--- 1.1. Recognition as Person entitled for Asylum
Whereas the original Art. 16 paragraph 2 Sentence 2 GG used to provide an unlimited fundamental right for asylum, this fundamental right has been significantly limited in 1993 by withdrawing Art 16 paragraph 2 Sentence 2 GG and implementing a new Art. 16a GG.
This limitation includes especially the implementation of the third country-rule in Art. 16a paragraph 2 GG (see section below) and the concept of safe countries of origin (Art. 16a paragraph 3 GG (see section below).
Because of these amendments, the rate of recognition as person entitled for asylum is low, especially as only entries to Germany by air (which may not be from a safe country of origin) may qualify for recognition.
--- 1.2. Recognition of Refugee Status
In the meantime the legislator has adopted the international law-term for refugees according to the Geneva Convention on Refugees literally into the national law (§ 3 paragraph 1 AsylG and § 60 paragraph 1 AufenthG).
If an applicant for asylum cannot be recognized as person entitled for asylum according to Art. 16a GG because he entered via a safe country of origin and if this person cannot be deported into a third country, he benefits from refugee protection standards according to § 3 paragraph 1 AsylG, § 60 paragraph 1 AufenthG, if he may be subject to prosecution in the meaning of the Geneva Convention on Refugees in his home country. He must not be deported to his home country in this case.
--- 1.3. Subsidiary Protection
A person which does not meet the conditions for a recognition as person entitled for asylum or as refugee, but which can provide substantive reasons that he faces a risk of a “serious hazard” upon return to his home country, is entitled to subsidiary protection (§ 4 paragraph 1 AsylG, § 60 paragraph 2 AufenthG). Valid reasons for serious hazard are:
The imposition or execution of death penalty
Torture or inhuman or humiliating treatment or punishment, or
A serious individual threat of life or physical integrity to a person based on arbitrary violence due to an international or domestic armed conflict.
--- 1.4. Prohibition for Deportation according to § 60 paragraph 5 AufenthG
The prohibition of torture or inhuman or humiliating treatment or punishment according (Art. 3 ECHR) is already covered by § 60 par. 2 AufenthG (and by § 4 par. 1 no. 2 AsylG - subsidiary protection). Therefore, § 60 par. 5 AufenthG only applies, if, in a specific case, other human rights guaranteed by the ECHR are at risk.
However, in case of interventions into such other guaranteed rights (as for example the freedom of thought, freedom of conscience and freedom of faith according to Art. 9 ECHR) a deportation is only prohibited in severe cases. This may be a case where the imminent interference can be compared with reasons resulting to a prohibition of deportation according to Art. 3 ECHR.
§ 60 par. 5 AufenthG only protects against violations of human rights threatening asylum seekers in the country, into which they shall be deported. It only covers "target-country related" deportation obstacles.
In case of deportation of only a part of family members, the right of protection of family life (Art. 8 ECHR) does not hinder deportation according to § 60 par. 5 AufenthG, but may be a domestic barrier for execution. This barrier has to be considered by the Immigration Office in charge for the deportation. However, Art. 8 ECHR does not overrule the protection according to Art. 6 GG, which has to be considered nevertheless.
It is different, if lesbian or gay asylum seekers shall be deported into a country, where they will not be able to openly live as a couple with a same-sex partner. The violation of their human right regarding the right to respect for family life threatened through the deportation is a target-country related deportation obstacle according to § 60 par. 5 AufenthG; see below the section: "The right to openly live together as couples".
--- 1.5. Prohibition for Deportation according to § 60 paragraph 7 AufenthG
A prohibition for deportation according to § 60 paragraph 7 AufenthG must be granted, if a considerable concrete danger to health, life or freedom exists for the foreigner in the country of destination. This does not apply, however, to dangers, to which the population or population group, to which the foreigner belongs, is subjected in general (§ 60 paragraph 7, sent. 2 AufenthG).
If the general dangers "due to indiscriminate violence within the scope of an international or domestic armed conflict" are threatening, the asylum seekers are entitled to be recognised as persons entitled to subsidiary protection, see above.
If the general dangers are due to natural catastrophes or similar events, the uppermost federal state authorities may take this into account through orders pursuant to § 60a paragraph 1 and § 23 paragraph 1 AufenthG. If such orders will not be issued, a protection against deportation may only be granted in accordance with the settled case-law of the Federal Administrative Court by way of a constitutional application of § 60 paragraph 7, sent. 1 AufenthG, if the foreigner involved would be consciously surrendered to death or most serious injuries in case of a deportation (BVerwGE 99, 324 (328); BVerwGE 115, 1; BVerwGE 137, 226, side note 15).
Protection against deportation pursuant to § 60 paragraph 7 sent. 1 AufenthG will, in particular, apply if the danger of an essential deterioration of an existing disease will threaten due to a lacking or insufficient treatment in the country of destination.
In accordance with the existing case-law of the Federal Administrative Court, a prohibition for deportation must be consented to in case of illness, if the existing illness of the foreigner will deteriorate due to circumstances prevailing in the country of destination, namely in a way resulting in an essential and concrete danger to health or life, i.e. that an essential deterioration of the illness will threaten immediately after the return of the foreigner.
A stricter standard will exist according to the case-law of the Federal Administrative Court in case of illness, if the deterioration of diseases in relation to the country of destination can be classified as a general danger or danger for groups within the meaning of § 60 paragraph 7 sent. 2 AufenthG. This is applicable in case of diseases - such as AIDS for example -if a large number of persons involved in the country of destination, and therefore there is a need for a political alien routing decision within the meaning of § 60a paragraph 1 and § 23 paragraph 1 AufenthG. In such cases, a protection against deportation may only be granted pursuant to § 60 paragraph 7 sent. 1 AufenthG - as stated above - by way of a constitutional application, if a country-wide extremely pointed danger is to be expected for the foreigner involved in the country of destination of the deportation (either due to the general conditions or due to the special situation in the individual case) due to a required but not receivable medical treatment.
This has been the procedure followed by the BAMF so far, see the response of the Federal Government on the small request of deputies of the Group of THE LEFT regarding the "Decision-making practice of the BAMF on the protection against deportation for persons infected with HIV", BT-Drs. No. 16/6029 of 09.07.2007.
In the meantime, the legislator has severely restricted the protection against deportation for health reasons. The legislator has arranged (§ 60 paragraph 7 AufenthG):
that a considerable concrete danger for health reasons only exists in case of life-threatening or serious diseases, which would considerably deteriorate due to the deportation. After the grounds of the law, BT-Drs. 18/7538, p. 19, post traumatic stress disorder (PTSD) is not classified as a life-threatening or serious disease, which would considerably deteriorate through the deportation. Therefore, the deportation is in cases of PTSD regularly possible "unless the deportation will result in a considerable health hazard up to a self-endangerment".
that the medical care in the country of destination does not need to be equivalent with the care in the Federal Republic of Germany and
that a sufficient medical treatment generally exists, even though this is only guaranteed in a part of the country of destination. However, in this respect goes Art. 8 of the Qualification Directive 2011/95/EU before. Pursuant to this, it is only allowed to refer sick asylum seekers to the option of a medical treatment in a part of the country of destination, if the treatment is achievable in view of the situation of the person involved, also see § 3e AsylG.
Furthermore, the legislator has additionally restricted the possibility to obtain protection against deportation due to illness through the following procedural rules (§ 60a paragraph 2 c and d AufenthG):
It is supposed that health reasons are not opposed to the deportation.
The foreigner is obliged to furnish evidence for a disease, which might affect the deportation, by way of a qualified medical certificate. This medical certificate shall, in particular, include the actual circumstances, on whose basis a professional expertise is based, the method of the fact elevation, the professional medical assessment of the clinical picture (diagnosis), the degree of severity of the disease as well as the consequences probably resulting from the situation due to illness according to the medical assessment, see in addition also the tips: "Requirements for medical certificates" (link into German) Pursuant to the grounds of the Law, only the certificate of a "licensed physician" is regarded as a qualified certificate. Certificates of licensed psychotherapists are not sufficient.
The foreigner is obliged to immediately present the medical certificate to the competent authorities. If the foreigner injures the duty to the prompt presentation of such a medical certificate, the competent authority may not consider the arguments of the foreigner to his illness unless the foreigner had been prevented to obtain such a medical certificate without his/her fault or in case of other factual indications for the existence of a life-threatening or serious illness, which would seriously deteriorate through the deportation.
If the foreigner will present a certificate and if the authority will subsequently order a medical examination, the authority will be entitled to refrain from taking the disease into consideration, if the foreigner will not follow the order without sufficient reasons.
The foreigner must be pointed out to the obligations and to the legal consequences of a violation of these obligations.
On the page 20 of the official grounds is said in addition:
"A preclusion (exception) will exceptionally occur, if the foreigner was prevented to obtain a qualified medical certificate without his/her own fault or if reasons exist insofar in the individual case, which would already result in an obstacle to deportation pursuant to § 60 paragraph 7 sent. 1 and 2 AufenthG, i.e. in case of factual indications for a life-threatening or serious illness, which would seriously deteriorate through the deportation."
If a sickness affecting the deportation has not been proven by a qualified medical certificate pursuant to § 60a par. 2c AufenthG and has thus not contradicted the statutory assumption of fitness to travel, a suspension of the deportation will generally not be considered. The Foreigners' Authority is generally not obliged to investigate in this case.
If, however, actual indications exist that the foreigner suffers from a life-threatening of serious disease, which would essentially deteriorate due to the deportation, the Foreigners' Authority is not only entitled but obliged to consider these indications and to order a (renewed) medical examination pursuant to § 24 VwVfG in con. with § 1 par. 1 VwVfG LSA supplying sufficient conclusions, whether or not a foreigner is suffering from a life-threatening or serious disease and whether this would essentially deteriorate in case of a deportation.
Only if the foreigner fails to follow an order for the performance of a medical examination in such a case, the authority will be entitled pursuant to § 60a para 2d sent. 3 AufenthG to refrain from taking into account the disease stated.
We proceed on the assumption, that sick asylum seekers, whose applications for international protection will be decided upon in accelerated proceedings (see below), will not succeed anymore to obtain protection against deportation pursuant to § 60 paragraph 7 AufenthG.
--- 1.6. LSBTTI* Refugees from Civil War Countries
The legal consequences of the various different recognition forms are very different (see below). This is important for homosexual refugees from civil-war-torn countries.
Refugees from Syria, for example, will receive the subsidiary protection status (see above) within the course of an accelerated procedure at the moment, if no other Dublin country is responsible (see below). The refugees will then receive a residence permit for one year, which may also be extended. The subsidiary protection status will be revoked, however, as soon as the civil war is terminated. The refugees have to return to their home country in this case.
For this reason, refugees from civil-war-torn countries should not allow to be fobbed off during their hearing (see below) by the statement, that they would not need to make any statements – for the time being - about their prosecution due to their homosexuality or about their fear of prosecution, because they would be recognized as beneficiaries of protection anyway.
They must insist, that they do not want to be recognized as beneficiaries of subsidiary protection only but also as refugees (see above) and that they intend to also submit statements for this reason with respect to their prosecution as homosexuals or regarding their fear of such a prosecution. If the decision-maker will refuse to do so, they must insist that this shall be recorded in the minutes.
Otherwise it may happen that they will be reproached later on, that their statements with respect to homosexuality were not trustworthy, because these statements had not been made immediately (see below).
