1. Recognition of entitlement to political asylum and granting of refugee status
During the asylum procedure, the Federal Office for Migration and Refugees (BAMF) investigates whether the applicant:
- can be recognized as person entitled to asylum according to Art. 16a paragraph 1 of the Constitution (= Basic Law) of the Federal Republic of Germany (Grundgesetz – GG), or
- can be recognized as a refugee according to Section 3 paragraph 1 Asylum Act (Asylgesetz – AsylG)
- is entitled to subsidiary protection according to Section 4 paragraph 1 AsylG, Section 60 paragraph 2 of the Residence Act (Aufenthaltsgesetz – AufenthG) or
- whether a prohibition for deportation applies according to Section 60 paragraph 5 or paragraph 7 AufenthG.
See also the overview published by the German Bundestag Research Services: Categories of legal protection for asylum in Germany (15/12/2015).
--- 1.1. Recognition as a person entitled to asylum
The original Art. 16 paragraph 2 Sentence 2 GG used to provide an unlimited fundamental right for asylum. This fundamental right was however significantly restricted in 1993 by withdrawing Art. 16 paragraph 2 Sentence 2 GG and implementing a new Art. 16a GG.
A key part of the new restriction was the introduction 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, recognition as a person entitled to asylum is rare, especially as only persons entering Germany by air (and who also do not arrive from a safe country of origin) can qualify for recognition.
--- 1.2. Recognition of refugee status
The legislator has adopted the international legal definition of refugees according to the Geneva Refugee Convention word-for-word into German national law (Section 3 paragraph 1 AsylG and Section 60 paragraph 1 AufenthG).
If an asylum seeker cannot be recognized as being entitled to asylum under the terms of Art. 16a GG because the person entered via a safe country of origin and if this person cannot be deported into a third country, s/he is granted refugee protection according to Section 3 paragraph 1 AsylG, Section 60 paragraph 1 AufenthG, if the person may be subject to persecution in the meaning of the Geneva Refugee Convention in his/her home country. In such a case, the person may not be deported to his/her home country.
--- 1.3. Subsidiary protection
People who do not meet the conditions for refugee protection or an entitlement to asylum are entitled to subsidiary protection if they can put forward substantial grounds for the presumption that they are at risk of serious harm upon return to their country of origin (Section 4 paragraph 1 AsylG, Section 60 paragraph 2 AufenthG). The following are regarded as serious harm:
- imposition or enforcement of the death penalty,
- torture or inhuman or degrading treatment or punishment, or
- a serious individual threat to the life or integrity of a civilian as a result of arbitrary force within an international or domestic armed conflict.
--- 1.4. Ban on deportation according to Section 60 paragraph 5 AufenthG
According to Section 60 par. 5 AufenthG a foreign national may not be deported if the deportation is prohibited under the terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Instead of including a specific national provision, Section 60 par. 5 AufenthG therefore references the ECHR and its prohibitions of deportation.
The prohibition of torture or inhuman or degrading treatment or punishment in the sense of Art. 3 ECHR) is already covered by Section 60 par. 2 AufenthG (and by Section 4 par. 1 no. 2 AsylG – subsidiary protection). Therefore, Section 60 par. 5 AufenthG only applies if, in a specific case, there is a risk of violation of human rights guaranteed by the ECHR and considered as fundamental by all countries who are party to the ECHR.
However, in case of intrusions on other rights guaranteed under the convention (for example freedom of thought, freedom of conscience and freedom of faith according to Art. 9 ECHR), deportation is only prohibited in severe cases. This may be a case where the imminent harm would be of a severity comparable with reasons that would lead to deportation being prohibited according to Art. 3 ECHR.
Section 60 par. 5 AufenthG only protects against human rights violations that threaten asylum seekers in the country into which they would be deported. It only covers barriers to deportation that relate specifically to the destination country.
In the event that only certain members of a family are to be deported, the right to protection of family life (Art. 8 ECHR) does not prevent deportation in the sense of Section 60 par. 5 AufenthG. It may however constitute a possible domestic barrier to enforcement. This barrier has to be considered by the immigration authority in charge of the deportation. However, Art. 8 ECHR does not overrule the protection according to Art. 6 GG. This still has to be taken into consideration.
The case is different when lesbian or gay asylum seekers are to be deported into a country where they will not be able to live openly as a couple with a same-sex partner. The violation of their human right in terms of respect for family life, which would be at risk through deportation, is a "barrier to deportation that relates specifically to the destination country” in the sense of Section 60 par. 5 AufenthG; see below the section: "The right to openly live together as a couple".
--- 1.5. Ban on deportation according to Section 60 paragraph 7 AufenthG
A ban on deportation according to Section 60 paragraph 7 AufenthG must be granted when there is considerable and specific danger to life, limb or liberty for the person in the destination country. However, this does not apply in the case of dangers to which the population or population group to which the foreign national belongs is exposed in general (Section 60 paragraph 7, sent. 5 AufenthG).
If there is a general danger due to indiscriminate violence within an international or domestic armed conflict, the asylum seekers are entitled to be granted subsidiary protection, see above.
If the general dangers are due to natural catastrophes or similar events, the highest federal state authorities may take this into account through orders pursuant to Section 60a paragraph 1 and Section 23 paragraph 1 AufenthG. If no such orders are 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 Section 60 paragraph 7, sent. 5 AufenthG, if a deportation would consciously expose the person to the risk of death or most serious injury (BVerwGE 99, 324 (328); BVerwGE 115, 1; BVerwGE 137, 226, side note 15).
Protection against deportation pursuant to Section 60 paragraph 7 sent. 1 AufenthG will, in particular, apply if there is a risk of major deterioration of an existing illness due to a lack or insufficiency of treatment in the destination country.
In accordance with the existing case-law of the Federal Administrative Court, a ban on deportation must be granted in case of illness, if the person’s illness will worsen due to circumstances prevailing in the country of destination resulting in substantial and concrete danger to health or life. In other words, the ban on deportation must be granted if the illness can be expected to worsen substantially immediately after the return of the person.
A stricter standard exists according to the case-law of the Federal Administrative Court when the deterioration of illnesses in the country of destination can be classified as a general danger or danger for groups within the meaning of Section 60 paragraph 7 sent. 5 AufenthG. This is applicable in case of diseases – AIDS, for example – that affect a large number of people in the destination country, and therefore there is a need for a general political decision within the meaning of Section 60a paragraph 1 and Section 23 paragraph 1 AufenthG. In such cases, a protection against deportation may only be granted pursuant to Section 60 paragraph 7 sent. 1 AufenthG - as stated above - by way of a constitutional application, if the deportation can be expected to subject the person to serious danger throughout the country of destination (either due to a general urgency or because necessary medical treatment is not available).
This has been the procedure followed by the BAMF so far, see the response of the Federal Government to the request of deputies of the Parliamentary Group DIE LINKE on 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.
Since then, the legislator has severely restricted protection against deportation for health reasons. The current provisions (Section 60 paragraph 7 AufenthG) stipulate the following:
- Considerable concrete danger to health is only deemed a valid protection in the case of life-threatening or serious diseases that would substantially deteriorate in the case of deportation.
According to the explanatory memorandum to the act, BT-Drs. 18/7538, p. 18, post-traumatic stress disorder (PTSD) is not classified as a life-threatening or serious diseases that would substantially deteriorate in the case of deportation. Deportation is therefore possible in cases of PTSD "unless deportation will result in a considerable health hazard up to and including self-endangerment".
- Medical care in the country of destination does not need to be equivalent with the care in the Federal Republic of Germany.
- Sufficient medical treatment is considered to exist even when this is only the case in parts of the country of destination.
However, Art. 8 of the Qualification Directive 2011/95/EU takes precedence here. Pursuant to this, the possibility of receiving medical care in only part of the country of destination can only be considered an option for sick asylum seekers if the treatment is achievable in view of the situation of the person involved, also see Section 3e AsylG.
The legislator has additionally restricted the possibility to obtain protection against deportation due to illness through the following procedural rules (Section 60a paragraph 2 c and d AufenthG):
- It is assumed that there are no health reasons contradicting the deportation.
- The person must provide a qualified medical certificate as evidence of illness that would be an obstacle to deportation.
This must meet the following conditions (see the "General Application Notes of the Federal Ministry of the Interior on Granting of Suspension of Deportation according to Section 60a Residence Act", page 18 ff):
Issuer of the qualified medical certificate:
The issuing person must be clearly identifiable and entitled to bear the title “doctor” in the Federal Republic of Germany. According to Section 2a of the Federal Medical Code, this requires that this person shall be licensed as a physician or be authorized to practice medicine in accordance with Section 2 (2), (3) or (4) of the Federal Medical Council.
A license in another medical profession is not sufficient (such as pharmacists, psychological psychotherapists, child and adolescent psychotherapists, veterinarians, dentists, midwives and naturopaths).
Content of the qualified medical certificate:
Section 60a Abs. 2c sentence 3 AufenthG determines that the medical certificate should in particular state the actual circumstances on which the professional assessment is based, the fact-finding method, the medical assessment of the illness (diagnosis), the severity of the disease and the consequences that are likely to result from the disease according to medical assessment. See also (in German): "Requirements for medical certificates", page 20f.
"The statutory provisions go beyond the substantive requirements already determined by settled case law with respect to medical attestations concerning right to residence (see BVerwG 11.9. 2007 - 10 C 8/07 with respect to certification of post-traumatic stress disorder) Overall, it is crucial that the certification provides a coherent and meaningful presentation of the clinical findings and the resulting inability to travel. However, it is important not to overshoot the mark; overall it is necessary to exclude the possibility of “goodwill certificates”. In detail, the certificate should include the following:
- the actual circumstances on which the professional assessment is based, e.g. by presenting the clinical history and time or period of relevant clinical examinations (fact-finding);
- the method of fact-finding: e.g. by specifying which examinations may have been made in order to exclude other diagnoses. If individual findings have been determined in consultation with other health professionals, this must be substantiated. The certificate must also state which information (in particular for the medical history) is based on information provided by the person concerned or on information provided by third parties, such as relatives;
- the professional medical assessment of the clinical findings (diagnosis): this is the conclusion that results from the facts presented in (a) after state-of-the-art examinations referred to in (b);
- the severity of the illness: this is part of the professional medical assessment; the severity should therefore also be deducible from the facts presented in (a) after carrying out the examinations referred to in (b);
- the consequences likely to result from the medical condition as a result of the illness: the certificate should detail the consequences for the health of the person that would result owing to voluntary or compulsory repatriation. There must be a connecting reference to the disease and its severity. Of relevance are only medical conclusions, and not for example, assumptions about circumstances in a possible destination country after the person’s return. However, statements are permissible and relevant that detail the health consequences to the person if certain treatment or treatment options are not provided.
According to the wording of the law, the qualified certificate should in particular contain the information given here. Additional information will not compromise the overall certificate. On the other hand, further information can indeed be requested (e.g. by asking for an addendum) when in individual cases the certificate would not be conclusive for a knowledgeable reader even though – in formal terms – it does contain all the information specified in points a) to e).
- The foreign national is obliged to immediately present the medical certificate to the competent authorities. If the foreign national breaches this obligation to promptly present the medical certificate, the competent authority is entitled not to consider the illness of the person in its deliberations unless the person concerned was prevented from obtaining the medical certificate for reasons out of his/her control, or there are other factual indications for the existence of a life-threatening or serious illness that would seriously worsen through deportation.
- If the person presents a certificate and the authority subsequently orders a medical examination, the authority is entitled not to take the presented illness into consideration if the person fails to comply with the order without sufficient reasons.
- The person shall be made aware of the obligations and the legal consequences of non-compliance.
Page 20 of the Official Grounds states:
The following conclusions were presented on these provisions by the Oberverwaltungsgericht (Upper Administrative Court) of Saxony-Anhalt in its ruling of 21.06.2016, File 2 M 16/16:
- If an illness that would be a barrier to deportation is not confirmed by a qualified medical certificate pursuant to Section 60a par. 2c AufenthG (meaning there is no evidence contradicting the statutory assumption that the person is fit to travel), a suspension of the deportation will generally not be granted. The immigration authorities are generally not obliged to investigate in this case.
