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1. Recognition for Entitlement to Political Asylum and granting of Refugee Status

Within the Asylum Procedure the Federal Office for Migration and Refugees (BAMF) investigates, whether the applicant:

  1. can either be recognized as person entitled for asylum according to Art. 16a paragraph 1 of the Constitution (= Basic Law) of the Federal Republic of Germany (Grundgesetz – GG), or
  2. can be recognized as a refugee in the meaning of § 3 paragraph 1 Asylum Act (Asylgesetz – AsylG) and § 60 paragraph 1 of the Residence Act (Aufenthaltsgesetz – AufenthG) and further, whether
  3. he benefits from subsidiary protection according to § 4 paragraph 1 AsylG, § 60 paragraph 2 AufenthG, or
  4. whether a prohibition for deportation applies according to § 60 paragraph 5 or paragraph 7 AufenthG.

Voir aussi la vue d'ensemble du Service de recherche du Bundestag allemand: "Catégories de la protection juridique d'asile en Allemagne" (au 15/12/2015).

--- 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:

  1. The imposition or execution of death penalty
  2. Torture or inhuman or humiliating treatment or punishment, or
  3. 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

According to § 60 paragraph 5 AufenthG a foreigner must not be deported, if the deportation is prohibited based on the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Therefore, § 60 paragraph 5 AufenthG does not contain a separate regulation, but refers to the ECHR and its prohibitions of deportation.

The prohibition of torture or inhuman or humiliating treatment or punishment according (Art. 3 ECHR) is already covered by § 60 paragraph 2 AufenthG (subsidiary protection). Therefore, § 60 paragraph 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 (= subsidiary protection). 

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 paragraph 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.

--- 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):

  1. 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".
  2. 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
  3. 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):

  1. It is supposed that health reasons are not opposed to the deportation.
  2. 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.
  3. 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.
  4. 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.
  5. 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."

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.

In addition, the family reunification is suspended for refugees with a subsidiary protection status until March 2018. The reunification with the partner is only possible under the general conditions, see text of advisor to the immigration and nationality law.

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.

For more details please see below.

5. Political Persecution

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 European Court of Justice (ECJ / EuGH) therefore ruled in is case-law of the 7th of November 2013 that the criminalization of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitute an act of persecution.

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. Gay- and Lesbian Couples

Male and female same-sex couples can refer to the fact that also the accumulation of different actions can have the quality of a severe violation of human rights (§ 3a paragraph 1 AsylG), if living together as a male and female couple is not accepted in their home country and if this leads to violent reactions of their environment. Sometimes this even applies to countries which do not penalize homosexuals and which have legislated anti-discrimination rules applied for homosexuals, i.e. most of the Balkan States although they qualify as “safe country of origin”. 

In these countries the environment (such as family, employer, colleagues, professors and fellow students) reacts with massive rejection up to violence if it becomes public that two men or women are a couple. The men and women are dismissed by their employers and are unable to find new work. At the university they face obstruction and social exclusion so they cannot continue their studies. Their families threat them with violence. For such reasons it is impossible for male and female couples to live a normal life in these countries.

The police may be willing to prosecute the suspects once an assault has happened. Usually this does not discourage the offenders because they do not have to expect severe punishment and their environment supports them for defending morality. A comprehensive preventive protection of male and female couples against violence is in fact not possible and cannot be expected from the police nor employers or officials of the university. Men and women can therefore not openly live together as a couple. This is a severe violation of human rights and relevant for asylum purposes.

At least this violation constitutes a prohibition of deportation according to § 60 paragraph 5 AufenthG, which has to be considered by the authority in charge for the deportation. The ECtHR (European Court of Human Rights) always has accepted that the same sex partnership benefits from the protection of Art. 8 paragraph 1 ECHR (European Convention for the Protection of Human Rights and Fundamental Freedoms) with regard to the respect of private life. Since the judgment of 24.06.2010 in the case Schalk and Kopf vs. Austria (case file 30141/04, NJW 2011, 1421) the court is of the opinion that the same sex partnership is protected by the right of respect of family life in the sense of Art. 8 paragraph 1 ECHR. The deportation of asylum seekers in a country, in which their human right of living together with a partner of their choice cannot be realized infringes therefore upon the ECHR and fundamental freedom.

It may not be argued by the authorities that the men and women do not face rejection and social exclusion if they keep their partnership as a secret. In its decision dated 7 November 2013 the European Court of Justice has ruled that the responsible national authority may not require the applicant to keep his homosexuality in his country of origin as a secret nor that he contains himself from live out his sexual orientation to avoid prosecution. 

The couples may often additionally point out, that their families do not tolerate at all, that the son or daughter lives together with a man or woman and that they will force the son or daughter to marry (danger of a forced marriage).

It is very important, that applicants for asylum point out that it is not decisive for their case whether homosexuals as a group are subject to prosecution in their country of origin but whether living together as a homosexual couple is rejected and that the defense reactions of the society are so significant that they are to be qualified as severe violation of human rights.

In case only one partner manages to come to Germany, please see below).

9. The previous case law of the Federal Administrative Court and the administrative courts

Thus, the previous case-law of the Federal Administrative Court and the administrative courts is outdated.

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.

Additionally, asylum applications, or rather deportation protections, were continuously denied on the grounds that the asylum seekers could live out their homosexuality in the privacy of their own homes and would therefore not be in danger. It was encouraged to choose a “low profile” or to “practice discretion” to avoid persecution. Thereby, the BAMF and the Federal Administrative Court used “embellished” status reports  of the foreign office to support their claim that lesbians and gays could participate in homosexual activities safely when in private.