2. Entry from a Safe country of Origin
Applications for asylum from applicants from safe countries of origin are rejected as being manifestly unfounded (Art. 16a paragraph 3 GG, § 29a AsylG). Safe countries of origin are all members of the European Union and those listed in Appendix II to § 29a AsylG, which are Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia (former Yugoslav Republic), Montenegro, Senegal, and Serbia. The Countries Algeria, Morocco and Tunisia are to be declared safe countries of origin.
About asylum applications of asylum seekers who arrive by air and come from a safe country of origin, is decided in accelerated proceedings on the airport premises (§ 18a AsylG). This airport procedure is designed - with approval from the Federal Constitutional Court - so that effective legal protection is essentially not possible.
About the asylum applications of all other refugees from safe countries of origin is in the "Expedited Procedure" decided (§ 30a AsylG, see below). The legal protection is limited the same way as in the airport proceedings.
The asylum seekers are obliged to live in "Special Reception Facilities" until the decision of the BAMF on their application for asylum and possibly until their departure from the country or deportation. It is not allowed to grant to these asylum seekers a permission to carry out an employment during the asylum proceedings (§ 61 paragraph 2 AufenthG).
It is presumed that asylum applicants from safe countries of origin were safe from political persecution in that country. To justify their asylum application, asylum seekers must provide facts or evidence that give reason to believe that they face political persecution in their country of origin in spite of the general situation there (Art. 16a paragraph 3 GG, § 29a paragraph 1 AsylG) .
3. Entry from a Safe Third Country
Foreigners who enter from a safe third country in accordance with Art. 16a paragraph 2 GG will not be granted asylum status. Safe third countries are all members of the European Union and those countries listed in Appendix I to § 26a AsylG. These are Switzerland and Norway.
If asylum seekers enter Germany by land, they can only do so via a safe third country. It does not matter, if it remains unknown through which third country they have entered. It is sufficient, if it is certain that they have arrived by land.
If asylum seekers want to enter the Federal Republic by land, they will be denied entry (§ 18 paragraph 2, number 1 AsylG). The border authority will deport asylum seekers if they are found near the border immediately before or after an entry (§ 18 paragraph 3 AsylG).
If the third country through which they have entered is known, the asylum seeker will be deported to that country immediately. If it is not known, the asylum seeker cannot be removed to a third country. Perhaps this is why asylum seekers destroy their travel documents upon entry.
In such cases, asylum seekers may not be deported to their country of origin if their life or freedom there is threatened because of their race, religion, nationality, membership of a particular social group, or political opinion. They will be considered as refugees as per § 60 paragraph 1 AufenthG in accordance with the Geneva Convention on Refugees (so-called Small Asylum).
The BAMF decides on this deportation protection as well.
The German rule on safe third country does not apply to a person who is subject to the Dublin III Regulation. Please see the following section.
4. Dublin Regulation
For the safe third countries and in addition for Island and Liechtenstein the Dublin III-Regulation applies (Regulation (EU) No 604/2013 of the European Parliament and the EU-Council dated June 26, 2013, to lay down the criteria and the procedures for the identification of the EU-member state which is responsible and, hence, is in charge of an application for international protection filed in a member state of the EU by a person from a third country or a stateless person - recast). The Dublin Regulation overrules the German rule on safe third countries.
The Dublin III-Regulation determines the EU-state which is responsible for the Asylum procedure. That is the Dublin-State in which an applicant for asylum entered at first or in which already an asylum procedure is or was pending.
A foreigner receives asylum or is a refugee as defined in the Geneva Convention the legal status of refugees, if he owing to well-founded fear of persecution in his country of origin on account of his race, religion, nationality, political opinion or membership of a particular social group resides outside the country (country of origin) whose nationality he possesses and the protection of which he cannot, or, owing to such fear does not want to avail himself of. (§ 3 paragraph 1 AsylG).
In the assessment of the question whether the foreigner's fear of political persecution is justified, it is irrelevant whether they actually have the racial or religious, national, social or political characteristic which lead to the persecution, provided that the pursuers cause these characteristics to them (§ 3b paragraph 2 AsylG).
Depending on the circumstances of the country of origin, a group can be counted as a certain social group if it was formed based in common characteristics of sexual orientation. Political persecution on account of membership to a particular social group can also ensue, if it is tied solely to gender or gender identity (§ 3b paragraph 1 Nr. 4 AsylG).
Accordingly on 7th of November 2013, the European Court of Justice (ECJ / EuGH) ruled (C-199/12 to C-201/12, Rs. Minister voor Immigratie en Asiel) that the existence of criminal laws such as those which specifically target homosexuals (exceptions: punishable offenses as, for example, pedophilia) support the findings that these persons must be regarded as forming a particular social group.
The same applies to other acts or threats of persecution based on sexual orientation.
If asylum seekers arrive out of their country of origin without having been persecuted, they will only be recognized as refugees if they belong to a particular social group facing threats of persecution.
As per the Federal Administrative Court’s ruling, the acceptance of the existence of a “group persecution” presupposes a certain "persecution density" that justifies this “legal presumption”. For this, the risk of a large number of aggressive acts on asylum protected legal rights must be so high, such that the they no longer just involve either individual, isolated attacks or a large number of isolated attacks. Rather, the acts of persecution in the period and area of persecution must be targeted at every member of the group and must be so far-reaching and repetitive that, in both quantitative and qualitative respects, every group member not only faces the potential for persecution but lives in immediate and concrete danger of it (BVerwG, Urt. V. 21.04.2009, 10 C 11/08 juris. and Urt. v. 20.02.2013, 10 C 23.12).
6. Acts or Threats of Persecution
The definition of persecution is described in § 3a paragraph 1 AsylG Act. Beyond that, a persecution is only recognized as such if violating acts are so severe in their nature and/or recurrence that they constitute serious violations to basic human rights. The violations can also be an accumulation of several injurious acts, including human rights violations.
The following are taken into account (§ 3a paragraph 2 AsylG Act):
The occurrence of physical and psychological violence, including sexual violence, against homosexuals
Acts against homosexuals by or through the law, administrations, the police, or judiciary branches that are discriminating or are used to discriminate
Penalties or prosecutions of homosexual that are disproportionate or discriminating punishments of homosexuals
The denial of lawful legal protection following an unfair ruling
The persecution can be either by the state, political parties or organizations that rule a significant portion of the state, or by unpolitical actors if the state or ruling political parties and organizations aren’t able or willing to provide protection from the persecution. It is irrelevant whether or not a state government exists in the country or not.
The protection against persecution must be efficient and must not be of temporary kind. Generally, such a protection is given, if the state or the ruling parties or organizations implement suitable measures to prevent persecution, e.g. through efficient legal regulations which allow the investigation, prosecution and penalization of acts, which constitute a persecution. The foreigner must have access to these measures of protection (§§ 3c and 3d AsylG).
7. Asylum for Homosexuals
Homosexuals may be granted asylum status if they face persecution because of their sexual orientation in their home country and/or if they are subjected to serious risk of persecution, inhumane and degrading acts or punishments or risk to their life, limb or liberty. The acts of persecution must be so severe that they are serious violations to basic human rights.
In these cases, all acts that the foreigner is or will be threatened by in his home country have to be considered including human rights violations such as repression, discrimination, and other disadvantages. Such acts cannot be excluded during the decision procedure solely because they are merely discriminating, but not “official” human rights violations.
This is because an accumulation of different acts can also qualify as a violating act. These acts or threats can be human rights violations, but can also be discriminating acts that on their own do not constitute human rights violations. Such acts include discrimination in the accessibility to educational or health institutions and vocational or economic restrictions. The individual acts do not have to be human rights violations on their own, but in their entirety must have the effect of a severe human rights violation.
On the other hand, insults, verbal abuse, and unsubstantiated threats as well as the communication of feelings of inhospitableness are not sufficient to become acts of persecution. They are not severe enough to become serious violations of basic human rights.
8. The right to openly live together as couples
Applications filed for asylum or protection against deportation have been mostly rejected until some years ago, namely on the grounds that the asylum seekers were able to live their homosexuality under the protection of privacy and would not be endangered in this case. They had been expected "to keep a very low profile" or "to act with discretion", in order to avoid any persecution. In this case, the BAMF and the administrative courts had relied on the country reports of the Foreign Office, in which the actual situations of lesbians and gays in the home country of the asylum seeker are described in such a way, so that lesbians and gays were able to act sexually without hazards in the private environment.
This practice is no longer possible anymore due to the above-mentioned judgement of the EuGH of 07.11.2013. The EuGH has decided: "When reviewing an application for the granting of the refugee status, the competent authorities cannot expect from the asylum seeker, that he/she will keep secret his/her homosexuality in his/her country of origin or that he/she will withhold the living of her/his sexual orientation, in oder to avoid the risk of a persecution."(Guiding Principle 3)
The BAMF and the administrative courts have quickly found, however, a way out and now often reject the applications for asylum on the grounds, that there was no targeted searches for homosexuals in the country of origin of the asylum seeker and that thus criminal proceedings of the asylum seekers were extremely unlikely. These are also the arguments of the Federal Government with respect to the Maghreb countries, which were therefore „safe“ countries of origin.
This does not take into account that the cohabitation of homosexuals does not exhaust itself by way of occasional sexual acts. These people - like heterosexual people - want to live in relationships with people with the same sexual orientation.
The cohabitation of couples of men and women of the same sex is, however, refused in many countries and will trigger violent reactions of their environment. This frequently happens even in countries, which do not punish homosexuals and which have decreed anti-discrimination regulations also applicable for homosexuals. This applies, for example, to most Balkan States, which are considered as "safe countries of origin".
If it becomes known in these countries, that two men or women are a couple, the private environment (employer and colleagues, professors and fellow students, families) will react with overwhelming rejection up to violence. The men and women will be dismissed by their employers and will not find a new job. They will be obstructed and excluded in the universities, so they will be unable to continue their studies. They will be threatened with violence from their families.
Young lesbians and gays may often claim, that their families will tolerate under no circumstances, that a son or daughter will live together with a man or woman and that the families will force their son or daughter to conclude a marriage (Risk of forced marriage).
Police may possibly be willing to prosecute the offenders, if assaults actually happened. But this will usually not deter the offender, because he will not have to expect serious penalties and because they will receive recognition through their environment due to defending moral principles. An extensive preventive protection of couples of men and women against violent acts is actually impossible and can be neither expected from police nor from the employer or the university bodies.
For this reason, men and women couples are not able to normally live together as a couple of the same sex. That is an asylum-relevant serious violation of human rights.
It is not allowed to object that men and women will face any refusal or marginalisation, if they would keep their relationship secret. According to the above-mentioned judgement of the EuGH of 07.11.2013, the national authorities are not allowed to require from asylum seekers during the review of the application for granting the status of refugees, that they shall exercise restraint in their living their sexual orientation, in order to avoid the risk of persecution.
The fact, that lesbians and gays cannot openly live together as couples, is an additional reason for a prohibition of deportation according to § 60, para. 5 AufenthG. According to this legal regulation, it is not allowed to deport a foreigner, insofar as the application of the European Convention for the Protection of Human Rights and Fundamental Rights (EMRK) will show, that the deportation is not allowed.