- If, however, there are factual indications that the person is suffering from a life-threatening of serious disease that would deteriorate in the event of deportation, the immigration authorities are not only entitled but obliged to consider these indications and to order a (renewed) medical examination pursuant to Section 24 VwVfG in connection with Section 1 par. 1 VwVfG LSA. This should provide adequate information on whether or not the person is suffering from a life-threatening or serious disease and whether this would essentially deteriorate in the event of deportation.
- Only if the person in such a case fails to comply with an order to undertake a medical examination will the authority be entitled pursuant to Section 60a para 2d sent. 3 AufenthG to omit the stated illness from its considerations.
We assume that sick asylum seekers, whose applications for international protection are decided upon in expedited proceedings (see below) will no longer succeed in obtaining protection against deportation pursuant to Section 60 paragraph 7 AufenthG.
--- 1.6. LSBTTI* refugees from civil war countries
The legal consequences of the various forms of recognition are very different (see below). This is important for homosexual refugees from countries in the midst of civil war.
Refugees from Syria, for example, currently receive subsidiary protection status (see above) in expedited proceedings, provided no other Dublin country is responsible (see below). The refugees then receive a residence permit for one year, which may be extended. The subsidiary protection status will however be revoked as soon as the civil war ends. The refugees then have to return to their home country.
In addition, family reunification for refugees with subsidiary protection status is restricted, see below and there the section "2. Family reunification of refugees with subsidiary protection status".
For this reason, refugees from countries suffering civil war should not be fobbed off during their hearing (see below) by the assurance that they do not need to make any statements – for the time being – about persecution due to their homosexuality or their fear of persecution because they will be granted 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 also to submit statements with respect to their persecution as homosexuals or fear of such persecution. If the decision-maker refuses this, the refugee must insist that this refusal be recorded in the minutes.
Failing this, it can be later held against them that their statements with respect to their homosexuality are untrustworthy, because the statements were not made immediately (see below).
2. Entry from a safe country of origin
Applications for asylum from people from safe countries of origin are rejected as being manifestly unfounded (Art. 16a paragraph 3 GG, Section 29a AsylG). Safe countries of origin are all members of the European Union and the countries listed in Appendix II to Section 29a AsylG: Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia (former Yugoslav Republic), Montenegro, Senegal and Serbia. Algeria, Georgia, Morocco and Tunisia are also to be declared safe countries of origin.
Asylum applications of asylum seekers who arrive by air and come from a safe country of origin are decided on in summary proceedings on the airport premises (Section 18a AsylG). This airport procedure is designed - with approval from the Federal Constitutional Court – in such a way that effective legal protection is essentially not possible.
Asylum applications of all other refugees from safe countries of origin are decided on in “expedited proceedings” (Section 30a AsylG, see below). The legal protection is limited in the same way as in the airport proceedings.
It is assumed that asylum seekers from safe countries of origin are not exposed to political persecution there. To justify their application, asylum seekers must therefore provide facts or evidence demonstrating that they face political persecution in their country of origin, in contrast to the general situation there (Art. 16a paragraph 3 GG, Section 29a paragraph 1 AsylG).
Asylum applications of people from a safe country of origin are essentially to be rejected as manifestly unfounded. The period of time set for the person to leave the country is reduced to one week (Section 36 (1) AsylG). Legal action must also be filed within one week (Section 74 (1) AsylG) and has no suspensive effect (Section 75 (1) AsylG). A motion pursuant to section 80 (5) of the VwGO must also be filed within one week of notification of the decision (section 36 (3) sentence 1 AsylG). The court should in principle decide on the motion within one week (section 36 (3) sentence 5 AsylG).
In order to prevent rejected applicants from re-entering the country soon after and submitting another application, the BAMF can issue a re-entry ban in the case of manifestly unfounded applications from citizens of safe countries of origin if the application for asylum is rejected (Section 11 (7) AufenthG). The ban should not exceed one year for the first order, otherwise three years.
According to Section 61 (2) sentence 4 AsylG asylum seekers who submit their application after 31.08.2015 are completely prohibited from taking up employment for the entire duration of their asylum procedure. Paragraph 47 (1) (b) AsylG allows the states of Germany to introduce provisions by which foreign nationals – in contrast to Section 1 – are obliged to reside in the reception facility responsible for their entry while the BAMF is deciding on their application and also – if the application is rejected as being manifestly unfounded or non-permissible – until the time of their departure or deportation.
3. Entry from a safe third country
Foreign nationals 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 Section 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 is not known through which third country they have entered: it is enough to know that they have arrived by land.
If asylum seekers wish to enter the Federal Republic by land, they will be denied entry (Section 18 paragraph 2, number 1 AsylG). The border authority will deport asylum seekers found near the border immediately before or after entering the country (Section 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.
In such cases, foreign nationals 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 Section 3 paragraph 1 AsylG and Section 60 paragraph 1 AufenthG in accordance with the Geneva Refugee Convention (siehe oben). This is also decided by the BAMF.
The German rule on safe third countries does not apply to a person who is subject to the Dublin III Regulation. Please see the following section.
4. Dublin Regulation
The Dublin III Regulation (Regulation (EU) No 604/2013) is valid for safe third countries, also Iceland and Liechtenstein. This regulation of the European Parliament and the EU Council dated 26.06.2013 lays down criteria and procedures for determining which EU member state is responsible and 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 (ABl. EU Nr. L 180/2013 S. 31). The Dublin Regulation takes priority over the German rule on safe third countries.
The Dublin III Regulation determines which EU country is responsible for the asylum procedure. The responsible country is the first country the asylum seeker entered, or the country in which asylum proceedings are or were pending.
For more details please see below.
5. Political persecution
Foreign nationals receive asylum or are recognized as refugees as per the Geneva Convention if, owing to well-founded fear of persecution in his country of origin on account of his race, religion, nationality, political beliefs or membership of a particular social group, he 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, or where he used to have his habitual residence as a stateless person and where he cannot, or, owing to said fear, does not want to return (Section 3 paragraph 1 AsylG).
When assessing whether an applicant has a well-founded fear of being persecuted, it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic leading to persecution, provided that the agent of persecution attributes such a characteristic to the applicant (Section 3b paragraph 2 AsylG).
Depending on the circumstances of the country of origin, a group can be counted as a particular social group if it is based on the common characteristics of sexual orientation. Political persecution on account of affiliation to a particular social group can also exist when it is associated solely with gender or gender identity (Section 3b paragraph 1 Nr. 4 AsylG).
Accordingly on 7.11.2013, the European Court of Justice (ECJ) 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 such as paedophilia) support the findings that these persons must be regarded as being a particular social group.
The same applies to other acts or threats of persecution based on sexual orientation.
6. Acts or threats of persecution
The definition of persecution is described in Section 3a paragraph 1 AsylG Act. Beyond that, persecution is only deemed to be such if acts of persecution are so serious by their nature or repetition as to constitute a severe violation of basic human rights. The violations can also be an accumulation of various injurious acts, including violations of human rights.
Such violations are in particular (Section 3a paragraph 2 AsylG Act):
- Acts of physical or mental violence, including acts of sexual violence;
- Legal, administrative, police or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
- Disproportionate or discriminatory prosecution or punishment;•Denial of judicial redress resulting in a disproportionate or discriminatory punishment
The European Court of Justice (ECJ / EuGH) therefore ruled in it its judgement of 7.11.2013 that the criminalization of homosexual acts per se does not constitute an act of persecution. However, the threat or imposition of imprisonment for homosexual acts in the country of origin must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.
Persecution can be either by the state, political parties or organizations that rule a significant portion of the state, or by non-political actors if the state or ruling political parties and organizations are not able or willing to provide protection from persecution. It is immaterial whether or not a state government exists in the country or not.
The protection against persecution must be effective, and may not be of a temporary nature. Generally, such a protection is given if the state or the ruling parties or organizations implement suitable measures to prevent persecution, e.g. through effective legal provisions for investigating, prosecuting and penalizing acts of persecution. The foreign national must have access to these measures of protection (Sections 3c and 3d AsylG).
Asylum seekers are not recognized as refugees if they have no substantiated fear of persecution in any part of their country of origin or if they have access to protection from persecution and can safely and legally travel to that part of the country, be received there and can reasonably be expected to settle there (internal protection).
When investigating whether part of the country of origin fulfils these conditions, the general situation and the personal circumstances of the foreign national at the time of the decision on the application must be taken into account in accordance with Article 4 of Directive 2011/95 / EU. For this purpose, accurate and up-to-date information has to be obtained from relevant sources (Section 3e 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 they are exposed 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 foreign national is exposed to or will be threatened by in their home country have to be considered, including human rights violations such as serious 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 an act of violation. 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 terms of access to education or healthcare 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 being made to feel unwelcome are not sufficient acts of persecution. They are not severe enough to be regarded as serious violations of basic human rights.
7a. Risk of persecution for asylum seekers who leave their country of origin without prior persecution
--- Risk of group persecution
If asylum seekers have left their country of origin without being persecuted, they will only be recognized as refugees if they belong to a persecuted group (risk of group persecution)
The danger of group persecution exists when there are sufficiently certain indications of a (state) persecution program, the implementation of which has already begun or is imminent.
If no such program exists or cannot be determined with certainty, the assumption of "group persecution" presupposes a certain "density of persecution" that justifies the presumption that persecution will generally be the case.
There must be a danger of so many encroachments on protected asylum rights that it is no longer just a matter of isolated individual attacks or a large number of one-off attacks. Rather, persecution must target all members of the group present during the time and in the geographical area of the persecution, and expand and be repeated in quantitative and qualitative terms such that there is not just the possibility of danger for each member of the group, but also the immediate danger that members will suffer personal consequences.
Applications for asylum or protection against deportation were rejected until a few years ago, mostly on the grounds that asylum seekers could live their lives privately and not be endangered. They were required to “keep a very low profile” or exercise discretion to avoid persecution. The BAMF and the administrative courts relied on reports from the Federal Foreign Office in which the actual situation of gays and lesbians in the home country of the asylum seekers was presented so as to demonstrate that lesbians and gays could safely engage in sexual activities in their private space.
Due to the above judgment of the ECJ of 07.11.2013, this practice is no longer possible. The ECJ ruled: "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." (Guideline 3)
The BAMF and the administrative courts very quickly found a way around this, and now often reject asylum applications on the grounds that homosexuals are not specifically targeted in the asylum seeker’s home country, and that a criminal case against the asylum seeker is therefore extremely unlikely. The Federal Government also takes this line of argument with regard to the Maghreb states, which are therefore "safe"! countries of origin also for homosexuals.
To lend credence to their claim, the BAMF and administrative courts use a trick to investigate whether or not homosexual asylum seekers who arrive without being persecuted in their home country are likely to be prosecuted there. They compare the probable total number of homosexuals in the country of origin of the asylum seekers with the very low number of convictions for homosexual acts. Therefore, the likelihood of the applicant being prosecuted and convicted is estimated to be negligible.
One example of a ruling typical of this kind of reasoning is that of the Administrative Court of Cottbus, 07.11.2017, 5 K 1230/17.A. It rejected the asylum application of a Moroccan asylum seeker on these grounds (paragraph 39): "Given at least one million homosexuals in Morocco, the number of 10-20, at worst 81, criminal cases is negligible, and the outcome is open, in particular in terms of imprisonment. Consequently the risk of persecution is also of negligible import.”
It ignores the fact that homosexuals are not recognizable as such when, out of fear of persecution, they live their homosexuality only in privacy. They are then not threatened by any risk of persecution relevant to refugee status.