This practice is not possible anymore due to the above mentioned ruling by the European Court of Justice on 7th of November 2013. The EJC decided that: "When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation."

10. The expiry of the asylum procedure

The BAMF published a diagram depicting the asylum procedure. On its website you may also find additional information about the respective stages of the procedure.

On the website of “Informationsverbund ASYL & MIGRATION” you may also find:

--- 10.1. Entry

During the first contact of the asylum and protection seekers with the Federal Police, the police forces of the Federal States or with the immigration 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 temporary residence permit at risk (cf. § 5 paragraph 3 in connection with § 55 paragraph 2 No 2 AufenthG).

--- 10.2. Contact Point for Asylum Seekers - Application for Asylum

The German Federal Police 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.

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.

The foreigner will receive a temporary resident permit certificate (“Bescheinigung über die Aufenthaltsgestattung”) within three working days from submitting the application for asylum, containing personal details and a photo (§§ 55, 63 AsylG).

--- 10.5. Legal Status of Asylum Seekers

Territorial Limitation / Residence Obligation

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).

Employment

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. 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 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. The approval will be granted without priority check after 15 months of residency in Germany (§ 32 paragraph 5 No 2 BeschV).

The approval for exercising an employment is considered to be 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.

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 paragraph 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.

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.

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 AsylbLG). The “Gesundheitskarte” (health card) is, depending on the federal state, available from the beginning or with the start of the benefits based on SGB XII.

Language and Integration Courses

Only after recognition as a refugee, asylum seekers may claim paid language and integration courses.

--- 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:

--- 10.7 Church Asylum

For church asylum see http://www.kirchenasyl.de/.

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 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.

In addition, the Churches have agreed with the BAMF, that each case must be scrutinized again during the time of church asylum. This may result in revoking the Dublin decision. 

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.

Also see Instructions for Homosexual Refugees from Civil-War-Torn Countries.

--- 10.9. Hearing

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: 

  1. Do you speak any other dialects in addition to the language/s mentioned?
  2. Do you have more than one nationality?
  3. Do you belong to a special ethnical/indigenous group?
  4. Can you present personal documents such as passport or equivalent or identity card?
  5. Did you have personal documents, e.g. passport or equivalent or identity card, in your home country?
  6. Why are you not in a position to present personal documents?
  7. Can you present any other documents such as school certificates, birth certificate, service record, driving license etc.?
  8. Do or did you have a stay document/residence permit/visa for the Federal Republic of Germany or any other country?
  9. Please state your last official address in your home country. Did you live there till you left? If not, where did you live?
  10.  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.
  11. 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)?
  12. Do you have children (please mention all your children, including adults, giving their family names, first names, dates and places of birth)?
  13. 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).
  14. Please mention the family names, first names and addresses of your parents.
  15. Do you have siblings, grandparents, uncle/s or aunt/s living outside your home country?
  16. Please give the personal data of your father’s father.
  17. In which school/s and/or university/ies did you study?
  18. What is your profession? Who was your last employer? Did you have your own enterprise?
  19. Where you in military service?
  20. Did you visit the Federal Republic of Germany before?
  21. Have you submitted an application for asylum or for recognition as refugee in another country as well? Have any of these applications been approved?
  22. 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?
  23. Do you have any objections against processing of your application for asylum there?
  24. 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. 
  25. 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.

Also see as a supplement Homosexual Refugees from Civil-War-Torn Countries.

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. Legal examination process of Asylum Applications by Homosexual Applicants

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.

Based on the decision by the European Court of Justice (ECJ / EuGH) on December 2th, 2014 (C-148 to 150/13) these accusations are no longer possible: The ECJ prevents national authorities “from finding that the statement of the applicant for asylum lack credibility merely because the applicant did not rely on is declared sexual orientation on the first occasion he was given to set out the ground for persecution”.

(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. 

The BAMF no longer requires or demands this.

In addition, the ECJ decided the following in the decision on December 12th, 2014 (C-148-150/13):

  • 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 (Niederlassungserlaubnis; § 26 par. 3 AufenthG). 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, no more restrictions on movement
  • 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.
  • Permanent residence permit after 5 years according to § 9 AufenthG, if the other requirements of the provision are met (§ 26 par. 4 AufenthG)
  • No refugee passport; you have to try to recover the passport of your country of origin, otherwise you get a “grey passport” (replacement)
  • Right to regular social benefits
  • Right to take integration course
  • Right to leave the refugee camp, but restrictions on place of residence according to § 12 par. 2 AufenthG, if you claim social benefits
  • The right to family reunification (see below) is suspended for refugees with a subsidiary protection status until March 2018. The reunification with the partner is only possible under the general conditions, see text of advisor to the immigration and nationality law.

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 place of residence according to § 12 par. 2 AufenthG, if you claim social benefits
  • Right to bring in family members only under the general requirements, see Guide on immigration law.

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: 

  1. Not recognized as a refugee.
  2. Application for asylum rejected.
  3. Subsidiary protection is not granted.
  4. Deportation is not prohibited according to § 60 par. 5 and par. 7 sent. 1 AufenthG.
  5. 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. 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).

12. 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.

The family reunification is suspended for refugees with a subsidiary protection status until March 2018. The reunification with the partner is only possible under the general conditions, see text of advisor to the immigration and nationality law

13. 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.

14. Legal backgrounds and useful links

Applicable law:

EU directives:

The Asylum Act transposes the following EU directives into national law:

  1. 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) 
  2. 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)
  3. 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:

Information about countries of origin can be found at:

All current information about the Dublin procedure you get when you log in to the so-called Dublin-list: dublinliste@googlemail.com