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Source: BAMF
Children and juveniles aged under 18 are regarded in the German asylum procedure as being minors. If they enter a Member State of the EU without being accompanied by an adult who is responsible for them, or if they are left there unaccompanied, they are regarded as unaccompanied minors.
Initial taking into care and initial screening
Unaccompanied minors are first of all taken into care by the youth welfare office that has local responsibility. This provisional taking into care ensures that they are accommodated with a suitable person or in a suitable facility.
Suitable persons can be relatives or foster families, whilst suitable facilities are as a rule "clearing houses" specialising in caring for unaccompanied minors, or youth welfare facilities. They are to ensure that the young people can grow up in a stable situation.
"Initial screening" is also carried out when such minors are provisionally taken into care. As well as the general examination of the state of health, the age of the minors is established. The methods that are used for this range from simply estimating age through physical examinations to X-ray tests. The responsible youth welfare office also estimates whether the implementation of the subsequent distribution procedure might endanger the child’s best interests in physical or psychological terms. The possibility of family reunification with relatives living in Germany is also examined in this context. If close social ties exist with other unaccompanied minors, the youth welfare office examines whether it makes sense to accommodate them together.
Distribution and further taking into care
A nationwide distribution procedure exists in order to ensure that the unaccompanied minors are accommodated, supplied, cared for and supported in a manner that is suited to the child’s best interests. The distribution procedure is implemented within 14 days. It is ensured when the distribution is implemented that the children and juveniles are accompanied on the way to the youth welfare office to which they have been assigned and that they are handed over to a specialist from this youth welfare office.
After this distribution, the youth welfare office to which the minors have been assigned is responsible for their further taking into care. Here too, they are either accommodated with a suitable person – relatives or foster families – or in a suitable facility – such as a clearing house. It is then ensured that guardianship is applied for, further medical tests are performed and the calculation of the need for education and clarification of the residence status is carried out.
In the clearing procedure, further steps are initiated in the field of youth welfare law or right to residence. This includes, among other things, clarifying the residence status. Based on this, a decision is made as to whether an asylum application will be filed. If an asylum procedure is not promising, other possibilities to secure residence may be considered. In case an asylum application is to be filed, the Federal Office is responsible for conducting the asylum procedure.
The appointment of a guardian
Effective representation in the asylum procedure must be ensured for unaccompanied minors, i.e. a guardian must be appointed for unaccompanied minors. Who can be appointed as guardian is determined by Section 1774 of the German Civil Code (BGB). There is also the option of appointing an additional guardian if the guardianship is held by a voluntary guardian and the appointment of a supplementary legal representative is necessary for the welfare of the ward, i.e. the person under guardianship. Who ultimately takes over the guardianship is decided by the family court (Rechtspflegerverfahren: law enforcement officer procedure). As a rule, a guardianship endures until the child reaches the age of majority. The guardianship is governed by German law, not by the law of the home country, and therefore ends when the child reaches the age of 18.
The asylum application
Within the asylum procedure, national rules apply for determining the age of majority. This means that unaccompanied minors must file their asylum application themselves upon reaching the age of 18.
Asylum seekers under the age of 18 are not considered capable of acting in the asylum procedure, which is why unaccompanied minors cannot file an asylum application without legal representation. As a rule, parents cannot exercise care for the person of their children, so legal representation for unaccompanied minors must be ensured in another way for the duration of their stay in Germany – and thus also for the implementation of the asylum procedure.
Union law (Procedures Directive 2013/32/EU) places particularly high demands on the consideration of the best interests of the child in the case of unaccompanied minors. According to this, representation and support by a competent person acting in the best interests of the child and/or legal representation or legal advice is required in the asylum procedure. Due to the complexity of the asylum procedure and the legal consequences linked to the various procedural acts, it is therefore considered necessary to appoint a guardian for the asylum procedure who either has knowledge of asylum and foreigners law in order to be able to effectively represent the interests of the unaccompanied minor in the procedure and to be able to carry out the legal acts that may be required, or who ensures that the interests of the unaccompanied minor are represented by a suitably competent person.