The European Court of Human Rights (EGMR) has always acknowledged, that the same-sex partnership is covered by the scope of protection of Art. 8, para. 1 EMRK with respect to the claim for the respect for private life. Since the judgement of 24.06.2010 in the case of Schalk and Kopf v. Austria (File no. 30141/04, NJW 2011, 1421), the court considers that the same-sex partnership is covered by the scope of protection of the right for respect for family life according to Art. 8 para. 1 EMRK.
According to the settled case-law of the European Court of Human Rights, the EMRK does not guarantee the right of a foreigner to travel to or stay in or not to be deported from a specific country. But measures within the scope of immigration may, however, affect the right for the respect for family life according to Art. 8 EMRK. According to this, everyone has the right for the respect for his/her family or private life; any intervention is only allowed under the conditions of Art. 8, para. 2 EMRK. In both cases, a fair balance between the contrary interests of the individual and the society must be achieved. As a result, Art. 8 EMRK will oblige to a consideration solution in accordance with the principles of proportionality (BVerwG, judgement of 30.03.2010, file no. 1 C 8.09, Rnr. 34; judgement of 04.09.2012, file no. 10 C 12/12, Rn. 21).
When making this consideration, the fact is decisive, that it will not be possible temporarily or permanently for lesbians and gays to live together as a couple with a partner of their choice in the country, into which they shall be deported. They will thus be punished through the deportation to permanently live as a single. This is a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The deportation prohibition of § 60 par. 5 AufenthG is independent from and in addition to the deportation prohibition of § 60 par. 2 AufenthG in connection with § 4 par. 1 AsylG (subsidiary protection) and does not replace it. With respect to § 60 par. 5 AufenthG, all guarantees of the EMRK must be taken into account, which could result in a deportation prohibition (BVerwG, judgement of 31.03.2013, file no. 10 C 15.12, Rnr. 34 fol.).
Lesbian and gay asylum seekers coming from countries, in which the open cohabitation of same-sex couples is not tolerated, should thus state during their application filing and hearing, that they have left their home country not only due to imminent persecution and serious discriminations but also, because they did not want to live alone anymore. At the same time, they should describe in detail, what kind of violent and discriminating reactions of their environment and family they would have expected, if they would have openly admitted living together with a same-sex partner.
It is very important, that the asylum seekers will explicitly point out during their asylum proceedings, that it was not the question for them, whether homosexuals are persecuted as a group in their home country, but whether living together as a homosexual couple is rejected and will trigger such serious defence reactions in this country, so that these must be altogether qualified as a serious violation of human rights.
With respect to the possibility of a family reunification with the partners, who still live in the home country of the asylum seeker, see Section "Family reunification" below.
9. The previous case law of the Federal Administrative Court and the administrative courts
In 1988, the Federal Administrative Court recognized, in accordance with the old asylum rights, that homosexuals from Iran are being politically persecuted. At the time, they declared that lesbian and gay foreigners with “irreversible imprints of homosexuality” are recognized as refugees, if returning to their home country puts them in danger of receiving corporal punishment or the death penalty. However, pursuant to this ruling, prosecution because of homosexual acts was not sufficient for granting asylum status, if the prosecution was “only” due to a violation of public decency or morality.
These limitations may be a result of the fact that the German government persecuted gay men for twenty years as well. Furthermore, § 175 of the German Criminal Code was still in effect at the time, which stated that consensual homosexual activity between young men was a punishable offense, whereas consensual heterosexual activity with girls was permissible. It seems that, following the ruling, the Federal Administrative Court wanted to avoid an accusation that Germany had also persecuted gay men.
On the basis of this case-law, homosexuals had only been acknowledged as asylum seekers, if the BAMF and the administrative courts had been convinced, that an "irreversible homosexuality" existed. For this purpose, sexual-psychology expertises had been asked for in most cases. In the meantime, the BAMF and the administrative courts waive such a check, see Section „Auditing of the statements of homosexual refugees“ below.
The following process of asylum proceedings will result from the application of the AsylG:
If asylum seekers will travel to Germany via the airports Berlin-Schönefeld, Düsseldorf, Frankfurt am Main, Hamburg and Munich, Federal Police forces are allowed to keep them in the transit zone. A decision on the application for asylum will be made within two days here (Airport Proceedings - § 18a AsylG). If the BAMF will reject the application for asylum as obviously unsubstantiated, the entry will be refused and the asylum seeker will be threatened with deportation. An application for temporary jurisdictional protection can be filed within three days against this decision. This will be decided upon by the administrative court in a written proceeding.
If the application is not rejected as obviously unsubstantiated or if the BAMF will not decide within two days, entry will be granted to the foreigner.
Persons seeking asylum or protection, who will enter the country overland and who will have contact with Federal Police at the border or in the border area, will usually be deported into the neighbouring country. Because all neighbouring countries of Germany are Dublin countries (also see Section Dublin Proceedings) and are thus primarily responsible for the handling of the application for asylum.
Asylum seekers, who had been granted the entry to Germany or who had the first contact with authorities on the territory of Germany, will be transferred by the federal police, the police forces of the States or by the immigration authorities to a contact point (see below) and will be distributed to a reception facility assigned to a branch office of the BAMF (see below). The asylum seekers are obliged to file an application for asylum with this branch office (§ 14 par. 1 sent. 1, § 16, § 19 par. 1, § 20 par. 1 sent. 1 AsylG).
In the meantime, the BAMF has established further facilities, in order to accelerate the procedure processes. These include, in particular, the arrival centres used to combine the asylum proceedings, which had been distributed to various different stations until now. These are the following facilities:
The waiting areas of the BAMF are used to register the asylum seekers with the assistance of personnel of the German army and customs before distributing them to the Federal States. This way, the BAMF ensures that the data of these persons can be quickly matched with the data of the databases, inter alia, of the Federal Criminal Office (BKA).
So-called processing lines are used to register, make photos of and have the asylum seekers examined by medical doctors. In addition, finger prints are taken. Afterwards, the data are passed through police databases. In case of no match, the persons will be passed on to a reception facility.
Branch offices / Regional offices
The branch offices assigned to these reception facilities will conduct the asylum proceedings and are the contact as so-called regional offices for the managers of integration measures and are responsible for the local integration activities assuming migration tasks.
The hearing centres have been set up by the BAMF, in order to process the backlog of asylum proceedings. Refugees, who have already filed an application for asylum, will be invited for a hearing into this centre (see below). This hearing is the central element of the asylum proceedings, during which the persons involved will explain in detail their reasons for their flight. This will be the basis for the subsequent decision about their entitlement for asylum, which will be made at a different location.
The decision centres are designed to decide on proceedings ready for decision, e.g. of asylum seekers from Syria, Iraq and Eritrea and on proceedings already pending. No hearings will take place here and the centres are not open to the public.
In 2015, the BAMF had started to establish arrival centres to combine steps in the asylum proceedings, which had been distributed to several different stations so far. If possible, the complete asylum proceedings will take place under the roof of the arrival centre - from the health examination, the registration, the criminal checks and bookings, the filing of the application for asylum, the hearing up to the decision on the application for asylum and the first consultation for an integration into the job market.
The asylum seekers will be allocated in the arrival centres as follows (Cluster Proceedings).
Cluster A: Countries of origin with a high quota of recognition: asylum seekers from Syria, Eritrea and religious minorities in Iraq. The complete proceedings will take between 24 and 48 hours. In general, a positive decision will be made. Integration measures will start immediately (integration courses, access to job market).
Cluster B: Countries of origin with a low quota of recognition: mainly refers to countries of the Western Balkans. Also in these cases, the complete asylum proceedings will take 48 hours at the most. In general, a negative decision will be made.
Cluster C: Complex cases. In these cases, asylum seekers will be frequently passed on from the arrival centre to a branch office of the BAMF, where the processing will be carried out.
Cluster D: Dublin cases. Asylum seekers, who have first entered another EU country. The asylum seekers will be passed on to a branch office.
--- 10.1. Entry
During the first contact of the asylum and protection seekers with the German Federal Police, the police forces of the Federal States or the foreigners' authorities, these have to comprehensively record the data of the refugees and enter the data into a central system. All institutions dealing with the refugees at a later stage have access to these data. This shall prevent a double registration of refugees or a disappearance from the system.
The personal data, such as name, date and place of birth, the finger prints and data on the health examinations and inoculations will be registered. In addition, data on school education, vocational training as well as other qualifications will be stored, which are required for a speedy integration and job placement. Also voluntary information on the religion and further voluntary data shall be recorded as well.
The finger prints will also be stored in the Eurodac Database and synchronized, in order to determine whether the refugees have already been registered in another Dublin country (see below).
Since you can not apply for visas for the purpose of applying for asylum in Germany at the German missions abroad, most asylum seekers enter Germany illegally. According to §§ 14, 95 paragraph 1 No 3 AufenthG, illegal entry is punishable. However, according to Article 31 paragraph 1 of the Geneva Convention of Refugees, refugees must not be penalised.
When the German Federal Police gets hold of a refugee, usually it initiates criminal investigations against the refugee on account of illegal entry into the country. A couple of weeks later, the asylum seeker receives a letter from the competent public prosecutor’s office stating that the investigation proceedings have been closed.
Some refugees use false identification papers only when entering the country. The courts are divided about the question whether or not this is punishable. Against penalty ordes over 90 daily rate of income should always file an objection and try to reduce the penalty. Background is that higher levels of penalties may put the issuance of a residence permit at risk (cf. § 5 paragraph 3 in connection with § 55 paragraph 2 No 2 AufenthG).
--- 10.2. Contact Point for Asylum Seekers - Proof of Arrival - Temporary Residence Permit
The German Federal Police, the police forces of the Federal States or the foreigners' authorities will refer asylum seekers to a Contact Point for asylum seekers. The refugees are obliged to immediately proceed to this place (§ 20 paragraph 1 AsylG). If they fail to do so, their application for asylum will be regarded as withdrawn.
If the asylum seekers will immediately prove in such a case, that the delayed arrival at the contact point had resulted from circumstances beyond their control, the proceedings will be continued.
Otherwise, the Federal Office will determine in its decision, that the asylum proceedings are discontinued and whether a prohibition for deportation exists pursuant to § 60 paragraph 5 or 7 AufenthG. The Federal Office will make the decision according to the state of the file (§ 32 AsylG). The asylum seeker may then file an application for the resumption of the proceedings.
A certificate on the registration as asylum seeker (proof of arrival) will be immediately issued to the asylum seekers. The data compiled during the first registration will be included in the proof of arrival (see in detail § 63a AsylG).
The asylum seeker will be allowed to stay in the Federal Republic of Germany for the duration of the asylum proceedings from the date of the issue of the Proof of Arrival (Temporary Residence Permit). In cases, in which no Proof of Arrival has been issued, the Temporary Residence Permit will be generated upon the filing of the application for asylum (§ 55 para 1 AsylG). The Certificate of the Temporary Residence Permit will be received by the asylum seekers after filing the application for asylum, see below.
The proof of arrival will be limited to a maximum of six months and will be prolonged by each three months at the most until the asylum seekers will receive a date to file the application with the branch office of the BAMF.
The branch offices or the reception facility, to which the foreigner has been assigned, are responsible to issue the proof of arrival. As soon as the foreigner will not be obliged to live in the reception facility anymore, the immigration authorities are responsible to prolong the certificate.