The danger of persecution depends on conduct that can be controlled by their will – in terms of whether or not they choose to hide. The large number of homosexuals who practice their sexuality only in secret for fear of persecution should therefore not be included in the comparative analysis. The number of convictions for homosexual acts should only be compared with the number of homosexuals living openly (i.e. those who do not hide), according to the Federal Administrative Court in its ruling of 20.02.2013, 10 C 23.12, para. 33, juris, on the persecution of Ahmadis in Pakistan.
If such a prognosis poses a real risk of persecution for the group of non-hidden homosexuals a group that might not be particularly large), it can be concluded that the total group of homosexuals, for whom their homosexuality is a central and therefore indispensable element of their identity, is affected by the restrictions on their sexuality in a manner that would be of relevance to their refugee status (BVerwG supra).
--- Reasons to live a hidden life
In the absence of persecution, the BAMF and administrative courts also question why asylum seekers have so far been discreet. If they state they have been living a hidden life because they feared that they and their family would be ostracized and that their families would reject them, the BAMF and administrative courts tend to argue that the asylum seekers have accepted this lifestyle for themselves and can therefore be expected to continue living in their home country.
The situation is different when asylum seekers state that they have not only lived a hidden life out of respect for their family, but primarily for fear of prosecution and violent responses from their family and neighbours.
8. The right to live together openly as a couple
In their application and hearing, lesbian and gay asylum seekers from countries where open cohabitation of same-sex couples is not tolerated may also submit that they have left their home country not only because of imminent persecution and grave disadvantage, but also because they no longer want to live alone. They can state that they can no longer tolerate having no more than just fleeting sexual contacts – occasionally, in secret and under great fear of discovery – and that they wish to live together, like heterosexual couples, in a partnership with someone who shares their sexual orientation.
This is impossible in many countries. Same-sex cohabitation is held in contempt, and induces violent reactions from the environment. This frequently happens even in countries which do not punish homosexuals and have decreed that anti-discrimination regulations also apply to homosexuals, e.g. 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 response from the couple’s environment (employer and colleagues, professors and fellow students, families) will be overwhelming rejection, with many even responding with violence. The men and women are dismissed by their employers and are unable to find a new job. They will be obstructed and excluded from universities in such a way that they are prevented from continuing their studies. They will be threatened with violence from their families.
Young lesbians and gays can often additionally claim that their families will under no circumstances tolerate their son or daughter living with a man or woman and that the family will force their son or daughter to marry (risk of forced marriage).
Police may possibly be willing to prosecute offenders when assaults have actually happened. But this will usually not deter offenders: they need not fear serious penalties and even receive recognition from their environment for defending moral principles. An extensive preventive protection of same-sex couples against violent acts is in fact impossible, and cannot be expected from police, employers or university authorities.
For this reason, same-sex couples are not able to live together normally as a couple in these countries. This is a serious violation of human rights relevant to asylum status.
The argument that people would not face rejection or marginalisation if they kept their relationship secret is not permissible. According to the above ruling of the ECHR of 07.11.2013 during the review of applications for granting refugee status, the national authorities are not allowed to require asylum seekers to exercise restraint in living out their sexual orientation so as to avoid the risk of persecution.
The fact that lesbians and gays cannot live together openly as a couple in many countries is an additional reason for a ban on deportation according to Section 60, para. 5 AufenthG. According to this law, an individual cannot be deported when the deportation would not be permitted under application of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
The European Court of Human Rights (ECHR) has always acknowledged that same-sex partnerships are covered by the protections of Art. 8, para. 1 ECHR regarding the right to respect of 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 same-sex partnerships are covered by the scope of protections of the right for respect for family life according to Art. 8 para. 1 ECHR.
According to the settled case-law of the European Court of Human Rights, the ECHR does not guarantee the right of a foreign national to travel to or remain in or not to be deported from a specific country. Immigration measures may, however, impact on the right to respect for family life according to Art. 8 ECHR. According to this, everyone has the right to respect for their family or private life; interventions are permitted only if they comply with Art. 8, para. 2 ECHR. In both cases, a fair balance between the contrary interests of the individual and society must be achieved. As a result, Art. 8 ECHR mandates that the solution observe the principles of proportionality (BVerwG, judgement of 30.03.2010, 1 C 8.09, Rnr. 34; judgement of 04.09.2012, 10 C 12/12, Rn. 21).
In such considerations, key importance is attached to the fact that lesbians and gays will not be able – temporarily or permanently – to live together as a couple with the partner of their choice in the country to which they are to be deported. Deportation would condemn them to stay permanently single. This is a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The ban on deportation of Section 60 par. 5 AufenthG is independent of and in addition to the ban on deportation of Section 60 par. 2 AufenthG in connection with Section 4 par. 1 AsylG (subsidiary protection) and does not replace it. With respect to Section 60 par. 5 AufenthG, all guarantees of the ECHR must be taken into account that could lead to deportation being prohibited (BVerwG, judgement of 31.03.2013, 10 C 15.12, side note 34 fol.).
It is very important that during their asylum proceedings asylum seekers explicitly point out that their issue is not whether homosexuals are persecuted as a group in their home country, but whether living together as a homosexual couple is condemned and will meet with such serious resistance in this country that these responses must in total be considered a serious violation of human rights.
For information on the possibility of family reunification with a partner who is still living in the asylum seeker’s home country, see the section "Family reunification" below.
9. Previous case law to date of the Federal and other Administrative Courts
In 1988, the Federal Administrative Court recognized, in accordance with old asylum rights, that homosexuals from Iran are politically persecuted. At the time, they declared that lesbian and gay foreign nationals with “an irreversible trait of homosexuality” are to be recognized as refugees if returning to their home country would put them at risk of severe physical punishment or the death penalty. However, according to this ruling, prosecution due to homosexual acts was not sufficient for a person to be granted asylum status when the prosecution was “only” due to a violation of public decency or morality.
This restriction may be down to the Federal Republic of Germany’s own record: the FRG itself also persecuted gay men for twenty years. Furthermore, Section 175 of the German Criminal Code was still in effect at the time. This 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 politically.
On the basis of this case-law, homosexuals were only acknowledged as asylum seekers if the BAMF and administrative courts were convinced that "irreversible homosexuality" actually existed. In most cases, sexual psychology expertises were required. The BAMF and administrative courts now do not demand such assessments, see the section about the investigation of statements of homosexual refugees” below.
10. The expiry of the asylum procedure
The BAMF has published a diagram depicting what happens during the asylum procedure. The BAMF-website provides additional information about the various stages of the procedure.
The site https://www.asyl.net/ also provides various guides on asylum law in its publications section.
The following process of asylum proceedings will result from the application of the AsylG:
1. Return agreement
Spain: If asylum seekers and seekers of protection enter via the German-Austrian border and their fingerprints in the Eurodac database show that they have already applied for asylum in Spain, they can be returned to Spain within 48 hours. If the transfer does not go ahead within this time, Germany will have to send a normal request to Spain under the Dublin rules.
2. Entry by air via certain airports
If asylum seekers enter via the airports of Berlin-Schönefeld, Dusseldorf, Frankfurt am Main, Hamburg and Munich and come from a safe country of origin or cannot identify themselves with a valid passport or passport substitute, the Federal Police may detain them in the transit area. A decision is taken in this transit area on their asylum application within two days (airport procedure - Section 18a AsylG – see detailed discussion below).
If the claim is not rejected as manifestly unfounded or if BAMF does not decide within two days, the foreign national will be allowed entry.
If asylum seekers are not arriving from one of the safe countries of origin and have a valid passport with them, they must also be granted entry.
In this case, persons may only be detained if there are specific grounds to suspect the identity documents could be fake. The Federal Constitutional Court has stated in its airport decision "According to the will of the legislator, the airport procedure should be limited to asylum seekers who do not have sufficient travel documents or whose passports are actually - and not only allegedly - faked. If the falseness of the passport cannot be determined promptly, the asylum seeker must be allowed entry. "(BVerfGE 94, 166, Rn. 112)
Nevertheless, according to our information, it still happens that persons with valid ID are detained by the Federal Police for several days in the transit area. The police officers state that they are overworked and are unable to check asylum seekers and their papers more quickly. This is inadmissible under Section 18 (1) of the Asylum Act, as the Federal Police have to forward the asylum seekers "without delay". The officials who violate this provision are guilty of deprivation of liberty (Section 239 StGB).
3. Entry by land or other airports
Foreign nationals arriving by land may be turned away at the frontier by border police if they have arrived illegally, e.g. because they do not have a visa or a valid passport or if they are banned from entry (Section 15 AufenthG). The same applies if the foreign nationals are encountered by the border authority in the area close to the border close to the time at which unauthorized entry was attempted (section 71 (3) no. 1 AufenthG).
Foreign nationals may not be turned back if they declare they want to apply for asylum in Germany. It is clear that foreign nationals have entered through a Dublin State and that this State is - probably - responsible for investigating the asylum application, because all the neighbouring states of Germany are Dublin states (see Dublin procedure below). However, the Dublin III Regulation (Regulation (EU) Nr. 604/2013) does in fact provide for a special procedure for determining the competent state in such cases.
The border police must therefore transfer the asylum seeker to a BAMF contact point (see below). From there, asylum seekers are distributed to a reception center assigned to a field office of the BAMF (see below). Asylum seekers must submit their application for asylum at this field office (Section 14 (1) sentence 1, Section 16, Section 19 (1), Section 20 (1) Asylum Act).
If necessary, the BAMF must then send a request to the Dublin State via which the asylum seeker entered Germany.
4. Facilities of the BAMF
The BAMF maintains the following facilities for their investigations, which they use depending on the number of asylum seekers:
The waiting areas of the BAMF are used to register asylum seekers with the assistance of German army and customs personnel, before they are distributed to the Federal States. Through this method, the BAMF ensures that the data of these persons can be quickly matched against other databases, including that of the Federal Criminal Office (BKA).
Processing lines are used to register and photograph asylum seekers and have them examined by medical doctors. In addition, fingerprints are taken. Afterwards, the data are passed through police databases. If there is no match, the persons will be transferred to a reception facility.
The branch offices assigned to these reception facilities will conduct the asylum proceedings. As regional offices, they are the points of contact for the people in charge of integration measures. They are responsible for local integration activities and take care of matters concerning migration.
These centres serve to complete proceedings that are ready for decision, e.g. of asylum seekers from Syria, Iraq and Eritrea and on proceedings already pending. No hearings take place here and the centres are not open to the public.
In 2015, the BAMF started to establish arrival centres to combine steps in the asylum proceedings that were formerly distributed over several different units. If possible, the complete asylum proceedings take place within the arrival centre - medical examination, registration, criminal checks and bookings, filing of the application for asylum, the hearing and also the decision, and the first consultation for integration into the job market.
In the arrival centres, asylum seekers are divided into different groups ("clusters"). Applications of persons from countries of origin with a high rate of protection ("cluster A") and those from countries of origin with a low rate of protection ("cluster B") are dealt with immediately after the application is submitted to the arrival centres. The aim is for the entire asylum procedure, including consultation and decision, to be completed for these groups within a few days. For more complex cases ("Cluster C") and "Dublin cases" ("Cluster D"), the process may continue to take longer.
Bavaria wants asylum applications to be processed in anchor centres in the future. Anchor centres combine the entire procedure – arrival, distribution, decision and return.
The idea is for anchor centres to combine representatives from the BAMF, Federal Employment Agency, immigration office, judiciary and youth welfare office, with direct paths of communication to accelerate proceedings. People are to stay there until their asylum procedures are completed, i.e. until recognition or deportation. Each anchor centres shall accommodate between 1,000 and 1,500 refugees.
Bavaria has already set up anchor centres of this type in its seven administrative districts, repurposing existing transit centres or initial reception facilities.
It is not yet clear whether and which states will follow the example of Bavaria.
--- 10.1. Entry
At the first encounter of asylum and protection seekers with the German state or Federal Police, or immigration authorities, the authorities have to comprehensively record the data of the refugees and enter the data into a central system. This data can be accessed by all facilities that later deal with the refugees. This is to prevent refugees from being double-registered or disappearing from the system.