The asylum application must be submitted in writing by the youth welfare office or the guardian or the additional guardian. If it is submitted by a guardian, a certificate of appointment (Bestallungsurkunde) must be sent.
Contacts
Written asylum applications for unaccompanied minors are sent to the branch office of the Federal Office located closest to the place where the unaccompanied minor lives.
You will find all the locations of the Federal Office for Migration and Refugees here.
The written application does not have to be filed in any particular form. The following information regarding the minor is nonetheless helpful when it comes to simplifying the further organisation of the procedure:
- surname, forename(s),
- date of birth, or date of birth as ascertained in the age establishment,
- nationality, ethnicity and religious affiliation,
- place of birth,
- language knowledge, and
- if possible the date of entry into the country.
The interview and the decision in the asylum procedure
Specially-commissioned case-officers
Specially-commissioned case-officers are specially-trained decision-makers for interview procedures among particularly vulnerable groups of individuals. These include unaccompanied minors, victims of torture, victims of trauma and persons persecuted because of their gender, as well as victims of trafficking in human beings. Specially-commissioned case-officers are at the disposal of their superiors and colleagues as contacts over and above their own tasks in processing applications.
Since unaccompanied minors are regarded as a particularly vulnerable group of individuals enjoying special guarantees for their asylum procedure, their asylum applications are taken care of by specially-commissioned case-officers who have been specially trained to take a sensitive approach. The persecution which they have endured and their displacement experience require particular consideration.
These procedural guarantees include for instance the determination that the interviews do not take place until after a guardian has been appointed and are held as a matter of principle in the presence of the latter. Additionally, an advisor, for instance a curator, can attend the interviews. The latter may also make statements on the individual case during the interviews or address questions to the unaccompanied minors which are relevant to the asylum application.
Particular emphasis is placed during the interviews on ascertaining whether there are indications of specific child-specific grounds for flight. Child-specific grounds for flight are for instance genital mutilation, forced marriage, domestic violence, trafficking in human beings, as well as forced recruitment as a child soldier.
A decision is taken on the respective asylum application on the basis of the interview. This notice is then served on the guardian or lawyer.
The legal basis
- The Reception Conditions Directive 2013/33/EU of 26 June 2013 is taken into consideration when receiving persons who apply for international protection, including for instance the Directive's Art. 24 on "Unaccompanied minors".
The temporary taking into care of children and juveniles by the youth welfare office is governed by sections 42 a-f of Book VIII of the Social Code (Sozialgesetzbuch VIII), whilst taking into care itself falls under section 42 of Book VIII of the Social Code. The tasks incumbent on the guardian are determined by section 27 of the same Book of the Social Code.
Accommodation and any goods and services required – including social educational guidance and care, healthcare as well as legal advice – are ensured by the benefits provided for in Book VIII of the Social Code. On attaining the age of majority, benefits can still be provided if and as long as the assistance is necessary on the basis of the individual situation. As a rule, however, the benefits provided for in Book VIII of the Social Code expire on attaining the age of majority.
- In accordance with the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche – EGBGB), the legal capacity of a person is governed by the law of the state in which the person has their habitual residence (Art. 7 EGBGB). Guardianship, care and custody are regulated in this context in Art. 24 EGBGB.
- The particularities of the implementation of the procedures for particularly vulnerable groups of individuals are listed in the Procedures Directive 2013/32/EU (Directive on common procedures for granting and withdrawing international protection) of 26 June 2013. Qualifications Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 for instance contains a definition of "unaccompanied minors" in Art. 2 (l).
The following national provisions apply to asylum proceedings and to the law on residence with regard to asylum-seekers:
the Asylum Act (Asylgesetz)
the Residence Act (Aufenthaltsgesetz)
Sections 12 and 14 of the Asylum Act, amongst other provisions, accordingly apply with regard to unaccompanied minors for the application in the asylum proceedings.
- Sections 1773, 1774, 1776, 1806 BGB