinion, the CJEU and the ECtHR are not capable of conflicting decisions within the meaning of Section 78 Paragraph 3 No. 2 of the Asylum Act (see, e.g., Bavarian Administrative Court, Decision of April 9, 2018, 11 ZB 18.30631, para. 2, cited in juris). A decision of the CJEU only becomes capable of conflicting decisions if the Federal Constitutional Court adopts it in a specific case.
While this also applies to Section 124 of the Code of Administrative Court Procedure (and is not actually justified there either), it does not cause as much harm there due to the otherwise considerably broader grounds for appeal. In cases of doubt, if a decision deviates from that of the CJEU, there are also "serious doubts as to the correctness of the judgment" (Section 124 Paragraph 2 No. 1 of the Code of Administrative Court Procedure). However, this ground for appeal does not exist under Section 78 of the Asylum Act.
This is particularly problematic because decisions of the European Court of Justice (ECJ) are of great importance in asylum law, for example, its judgment of November 7, 2013, cases C-199/12 to C-201/12. This judgment was only incorporated into constitutional case law years later by the German Federal Constitutional Court's decision of January 22, 2020, 2 BvR 1807/19, thus creating the potential for divergence. Clarifying that decisions of the ECJ and the European Court of Human Rights (ECtHR) are also subject to divergence would provide clarity and close the existing gap.
11. § 79 Special provisions for the appeal procedure
a. Reform proposal and evaluation
The proposed amendment aims to relax the currently applicable prohibition on referral back to the higher administrative courts. This is intended to relieve the burden on these courts.
Under current law, the Higher Administrative Court is obligated, after granting leave to appeal, to bring proceedings to a decision even if it assesses the general situation relevant to asylum, deportation, or transfer in a destination country differently than the Administrative Court, and the granting of protection by the Administrative Court depended substantially on this assessment. This is now to change, and the previously applicable absolute prohibition on rejection is to be partially relaxed. In certain cases, the Higher Administrative Courts will now be given the option of referring proceedings back to the courts of first instance.
In our view, the amendment does not go far enough. Instead of completely abolishing the ban on refusal, it is being restricted.
However, the prohibition of rejection should be rejected in its entirety, because it reduces the legal protection options available to those affected by shortening the appeal process provided for in the Administrative Court Procedure Act (VwGO).
b. Recommendation:
The proposed regulation should be rejected and paragraph 2 should be deleted entirely.
III. OTHER REFORM PROPOSALS
Section 3, paragraph 3 of the Asylum Act (Exclusion):
This provision is not practical and would have hardly any applications in practice; therefore, it should be rejected. The regulation regarding unworthiness for asylum already exists.
Section 5 Paragraph 6 AsylG-E:
A security check should be mandatory in all cases.
Section 33 ASylG-E
The regulation, especially without explicit instruction on the legal consequences of not operating, is to be rejected.
Section 72 of the draft Asylum Act (AsylG-E)
It is welcome that the grounds listed in Section 72 Paragraph 1 Numbers 1-3 of the Asylum Act are no longer intended to lead to the termination of protected status, but are to be examined in a procedure according to Section 73 of the draft Asylum Act. However, it is unacceptable that a declaration of waiver for the conduct of the asylum procedure must be forwarded by the immigration authority to the Federal Office. In practice, such declarations to the immigration authority regularly cause problems, as those affected are unclear about what they are waiving. Instead, in practice, it should be verified before a residence permit is issued, and also communicated in writing, that, assuming all other circumstances remain unchanged, only the withdrawal of the asylum application would prevent the issuance of a residence permit. The waiver can only be legally valid if declared to the Federal Office.
Berlin, November 24, 2022
The statement as a PDF