The authorities register personal data, such as name, date and place of birth, fingerprints and details on health examinations and inoculations. Data on school education, vocational training as well as other qualifications is also stored. This is required for speedy integration and job placement. Voluntary information, e.g. religious affiliation, is also recorded.
Fingerprints are also stored in the Eurodac Database and checked to see if the refugees have already been registered in another Dublin state (see below).
Since it is not possible to obtain a visa from German representations abroad for the purpose of applying for asylum in Germany, most asylum seekers enter Germany illegally. According to Section 14, 95 paragraph 1 No 3 AufenthG, illegal entry is punishable. However, according to Article 31 paragraph 1 of the Geneva Refugee Convention, refugees must not be penalised. This is expressly referred to in Section 95 paragraph 5 AufenthG.
When the German Federal Police pick up a refugee, they usually initiate criminal investigations against the refugee on account of illegal entry into the country. A few weeks later, the asylum seeker receives a letter from the 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 on whether or not this is punishable. If the penalty totals over 90 times the daily income of the person concerned, an objection should always be filed to try to reduce the penalty. This is because higher penalties may put the issue of a residence permit at risk (cf. Section 5 paragraph 3 in connection with Section 55 paragraph 2 No 2 AufenthG).
--- 10.2. Contact point for asylum seekers - proof of arrival - temporary residence permit
Federal or state police or the immigration authorities will refer asylum seekers to a designated contact point. The refugees are obliged to immediately report there (Section 20 paragraph 1 AsylG). If they fail to do so, their application for asylum will be regarded as withdrawn.
If the asylum seekers can immediately prove in such a case that their delayed arrival at the contact point resulted from circumstances beyond their control, the proceedings will be continued.
Otherwise, the Federal Office will find in its decision that the asylum proceedings are discontinued. It will also determine whether there is a ban on deportation pursuant to Section 60 paragraph 5 or 7 AufenthG. The Federal Office will take its decision according to the information it has available (Section 32 AsylG). The asylum seeker may then file an application for the resumption of the proceedings.
A certificate of registration as an asylum seeker (proof of arrival) will be immediately issued to the asylum seekers. The data compiled during the initial registration will be included in the proof of arrival (see in detail Section 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 filing of the application for asylum (Section 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 valid for a maximum of six months and will be extended by no more than three months at a time until the asylum seeker receives a date to file his/her application with the branch office of the BAMF.
The branch offices or the reception facility to which the foreign national has been assigned are responsible for the issue of the proof of arrival. As soon as the foreign national is no longer obliged to live in the reception facility, the responsibility for extending the certificate passes to the immigration authorities.
The asylum seekers are obliged to immediately proceed to the reception facility indicated to them at the contact point. They will receive the required public transport tickets. Asylum seekers are distributed between reception facilities using the EASY system (Initial Distribution of Asylum Seekers).
If the asylum seekers fail to immediately proceed to the reception facility, the legal consequences described above will occur.
--- 10.3. Reception facility
Asylum seekers are obliged to reside in the reception center for up to six weeks and for a maximum of six months (Section 47 (1) sent. 1 AsylG). The duty to reside in an initial reception center ends (inter alia) if the BAMF is unable to decide speedily whether an asylum application is manifestly unfounded or inadmissible (Section 50 (1) no. 1 AsylG). "Speedily" in this context does not mean within six weeks (Section 47 (1) sent. 1 AsylG). Irrespective of this, the obligation to reside at the facility ends at the latest after six months. In July 2017, the legislator created the possibility for states to define different rules governing residence in the initial reception centres, granting states the power to extend this residence obligation to 24 months (Section 47 (1b) AsylG).
Asylum seekers from a safe country of origin (see above) have to stay in the reception facility until the end of their asylum proceedings and, in the event their application for asylum is rejected, until their departure or deportation from Germany (Section 47 paragraph 1 and 1a AsylG).
--- 10.4. Application for asylum
Immediately after admission to the reception facility, or at a time requested by the reception facility, asylum seekers are obliged to attend in person (Section 23 paragraph 1 AsylG) at the branch office of the BAMF to apply for asylum (Section 14 paragraph 1 AsylG).
It is only possible to send a written application to the BAMF if a foreign national 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 the case of unaccompanied minors – when the application is made by a guardian (Section 14 paragraph 2 AsylG).
According to Article 6 paragraph 5 of the EU procedural directive 2013/32/EU, it must be made possible for asylum seekers to submit their application within 10 working days at the latest. Since the implementation period for the directive expired on 20 July 2015 (Article 51 paragraph 1 Directive 2013/32/EU), the directive is now directly applicable legislation in Germany. Therefore, after 10 working days, asylum seekers may file an application for an appointment for applying for asylum and, if nothing happens, may file an action for failure to act according to Section 75 VwGO.
This is now no longer necessary because asylum seekers are always able to submit applications within a short time.
A Certificate of the Temporary Residence Permit containing personal data and a photograph is issued to the foreign national within three working days of filing the application for asylum. The certificate includes the date of issue of the Proof of Arrival (see above) and the date the application for asylum was filed (Section 55, 63 AsylG). This certificate serves as ID for the foreign nationals in Germany. It does not entitle them to cross borders (Section 64 AsylG).
--- 10.5. Legal status of asylum seekers
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 be in shared accommodation (Section 53 AsylG). L
The decision where to place a person is essentially at the discretion of the responsible immigration authority. The decision must take into account the “household community of family members in the sense of Section 26 (1) to (3) AsylG", i.e. spouses, civil partners, underage children and parents of unmarried single asylum seekers, if the marriage, civil partnership or family already existed in the state of origin ( Section 50 (4) sentence 5 AsylG). Also to be considered are "other humanitarian reasons of comparable weight". This includes other familial and family-like attachments of asylum seekers not specified in Section 26 (1) to (3) AsylG, e.g. partnerships of lesbians and gay men who were unable to marry in their country of origin, also hostility and violence against lesbians and gays by other refugees (see our sample texts) or sexual harassment of women by male refugees.
Housing in shared accommodation, decentralized accommodation and private housing is governed by state law. Decisions are taken by the competent state authorities. Applications for placement elsewhere in the same state or in a different state may be submitted to the competent state authority. Such applications succeed only for the reasons stated above (nuclear family household or other similar humanitarian reasons).
----- Geographical limitation / residence obligation
The temporary residence permit is only valid for the district of the immigration office in which the reception facility of the refugee is located (Section 56 AsylG). It is possible to request permission to leave this district. No permission is required to attend appointments at courts or public authorities (Section 58 AsylG). A first violation against the geographical limitation is an administrative offence (Section 86 AsylG), a repeated violation a criminal offence (Section 85 No 2 AsylG).
The geographical limitation expires after three months of residency in Germany. This will not apply, however, as long as asylum seekers are obliged to live in the reception facility (Section 59a par. 1 sent. 2 AsylG), i.e. for asylum seekers from safe countries of origin (Section 47 par. 1a AsylG) and for asylum seekers whose application is processed in expedited proceedings (Section 30a par. 3 AsylG). They are obliged to reside 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-month period from the date of entry into Germany (shown by Proof of Arrival), individuals may apply to the immigration office for cancelation of the geographical limitation in their temporary residence permit.
----- Work opportunities
Section 5 AsylbLG provides that work opportunities shall be made available to the asylum seekers at the reception facilities and comparable facilities, in particular work for maintenance and operation of the facility. Furthermore, work opportunities shall be made available where possible at state, municipal and non-profit organisations, insofar as the work would not otherwise be performed, or would not be performed in this scope or at this time.
An allowance of Euro 1.05 per hour has been paid so far for such work (Section 5 par. 2 AsylbLG). The Integration Act has led to a reduction of the allowance to Euro 0.80 per hour, unless the asylum seekers provides evidence for higher expenditure incurred by working, e.g. equipment, clothes or tools, travel expenses or costs incurred for external meals. Since the work opportunities are not considered as an employment relationship (Section 5 par 5 ArbLG), asylum seekers are not be entitled to minimum wage.
Beginning 01.08.2017, the BAMF is carrying out a Job Market Program for Refugee Integration , scheduled to last three years (Section 5a AsylbLG). It is planned to create 100,000 work opportunities. Asylum seekers from safe countries of origin as well as foreign nationals who are legally obligated to leave the country, 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 is at least 18 years of age and not in full-time education is obliged to accept the work opportunity made available. The person must be informed of this duty beforehand in writing (Section 5a para 3 sent. 1 AsylbLG).
If the asylum seeker turns down the work opportunity without reason, he or she will no longer receive the “necessary demand” allocation (see below) but will only receive benefits to cover food and accommodation, including heating, healthcare and personal care, which shall be granted as benefits in kind. Only in case of particular individual circumstances can other necessary benefits be refused.
This is not applicable if the asylum seekers can present important grounds (see Section 12 par. 4 SGB XII), notably when they will take up or have taken up employment on the general labour market, vocational training or studies.
The organizations offering work opportunities shall immediately inform the authorities if asylum seekers refuse to take up or continue the work opportunities assigned to them or prevent such opportunities from being exercised owing to their behaviour.
Asylum seekers are not permitted to take up any paid employment while they are obliged to live in a reception facility (see above), but at least for three months (Section 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 (Section 61 par. 2 sent. 4 AsylG).
Work permits have 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 (Section 39 AufenthG). The approval will only be granted if no German or other citizen of the European Union can be considered (priority check).
After a stay of 15 months in Germany, approval will be granted without a priority check (Section 32 par. 5 no. 2 BeschV).
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 (Section 32 para 5 no. 3 BeschV). The remaining 23 agency districts in which a priority check is still 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 Section 32 of the Employment Regulation. Asylum seekers holding a temporary residence permit may also take up a job as temporary workers.
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 communication of the approval request that the information received is not sufficient take a decision or that the future employer did not send the necessary information, or failed to do so on time (Section 36 paragraph 2 BeschV). Currently, this happens quite often. Therefore, one should always ask the immigration office for 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 permitted to allow asylum seekers with a residence permit (see above) to undertake vocational training in a state-approved or similarly regulated apprenticeship profession without the consent of the Bundesagentur für Arbeit (Section 61 par. 2 sent. 1 AsylG in connection with Section 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 - see here and dot under "Download").
The same is applicable to the following traineeships (Section 32 par. 2 no. 1 and par. 4 BeschV in connection with Section 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 vocational training orientation or to take up study at university/college
- As preparation for vocational training or in introductory company training
- In introductory training according to the SGB III and vocational training preparations according to the Berufsbildungsgesetz.
The approvals will be granted under the condition that employment of the foreign national is allowed. An prohibition on employment exists under the following conditions:
- as long as the asylum seeker is obliged to reside in a reception facility, see above (Section 61 par. 1 AsylG),
- for the duration of the asylum procedure, when the asylum seeker is a citizen of a safe country of origin (see above) and if he/she has filed an application for asylum only after 31.08.2015 (Section 61 para. 2 sent. 4 AsylG),
Furthermore, the granting of the approval will be at the discretion of the immigration authorities. In the view of the 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 granting of approval:
- identity of the foreign national is certain,
- presentation of a valid national passport or of an acknowledged foreign passport substitute document or, at least, cooperation in 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 vocational training.
Reasons against approval:
- unclear identity,
- foreign national fails to cooperate to clarify identity,
- short stay in the territory of the Federal Republic of Germany,
- limited German language skills,
- imminent specific measures to terminate the stay in Germany, e.g. pending Dublin proceedings,
- committed offences or other violations of legal provisions (e.g. of geographical limitation or residence requirements) or of administrative or court decisions.
The stay of the foreign national is permitted during the asylum procedure. This authorization expires if the asylum application is rejected by courts or withdrawn. Under certain circumstances, the foreign national may be allowed to continue his/her training see below, and dot under "employment permits).
----- Benefits based on the Asylum Seekers Benefits Act (“Asylbewerberleistungsgesetz”)
During their asylum proceedings, asylum seekers cannot claim social benefits based on the SGB II (Arbeitslosengeld II/Unemployment Benefits II) or SGB X (Sozialhilfe/Social Welfare). They only receive the "necessary demand" (notwendiger Bedarf), which should be satisfied by non-cash benefits. (Section 3 et. sqq. AsylbLG).
