GenerallyPetition for asylum, initial interview (Asylantrag, Erstanhörung)
Bundesamt's decision in favour of the petition for asylum
Sequential applications, secondary applications (Folgeanträge, Zweitanträge)
The Bundesamt decides upon a refugee's petition for asylum, by which it must make a number of decisions:
The decision of the Bundesamt on all three petitions rests upon the initial interview of the refugee. The initial interview is therefore the most important and most decisive part of the asylum process. If the Bundesamt rejects the petition, the possibilities to protest and the appeal period depend upon the type of rejection. The petition for asylum may be categorised as disregarded, apparently unfounded or unfounded.
If the petition for asylum is legally rejected (or withdrawn), the possibility of submitting a sequential application exists. A sequential application would only then have any chance of success if new grounds for persecution are submitted or if new pieces of evidence are introduced.
If a petition for asylum is accepted, then the state has the option to appeal against the decision, and this is what it usually does.
The legal basics are explained in more detail below. However it must once more be stressed that a lawyer should be engaged as soon as possible, and ideally before the initial interview.
A petition for asylum already exists if it may be assumed that the will of the refugee is to seek protection from political persecution. This may be expressed in writing, verbally or by other means. The petition for asylum may only be presented by the individual him/herself if (s)he has reached his/her seventeenth year. Younger applicants require a legal representative. This may be the parents if they also happen to be in the FRG. If a minor arrives without parents, a guardian will be appointed by the guardianship court (Vormundschaftsgericht).
The formal petition will then be presented in writing to a branch office of the Bundesamt. The branch offices are to be found in the initial registration offices (Erstaufnahmeeinrichtungen). If the request for asylum is presented to the police or at the aliens authority, the refugee will be directed to the nearest Erstaufnahmeeinrichtungen.
Depending upon the country of origin and perhaps even his/her ethnic group, the refugee will be interviewed either by the branch office at which (s)he registered or at another branch office (perhaps even in another German state). The Bundesamt branch offices are 'specialised' to some extent in particular countries of origin or in particular refugee groups.
The initial interview usually takes place a few days after the submission of the petition for asylum. This inevitably means that little time remains for preparation. This initial interview is however the central and most important part within the framework of the asylum process, and is the decision-making basis for the Bundesamt. Particular significance is placed on the credibility of the refugee. The interviewer's questions often serve to get the refugee mixed up in contradiction, in order to be able to reject the petition for asylum as implausible.
The appointment for the interview must be kept. In the case of an unexcused absence the petition will be decided upon without an interview.
Some important points which must be mentioned during the initial interview and must be written down in the minutes, are:
In principle, the refugee has the right to bring to the interview any person in his/her confidence or a lawyer. The refugee may also have an interpreter of his/her choice at the interview (at his/her own cost). The interpreter will not be responsible for the translation since the authority has its own interpreter, who can of course follow the translation, and intervene if something is incorrectly translated.
The minutes are also retranslated so that the refugee may sign them. Here the refugee should insist that all statements and comments are to be included in the minutes. If this then is not the case the refugee ought not to undersign them.
Some questions are listed below, of which the majority are asked during the initial interview:
If any doubts exist about the declaration regarding the country of origin, additional questions will be asked such as: What is the country's highest mountain? What is the country's currency? Etc.
The state has the option to appeal against the decision (granting asylum) of the Bundesamt, and this is what it usually does.
Where a refugee is recognised as having the right to asylum, (s)he receives an unlimited residence permit (unbefristete Aufenthaltserlaubnis). By recognition, under § 51 of the Aliens Act (minor asylum, 'convention refugees'), an authorisation of residence (Aufenthaltsbefugnis) will be issued. After eight years of residence the authorisation of residence may be converted to an unlimited residence permit.
Refugees recognised as having rights to asylum, and 'convention refugees' may claim, inter alia:
Since the legal situation is quite complicated the possibilities of appeal against the refusal of a petition for asylum are described here only briefly. It is once again advisable for the refugee to consult a lawyer.
The rejection (Ablehnung) of a petition for asylum is stated in one of the following ways:
The petition for asylum is categorised as disregarded if the refugee was safe from political persecution in another country and it is possible for him/her to be sent back there. This applies to the Schengen-states (Belgium, Denmark, Greece, Spain, France, Italy, Luxembourg, The Netherlands, Austria, Portugal, Finland, Sweden) and the safe third countries (Belgium, Denmark, Greece, Spain, France, Ireland, Italy, Luxembourg, The Netherlands, Austria, Portugal, Finland, Sweden, United Kingdom as well as Norway, Poland, Switzerland and The Czech Republic).