The asylum seekers are obliged to immediately proceed to the reception facility named to them in the contact point. They will receive the required tickets for this purpose. The distribution to the reception facilities will be carried out via the EASY system (Initial Distribution of Asylum Seekers).
If the asylum seekers will fail to immediately proceed to the reception facility, the legal consequences described above will occur.
--- 10.3. Reception Facility
Asylum seekers are obliged to live in the reception facility for up to six months. Asylum seekers from a safe country of origin (see above) have to stay in the reception facility till the end of their asylum proceedings and, in case the application for asylum has been rejected, till their departure or deportation from Germany (§ 47 paragraph 1 and 1a AsylG).
--- 10.4. Application for Asylum
Immediately after admission to the reception facility or at the time requested by the reception facility, asylum seekers are obliged to appear personally (§ 23 paragraph 1 AsylG) at the branch office of the BAMF to apply for asylum (§ 14 paragraph 1 AsylG).
It is only possible to send a written application to the BAMF if a foreigner has a residence permit of (totally) more than six months (e.g. foreign students), the refugee is imprisoned, is being treated in hospital or in case of unaccompanied minors for whom a guardian makes the application (§ 14 paragraph 2 AsylG).
In fact, currently it can take months till it is possible to apply for asylum. According to Article 6 paragraph 5 of the EU procedural directive 2013/32/EU, it must be possible to apply for asylum within 10 working days. Since the implementation period is already expired on 20 July 2015 (Article 51 paragraph 1 Directive 2013/32/EU), the directive became directly applicable legislation. Therefore, after the ten working days, asylum seekers may file an application for an appointment for applying for asylum and, if nothing happens, may raise an action for failure to act according to § 75 VwGO.
A Certificate of the Temporary Residence Permit containing the personal data and a photograph will be issued to the foreigner within three working days after filing the application for asylum. The certificate will include the date of issue of the Proof of Arrival (see above) and the date of filing the application for asylum (§§ 55, 63 AsylG). The foreigners are able to identify themselves with this certificate in Germany. It does not entitle to cross the border (§ 64 AsylG).
The temporary residence permit is only valid for the district of the immigration office, in which the competent reception facility of the refugee is situated (§ 56 AsylG). One may ask for a permission for leaving this district. It is possible to attend appointments at courts or public authorities without such a permission (§ 58 AsylG). A first violation against the territorial limitation is an administrative offence (§ 86 AsylG), a repeated violation a criminal offence (§ 85 No 2 AsylG).
The territorial limitation expires after three months of residency in Germany. This will not apply, however, as long as the asylum seekers are obliged to live in the reception facility (§ 59a par. 1 sent. 2 AsylG), thus for asylum seekers from safe countries of origin (§ 47 par. 1a AsylG) and for asylum seekers, where the application is processed as accelerated proceedings (§ 30 par. 3 AsylG). They are obliged to live in the special reception facility until the date of the decision of the BAMF and, if applicable, also until their departure or deportation
After leaving the reception facility and expiration of the three months period from the date of entry to Germany (proven by Proof of Arrival), one may apply for a deletion of the territorial limitation in the temporary residence permit at the immigration office.
----- Living in Shared Accommodation
After six months the latest, asylum seekers should be allocated to other accommodation, except for asylum seekers from a safe country of origin. In general, lodging should take place in shared accommodation (§ 53 AsylG). Lodging in shared accommodation, so called decentralised accommodation, and private flats is governed by the laws of the respective federal state. The allocation notice will be issued by the competent federal state authorities.
Applications for a relocation within a federal state or within the country may be sent to the competent federal state authority. Such applications may only be successful if based on family reasons (nuclear family), medical reasons (e.g. there is specialised clinic nearby) or special hardness (e.g. hostility and violence against lesbians and gays inflicted by other refugees or sexual harassment of women by male refugees).
----- Job opportunities
§ 5 AsylbLG provides, that job opportunities shall be made available to the asylum seekers at the reception facilities and comparable facilities, namely, in particular, for the maintenance and operation of the facility. Furthermore, job opportunities shall be made available , insofar as possible, at State, municipal and non-profit organisations, insofar as the work to be performed would not be performed otherwise, would not be performed in this scope or would not be performed at this time.
An allowance in the amount of Euro 1.05 each hour has been paid so far for such work (§ 5 par. 2 AsylbLG). In the course of the Integration Act, the allowance has been reduced to Euro 0.80 each hour, unless the asylum seekers will provide evidence for higher expenditures in the individual case incurred by them to take up the work opportunity, e.g. for work equipment, work clothes or tools required, for travel expenses or costs incurred for external meals. Since the job opportunities are not considered as "employment relationship" (§ 5 par- 5 ArbLG), the asylum seekers will not be entitled to request the minimum wage.
From 01.08.2017, the BAMF will carry out a „Labour Market Program Refugee Integration Measures“ scheduled for a period of time of three years (§ 5a AsylbLG). This way, it is planned to create 100,000 job opportunities. Asylum seekers from safe countries of origin as well as foreigners obligated to leave and this is enforceable, including holders of a temporary residence permit, are not allowed to participate in the program.
Any asylum seeker able to work and not employed, who has completed the 18th year of age and is not in full-time education, is obliged to take up the work opportunity made available. The beneficiary must be informed in this respect before (§ 5a para 3 sent. 1AsylbLG: „in writing“).
In case of an unsubstantiated refusal, these persons will not receive the „necessary demand“ anymore (see below) but only benefits to cover their needs for food and accommodation including heating and health and personal care, which shall be granted as benefits in kind. Only in case of particular circumstances in the individual case, also other benefits to cover their necessary demand may be refused.
This is not applicable, if the asylum seekers will present and prove an important reason (see § 12 par. 4 SGB XII) for their behaviour. An important reason may, in particular, exist, if the asylum seekers will take up or have taken up an employment on the general labour market, a vocational training or studies.
The carriers offering work opportunities shall immediately inform the competent authorities, if asylum seekers refuse to take up or continue the work opportunities assigned to them or prevent the initiation through their behaviour.
As long as asylum seekers are obliged to live in a reception facility, but at least for three months, asylum seekers must not exercise any employment(§ 61 par. 1 and par. 2 sent. 1 AsylG). For asylum seekers from a safe country of origin, who applied for asylum after 31 August 2015, this ban on employment applies for the whole period of their asylum proceedings (§ 61 par. 2 sent. 4 AsylG).
The work permit has to be applied for at the immigration office. The form “Zustimmungsanfrage” (approval request) has to be completed by the applicant and the future employer. The Federal Employment Agency’s (Bundesagentur für Arbeit) approval is necessary (§ 39 AufenthG). The approval will only be granted if no German or other citizen of the European Union is worth being considered (so-called priority check).
From 06.08.2016, the priority check for asylum seekers with a temporary residence permit (see above) has been suspended in 133 out of altogether 156 agency districts of the Bundesagentur für Arbeit (Federal Employment Agency) for three years (§ 32 para 5 no. 3 BeschV). The remaining 23 agency districts, in which a priority check will still be carried out for asylum seekers and persons with a temporary residence permit during the first fifteen months, are located in Bavaria (Aschaffenburg, Bayreuth, Hof, Bamberg, Coburg, Fürth, Nuremberg, Schweinfurt, Weiden, Augsburg, Munich, Passau, Traunstein), in North Rhine-Westphalia (Bochum, Dortmund, Duisburg, Essen, Gelsenkirchen, Oberhausen, Recklinghausen) as well as in Mecklenburg-Western Pomerania (all agency districts), see in detail appendix 2 to § 32 of the Employment Regulation. The asylum seekers holding a temporary residence permit may also take up a job as temporary worker.
Insofar as the approval to exercise an employment is still required, this is deemed granted if the Federal Employment Agency does not inform the competent authority within two months after the transmission of the approval request that the received information is not sufficient for making a decision or that the future employer did not or not on time send the necessary information (§ 36 paragraph 2 BeschV). Currently, this happens quite often. Therefore, one should always ask the immigration office for a written confirmation of the submission date, three days later one should ask the immigration office whether the approval request has been forwarded to the Federal Employment Agency and after 14 days one should ask the immigration office whether they have received a response from the Federal Employment Agency. If not, asylum seekers may pick up their work permit at the immigration office.
----- Vocational training and internships
The immigration authorities are allowed to enable to foreigners with toleration and to asylum seekers with residence permit (see above) a vocational training in a state-approved or similarly regulated apprenticeship profession without the consent of the Bundesagentur für Arbeit (§ 4 par. 2 sent. 3 AufenthG or § 61 par. 2 sent. 1 AsylG in connection with § 32 par. 2 no. 2 and par. 4 BeschV).
State-approved or similarly regulated apprenticeship professions are all approved apprenticeship professions according to the Berufsbildungsgesetz (Vocational Training Act) and according to the Handwerksordnung (Crafts Code) as well as vocational training similarly regulated under Federal or State laws (also see List of State-Approved Professions maintained by the Bundesinstitut für Berufsbildung (Federal Institute for Vocational Training).
The same is applicable to the following traineeships (§ 32 par. 2 no. 1 and par. 4 BeschV in connection with § 22 par. 1 sent. 2 nos. 1 to 4 of the Mindestlohngesetz (Minimum Wage Act):
Mandatory traineeships required by the school, training institution or university/college
Traineeships within the scope of a programme financially sponsored by the European Union or under a bilateral development cooperation and for
Traineeships up to a term of three months
for an orientation for a vocational training or to take up studies
within the scope of preparations for a vocational training or in an introductory company training
within the scope of an introductory training according to the SGB III and measures of vocational training preparations according to the Berufsbildungsgesetz.
The approvals will be granted under the condition, that the employment of the foreigner is allowed. An employment ban exists under the following conditions:
as long as the asylum seeker is obliged to reside in a reception facility, see above (§ 61 par. 1 AsylG),
if the foreigner with toleration or the asylum seeker is citizen of a safe country of origin (see above) or if he/she has filed an application for asylum only after 31.08.2015 and if the application for asylum has been rejected (§ 60a par. 6 no. 3 AufenthG, § 61 para. 2 sent. 4 AsylG),
if measures to terminate the stay for a foreigner with toleration cannot be enforced for reasons, for which he/she himself/herself is responsible, insofar as the insufficient cooperation is the reason for the non-enforcement of the measures to terminate the stay (§ 60a par. 6 no. 2 AufenthG). The foreigner will be responsible for the impedance of the deportation in particular if he/she has caused this through an own deceit regarding his/her identity or nationality or through incorrect information,
if the foreigner with toleration has travelled to Germany to obtain benefits under the Asylbewerberleistungsgesetz (Benefits for Asylum Seekers Act) (§ 60a par. 6 no. 1 AufenthG).
Furthermore, the granting of the approval will be at the discretion of the immigration authorities. In accordance with the opinion of the Bundesministerium des Innern (Federal Ministry of the Interior) (see Circular Letter of 01.11.2016), the immigration authorities shall, in particular, take into account the following circumstances:
Reasons in favour of the granting of an approval:
clarified identity of the foreigner,
presentation of a valid national passport or of an acknowledged foreign passport substitute document or, at least, cooperation for the procurement of the same,
actual impossibility for deportation in the foreseeable future,
long duration of stay in the Federal Republic of Germany,
good command of the German language, because this is the mandatory condition to carry out a vocational training.