When all necessary personal requirements are covered by cash payments, asylum seekers receive the payments stated in Section 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 Expedited Proceedings of 11.03.2016.
Benefits with respect to sickness are limited to the treatment of acute illness and pain (Section 4 AsylbLG). Dental restoration will only be carried out if this cannot be delayed for medical reasons in the individual case. Chronic diseases involving long-term treatment which therefore cannot be completed in Germany generally do not engender an obligation to provide service according to the official justification pursuant to Section 4 par. 1 AsylbLG (also see Bundestag Printed Papers No. 12/4451 of 02.03.1993, p. 9).
The claim pursuant to Section 4 par. 1 AsylbLG is supplemented, however, by the protection regimes for pregnant women (Section 4 par. 2 AsylbLG) and by the flexibility clause pursuant to Section 6 par. 1 AsylbLG. According to this provision “other benefits” may be granted, in particular, if these are compulsory to safeguard health or are necessary to cover the specific needs of children. The AsylbLG thus makes provisions to adequately treat individual cases and to allow access to healthcare exceeding the scope of benefits granted pursuant to Section 4 par. 1 AsylbLG. This standard provides for 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.
In particular, Directive 2013/33/EU (Reception Directive) provides for a claim to required medical or other assistance, including - if required - suitable psychological care for persons requiring special protection, also including persons with severe physical diseases and psychological problems or persons who suffered torture, rape or other types of psychological, physical or sexual violence and who have special requirements. Since expiry 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), the discretion of the authorities is reduced to zero through these requirements of Section 6 par. 1 AsylbLG for the case groups covered by the reception directive, due to the interpretation in conformity with European law.
Before "Proof of Arrival" (see above) is issued, persons entitled to asylum will only receive benefits to cover their needs for food and accommodation, including heating, as well as for personal care and healthcare, granted as benefits in kind. This is not applicable if they have already undergone police identification and have been received by their assigned reception facility, and if the non-issue of the proof of arrival is due to reasons beyond their control (Section 11 par. 2a AsylbLG).
Asylum seekers who have been resident 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 (Section 2 par. 1 AsylbLG) and are equal to persons with statutory health insurance (so-called analogue benefits) with respect to claims for benefits. In case of a relevant diagnosis, a claim can also be made for the cost of psychotherapy..
Depending on the state, the health card will be issued from the beginning or upon 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
When a person applies for asylum, his/her fingerprints are checked in the Eurodac Database to find out whether the person has 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 requires the applicant to attend a personal hearing. This is based on a questionnaire (first or brief interview). The last question is of particular importance:
“Are there any reasons why your application for international protection should not be processed in Germany but in another Dublin state? Are there any states to which you do not wish to be transferred?”
The BAMF itself is in fact in a position to assume responsibility for 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 centre, 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 that their presentation is translated wrongly or inadequately will have no chance of success.
If the BAMF concludes that another Dublin state is responsible, it submits a request for transfer to this 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 two months of the Eurodac verification; or within three months in case of other proofs. What counts is the first Eurodac "hit" by the Federal Police (see above). If the BAMF misses the deadline, Germany becomes responsible for processing the asylum application (Art. 21 para 1 Dublin III-VO), and the asylum seeker is entitled to invoke this responsibility in any claim.
The response from the requested Dublin State must be given within two months. If no response is given within this time, the requested State is responsible for the asylum procedure (Art. 22 par. 1 and 7 Dublin III-VO).
After the state has given consent, or if no conclusive response is given within the time allowed, the BAMF issues the Dublin notification: The application is rejected as inadmissible and an order for deportation to the respective Dublin state is issued.
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 Section 80 para 5 Administrative Court Procedures (VwGO) ("emergency petition"). Deportation cannot be ordered before the Court has decided on the appeal, if the application was submitted within the given period of time (Section 34a para 2 sentence 2 AsylG).
Important: The one-week period starts with the date of delivery of the notification to the place of residence (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 month 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 is sent out with the complete current status of documents. The calculation of the deadline for transfer can usually be found on the last pages, or the asylum seeker can apply to inspect the files to access this information.
Important: As per the Federal Administrative Court’s ruling (BVerwG, judgement of 26.05.2015 - 1 C 15.15), the period of time for transfer starts afresh after rejection of the emergency petition. Therefore, an emergency petition prolongs the period of time for transfer.
If the consent or “fiction of consent” of the responsible Dublin state was issued several months previously, it may be advisable not to submit an emergency petition 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.
Attempts have been made to bridge the time limit for transfer by presenting a medical certificate to the immigration office to attest that the asylum seeker is unable to travel. This is no longer possible due to the stricter requirements for proof of illness as a barrier to deportation (see above).
For more information on the Dublin regulation see also:
- Information Network ASYLUM & MIGRATION (Informationsverbund ASYL & MIGRATION):
- Pro Asylum (Pro Asyl)
- First Aid against Dublin deportations: Basic Information and Advice for Case Based Work (Erste Hilfe gegen Dublin-Abschiebungen: Basiswissen und Tipps für die Einzelfallarbeit), January 2015
- Family reunions within frameworks of Dublin III (Familienzusammenführungen im Rahmen der Dublin-III - Verordnung nach Deutschland Anspruch – procedures, steers for practice (in German).
--- 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 is final or the emergency petition for establishing suspensive effect of the complaint against the Dublin decision has been rejected.
The place of residence has to be notified to the immigration office (“Ausländeramt”) and the BAMF on the first day in writing (preferably by fax) so as to avoid the impression that the person is going into hiding. The Churches came to an agreement with the BAMF in February 2015 that people in church asylum should not be regarded as absconding, even in “Dublin III” cases. This means that, following expiry of the transfer period (no later than six months), Germany becomes responsible for the asylum procedure.
Furthermore, the churches have reached an agreement with the BAMF that a 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, after receipt of the dossier the BAMF branch offices are obliged to halt any further steps. After the review, a decision will be taken on 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 hardship. The person will not be returned to another member country under terms of the Dublin regulation until the final decision has been taken.
Furthermore, it is advisable immediately to obtain confirmation from the church parish that church asylum covers accommodation only and that all other benefits are granted only as advancements until payment of official social benefits resumes. This confirmation can be used to apply for the continuation of benefits according to the Asylum Seekers Benefits Act (“Asylbewerberleistungsgesetz”) and for entitlements to medical treatment (“Krankenbehandlungsscheine”).
Note: Since 01.08.2018 tighter procedural rules apply to church asylum in Dublin cases. Detailed information can be found on the Website of Informationsverbund Asyl & Migration.
--- 10.8. Expedited proceedings
After initial checks, certain groups of refugees are referred by the Federal Police to "Special Reception Facilities" (Section 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-expedited proceedings.
The expedited proceedings (Section 30a AsylG) are carried out in such cases (among others):
- foreign nationals from safe countries of origin, see above. The countries Algeria, Morocco and Tunisia are also classified as safe countries of origin.
- foreign nationals who have apparently deceived the authorities through false information or documents or by withholding relevant information or by withholding documents about their identity or nationality, and
- foreign nationals who wilfully destroyed or disposed of an identity or travel document that would have helped establish their identity or nationality, or where circumstances exist that clearly justify this assumption.
We assume that all asylum seekers without documents will undergo expedited 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 can immediately prove in such a case that they left the district of the immigration office owing to circumstances beyond their control, the proceedings will be continued.
Failing this, the Federal Office will cease the asylum proceedings. The asylum seeker can apply to have the proceedings resumed.
If the application of an asylum seeker is rejected as manifestly unfounded or inadmissible, he or she may file an action against this decision before the Administrative Court within one week, and may file an emergency petition with suspensive effect of the action. The emergency petition must be substantiated in detail, because the Administrative Court will only decide in a written procedure. If the appeal is rejected, deportation may be enforced despite the pending legal action, and the asylum seeker may be deported.
It is therefore vital that LGBTTI* asylum seekers immediately seek professional advice. This will not be possible, however, in most cases, because many LGBTTI* asylum seekers will fail to immediately and openly disclose their sexual orientation and related persecution if homosexuality is a taboo in their country of origin and their survival strategy to date has been to keep secret their sexual orientation.
Also see Instructions for Homosexual Refugees from Civil-War Countries.
--- 10.9. Airport procedure
The airport procedure is a special form of expedited proceedings.
The airport procedure takes place (see Section 18a AsylG), if:
- asylum seekers arrive via the airports Berlin-Schönefeld, Dusseldorf, Frankfurt am Main, Hamburg and Munich,
- come from a safe country of origin (see above)
- or cannot identify themselves with a valid passport or passport substitute.
Entry by air via certain airports see also above and there the section "2. Entry by air via certain airports".
The obligation to grant entry under the non-refoulement principle of the Geneva Refugee Convention is circumvented in the airport procedure by treating asylum seekers as if they have not yet entered the country and are still outside the EU’s external borders. As a result, asylum seekers are detained during the entire the airport procedure in the transit area of ??the airports. In addition, due to the obligation to repatriate stated in Annex 9 to the Convention on International Civil Aviation, the airlines are obliged to return rejected asylum seekers to their country of origin or the place of departure. These countries are themselves obliged to take the individuals back. In contrast to the usual procedure, asylum seekers can also be returned without papers to their country of origin or the place of departure.
The procedure in detail:
The airport procedure lasts a maximum of 19 days. Because the procedure is hugely expedited, there is little guarantee of effective legal protection.
At the first contact, the Federal Police investigates the exact mode of travel, checks for criminal offenses and determines whether an application for asylum is being made. Therefore, it is important to state explicitly that the person wants to file an asylum application. Otherwise he or she may be deported. The records of this interrogation are forwarded to the Federal Office for Migration and Refugees (BAMF), which decides on the asylum application.
The BAMF must give the asylum seeker a hearing within two days and decide on the asylum application. The asylum seeker is not given the opportunity to contact a lawyer until after the hearing, unless s/he has previously been able to commission one (Section 18a (1) sentence 5 AsylG). This is advisable because the lawyer can then be present at the hearing.
If the application is not rejected as "manifestly unfounded" or if the BAMF does not decide within two days, the asylum seeker must be allowed entry.
However, if the claim is rejected as "manifestly unfounded", entry will continue to be denied and deportation threatened. Within three days, preliminary legal protection can be sought from the Administrative Court. Applicants will be provided with free legal advice by independent lawyers. The emergency petition must contain a detailed justification, as the court’s decision is communicated in writing. Upon application, the court may grant another four days to substantiate the application. If the court grants the emergency petition or does not decide within 14 days, the asylum seeker may enter the country and the usual asylum procedure will take place. If the asylum seeker’s petition is not granted by the court, s/he will be returned to his or her country of origin or the place of departure despite having no papers.
--- 10.10. Hearing
In all other asylum procedures it presently takes many months for asylum seekers to be called for hearings.
If asylum seekers have to wait a long time for their hearing and the prospects of success are good, an inactivity suit should be filed with the Administrative Court. According to Section 75 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung / VwGO) a suit can be filed after three months at the earliest when a decision is not taken within an appropriate period without sufficient grounds for the delay.
The EU Procedural Guideline 2013/32/EU defines timeframes for the investigation procedure. In principle the procedure must be finalized within six months. It may take nine months longer if a large number of refugees apply for asylum. As an exception, these deadlines may be exceeded by up to three months, if this is necessary for proper and comprehensive investigation. The maximum timeframe is therefore 21 months.
In its judgment of 11.07.2018, C 18.17, the Federal Administrative Court ruled on what can be deemed an “appropriate” timeframe for deciding on an application. Basing its judgement on procedural guideline 2013/32 / EU, the court ruled that "a period of six months can (still) be regarded an appropriate duration of the official procedure within the meaning of Section 75 sentence 1 VwGO”.
