Appeals against the decision , Date: 2019.11.14, format: Article, area: Asylum and refugee protection

Applicants only receive a negative notice together with a notice of intention to deport if the conditions for none of the forms of protection – entitlement to asylum, refugee protection, subsidiary protection, or a ban on deportation – apply.

When an asylum application is turned down, a distinction is made between two types of rejection: outright rejection and rejection as "manifestly unfounded". If the rejection is outright, the individual in question is set a deadline of 30 days in which to leave the country, whereas if the asylum application is rejected as "manifestly unfounded", the deadline period for leaving is only one week.

In each case, appeals are available to those concerned. They can take court action against the decision of the Federal Office. The action must be lodged within a short period of time as a matter of principle. It is helpful to appoint legal counsel in most cases. The written notice points out the appeals available and the deadlines. This is known as the notice of appeals (Rechtsbehelfsbelehrung). The possibility to take legal action also exists in the case of a positive notice – unless refugee protection has been granted.

The court then examines the decision which the Federal Office has taken. If it concludes that the preconditions for granting protection actually do apply, it rescinds the notice and obliges the Federal Office to provide protection. If the rejection is confirmed with regard to all forms of protection, the action is rejected and the foreigner remains obliged to leave the country. If the individual does not voluntarily comply with their obligation to leave the country, this can also take place coercively, the respective immigration authority being responsible for the return. This also applies if no court action is brought. If a return is not possible, the immigration authority can issue temporary suspension of deportation (Duldung), or indeed a residence permit.

First instance (court action) – Administrative court

The person concerned may lodge an (enforcement) action with an administrative court against a negative decision of the Federal Office. This is stipulated in the Asylum Act (Asylgesetz).

In accordance with the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung), it is not absolutely necessary for the litigant to be represented by an attorney before the administrative court.

Second instance (appeal on points of fact and law [Berufung]) – Higher Administrative Court

An appeal on points of fact and law can only be lodged against a ruling of the administrative court if it has been admitted by the Higher Administrative Court in response to an application (filed by the asylum applicant or by the Federal Office).

This is contingent on the case giving rise to a factual or legal issue which is of general significance and has yet to be clarified, or if the administrative court has deviated from the case-law of courts above it or has committed serious procedural errors. If the appeal on points of fact and law is admitted, the case is completely re-evaluated at second instance, so that the facts are also re-examined.

Those concerned must have legal representation before the Higher Administrative Courts and the Federal Administrative Court.

Third instance (appeal on points of law only [Revision]) – Federal Administrative Court (BVerwG)

In those cases in which an appeal on points of law only was not already admitted by the Higher Administrative Court, as with second-instance appeals, the existence of grounds for admission stipulated by law is a precondition for the admission of an appeal on points of law only.

Accordingly, such an appeal can be admitted if

1. the case is of fundamental significance, or
2. the judgment deviates from a supreme-court ruling and the judgment is indeed based on this deviation, or
3. a procedural error has been committed and it is possible that the judgment is based on this procedural error.

As a rule, the factual findings of the court of appeal on points of fact and law are to be used as a basis in the appeal on points of law only. The Federal Administrative Court hence restricts its deliberations to reviewing the judgment of the court of appeal on points of fact and law in legal terms.

Should these findings not be sufficient to reach a final ruling, the Federal Administrative Court rescinds the judgment of the court of appeal on points of fact and law and remits the case to the Higher Administrative Court.

No further appeals are available against a judgment by the Federal Administrative Court. The legal channels are exhausted once the proceedings for an appeal on points of law only have been completed.

European Court of Justice (ECJ)

Given the ever advancing Europeanisation of the law on refugees, another important court in the asylum procedure is the European Court of Justice in Luxembourg. This court has taken on particular importance in the asylum proceedings because it can already be called on by the lower courts whilst proceedings are pending to hand down a “preliminary ruling” on cases of doubt under Community law – for instance with regard to the Qualifications Directive.

Once all the instances have been passed through – the Federal Constitutional Court (BVerfG)

Once all the instances have been exhausted, the person concerned may lodge a constitutional complaint to the Federal Constitutional Court if it relates to the fundamental right to asylum.

European Court of Human Rights (ECtHR)

Once the course of appeals has been exhausted, the person concerned may also lodge an application with the European Court of Human Rights in Strasbourg if they consider that a state measure or decision – such as the decision of the Federal Office or of one of the lower courts named above – has violated their human rights as confirmed by the European Convention on Human Rights.