Reasons contradicting an approval:
foreigner fails to cooperate to clarify identity,
short stay in the territory of the Federal Republic of Germany,
limited skills of the German language,
imminent concrete measures to terminate the stay, e.g. pending Dublin proceedings,
committed offences or other violations of legal provisions (e.g. of geographical restrictions or fixed abode) or of administrative or court decisions.
The approved assumption of a qualified vocational training may result, in a second step according to § 60a par. 2 sent. 4 fol. AufenthG, in the granting of a toleration (see below).
----- Benefits based on the Asylum Seekers Benefits Act (“Asylbewerberleistungsgesetz”)
During the ongoing asylum proceedings, asylum seekers cannot claim social benefits based on the SGB II (Arbeitslosengeld II/Unemployment Benefits II) or SGB X (Sozialhilfe/Social Welfare). You will only receive the "necessary demand" (notwendiger Bedarf), which should be satisfied by non-cash benefits. (§§ 3 et. sqq. AsylbLG). In case of illness, the benefits are limited to the treatment of acute illness and pain conditions (§ 4 AsylbLG).
If all necessary personal requirements will be covered by cash payments, the asylum seekers will receive the payments stated in § 3 par. 1 AsylbLG. These are considerably lower than the social welfare rates of need and have been reduced again through the Law on the Introduction of Accelerated Proceedings of 11.03.2016.
The benefits with respect to sickness are limited to the treatment of acute sicknesses and pain (§ 4 AsylbLG). A treatment with dental restorations will only be carried out if this cannot be delayed for medical reasons in the individual case. Chronic diseases, where a long-term treatment will be involved and which generally cannot be completed in Germany, will generally not trigger an obligation to perform according to the official justification pursuant to § 4 par. 1 AsylbLG (also see Bundestag Printed Papers No. 12/4451 of 02.03.1993, p. 9).
The claim pursuant to § 4 par. 1 AsylbLG is supplemented, however, by the protection regimes for pregnant women (§ 4 par. 2 AsylbLG) and by the flexibility clause pursuant to § 6 par. 1 AsylbLG. According to this provision „other benefits“ may be granted, in particular, if these are compulsory to ensure the health or necessary to cover the specific needs of children. The AsylbLG thus enables to adequately treat individual cases and to allow access to a healthcare exceeding the scope of benefits granted pursuant to § 4 par. 1 AsylbLG. This standard will ensure a compulsory entitlement especially for groups with a particular need for protection - by way of a reduction of the discretionary powers - insofar as this is necessary under European or constitutional law.
Because in particular the Directive 2013/33/EU (Reception Directive) provides a claim for the required medical or other assistance, including - if required - a suitable psychological care for persons requiring special protection, which also includes persons with severe physical diseases and psychological problems or persons, who suffered from torture, rape or other types of psychological, physical or sexual violence and who have special requirements. The discretion of the authorities is reduced to zero through these requirements of § 6 par. 1 AsylbLG for the case groups covered by the reception directive due to the interpretation in conformity with European law since the expiration of the time limit for implementation (according to the Government of the Federal Republic of Germany in the Bundestag Printed Papers No. 18/9009 of 04.07.2016).
Before the issue of the "Proof of Arrival" (see above), persons entitled to asylum will only receive benefits to cover their needs for food and accommodation, including heating, as well as for body and health care, which shall be granted as benefits in kind. This is not applicable, if they had already been submitted to police identification and have been received by the reception facility, to which they have been distributed and if they are not responsible for the missing issue of the proof of arrival (§ 11 par. 2a AsylbLG).
Asylum seekers, who reside in Germany without major interruption for 15 months and who did not influence the duration of the stay in abuse of the applicable laws, will receive benefits based on SGB XII by analogy (§ 2 par. 1 AsylbLG) and are equal to persons with a statutory health insurance (so-called analogue benefits) with respect to claims for benefits. In case of the existence of a relevant clinical picture, there is also the claim for the cost absorption for a psychotherapy..
Depending on the state, the health card will be issued from the beginning or upon the commencement of the analogue benefits, see the website "Health for asylum seekers".
----- Integration course for foreigners holding a temporary residence permit
Asylum seekers holding a temporary residence permit (see above) and where a legal and permanent stay is expected may already be admitted to an integration course during the asylum proceedings within the scope of available places in the course. In fact, only asylum seekers with a "good perspective to stay" will be admitted (at the moment, the countries of origin: Syria, Iran, Iraq, Eritrea and Somalia). With respect to an asylum seeker originating from a safe country of origin, it is assumed that a legal and permanent stay will not be expected (§ 44 par. 4 AufenthG).
The following additional provisions will apply from 01.01.2017:
The competent issuing authority may oblige asylum seekers in writing with a temporary residence permit, who have completed the 18th year of age and are not subject to full-time compulsory education to participate in an integration course, if they receive benefits pursuant to the AsylbLG (§ 44a par. 1, sent. 1 no. 4 AufenthG, § 5b par. 1 AsylbLG).
If the foreigners will refuse, despite written instructions on the legal consequences, to take up or properly participate in an integration course reasonable for them, they will not receive the "necessary requirement" anymore (see above), but only benefits to cover their requirements for food and accommodation, including heating, as well as for personal and health care, which shall be granted as benefits in kind. Only in case of the existence of particular circumstances in the individual case, also other benefits to cover their necessary requirement may be refused.
This does not apply if the person entitled to benefits presents and provides evidence for an important reason (see § 12 par. 4 SGB XII) for his/her behaviour. An important reason may also be, in particular, if the person entitled to benefits starts or has started an employment on the general labour market, a vocational training or studies.
--- 10.6. The Dublin Regulation – first or brief interview
While applying for asylum the asylum seekers' finger prints are being verified in the Eurodac Database in order to find out whether the asylum seekers have already been registered in another Dublin state.
After the formal application for asylum has been submitted (see above) the BAMF first checks, whether or not it is the responsibility of another Dublin state to process the application. To clarify the question of responsibility, the BAMF calls the applicant for a personal hearing on the basis of a questionnaire (first or brief interview). The last question is of particular importance:
“Are there any reasons which count against processing of your application for international protection not in Germany but in another Dublin state: Do you object to being transferred to any other states?”
The BAMF itself is in fact in a position to take over the asylum procedure despite the stated responsibility of another Dublin state (“Selbsteintrittsrecht” according to Art. 17 para 1 Dublin III VO). Therefore, the asylum seeker should elaborate in detail why it was unacceptable for her/him to stay in the other Dublin state (homelessness, devastating conditions in the refugee camp etc.).
It is also important that Asylum seekers insist on receiving a complete re-translation of the minutes of the hearing before they sign it. After signing, pleas by applicants referring to false or inadequate translation of their presentation will have no chances of success.
If the BAMF comes to the conclusion that another Dublin state is in charge, it submits a request for transfer to the respective state. Simultaneously, it informs the asylum seeker about the request for transfer and the initiation of the Dublin procedure.
The request for transfer must be submitted within a period of two months after the Eurodac verification, in case of other proofs within a period of three months (Art. 23 para 2 Dublin III VO). Relevant is the first Eurodac verification by the Federal Police (see above). If the BAMF misses the respective deadline, Germany becomes in charge of processing the asylum application (Art. 23, para 3 Dublin III VO). Thereupon the asylum-seeker can appeal to it.
The Dublin state, to whom the request for transfer has been submitted, has to respond within one month, in case of an existing Eurodac verification within two weeks. If there is no response within the stipulated period of time, the respective state becomes in charge of the asylum procedure (Art. 25 Dublin III VO).
After the respective state has expressed consent or after inconclusive expiry of the time period for the response the BAMF issues the Dublin notification: The application is rejected as inadmissible and an order for deportation to the respective Dublin state is issued.
Consequently, the asylum seeker can file a complaint with the Administrative Court within one week. Simultaneously she/he must apply for suspensive effect of the complaint at the Administrative Court within one week after notification according to § 80 para 5 Administrative Court Procedures (VwGO) (in the following called "urgent application"). Deportation cannot be ordered before the Court has decided on the urgent application, if the application was submitted within the given period of time (§ 34a para 2 sentence 2 AsylG).
Important: The one week period starts with the date of delivery of the notification to the place of stay (date marked on the yellow envelope/postal delivery certificate), not with the day the notification has in fact been handed over to the asylum seeker.
The six months period for transfer starts with the consent of the respective Dublin state or the “fiction of consent”. In case of applicants in pre-trial detention or imprisonment the time period is 12 months, and in case of “fugitive” persons it is 18 months (Art. 29 Dublin III VO).
The Dublin notification of the BAMF comes with a complete file excerpt. The definition of the deadline for transfer can usually be found on the last pages or the asylum seeker can apply for inspection of files to access this information.
Important: As per the Federal Administrative Court’s ruling (BVerwG, Urt. v. 26.05.2015 - 1 C 15.15), the period of time for transfer starts afresh after rejection of the urgent application. Therefore, an urgent application prolongs the period of time for transfer.
If the consent or the “fiction of consent” of the Dublin state in charge was issued several months back, it may be recommendable to refrain from submitting an urgent application and, instead, to bridge the expiry of the period for transfer in a different way e.g. by just waiting or by making use of church asylum.
It has also been tried so far to bridge the time limit of transfer through presenting a medical certificate towards the immigration office on the disability to travel of the asylum seeker. This will not be possible anymore due to the exacerbated requirements for the proof of diseases as deportation obstacle (see above).
For more information on the Dublin regulation see also:
Information Network ASYLUM & MIGRATION (Informationsverbund ASYL & MIGRATION): Basic information for consultancy No. 2:
Church asylum according to the Dublin Regulation can become an option once the Dublin decision has become final or the urgent application for establishing suspensive effect of the complaint against the Dublin decision has been rejected.
The place of stay has to be notified immediately on the first day in writing (preferably by fax) to the respective immigration office (“Ausländeramt”) and the BAMF in order to avoid creating the impression of going into hiding. The Churches have come to an agreement with the BAMF in February 2015 that people in church asylum are not being regarded as absconding even in “Dublin III”-cases. This means that, because of expiry of the period for transfer, Germany becomes responsible for the asylum procedure at the latest after six months.
Furthermore, the churches have reached an agreement with the BAMF that a single case review will be carried out in justifiable cases between church and BAMF as early as possible and within the scope of legal possibilities. For this purpose, meaningful dossiers shall be presented by the church contacts to the BAMF, showing a substantiated humanitarian case of hardship in the individual case.
In general, the branch offices of the BAMF are obliged after the receipt of the dossier to refrain from taking any further steps. After the review of the dossier, a decision will be made, whether the sovereignty clause pursuant to Article 17 par. 1 of the VO (EU) No. 604/2013 (Dublin III-VO) may be exercised in favour of the person involved due to particular hardships. No Dublin return into another member country will be made until the final decision has been made.
Furthermore, it is recommendable to obtain immediately confirmation by the church parish that church asylum covers accommodation only and that all other benefits are granted only as advancements until the official social benefits are being paid again. This confirmation can be used to apply for the continuation of grants according to the Asylum Seekers Benefits Act (“Asylbewerberleistungsgesetz”) and for entitlements for medical treatment (“Krankenbehandlungsscheine”).
--- 10.8. Accelerated Proceedings
Certain groups of refugees are referred by the Federal Police after the control into "Special Reception Facilities" (§ 5a paragraph 5 AsylG). The asylum proceedings must be carried out in this facility within one week. If the BAMF fails to do this, the proceedings will be continued as non-accelerated proceedings.