In addition, Article 31 (3) to (5) Directive 2013/32 / EU provides guidance as to the circumstances in which exceeding the six-month period must also be considered objectively justifiable for the application of Section 75 sentence 1 VwGO; this also applies to the period of validity and the absolute maximum period specified in Article 31 (5) of Directive 2013/32 / EU.
To date, the EU Procedural Guideline has not been incorporated in German law. The implementation deadline expired on 20.07.2018 (Art. 51 (2) EUVfRl). Asylum applicants can therefore directly reference this Directive.
The hearing is the only chance to furnish prima facie evidence of the reasons for fleeing the original country when no other documents can be presented to prove persecution or danger (Section 25 AsylG). The hearing focuses on the question of why the person left his/her country, whether there was an alternative course of action for the applicant in the country of origin, and what he or she would have to face in the event of their return.
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 particular ethnic/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 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 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 in their home country, please state their last addresses there as well as the present ones).
- Please give 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 details of grandfather on your father’s side.
- Which school/s and/or university/ies did you attend?
- What is your profession? Who was your last employer? Did you have your own enterprise?
- Were you in military service?
- Have you visited 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 obtained recognition as a refugee in another country, and does he/she have his/her registered residence there?
- Do you have any objections to having your application for asylum processed 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 then 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 carefully for 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 organise their memories and identify inconsistencies. However, they should not make use of these notes in the hearing itself in order to avoid giving the impression they are presenting an invented story.
Also see as a supplement Homosexual Refugees from Civil-War 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 danger 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 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 translation only. 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 appointment of another interpreter for the hearing. Furthermore, they must insist that their criticism is noted 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 that refer to incorrect or inadequate translation of their presentation will have no chance of success.
--- 10.11. Checking of statements of homosexual refugees
In general, decision-makers in the BAMF and the administrative courts can assess the asylum applications only on the basis of the arguments submitted by the applicant, because no other evidence is available. The following aspects are decisive:
1. Compelling presentation of facts
The credibility of the alleged political persecution requires a consistent and conclusive account of the facts and details of the case, which, if assumed to be true and well-founded, are likely to result in political persecution.
This includes events that have occurred in the asylum seeker’s own social realm as well as personal experiences that provide a detailed and complete account that appropriately supports the asylum application without any contradictions (cf. BVerwG, judgement of 26.10.1989, 9 B 405.89 juris). Concrete, articulate, and detail-rich evidence is a mark of a truthful account of real events.
Conflicting assertions, or claims take increasingly exaggerated form during the procedure usually do not meet these requirements if the inconsistencies are not convincingly resolved.
The asylum seekers are therefore obliged to present all grounds for fleeing their country in detailed and comprehensible form at their hearing before the BAM. For many lesbian and gay asylum seekers, however, it is not (yet) possible to speak openly about their sexual identity and corresponding persecution. “Outing” yourself to foreign government officials is an immense hurdle. Additionally, asylum seekers are housed in refugee centres along with people from their own community, which means they feasibly encounter similar oppression and marginalization there. However, if the refugees then present their sexuality as a reason for seeking asylum later during the procedure, such grounds have often been dismissed as an “exaggerating assertion”, meaning the presentation is not credible because the refugees should have submitted the reason to begin with.
Based on the decision by the European Court of Justice (ECJ / EuGH) on December 2, 2014 (C-148 to 150/13) this is no longer possible: the ECJ prevents national authorities “from finding that the statements 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 severity of threat of persecution in the country of origin
3. Existence of a particular sexual orientation or the accusation by persecutors thereof:
It is sufficient if the asylum seeker can give a credible portrayal of previous persecutions due to sexual orientation or – if there is none – whether the decision-maker is convinced through questioning of the asylum seeker that there will be a risk of persecution in the future due to this sexual orientation.
Regarding the above-mentioned decision by the Federal Administrative Court, the courts have previously also assessed whether there is “irreversible homosexuality”. In this view, same-sex activity, pursuance of which is at the discretion of the individual, is not in itself material to the asylum procedure, but only if the individual is inescapably tied to homosexual behaviour or drive that make it impossible for the person to refrain from this activity. Such an investigation in the past often resulted in the BAMF or the courts requesting the refugees to provide sexual psychological reports on the “extent” of their homosexuality at their own expense.
The BAMF no longer pursues this approach.
In addition, the ECJ made the following ruling 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 on matters that homosexuals are likely to know, e.g. awareness of associations that protect the rights of homosexuals in their home country: this information can be useful at the hearing, but cannot be the sole basis for assessing the credibility of the individual’s position and circumstances.
4. Individual impact on the asylum seeker with a specific sexual orientation
It is basically immaterial which elements of sexual self-determination are impacted. The trigger of repression can be sexual orientation as such, or conduct in private or public.
5. The risk / threat must arise directly from the individual’s sexual orientation
For example: If an exchange of public intimacy or affection by both heterosexuals and homosexuals violates the dominating idea of morality and if the penalties for this improper conduct are the same regardless of the person’s sexual orientation, the threat is not considered to be because of sexual orientation. However, if homosexuals face a considerably worse and discriminating penalty, political persecution is considered to be targeted at homosexuals.
6. Return prognosis
A twofold prognosis is required:
- Upon return to the country of origin, how will the asylum seeker behave regarding his/her sexual identity?
- How will national authorities and others in the country of origin respond to this behaviour?
In the case of credible previous 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.
If there is no evidence of previous persecution, it is to be determined whether the sexual orientation of the asylum seeker is now known in the country of origin. If it is highly likely that the asylum seeker will be threatened by political persecution, refugee protection is to be granted.
In there is no evidence of previous persecution and the person’s sexual orientation is not known in his/her society, it is to be determined whether the asylum seeker will behave in such a way that might expose them to a risk of persecution. It also has to be considered if and why the sexual orientation of the asylum seeker has remained unknown until now, and whether they avoided revealing their sexual orientation by the way they behaved.
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 compromising their family and friends.
If the asylum seeker states credibly that they have lived discreetly owing to fear of persecution – and the other requirements are met – refugee protection must be granted.
If however the applicant indicates they have lived discreetly of their own accord in order to avoid offending anybody, it can be assumed that they can accept this lifestyle for themselves. In these cases, refugee protection cannot be granted. Typical of this is e.g. the decision of the BAMF dated 6 January 2017, page 3/4.
--- 10.12. Decisions of the BAMF
If the BAMF approves the application, the asylum seeker can apply for a residence permit (Aufenthaltserlaubnis) from the responsible immigration office (Ausländerbehörde). Positive decisions can grant 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 Section 25 par. 1 AufenthG for three years (Section 26 par. 1 AufenthG), followed by permanent residence permit after three or five years, see section 11.3 in the guide "Immigration Law". The temporary and permanent residence permits grant the right to work.
- International travel passport for refugees (called the blue passport)
- Right to standard social benefits
- Right to take integration course
- Right to leave the refugee center, but restrictions on movement, se below
- Right to bring in family members (Familiennachzug; see below), if the application for their visas is submitted within three months (Section 29 par. 2 sent. 2 AufenthG)
Recognition as refugee (Zuerkennung der Flüchtlingseigenschaft). This status has the same legal effects as recognition as a person entitled to asylum. For more information on the residence permit, see Section 25 par. 2 AufenthG.
Recognition of subsidiary protection (Zuerkennung des subsidiären Schutzstatus). If a right to subsidiary protection is recognized, this has the following legal effects:
- Residence permit according to Section 25 par. 2 AufenthG for one year, followed by two-year residence permit (Section 26 par. 1 sent. 3 AufenthG). The residence permit gives you the right to work.
- Permanent residence permit after 5 years according to Section 9 AufenthG (Section 26 par. 4 AufenthG), see section 11.1. the guide "Immigration Law"
- No refugee passport; the applicant has to try to recover the passport of his/her country of origin, otherwise a “grey passport” (replacement) is issued
- Right to standard social benefits
- Right to take integration course
- Right to leave the refugee centre, but restrictions on movement, see below
- Restricted rights to bring in family members (see below, section 2).
Deportation ban (Abschiebungsverbot) according to Section 60 par. 5 AufenthG. A deportation ban has the following legal effects:
- Residence permit according to Section 25 par. 3 AufenthG for at least one year (Section 26 par. 1 sent. 4 AufenthG). Requirement to present the national passport (Section 5 par. 1 No. 4 AufenthG). Unrestricted labour market access (Section 31 BeschV).
- Permanent residence permit after 5 years according to Section 9 AufenthG, if the other requirements of the provision are met (Section 26 par. 4 AufenthG)
- Right to standard social benefits
- Right to take integration course
- Right to leave the refugee centre, but restrictions on movement, se below
- Right to bring in family members only under the general requirements, see Guide on immigration law.
Deportation ban (Abschiebungsverbot) according to Section 60 par. 7 AufenthG. This deportation block has the same legal effects as the deportation block according to Section 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 Section 60 par. 5 and par. 7 sent. 1 AufenthG.
- The applicant is ordered to leave the Federal Republic of Germany within 30 days of notification of 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. Sections 31, 34, 38 par. 1 AsylG).
If the asylum seekers do not leave voluntarily, but have to be deported, an entry and residence ban comes into force, the so-called re-entry ban. A time limit for the ban is specified in the negative decision. The BAMF decides on the length of the period at its discretion. As a rule, the re-entry ban may not exceed five years (section 11 (1) to (3) AufenthG). Asylum seekers should therefore not wait to be deported, but should leave voluntarily when the negative decision is final.
An appeal against the rejection can be filed at the administrative court (Verwaltungsgericht) within two weeks (Section 74 par. 1 sent. 1 AsylG). The appeal has a suspensive effect, which means the deportation is suspended until the administrative court has decided (Section 75 par. 1 AsylG).
Rejected because obviously unfounded (Ablehnung als offensichtlich unbegründet).
This can happen when 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 to be safe (safe country of origin, Section 29a, 30 AsylG).
According to Section 11 (7) AufenthG, the Federal Office can order a temporary entry and residence ban on foreign nationals who come from a safe country of origin and whose asylum application was rejected as manifestly unfounded pursuant to Section 29a (1) AsylG. The ban becomes effective upon the enforceability of the decision on the application for asylum. The entry and residence ban is therefore also effective if the asylum seeker leaves voluntarily. The first entry and residence ban should not exceed one year; otherwise, the ban should not exceed three years.
A suit can be filed before the administrative court against a rejection defined as manifestly unfounded. This has no suspensive effect (Section 75 par. 1 AsylG), meaning the asylum seeker can be deported immediately despite the lawsuit. Therefore, an emergency petition (Eilantrag) according to Section 80 par. 5 VwGO has to be filed for the court to order that the petition should have a suspensive effect. The suit and emergency petition have to be filed to the administrative court within one week of receiving the rejection notice (Section 74 par. 1 AsylG).
Because the asylum seeker is not invited for a hearing to explain your emergency petition, s/he has to provide a written explanation. This must make clear why there are "serious doubts about the legality" ("ernstliche Zweifel an der Rechtmäßigkeit") of the rejection notice. If the emergency petition is rejected, the person may be deported even though the appeal against the decision is still pending.
Rejected as inadmissible (Ablehnung als unzulässig).
This rejection in in accordance with the Dublin procedure, when another state is responsible for the asylum case (Section 29 par 1 No. 1 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 Section 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 s/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 Section 11 AufenthG (Federal Administrative Court decision: BVerwG, judgement of 17.09.2015 - 1 C 26.14 and 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, judgement of 17.06.2014, 10 C 7.13).
Legal remedies against such decisions are subject to the same conditions as appeals against “manifestly 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 (Section 83b AsylG).
11. Place of residence after the recognition
With the “Integration Act”, the legislator has restricted the freedom of movement of asylum seekers for a period of three years following their recognition.
