Court proceedings for asylum cases
Asylum-seekers are entitled to take legal action through the administrative courts if their application is rejected by the Federal Office. As a matter of principle, the action must be brought within a short period of time. It is usually helpful to enlist the services of a lawyer in such cases. The court then reviews the Federal Office's decision, and this can take some time.
Overview of the individual levels within the court system (instances) and subsequent legal options:
First instance (court action) – administrative court (VG)
The (asylum) applicant may challange the Federal Office's rejection of his/her application by bringing an action before the administrative court to issue an administrative act. This is set out in the Asylum Procedure Act (AsylVfG, sec. 74 et seqq.).
According to the Code of the Administrative Court Procedure (VwGO sec. 67, subs.1) it is not mandatory to be represented by a lawyer in the administrative court.
Second instance (appeal on points of fact and law - Berufung) – Higher Administrative Court (OVG) / (VGH)
An appeal on points of fact and law may only be lodged against the decision of the administrative court if it has been admitted by the Higher Administrative Court upon application (by the asylum-seeker or the Federal Office) (Asylum Procedure Act sec. 78, subs. 2 and 3).
This is conditional on the case raising a generally significant question of fact or law or on the administrative court having derogated from the case-law of courts superior to it higher or committed grievous procedural errors. The appeal on points of fact and law does not serve to review the correctness of the decision in the individual case. If the appeal is admitted, the case will be reviewed in full and evaluated at both first and second instances, including in respect of the facts of the case.
Those concerned must have legal representation before the Higher Administrative Courts and the Federal Administrative Court (sec. 67, subs. 4, sentence 1 of the Code of Administrative Court Procedure.
Third instance (appeal on points of law only - Revision) – Federal Administrative Court (BVerwG)
The Higher Administrative Courts may admit appeals on points of law only ("Revision"), or it may be admitted by the Higher Administrative Courts or the Federal Administrative Court upon the lodging of a complaint by one of the parties concerned – the asylum applicant or the Federal Office (sec. 132, subs.1 of the Code of Administrative Court Procedure).
Similarly to the second instance, the condition applies that the case must raise a significant legal issue, that the Higher Administrative Court must have derogated from the case-law of the Higher Administrative Court or the Federal Constitutional Court, as higher instances, or has committed grievous procedural errors (sec. 132, subs. 2 of the Code of Administrative Court Procedure).
As a rule, during the appeal at this level, the ascertainment of the facts by the first appeal court stands. The Federal Administrative Court therefore restricts its task to an review of the legality of the first appeal judgment.
If the facts available are insufficient to make a final decision, the Federal Administrative Court will suspend the judgment on the appeal on points of fact and law and remit the matter to the Higher Administrative Court.
There is no further legal redress against a judgment handed down by the Federal Administrative Court. Once this appeal process has been concluded, all options for legal action have been exhausted.
European Court of Justice (ECJ)
Another important court in the asylum process is the European Court of Justice in Luxembourg, in view of the ever-expanding Europeanisation of the law on refugees. It has particular significance in the asylum procedure due to the fact that it can be called upon even during ongoing proceedings, with the courts responsible for the case at the time requesting a preliminary ruling on areas of doubt in relation to Community legislation – such as with regard to the Qualification Directive (Treaty on the Functioning of the European Union (TFEU) Article 267).
Having been through all instances – Federal Constitutional Court (BVerfG)
Once a case has passed through all instances, the asylum-seeker may lodge a constitutional complaint with the Federal Constitutional Court (Federal Constitutional Court Law (BVerfGG) sec. 90 et seqq.).
European Court of Human Rights (ECHR)
After exhausting all courses of legal redress, the asylum-seeker may also lodge an application with the European Court of Human Rights in Strasbourg if he is of the view that a national measure or decision – such as the decisions made by the Federal Office or one of the specified instance courts – violates his human rights as enshrined in the European Convention on Human Rights (ECHR, Articles 34 seqq).