Otherwise the BAMF will stop the asylum proceedings. The asylum seeker may then apply for a resumption of the proceedings.
The accelerated proceedings (§ 30a AsylG) are carried out, inter alia, for:
foreigners from safe countries of origin, see above. The countries Algeria, Morocco and Tunisia shall also be classified as safe countries of origin.
foreigners who have the authorities apparently deceived by false information or documents or by withholding relevant information or by withholding documents about their identity or nationality, and
foreigners who willfully destroyed or disposed of an identity or travel document that would have helped establish their identity or nationality, or clearly justify this assumption in the circumstances.
We proceed on the assumption, that all asylum seekers without documents will be referred to the accelerated proceedings.
The asylum seekers are obliged to live in the special reception facility until the decision of the BAMF and also possibly until their departure or deportation. If they leave the district of the immigration office, in which the special reception facility is located, their application for asylum will be regarded as withdrawn.
If the asylum seekers will immediately prove in such a case, that the leaving of the district of the immigration office had resulted from circumstances beyond their control, the proceedings will be continued.
If the application of asylum seekers will be rejected as obviously unsubstantiated or inadmissible, they may file an action against this decision before the Administrative Court within one week and may file an emergency appeal with suspensive effect of the action. The emergency appeal must be substantiated in detail, because the Administrative Court will only decide in a written procedure. If the emergency appeal will be rejected, the deportation may be enforced despite the currently pending legal action and the asylum seeker may be deported.
It is thus very important, that LGBTTI* asylum seekers will immediately seek profesional advice. This will not be possible, however, in most cases, because many LGBTTI* asylum seekers will fail to immediately and openly report on their sexual orientation and respective persecution, if homosexuality is tabooed in their country of origin and if their survival strategy had been to keep secret their sexual orientation towards third parties.
With regard to all other asylum procedures it takes presently many months, until asylum seekers are being called for hearings.
If prospects of success of an asylum application are good, one should file an inactivity complaint with the Administrative Court. According to § 75 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung / VwGO) a complaint can be filed after three months at the earliest. In view of the present excess of work of the BAMF, however, the Courts assume “sufficient reason” for prolonged inactivity.
The EU Procedural Guideline 2013/32/EU (EU-Verfahrensrichtlinie 2013/32/EU) defines concrete time frames for the investigation procedure. In principle the procedure must be finalized within six months. It may take nine more months, if a large number of refugees apply for asylum. As an exception, these deadlines may be exceeded up to three months maximum, if this is required for an adequate and comprehensive investigation. The maximum time frame, therefore, amounts to 21 months.
Up to now the EU Procedural Guideline has not been incorporated in German law, and the period for implementing the said time frames expires only on July 20, 2018 (Art. 51, paragraph 2, EUVfRI). However, the Administrative Courts generally apply these regulations already now.
The hearing is the only chance to furnish prima facie evidence of the flight reasons, if no other documents can be presented to prove persecution or hazard (§ 25 AsylG). The hearing focuses on the question, why the person has left his/her country, whether there had been an alternative to flight for the applicant in the country of origin, and what he or she would have to face in case of going back.
The hearing consists of the following 25 questions:
Do you speak any other dialects in addition to the language/s mentioned?
Do you have more than one nationality?
Do you belong to a special ethnical/indigenous group?
Can you present personal documents such as passport or equivalent or identity card?
Did you have personal documents, e.g. passport or equivalent or identity card, in your home country?
Why are you not in a position to present personal documents?
Can you present any other documents such as school certificates, birth certificate, service record, driving license etc.?
Do or did you have a stay document/residence permit/visa for the Federal Republic of Germany or any other country?
Please state your last official address in your home country. Did you live there till you left? If not, where did you live?
Please state your family name, birth name, first name, date and place of birth of your spouse as well as date and place of marriage.
What is your spouse’s address (if he/she is no longer staying in his/her home country, please state his/her last address there as well as the present one)?
Do you have children (please mention all your children, including adults, giving their family names, first names, dates and places of birth)?
Please give their addresses (if the children are no longer staying in their home country, please state their last addresses there as well as the present ones).
Please mention the family names, first names and addresses of your parents.
Do you have siblings, grandparents, uncle/s or aunt/s living outside your home country?
Please give the personal data of your father’s father.
In which school/s and/or university/ies did you study?
What is your profession? Who was your last employer? Did you have your own enterprise?
Where you in military service?
Did you visit the Federal Republic of Germany before?
Have you submitted an application for asylum or for recognition as refugee in another country as well? Have any of these applications been approved?
Has any family member applied for refugee status or got recognition as refugee in another country, and does he/she have his/her registered residence there?
Do you have any objections against processing of your application for asylum there?
Please describe how and when you came to Germany. Please explain in detail, when and by which means you left your home country, which other countries you passed through and how you entered into Germany.
The applicant is now being informed that she/he is going to be heard regarding her/his story of prosecution and the reasons for her/his application for asylum. The applicant is requested to present the facts causing her/his fear of political prosecution. Question: For which reasons did you….leave your (home country)?
Asylum seekers should prepare themselves carefully before the hearing with regard to what they want to present, and they should try to recollect important details. They should write down the most important data and incidents in order to sort out their memories and identify inconsistencies. However, they should not make use of these notes in the hearing itself in order to avoid the impression of presenting an invented story.
Asylum seekers can be accompanied by a person of trust. They should inform the BAMF about this as early as possible.
If asylum seekers submit documents for the files, which prove prosecution or hazard or their entry into the country by air (flight ticket or boarding card), they should insist on receiving copies and on registering the handover of these documents in the minutes of the hearing.
An interpreter will participate in the hearing. Asylum seekers should inform the BAMF already when submitting their application (see above) about the language they will use in the hearing. They should choose the language in which they are most articulate.
The task of the interpreters in the hearing is just translation. They are not supposed to give comments. If asylum seekers get the impression that the translation is not correct or that communication is inadequate, they should indicate this problem to the BAMF staff and ask for appointing another interpreter for the hearing. Furthermore, they must insist on taking note of their criticism in the minutes of the hearing.
The following is important also in this context: Asylum seekers should receive a complete re-translation of the minutes of the hearing before they sign it. After signing, pleas by applicants referring to false or inadequate translation of their presentation will have no chances of success.
--- 10.10. Auditing of the statements of homosexual refugees
In general, the decision of the BAMF and the administrative courts can assess the asylum applications only on the basis of the arguments of the applicant because no other evidence available. Decisive are the following aspects:
(1) A conclusive Presentation of Facts
The credibility of the claimed political persecution requires a conclusive presentation of facts that give an account of why the asylum seeker is being persecuted and must provide detailed and coherent facts that outline this threat.
This includes events that have occurred in the asylum seekers own social realm as well as personal experiences that provide a detailed and complete account that appropriately support the asylum application without any contradictions (cf. BVerwG, Beschl. v. 26.10.1989, 9 B 405.89 juris). Concrete, articulate, and detail-rich evidence indicate a truthful account of real events.
If contradictions or assertions that became exaggerated throughout the process cannot be resolved, the requirements will usually be deemed unsatisfied.
Thus, during their first hearing with the BAMF, asylum seekers are required to present detailed and comprehensible reasons to justify their application within a few days of filing it.
However, for many lesbian and gay refugees, it is not possible to openly discuss their sexuality and the corresponding persecution. “Outing” yourself to foreign government officials is an immense barrier. Additionally, asylum seekers are housed in refugee centers along with people from their own community, which, consequently, often presents the possibility that they will be faced with similar oppression and marginalization in these places. However, if the refugees then present their sexuality as a reason for seeking asylum later during the procedure, such reasons have previously frequently been dismissed as an “exaggerating assertion”, meaning the presentation isn’t credible because the refugees should have presented this to begin with.
(2) Type and seriousness of the persecution threats in the country of origin
(3) Existence of a certain sexual orientation or the accusation by persecutors thereof:
It is sufficient if the asylum seeker can credible tell about any previous persecutions due to a certain sexual orientation or, if lack of thereof, an appropriate questioning of the asylum seeker convinces the decision-maker that there will be a risk of persecution in the future due to this orientation.
Regarding the above-mentioned decision by the Federal Administrative Court, the courts have previously also assessed a so-called “irreversible homosexuality” exists. In this view, the attraction to same-sex activity, pursuance of which is at the discretion of the individual, alone is not relevant to the asylum procedure, but only if the individual is exposed to inescapable events (for example: instinctual satisfaction) that make it impossible for them to refrain from this activity.
It was not rare that such an assessment was followed by a demand from the BAMF or the courts for the refugees to undergo a psychological examination to determine the extent of their homosexuality at their own expense.
Asylum seekers cannot be questioned in detail as to their previous sexual activity
“Tests” with a view of establishing their homosexuality cannot be demanded (e.g. Phallogram)
Production of intimate films or photos as evidence for the assessment cannot be accepted or demanded
Questioning based on stereotyped notions such as the knowledge for the protection of the rights of homosexuals and the details of corresponding organizations may be useful but cannot solely satisfy the requirements of taking an account of the individual’s position and circumstances
(4) Individual Affliction of the asylum seeker with a certain sexual orientation
It is basically irrelevant, which components of sexual self-determination are intervened with. The trigger of repression can be the sexual orientation alone or the corresponding conduct in private or public.
(5) The risk / threat must arise directly from the individual’s sexual orientation
For example: If any exchange of public intimacy or affection, by both heterosexuals and homosexuals, violates the dominating idea of morality and if the penalties of these improper behaviors are the same regardless of the persons' sexual orientation, then threats are not deemed as ensuing from one’s sexual orientation. However, if homosexuals face a notably worse and discriminating penalty, then the political persecution is deemed as targeted towards homosexuals.
(6) Return Prognosis
A twofold prognosis is required:
Upon return to his country of origin, how will the asylum seeker behave regarding his sexual identity?
How will national authorities and others in the country of origin respond to this behavior?
In the case of the credible existence of previous acts of persecution, the legal presumption of Art. 4 paragraph 4 of the EU Directive 2011/95/EU applies, which means that, if the circumstances in the country of origin have not changed, it is to be assumed that further political persecution is highly likely and refugee protection must therefore be granted.
In the case of missing evidence of previous acts of persecution, it is to be determined whether the sexual orientation of the asylum seeker is known in the country of origin. If, following this, it is highly likely that the asylum seeker will be threatened by political persecution, refugee protection is to be granted.
In the case of missing evidence of previous acts of persecution and the current status of the surrounding society concerning sexual orientation, it is to be determined whether the asylum seeker will behave in such a way that might produce a risk of persecution. Along with this, it has to be considered if and why the sexual orientation of the asylum seeker has remained unknown until now and whether they avoided revealing this by behaving accordingly.
For this it can be helpful to determine whether an asylum seeker who has lived and is expected to continue to live discreetly does so out of fear of political persecution or to avoid outing themselves to family and friends.
If fear of persecution can be determined as the reason for this behavior and the other requirements are met, refugee protection must be granted.
If they will continue to live discreetly of their own accord in order to avoid affronting anybody, it can be assumed that they can accept this lifestyle for themselves. In these cases, refugee protection cannot be declared.