The new "Section 12a AufenthG Residence Regulation" is applicable to all foreign nationals who after 01.01.2016:
- have been recognized as persons entitled to political asylum (Art. 16a GG),
- have been recognized as refugees (Section 3 AsylG) or
- have been recognized as persons entitled to subsidiary protection (Section 4 AsylG) or for whom
- for whom a ban on deportation has been determined pursuant to Section 60 paras 5 and 7 AufenthG and for
- are refugees who have received a residence permit under international conventions or urgent humanitarian reasons (Sections 22, 23 AufenthG)
1. Place of residence in a specific state
The foreign nationals must reside for three years in the state in which the reception facility is located to which they were assigned for their asylum proceedings (Section 12a par.1 AufenthG). The obligation is waived if the foreign nationals, their spouses or life-partners or their under-age children
- take up or have taken up employment subject to social security contributions with a scope of at least 15 hours a week, through which these persons have available an income at least corresponding to the monthly average standard requirement (Section 20 SGB II) and to the requirements for accommodation and heating (Section 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 study or education.
2. Foreign nationals in reception facilities: place of residence at a specific location
As long as the foreign nationals live in a reception facility or other temporary accommodation, they can be obliged to reside for at a maximum of three years after recognition at a specific location. This is for the purpose of providing appropriate accommodation within six months after the recognition, unless this would stand in the way of integrating the foreign nationals into normal life in the Federal Republic of Germany. If no adequate accommodation can be allocated within six months, the allocation can be made during the following period of six months (Section 12a par. 2 AufenthG).
3. Foreign nationals outside of reception facilities: place of residence at a specific location
If the foreign nationals no longer live in a reception facility or other temporary accommodation, they may still be obliged within six months of recognition to reside at a specific location for a maximum of three years after recognition. This is the case if it serves:
- Provision of appropriate accommodation,
- Acquiring sufficient spoken German as per level A2 of the Joint European Reference Frame for Languages and
- Taking up employment, taking into account the local training and employment market.
4. Prohibition of residence at a specific location
To prevent foreign nationals from being excluded from mainstream society, they may be required not to reside in a particular place for a maximum of three years following recognition, especially if it is expected that foreign nationals would otherwise not use German as their main language of communication. The local training and employment market should be taken into account in the decision (Section 12a Abs. 4 AufenthG).
If a foreign national takes up residence at a location in breach of a geographical restriction in Germany, or breaches a residence requirement or regulation as per Section 12a AufenthG in Germany, the social welfare institution responsible for the individual is only allowed to pay benefits in accordance with the circumstances of the individual case. It is generally only imperative to provide travel grants to cover the cost of travel to the place where the foreign national is obliged to take up residence.
If the foreign national takes up residence in a non-permitted federal state (case 1) or at a prohibited location (case 4), travel grants must generally be provided to meet the cost of travel to the place in the Federal Republic of Germany where the foreign national intends to take up residence and where residency is permitted (Section 23 Abs. 5 SGB XII).
Infringements of these residence obligations can be punished as an administrative offense with a fine of up to five hundred thousand euros (case 1) or up to 30,000 euros (cases 2 to 4) (Section 98 (3) no. 2a and 2b AufenthG
6. Lifting of the obligations
The obligations pursuant to Section 12a paras 1 to 4 must be waived on application by the foreign nationals, if they can prove
- that employment subject to social security contributions in the scope described above (no. 2), an income to cover the costs of living, or an apprenticeship or university studies is 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 in a different place,
- or to avoid hardship.
A hardship exists, in particular, if
- the youth welfare office considers the obligations would compromise child and youth welfare services pursuant to the Eighth Book of the Social Code
- transfer to another state was granted due to other urgent personal reasons or
- comparable 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 without advice centres or meeting points for lesbian and gay persons. It does after all promote integration if refugees have access to a support network. The same is applicable if lesbian or gay people are not allowed to move to friends or to (more distant) relatives. In their function as “integration pilots”, friends and relatives can help to integrate refugees into the community.
If the obligation is waived to prevent hardship, the foreign national will be obliged to reside (or to refrain from residing) at a specific location that accommodates his/her interests. This obligation can extend for a maximum period of time of three years after recognition.
Without an order to the contrary from the authorities, family members joining the foreign national are likewise obliged to observe these restrictions, again for no longer than the three-year obligation period of the foreign national whom they are travelling to Germany to join. Family members may also apply to have the obligation lifted.
Appeals or actions against these obligations do not have a suspensive effect. When filing the objection, foreign nationals must therefore also file an application pursuant to Section 80 par. 5 VwGO for the administrative court to order a suspensive effect.
The states of the Federal Republic of Germany may makes provisions for detailed procedures through regulations (see Section 12a par. 9 AufenthG). With the “Integration Act”, the legislator has restricted the freedom of movement of asylum seekers for a period of three years following their recognition.
12. Integration course for foreign nationals with residence permit
If persons entitled to asylum (Art. 16a GG), refugees (Section 3 AsylG) or persons with subsidiary protection (Section 4 AsylG) have received a residence permit for the first time and if these persons intend to stay permanently in the Federal Republic of Germany, they are entitled to a one-time-only integration course (Section 44 AufenthG). A permanent stay is generally assumed if the foreign national receives a residence permit for at least one year or has held a residence permit for over 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 entitlement to an integration course becomes void one year after the granting of the residence permit or upon its cancellation. This does not apply if the foreign national was unable to attend an integration course until that date for reasons beyond his/her control.
The integration course covers beginners’ and improvers’ language courses, each lasting the same period of time, to give individuals a reasonable command of German, and an orientation course to teach participants about the legal order, culture and history of Germany (Section 43 par. 3 AufenthG).
If it is clear an individual has little need of support for integration purposes, he/she will not be entitled to attend a course. Foreign nationals who already have adequate knowledge of German are entitled only to attend 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 on at least a basic level in German. When granting the residence permit, the immigration authorities decide whether the person will be obliged to attend a language course (Section 44a par. 1 sent. 1 no. 1 and sent. 2 AufenthG) or
- if they are only able to communicate on a basic level in German, and if the immigration authorities oblige them to attend an integration course (Section 44a par. 1 sent. 7 AufenthG),
- if they are in special need of integration and if the immigration authorities request them to participate in an integration course (Section 44a par. 1 no. 3 AufenthG) or
- if they receive unemployment benefit II and it is part of an integration agreement for the person to attend an integration course (Section 44a par. 1 sent. 1 no. 2), or if the welfare office requests their participation (Section 44a par. 1 no. 2 sent. 3 AufenthG).
The obligation must be waived if it is unreasonable for the foreign national to participate - even in a part-time course - in addition to his/her employment.
The obligation is waived for foreign nationals:
- who are engaged in vocational or other education/training in the Federal Republic of Germany,
- who can provide evidence of participation in a comparable program in the Federal Republic of Germany or
- for whom participation is permanently impossible or unreasonable because they have to provide nursing care, for example for a family member.
If a foreign national fails to meet this obligation due to reasons forwhich he/she is responsible, or if he/she fails the final test, this may affect the extension of the residence permit (Section 8 par. 3 AufenthG), granting of a permanent residence permit (Section 9 par. 2 sent. 1 nos. 7 and 8 AufenthG) and on his/her naturalisation (Section 10 par. 3 StAG).
For details on the cost of the integration course and for further information, please see the BAMF website.
13. Temporary suspension of deportation (toleration)
Even after the final adjudication, a deportation order often cannot be enforced because the rejected applicant does not have a passport or other travel documents. Obtaining these documents can be difficult for the responsible 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. Individuals who are obliged to leave but who are unable to be deported receive a temporary suspension of deportation (Section 60a AufenthG). This is not a residence permit, just a suspension of deportation. The suspension is often granted for one, three or six months.
A suspension can also be granted for family or health reasons, if the issue of a residence permit cannot be considered, e.g. because the foreign national has no passport.
A suspension is feasible even when there are legal reasons opposing it. According to the General Ordinance of the Federal Ministry of the Interior on granting suspension pursuant to Section 60a Aufenthaltsgesetz of 30.05.2017, this is the case when inter all (pp. 6/7) :
The stay of a foreign national who is required to leave Germany is restricted to the territory of the federal state to which h/she is allocated. The geographical restriction lapses when the foreign national has been resident in Germany for three months without interruption, either lawfully or by virtue of his or her deportation having been suspended, or by having permission to stay in Germany pending asylum procedures (Section 61 paragraph 1 and 1b AufenthG).
If the foreign national is unable to meet his/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 immigration authority can modify this habitual residence condition ex officio or on application by the foreign national. In its decision, the authority has to take into consideration the common household of family members and other humanitarian grounds of similar weight. The foreign national can temporarily leave the designated place of habitual residence without permission (Section 61 paragraph 1d AufenthG).
For foreign nationals 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) is to be provided preferentially in cash (Section 3 paragraph 2 AsylbLG). After 15 months of residency in Germany without substantial interruption, foreign nationals whose deportation is temporarily suspended receive benefits in accordance with the Twelfth Book of the Social Security Code (SGB XII), if they have not influenced the length of their stay in Germany in abuse of the law (Section 2 AsylbLG).
Foreign nationals 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 because they have 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 (Section 32 BeschV). The application procedure for a work permit is the same as for asylum seekers (see above under employment).
Foreign nationals with a temporary suspension of deportation shall not be allowed to take up gainful employment if they 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 themselves have created the obstacle to deportation by deceiving authorities about their identity or nationality or through incorrect statements (Section 60a par. 6 AufenthG).
14. Suspension of deportation for the purpose of vocational training
With the Integrationsgesetz (Integration Act), the legislator has provided more legal security to companies employing asylum seekers as apprentices, giving the companies confidence that asylum seekers will be able to complete their vocational training.
Section 60a par. 2 sent. 4 fol. AufenthG determines since 06.08.2016 that a foreign national who is obliged to leave Germany, but who cannot be deported, must be granted temporary suspension if he/she starts or has started qualified vocational training in a state-approved or similarly regulated apprenticeship profession in Germany.
Asylum seekers are not covered by this rule. They are not obliged to leave the country, and have a residence permit giving them permission to stay (see above). They are subject to the rules outlined above, see Training and internships.
For suspension of deportation owing to vocational training, there is now the General Ordinance of the Federal Ministry of the Interior on granting suspension pursuant to Section 60a Aufenthaltsgesetz of 30.05.2017 (in German). A number of decisions on this provision have in the meantime been handed down by the Administrative courts (see our list of case law).
1. Qualified vocational training
In accordance with Section 60a (2) sentence 4 AufenthG, it is imperative for the foreign national to have begun or to be beginning qualified training in a state-recognized or comparably regulated apprenticeship profession in Germany.
Qualified vocational training in accordance with Section 6 (1) sentence 2 BeschV is considered given if the duration of training is at least two years. The decisive factor is the generally foreseen duration, not the individual duration: the program can be expedited if certain preconditions are taken into account.
State-recognized or comparably regulated apprenticeship occupations are all the training programs and degrees recognized according to the Vocational Training Act (Berufsbildungsordnung - BBwG) and Crafts Code (HwO), and comparable (vocational) qualifications regulated by federal or state law, or qualifications corresponding to these vocational qualifications (see the list of state-recognized occupations maintained by the Federal Institute for Vocational Training, see here, under "Downloads").
In-company vocational training requires a vocational training contract which meets the requirements set down in the BBwG or HwO, and is registered by the relevant authorities in the list of vocational training employments, see the remarks in the Application Notes from the Federal Ministry of the Interior.
In addition to qualified in-company vocational training (carried out as dual vocational training), this regulation also covers qualified vocational training at vocational schools or technical colleges. The suspension of deportation for reasons of training can also apply in connection with dual-study programs, see the remarks in the Application Notes from the Federal Ministry of the Interior.
Job preparation measures such as the induction qualification do not constitute qualified vocational training in a state-recognized or similarly regulated apprenticeship occupation in accordance with Section 60a (2) sentence 4 AufenthG. However, they can be grounds for a temporary – State-recognized"bridging" – suspension in accordance with Section 60a (2) sentence 3 AufenthG if reliable evidence is provided of a training contract for subsequent qualified vocational training, or the individual can demonstrate that he/she has transitioned from the induction qualification to qualified vocational training, and granting of temporary suspension of deportation pursuant to Section 60a paragraph 2 sentence 4 AufenthG is not yet possible, see the remarks in the Application Notes from the Federal Ministry of the Interior.