In such a case sending the refugee back to the third country takes place within a week. An objection against the decision of the Bundesamt has no delaying effect (this means despite an appeal against the rejection of the petition for asylum, the refugee must abide by the departure order (Ausreiseaufforderung)). If the refugee determines not to leave then (s)he must submit, parallel to the legal action of the Bundesamt, an application for the re-establishment of the effect of deferment under § 80 VwGO (administrative tribunal decrees). The application means that an effect of deferment is placed upon the action of the Bundesamt. This application must include reasons why safety of the refugee was not assured in a third country, or; why this safety was not assured and why the refugee may not be sent back to another country.
If the petition for asylum is categorised as disregarded (unbeachtlich), the asylum process will not be carried out.
Petitions for asylum are categorised as apparently unfounded if it is 'apparent that the alien remains within German territory solely for economic reasons or to avoid a general crisis/disaster or to avoid a warlike conflict'. (§ 30 AsylVfG)
If for example the statements of the petitioner are contradictory the petition for asylum will also be categorised as apparently unfounded. In the same way the petition will be considered 'apparently unfounded' if the statements do not reflect the facts, or if forged or falsified evidence is used, or if the refugee declines or falsifies statements concerning his/her nationality.
Within a week the refugee must submit a well-founded 'urgent-application' (Eilantrag) to the Verwaltungsgericht (administrative tribunal) objecting to the deportation, and within the same prescribed period an objection against the rejection of the petition for asylum, at the same tribunal. Included with this or submitted within one month must be a written explanation establishing grounds for the objection. However, because the decision on the Eilantrag is itself decisive, a complete argumentation establishing grounds for the objection should be formulated within the Eilantrag.
Submission of the Eilantrag disputing the deportation has the effect of deferment, which means that the refugee cannot be deported until the decision of the tribunal has been made. If the objection only (against the rejection of the petition for asylum) is submitted, this has no effect of deferment. If the tribunal decides against the Eilantrag the prescribed period within which the refugee must depart, begins to expire (without a renewed departure order). There is no right of objection against this decision in a higher court. The only option remaining would be an appeal to the federal constitutional court (Bundesverfassungsgericht).
A petition for asylum will be rejected as unfounded if recognition of the right to asylum under article 16 a of the Basic Constitutional Law or § 51 I of the Aliens Act (major/minor asylum) is refused. The prescribed period within which the refugee must depart expires within one month. An objection against this decision may be made within a period of two weeks.
The refugee has a further two weeks to establish reasons for the appeal. The objection has the effect of deferment, which means that the refugee cannot be deported as long as the tribunal does not decide against the appeal. The objection is usually decided upon after an oral hearing of the administrative tribunal. Only in a few cases is it possible to submit an appeal against this decision of the tribunal to the Oberverwaltungsgericht (higher administrative tribunal). Nonetheless the only further option would be an appeal to the federal constitutional court (Bundesverfassungsgericht).
A sequential application may be submitted if the first petition for asylum has been legally rejected. A secondary application is a petition submitted in Germany following an initial application for asylum in a 'safe third country' which has been legally rejected. Sequential and secondary applications must base themselves on new evidence of political persecution (documents perhaps not initially available, see also major asylum), or on new facts which would endanger the refugee in his/her native country (e.g., political activity in exile), or referring to a new situation endangering the refugee due to changes in the political climate in the home country. The application must be submitted in person, and only in exceptional cases in writing.
In some cases the Bundesamt carries out a new interview. At first the Bundesamt examines whether the application is worthy of consideration. New facts and evidence, to be submitted within a prescribed period of three months from the date of knowledge of these facts, will be considered for validity. Lapse of this period will deem the new evidence inadmissible.
If the application is rejected an Eilantrag ('urgent-application') may be submitted within one week to the administrative tribunal in order to have the asylum process carried out. The Eilantrag is decided by a single judge without an interview with the refugee. If the decision is in favour of the refugee, the above mentioned criteria and options are once again valid. This means that the sequential, and secondary application may again be categorised as disregarded, as apparently unfounded, or as unfounded.
Everyone has the right to engage a lawyer for the purpose of counselling and for representation during the asylum process. The costs must be met by the refugee him/herself. If the refugee lives by social benefits alone, (s)he may claim state legal aid for counselling costs (Beratungshilfe) and state legal assistance for the proceedings costs(Prozesskostenhilfe) at the administrative tribunal. Prozesskostenhilfe is nonetheless only available to those whose case has a 'reasonable chance of success', and this is decided by the same court which decides upon the refugee's objection.
Refugees' advisors (Betreuer/Betreuerinnen), working in an honorary position, are not allowed to carry out legal counselling in an official capacity. Within the scope of their social work, legal questions may be answered by advisors only in the sense of advice.
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