--- 10.11. Decisions of the BAMF
If the BAMF accepts your application, you can apply for a residence permit (Aufenthaltserlaubnis) at the responsible immigration office (Ausländerbehörde). Positive decisions can give you the following types of status:
Accepted right to asylum (Anerkennung als Asylberechtigter). Acceptance as an asylum seeker has the following legal effects:
Residence permit according to § 25 par. 1 AufenthG for three years (§ 26 par. 1 AufenthG), followed by permanent residence permit after three or five years, see section 11.3. the guide "Immigration Law". The temporary and permanent residence permits give you the right to work.
International travel passport for refugees (called blue passport)
Right to regular social benefits
Right to take integration course
Right to leave the refugee camp, but restrictions on movement, se below
Right to bring in family members (Familiennachzug; see below), if you apply for their visas within three months (§ 29 par. 2 sent. 2 AufenthG)
Recognition as refugee (Zuerkennung der Flüchtlingseigenschaft). This status has the same legal effects as the acceptance of your right to asylum. For more information on the residence permit, see § 25 par. 2 AufenthG.
Recognition of subsidiary protection (Zuerkennung des subsidiären Schutzstatus). If your right to subsidiary protection is recognized, this has the following legal effects:
Residence permit according to § 25 par. 2 AufenthG for one year, followed by two-year residence permit (§ 26 par. 1 sent. 3 AufenthG). The residence permit gives you the right to work.
Deportation ban (Abschiebungsverbot) according to § 60 par. 5 AufenthG. A deportation ban has the following legal effects:
Residence permit according to § 25 par. 3 AufenthG for at least one year (§ 26 par. 1 sent. 4 AufenthG). Requirement to present your national passport (§ 5 par. 1 No. 4 AufenthG). Unrestricted labor market access (§ 31 BeschV).
Permanent residence permit after 5 years according to § 9 AufenthG, if the other requirements of the provision are met (§ 26 par. 4 AufenthG)
Right to regular social benefits
Right to take integration course
Right to leave the refugee camp, but restrictions on movement, se below
Deportation ban (Abschiebungsverbot) according to § 60 par. 7 AufenthG. This deportation block has the same legal effects as the deportation block according to § 60 par. 5 AufenthG.
Negative decisions by the BAMF can be justified as follows:
Rejected as unfounded (Ablehnung als unbegründet). The BAMF phrases this as follows:
Not recognized as a refugee.
Application for asylum rejected.
Subsidiary protection is not granted.
Deportation is not prohibited according to § 60 par. 5 and par. 7 sent. 1 AufenthG.
The applicant is ordered to leave the Federal Republic of Germany within 30 days after notification about this decision; if the applicant appeals to a court against this decision, the grace period to leave the country ends 30 days after the final decision about the asylum procedure. If the applicant fails to observe this period, s/he will be deported to his country of origin. The applicant may also be deported to a different state, which s/he is allowed to enter and which is required to readmit him (cf. §§ 31, 34, 38 par. 1 AsylG).
You can appeal against the rejection at the administrative court (Verwaltungsgericht) within two weeks (§ 74 par. 1 sent. 1 AsylG). The appeal has a suspensory effect (aufschiebende Wirkung), which means the deportation is suspended until the administrative court has decided (§ 75 par. 1 AsylG).
Rejected because obviously unfounded (Ablehnung als offensichtlich unbegründet). Possible, if the BAMF finds that the asylum seeker’s case is completely improbable or if the BAMF sees no relevant reasons for fleeing, for example, because they consider the country of origin safe (sicherer Herkunftsstaat; §§ 29a, 30 AsylG).
Pursuant to § 11 par. 7 AufenthG, the BAMF may order a limited prohibition for entry and residence against the foreigner, whose application for asylum had been rejected as obviously unsubstantiated, which will become effective upon the enforceability of the decision on the application for asylum. With respect to the first order for the prohibition for entry and residence pursuant to sent. 1, the time limit shall not exceed one year. Furthermore, the time limit should not exceed three years.
A suit can be filed before the administrative court against the rejection as obviously unsubstantiated. The appeal has no suspensory effect (§ 75 par. 1 AsylG). So you need to simultaneously file an emergency appeal (Eilantrag) according to § 80 par. 5 VwGO for the court to order that the appeal should have a suspensory effect. You need to submit the appeal and the emergency appeal to the administrative court within one week after receiving the rejection notice (§ 74 par. 1 AsylG).
Because you are not invited for a hearing to explain your emergency appeal, you have to provide a written explanation. You must make clear why there are "serious doubts about the legality" ("ernstliche Zweifel an der Rechtmäßigkeit") of the rejection notice. If your emergency appeal is rejected, you may be deported even though your appeal against the decision is still pending.
Rejected as inadmissible (Ablehnung als unzulässig). This is part of the Dublin procedure, if another state is responsible for your asylum case (§ 27a AsylG). The notice contains not just a threat of deportation (Abschiebungsandrohung), but also a deportation order (Abschiebungsanordnung). Also, this notice states no grace period for leaving the country, because § 34a par. 1 AsylG provides the BAMF with deportation as the only option.
However, the executive authority, the immigration office (Ausländeramt), must give the asylum seeker the possibility to leave voluntarily, if it appears certain that he will voluntarily travel to the EU member state responsible for his asylum case and report to the responsible authority within a set period. Such a voluntary transfer without administrative force (freiwillige Überstellung ohne Verwaltungszwang) is not a deportation and therefore does not lead to a prohibition of entry and residence (Einreise- und Aufenhtaltsverbot) according to § 11 AufenthG (Federal Administrative Court decision: BVerwG, Urt. v. 17.09.2015 - 1 C 26.14 und 1 C 27.14).
An application may also be rejected as inadmissible, if the applicant has already received international protection (refugee status or subsidiary protection) in another EU member state. Repeated granting of international protection in a second state is not admissible (Federal Administrative Court decision: BVerwG, Urt. v. 17.06.2014, 10 C 7.13).
Legal remedies against such decisions are subject to the same conditions as appeals against “obviously unfounded” rejections.
A lawyer is not mandatory for lower-level administrative court proceedings. However, it is advisable to find a lawyer, especially to respond quickly to court letters.
There are no court fees for disputes under the Asylum Procedure Act (§ 83b AsylG).
11. Place of residence after the recognition
Legislature has restricted the freedom of movement of asylum seekers after their recognition through the "Integration Law" for the next three years.
The new "§ 12a AufenthG Residence Regulation" is applicable to all foreigners, who
have been recognized as person entitled to political asylum (Art. 16a GG),
have been recognized as refugees (§ 3 AsylG) or
have been recognized as persons entitled to subsidiary protection (§ 4 AsylG) or for whom
a prohibition for deportation has been determined pursuant to § 60 paras 5 and 7 AufenthG and for
refugees, who have received a residence permit under international conventions or urgent humanitarian reasons (§§ 22, 23 AufenthG)
1. Place of residence in a specific state
The foreigners are only allowed to have a residence for three years in the state, in which the reception facility is located, which had been assigned to them for carry out the proceedings (§ 12a par.1 AufenthG). The obligation is waived, if the foreigners, their spouses or life-partners or their under-age children
take up or have taken up an employment subject to social security contributions with a scope of at least 15 hours a week, by which these persons have available an income at least corresponding to the monthly average standard requirement (§ 20 SGB II) and to the requirements for accommodation and heating (§ 20 SGB and 22 SGB II) for a single person or
take up or have taken up a vocational training or work under an apprenticeship contract or are pursuing their studies.
2. Foreigners in reception facilities: place of residence at a specific location
As long as the foreigners live in a reception facility or in another temporary accommodation, they may be obliged to take up their residence for at least three years after the recognition at a specific location for the purpose of the supply of appropriate accommodation within six months after the recognition, unless this is contradictory to the promotion of a sustainable integration into the living conditions of the Federal Republic of Germany. If an assignment of an adequate accommodation had not been possible in the individual case within six months, such an assignment can be made up for during the following period of six months (§ 12a par. 2 AufenthG).
3. Foreigners outside of reception facilities: place of residence at a specific location
If the foreigners do not live (anymore) in a reception facility or in another temporary accommodation, they may, however, also be obliged within six months after the recognition to take up their residence for at least three years after the recognition at a specific location, if this will facilitate (§ 12a par. 3 AufenthG)
the taking up of an employment taking into account the local situation of the training- and labour market.
4. Prohibition of place of residence at a specific location
In order to avoid a social exclusion, the foreigners can be obliged to refrain from taking up their residence for a maximum of three years after the recognition at a specific location, in particular if it can be expected that the foreigners will not use German as the essential common language at this place. The situation of the local training- and labour market shall be taken into account for this decision (§ 12a par.4 AufenthG).
If a foreigner will reside in the Federal Republic in contradiction to a geographical restriction or if he/she chooses a place of residence in contradiction to a place of residence condition or regulation for the place of residence pursuant to § 12a AufenthG, the geographically responsible social welfare institution is only allowed to pay benefits in accordance with the circumstances of the individual case. It is irrefutably necessary to generally only provide travel grants to cover the requirements for travelling to the place of residence, where the foreigner has to take up his/her residence.
If the foreigner will take up his/her residence in an inadmissible state (case 1) or at a prohibited location (case 4), travel grants must generally be provided to the place in the Federal Republic of Germany, at which the foreigner intends to take up his/her residence and at which his/her taking up residence is allowed (§ 23 para 5 SGB XII).
The violation of the obligation to take up residence or to accept the assignment of the place of residence may be fined as an offence with a penalty of up to Euro five-hundred thousand (case 1) or up to Euro thirty thousand (cases 2 to 4) (§ 98 par. 3 nos. 2a and 2b AufenthG).
6. Cancellation of the obligations
The obligations pursuant to § 12a paras 1 to 4 must be cancelled upon the application filed by the foreigners, if they can prove
that an employment subject to social security contributions in the scope described above (no. 2), an income securing the costs of living or an apprenticeship or university studies are available to them, to their spouses or life-partners or to their under-age children at a different place or
that the spouses, the registered partners or under-age unmarried children live at a different place, or
or to avoid hardship.
A hardship exists, in particular, if
benefits and measures of the children and youth welfare according to the Eighth Book of the Social Code would be affected according to the assessment of the competent youth welfare office,
the acceptance through another state had been granted due to other urgent personal reasons or
comparably unreasonable restrictions for other reasons would result for the person involved.
This may be the case for lesbian and gay people, if they have to reside in a city or area, in which no advise centres for lesbian and gay persons and no meetings points exist, where lesbian and gay people can meet. The same is applicable, if lesbian or gay people are not allowed to move to friends or to (more distant) relatives. These persons essentially contribute to the integration, because they mostly act as integration pilots.
If the obligation to avoid hardship will be cancelled, the foreigner will be obliged to reside or to refrain from residing at a specific location taking into account his/her interests, namely for a maximum period of time of three years after the recognition.
These obligations will be applicable for family members joining the foreigner at the most up to the expiration of the three-year period of the foreigner, whom they subsequently join, unless the competent authorities have ordered anything else. The family members are also entitled to apply to cancel the obligation.
An objection to and an action against these obligations do not have a suspensive effect. Thus, the foreigners must file an application with the administrative court pursuant to § 80 par. 5 VwGO at the same time as filing the objection to order the suspensive effect of the objection.
The states of the Federal Republic of Germany may regulate the details through regulations (see § 12a par. 9 AufenthG).