2. Beginning vocational training
Suspension of deportation pursuant to Section 60a paragraph 2 sentence 4 AufenthG requires the foreign national to have commenced or to be commencing vocational training. It is sufficient if the person has not actually begun training, but can be expected to do so as s/he has a formal and official apprenticeship contract.
In view of the lead time – often several months – between conclusion of the contract and the start of the apprenticeship, a "bridging" suspension of deportation may be granted on the basis of Section 60a paragraph 2 sentence 3 AufenthG at the discretion of the immigration authorities, see the remarks in the Application Notes from the Federal Ministry of the Interior.
3. Prohibition of employment and termination of employment
The suspension of deportation may be granted only if the foreign national is not banned from taking up employment and no specific measures to end his/ her stay in Germany are imminent.
Employment is prohibited:
- if the foreign national comes from a safe country of origin and his / her application for asylum, filed after 31.08.2015, has been rejected (Section 60a (6) no. 3 AufenthG). According to the wording of the law, what matters is when the formal asylum application in the sense of Section 14 AsylG was submitted to the BAMF. It is immaterial when the foreign national entered Germany and when he/she was issued with proof of arrival according to Section 63a Abs. 1 AsylG
- if measures to terminate the stay of the foreign national cannot be enforced for reasons for which he or she is responsible, provided that the lack of cooperation is the cause of the inability to terminate the stay (Section 60a (6) no. 2 AufenthG). A foreign national is responsible for the obstacle to deportation, in particular if s/he has caused this by deception about his/her identity or nationality or by providing false information.
- if the foreign national has moved to the country to receive benefits under the Asylum Seekers Benefits Act (Section 60a (6) no. 1 AufenthG).
The suspension of deportation will not be granted if concrete measures to terminate the stay are imminent. This is the case if the immigration authorities have taken or initiated concrete steps to terminate the stay – including all measures which are closely associated in terms of their content or timing with a planned deportation, e.g.
- Initiating contact with the German diplomatic mission in the destination country in order to prepare the deportation
- Requesting the person to obtain and present a passport or passport substitute document
- Application for a passport substitute document for the purpose of deportation
- Preparation of a readmission application
- Initiation of a medical examination required to determine fitness to travel
- Deportation request sent by the immigration authorities to the authorities responsible for carrying out the deportation
- Setting a date for the deportation
- Booking tickets for the foreign national on the flight via which the deportation shall be carried out
- Application for transfer to a deportation detention centre.
The order according to Section 34a AsylG that a foreign national shall be deported into the relevant third country is a concrete measure for the termination of stay, if the order for deportation is enforceable.
The decisive date for imminent and specific measures to terminate the stay is the date of the application for the suspension of deportation due to the apprenticeship/traineeship. Measures to terminate the stay must already be or have been initiated at this point in order to be used as exclusion grounds. If the immigration authority initiates specific deportation measures only after such an application, these do not prevent the suspension of deportation from being granted.
The suspension of deportation will not be granted, or a granted suspension of deportation will become void, if the foreign national is convicted of an intentional crime committed in the territory of Germany. It is basically possible to disregard for these purposes any fines totalling up to 50 day’s income, or up to 90 day’s income for crimes under the Residence Act or asylum law which can only be committed by foreign nationals (Section 60a (2) sentence 6 AufenthG).
4. Employment permit
An application to suspend deportation pursuant to Section 60a (2) sentence 4 et seq. AufenthG should also be construed as an application for issue of the required employment permit in accordance with Section 4 (2) sentence 3 AufenthG. The approval of the Federal Employment Agency is not required for the issue of an employment permit for vocational training in a state-recognized or similarly regulated apprenticeship occupation (Section 32 (2) No. 2 BeschV).
Employment permits are issued at the discretion of the immigration authorities in accordance with Section 4 paragraph 2 sentence 3 AufenthG. If the requirements of section 60a (2) sentence 4 et seq. AufenthG are met, these discretionary powers are generally largely reduced in favour of the foreign national, so as not to stand in the way of the foreign national's entitlement to a suspension of deportation pursuant to section 60a (2) sentence 4 AufenthG
However, even in this case, the discretionary powers are not automatically reduced to zero. In cases where asylum seekers from safe countries of origin have demonstrably submitted their asylum application after 31.08.2015, but withdraw it before rejection by the Federal Office, this may be an indication that the application was withdrawn with the aim of not fulfilling the grounds for rejection according to Section 60a Paragraph 6 sentence 1 no. 3 AufenthG. Such a situation may be considered as a circumvention of the procedures envisaged for having deportation suspended for purposes of vocational training.
The same applies to foreign nationals who deliberately do not apply for asylum in order not to fall under the prohibition of employment according to Section 60a paragraph 6 sentence 1 no. 3 AufenthG.
The immigration authorities discretionary powers are also reduced to zero in the case of asylum seekers who have taken up vocational training and whose application for asylum has been rejected, if there are no grounds for refusal according to Section 60a paragraph 6 AufenthG. After expiry of their residence permit, they are to be granted a suspension for training purposes pursuant to Section 60a (2) sentence 4 et seq. AufenthG. This means there can be no immediate initiation of specific measures to terminate the individual’s stay in Germany. However, this does not apply if the application for asylum was made as part of a Dublin transfer procedure, see the remarks in the Application Notes from the Federal Ministry of the Interior.
5. Duration of suspension of deportation
The suspension of deportation is granted for the duration of the vocational training stated in the apprenticeship contract. It expires if the apprenticeship is no longer running or prematurely terminated. The apprenticeship company must notify the immigration authority in writing within one week.
If the apprenticeship is prematurely terminated by either party, the foreign national will be granted a one-off suspension for six months for the purpose of finding another apprenticeship training position.
After successful completion of vocational training, the foreign national may be granted a residence permit to take employment commensurate with the vocational qualification in accordance with Section 18a AufenthG.
If, after successful completion of the apprenticeship, the foreign national does not take up further employment in the company where s/he trained, the suspension of deportation will be extended once for six months for the purpose of finding employment commensurate with the vocational qualification obtained.
15. Follow-on application for asylum, second application, application for re-examination
- See the broschure "Der Asylfolgeantrag" (follow-on application for asylum), available in German only, issued by the German Red Cross and the Asylum & Migration Information Network at the end of 2018.
16. Family reunification
1. Family reunification for asylum seekers and refugees
If foreign nationals have been granted asylum or refugee status, and their spouse still lives in the foreign national's country of origin, the spouse in the country of origin can apply to the German diplomatic representation for a visa within three months, in order to join their spouse in Germany. The three-month period begins with the application to the German diplomatic mission. A further condition is that it is not possible to establish marital union in the country of origin or another state to which the foreign national or his or her partner have special ties (Section 29 Abs. 2 AufenthG).
If these conditions are met, the foreign nationals and their partners need not prove that they can support themselves and that sufficient living space is available, see Section 29 (2) sentence 2 AufenthG. If the marriage already existed before the foreign national moved to Germany (Section 30 (1) sentence 3 no. 1 AufenthG, nor do they have to prove that their partner has a basic command of German.
Given these conditions, it would appear impossible for the partners of homosexual asylum seekers or refugees to join them, because they were unable to marry before fleeing.
However, we believe that this cannot be held against the partners in the original country if the only reason why the couple did not marry was the persecution on whose basis the partner in Germany was granted asylum.
If homosexuals were not persecuted in their home country, the couples could easily have married when visiting a country that allows same-sex marriage, then return as a married couple to their homeland. If they were to be denied the right to move their family to Germany because they are not yet married, this would only be because of the risk of persecution, and this risk has been confirmed by the granting of asylum recognition.
This would violate Article 6 (1) GG and Article 8 (2) ECHR.
Same-sex marriage, which is now permissible in Germany, is a marriage in the sense of Art. 6 para. 1 GG and is therefore granted the special protection of this provision. According to the case-law of the Federal Constitutional Court, the duty of the state to protect the family regularly takes priority over immigration concerns when an existing relationship can only be lived in the Federal Republic ( juris, NVwZ 2000, 59; ruling of 2nd chamber of 2nd senate of 23.01.2006, 2 BvR 1935/05 juris, NVwZ 2006, 682; ruling of 3rd chamber of 2nsd senate 10.05.2008, 2 BvR 588/08 juris, InfAuslR 2008, 347; also juris; InfAuslR 2009, 158). This is the case with such couples, because they can continue their previous family relationship only in Germany.
The European Court of Human Rights (ECHR) has ruled that refusing a residence permit for the purpose of family reunification violates the right to respect for family life protected by Article 8 of the ECHR if it is rejected solely or decisively because the partners are in a same-sex relationship ECHR, 2. Section, judgement of 23.02.2016, 68453/13, case PAJI? v. Croatia). The same legal opinion was upheld by the ECHR in a decision of 30 June 2016 (, case Taddeucci and McCaLL v. Italy). The court ruled that it violates Art. 14 in connection with Article 8 of the ECHR when different-sex unmarried couples can obtain the right to bring in their partner by marrying or entering into a civil partnership, whereas unmarried same-sex couples do not have this option.
These legal principles also apply to homosexual asylum seekers, because they have not been able to marry because of their homosexual orientation and therefore, according to the wording of the law, have no right to have their partners join them. It cannot be held against them that they were not married in their home country.
Here you can find a template letter that partners still in their home country can send to the German diplomatic mission to obtain permission to join their partner in Germany
2. Family reunification of refugees with subsidiary protection status
Section 29 (2) sentence 2 AufenthG stipulates that spouses of foreign nationals who have been granted "only" subsidiary protection (see above) must also be issued with a visa for the purpose of family reunification if they apply within three months to the German diplomatic mission. This provision has been temporarily suspended by the transitional provision of Section 104 para. 13 AufentG with effect from 17.03.2016. The provision was initially set to expire on 17.03.2018 and was then extended until 31.07.2018.
Section 104 para. 13 AufenthG in the current version, valid from 01.08.2018, determines that family members are not permitted to join the refugee if the application for the first issue of a residence permit for the purpose of family reunification was submitted by the foreign national before 31 July 2018.
Family reunification for refugees with subsidiary protection status whose spouses submit their application on or after 01.08.2018 is subject to the new Section 36a AufenthG. According to this law, 1,000 visas may be issued per month for family reunification “for humanitarian reasons”, applying to spouses, minor children and parents of minor foreign nationals.
Spouses do not need to prove a basic command of German (Section 36a Abs. 4 AufentG).
Humanitarian reasons are considered in particular to exist when the partners have for some considerable time not been able to lead a family life together (36a para. 2 no. 1 AufenthG).
A residence permit will usually not be granted if the marriage did not exist before one of the spouses fled the country (Section 36a Abs. 3 Nr. 1 AufenthG).
We believe that partners of refugees entitled to subsidiary protection who were unable to marry in their home country because same-sex marriage is not allowed there may claim that their case is a non-standard case requiring special consideration, when their home country does not tolerate same-sex couples living together, and the persons have been a couple for quite some time
17. Grounds presented after fleeing; late coming-out
Pursuant to Article 5 paragraph 3 of the EU Directive 2011/95/EU and Section 28 AsylG, no consideration is given to grounds for claiming asylum that come into being after the asylum seeker has fled the country of origin. These circumstances will be recognized if they are an expression and continuation of a previous conviction or orientation that was present while the individual was still in his/her home country. This can lead to problems when lesbians or gays come out in Germany and fear persecution due to their sexual orientation if they return to their home country.
A late "coming out" is not a "circumstance of the individual’s own creation that came into existence after the person fled. It is merely a consequence of a trait that has always existed, but was "unconsciously" suppressed in the home country due to discrimination and political persecution. Such circumstances are an expression of an orientation that was already present in the individual’s home country and should therefore be considered as relevant to the individual’s asylum application.