12. Integration course for foreigners with residence permit
If persons entitled to asylum (Art. 16a GG), refugees (§ 3 AsylG) or persons with subsidiary protection (§ 4 AsylG) have received a residence permit for the first time and if these persons permanently stay in the Federal Republic of Germany, they are entitled to a non-recurrent participation in an integration course (§ 44 AufenthG). A permanent stay is generally assumed, if the foreigner will receive a residence permit for at least one year or holds a residence permit for more than 18 months, unless his/her stay is temporary. With respect to an asylum seeker originating from a safe country of origin, it is assumed that a legal and permanent stay cannot be expected.
The claim for participation will become void one year after the granting of the residence permit or upon its cancellation. This is not applicable, if the foreigner had been unable to subscribe to an integration course until that date for reasons, for which he/she is not responsible.
The integration course covers a basic and a follow-on language course of the same period of time each to obtain a sufficient language knowledge as well as an orientation course for the mediation of knowledge of the legal order, the culture and the history in Germany (§ 43 par. 3 AufenthG).
In case of an obviously low degree of integration requirements, no claim for the participation in an integration course exists. If the foreigners have already a sufficient knowledge of the German language, they will only be entitled to participate in an orientation course.
Persons recognised as entitled to asylum, refugees and persons entitled to subsidiary protection are obliged to participate in an integration course
if they are unable to communicate in the German language at least in a simple way. The obligation for participation will be determined by the immigration authorities when granting the residence permit (§ 44a par. 1 sent. 1 no. 1 and sent. 2 AufenthG) or
if they are only able to communicate in the German language in a simple way and if the immigration authorities oblige them to participate in an integration course (§ 44a par. 1 sent. 7 AufenthG),
if they are in special need of integration and if the immigration authorities will request them to participate in an integration course (§ 44a par. 1 no. 3 AufenthG) or
• if they receive unemployment benefit II and if the participation in an integration course is provided for in an integration agreement (§ 44a par. 1 sent. 1 no. 2) or if the social security office will request their participation (§ 44a par. 1 no. 2 sent. 3 AufenthG).
The obligation must be revoked, if it is unreasonable for the foreigner to participate - even in a part-time course - in addition to his/her employment.
The obligation for participation is waived
if the foreigners are engaged in a vocational or other education/training in the Federal Republic of Germany,
if they can provide evidence for the participation in a comparable educational program in the Federal Republic of Germany or
if the participation is permanently impossible or unreasonable for them, because they have to provide nursing care, for example, for a family member.
If a foreigner will fail to meet his/her obligation for participation due to reasons he/she is responsible for or if he/she fails to successfully pass the final test, this may affect the prolongation of his/her residence permit (§ 8 par. 3 AufenthG), the granting of a permanent residence permit (§ 9 par. 2 sent. 1 nos. 7 and 8 AufenthG) and on his/her naturalisation (§ 10 par. 3 StAG).
13. Temporary suspension of deportation (toleration)
Even after its coming into force, the deportation order often cannot be enforced because the rejected applicant for asylum does not have a passport or other travel documents. Obtaining these documents can be very difficult for the foreigners authority. In these cases, the rejected applicants remain in Germany for many months despite the legally binding rejection of their asylum request – some of them even for years.
The deportation can also be suspended for medical or familial reasons in cases where no residence permit can be grated, e.g. when the foreigner does not have a passport.
In these cases, the deportation of a foreigner who is enforceably required to leave the federal territory is temporarily suspended (§ 60a AufenthG). The temporary suspension of deportation is no residence title. It will be granted for a period of one, three or six months.
The stay of a foreigner who is enforceably required to leave the federal territory is restricted in geographic terms to the territory of the federated state (Land) concerned. The geographical restriction lapses when the foreigner has been resident in the federal territory for three months without interruption, either lawfully or by virtue of his or her deportation having been suspended or by holding permission to stay in the federal territory, pending asylum procedures (§ 61 paragraph 1 and 1b AufenthG).
If it is not assured that the foreigner can bear his or her own living expenses, s*he is required to take up habitual residence in the place where s*he was domiciled at the time of the decision about the temporary suspension of deportation. The foreigners authority can modify this habitual residence condition ex officio or on application by the foreigner. In its decision, the authority has to take into consideration the common household of family members and other humanitarian grounds of similar weight. The foreigner can temporarily leave the determined place of habitual residence without permission (§ 61 paragraph 1d AufenthG).
For foreigners with a temporary suspension of deportation who are not housed at a reception centre, the necessary demand for food, housing, heating, clothing, health and personal care and household goods according to the Asylbewerberleistungsgesetz (AsylbLG) are to be provided preferentially in cash (§ 3 paragraph 2 AsylbLG). After 15 months of residency in the federal territory without substantial interruption, foreigners whose deportation is temporarily suspended receive benefits accordant to the Twelfth Book of the Social Security Code (SGB XII), if they have not influenced their stay in the federal territory in abuse of the law (§ 2 AsylbLG).
Foreigners with a temporary suspension of deportation can receive permission to take up employment if they have been resident in the federal territory for three months without interruption, either lawfully or by virtue of their deportation having been suspended or by holding permission to stay in the federal territory, pending asylum procedures. After 15 months of residence, the so-called Vorrangprüfung (priority review; labour market test) by the Federal Employment Agency is waived (§ 32 BeschV). The application procedure for a work permit is the same as for asylum seekers (see above under employment).
Tolerated foreigners shall not be allowed to take up a gainful employment, if they had entered the country to receive benefits under the AsybLG (Asylum Seekers Benefits Act) or if measures to terminate their residence cannot be enforced due to reasons, for which they are responsible. This is, in particular, the case, if they have caused themselves the obstacles to deportation by deceiving about their identity or nationality or through incorrect statements (§ 60a par. 6 AufenthG).
14. Toleration for the Purpose of a Vocational Training
The legislator has provided more legal security with the Integrationsgesetz (Integration Act) to companies employing asylum seekers as apprentices. The companies will be able to be confident, that the asylum seekers will be able to complete the vocational training even though the application for asylum will be rejected.
§ 60a par. 2 sent. 4 fol. AufenthG determines since 06.08.2016, that a toleration must be granted to a foreigner, if he/she assumes or has assumed a qualified vocational training in a state-approved or similarly regulated apprenticeship profession in Germany.
The immigration authorities have to allow the assumption of the employment (§ 4 par. 2 sent. 3 AufenthG, § 61 par. 2 AsylG). This will not be allowed, if the foreigner is subject to an employment ban. A consent of the Bundesagentur für Arbeit is not required (§ 32 par. 2, no. 2 and par. 4 BeschV), also see in detail the section "Vocational training and internships".
In the meantime, many decisions of the administrative courts have been made with respect to this regulation, see our List of Case Law.
State-approved or similarly regulated apprenticeship professions are all approved apprenticeship professions according to the Berufsbildungsgesetz (Vocational Training Act) and according to the Handwerksordnung (Crafts Code) as well as vocational training similarly regulated under Federal or State laws (also see List of State-Approved Professions maintained by the Bundesinstitut für Berufsbildung (Federal Institute for Vocational Training).
A qualified vocational training exists according to § 6 par. 1 sent. 2 BeschV, if the general period of training amounts to at least two years.
The foreigner "has assumed" the training even if the training has actually "not been started", but if the training is expected to start in the near future due to an apprenticeship contract already concluded.
The toleration will be granted for the term of the vocational training specified in the apprenticeship contract. The toleration will be cancelled, if the training is not pursued anymore or has been stopped. This has to be notified to the immigration authorities by the training enterprise within one week.
If the training relationship will be terminated or stopped prematurely, a one-time toleration for six months will be granted to the foreigner for the purpose of looking for another training institution to assume a vocational training.
If a continued employment in the training institution will not be agreed upon after the successful completion of the vocational training, a one-time toleration for six months will be granted to the foreigner for the purpose of looking for an employment corresponding to the professional qualification acquired.
The toleration will not be granted, if concrete measures are imminent for a termination of stay. This is the case, if the immigration authorities have implemented or initiated concrete measures to terminate the stay. This includes all measures, which are in close factual and timely connection with a planned deportation, e.g.:
Contacts with the German diplomatic mission abroad in the deportation target country for the preparation of the deportation
The request for the procurement and presentation of a passport or passport substitute document
The application for a passport substitute document for the purpose of deportation
The preparation of a readmission application
The initiation of a medical examination required for the determination of fitness to travel
The request for deportation of the immigration authorities towards the authorities responsible to carry out the deportation
The determination of a date for the deportation
The booking of ticket for the foreigner on a specific flight, with which the deportation shall be carried out
The application for deportation detention.
The order according to § 34a AsylG, that a foreigner shall be deported into the relevant third country, is a concrete measures for the termination of stay, if the order for deportation is enforceable.
The decisive date for the imminent concrete measures to terminate the stay is the date of the application for the toleration due to the apprenticeship/traineeship.
The toleration will not be granted or a toleration granted will become void, if the foreigner has been convicted due to an intentional criminal act, whereby fines of altogether up to 50 per diems or up to 90 per diems for criminal acts, which can only be committed by foreigners under the Aufenhaltsgesetz or Asylgesetz, will generally not be considered (§ 60a par 1 sent. 6 AufenthG).
15. The family reunification
If foreigners have been granted asylum or refugee status, and their partners still live in the foreigner's country of origin, the latter can apply for a visa to establish a registered partnership at the German diplomatic representation within three months after the final granting decision. A further condition is that it is not possible to establish the registered partnership in the country of origin or another state to which the foreigner or his or her partner have special ties.
If these conditions are met, the foreigners and their partners do not have to demonstrate that their subsistence is secure and that sufficient living space is available (§ 29 section 2 sentence 2 AufenthG). It remains necessary though that the partner has to be able to communicate in simple German.
For recommendations on the best course of action, see here. For the competent registrar's office and the required documents, see here.
The time limit is met if the application is made within three months. If you or your partner are not able to produce the German language certificate or any other necessary document in time, you should nonetheless apply for a visa within the three-month time limit and give notice that you will hand in the missing documents shortly.
16. Post-flight justifications and late coming-out
Post-Flight justifications for asylum are irrelevant, pursuant to Article 5 paragraph 3 of the EU Directive 2011/95/EU and § 28 AsylG. This includes facts or incidents that occurred after the asylum seeker had already left his country of origin. These facts will only be recognized if they are an expression and continuation of previous convictions or orientations that were already present while still in the home country. This can lead to problems when lesbians or gays come out in Germany and fear persecution due to this orientation if they return to their home country.
A late “Coming Out” is not a “circumstance of [their] own creation”, but merely a consequence of a personality characteristic that has always existed, but was merely unconsciously suppressed in the home country due to the presence of discrimination and political persecution. Such facts are an expression of an orientation that already existed in the home country and should therefore be considered as relevant to the individual’s asylum application.
Dublin III - Regulation (EU) No 604/2013 of the European Parliament an of th Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (Dublin III)
The Asylum Act transposes the following EU directives into national law:
Reception Directive Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers Recast version: Directive 2013/33/EU of the European Parlement and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast)
Qualification Directive Directive 2004/38/EC of the European Parlement and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States Recast version: Directive 2011/95/EU of the European Parlement and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast)
Procedures Directive Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status Recast version: Directive 2013/32/EU of the European Parlement and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast)
You can find further useful information on the following websites: