Overview of the main changes since the previous report update

The report was previously updated in April 2022.

National context

In 2022, the government (sworn into office in December 2021) started to work on some of the reforms and measures announced in the Coalition agreement.[1] The most important measures were a reform of the provisions on the right to stay, enabling certain persons to regularise their stay in what is called a ‘Chancenaufenthaltsrecht’, the introduction of a humanitarian admission programme for Afghanistan and a reform of some provisions related to the first instance asylum procedure as well as the appeal procedure with the Act on the acceleration of asylum court proceedings and asylum procedures.[2]

Right to stay for persons with a long-term tolerated status (Chancenaufenthaltsrecht)

A reform which entered into force on 31 December 2022 introduced a new way for persons with a tolerated status (‘Duldung’) to legalise their stay in Germany and relaxes some conditions for existing pathways to legal residence.[3] A tolerated status applies to persons who are obliged to leave Germany, e. g. because their application for asylum was rejected, but whose removal is suspended for either legal reasons (e. g. because of the situation in the country of origin) or practical reasons (e. g. when removals cannot be enforced due to an illness or the lack of travel documents).[4] The newly introduced provision applies to all persons who have been staying in Germany for five years on 1 October 2022. They can apply to receive a residence permit for a period of 18 months without fulfilling the usual criteria to legalise their stay (such as the ability to secure their own subsistence, valid identity documents, and German language skills), and then have to meet these criteria within the 18 months in order to secure their legal stay.[5] The provision is set to expire after three years.[6] The reform also relaxed conditions for existing ways to legalise stay in Germany. These include the residence permit for young persons (Section 25a Residence Act) and for persons proving ‘sustainable integration’ (Section 25b Residence Act). For the first group, the age until when young people can apply to obtain the residence permit was increased to 27 (from 21). For the second group, the length of previous stay was lowered from eight to five years. However, they must have had a tolerated stay (and not e. g. the legal status of an asylum seeker) for the 12 months preceding the application.[7]

International protection

• Key asylum statistics: In 2022, a total of 244,132 applications for international protection were lodged in Germany, mainly by Syrians (72,646), Afghans (41,471) and Turkish nationals (25,054). This marks an important increase compared to 190,816 applications in 2021 and 122,170 applications in 2020. The overall recognition rate at first instance stood at 72.3% (i.e. 23% refugee status, 32.4% subsidiary protection and 16.9% humanitarian protection). It reached 99.9% for Syrians, 99.3% for Afghans, but only 35.2% for Turkish nationals and 29.4% for Iraqis. Other nationalities such as Georgians, North Macedonians or Moldovans, were nearly all rejected with a rejection rate around 99%. An additional 15,745 persons were granted international protection by Courts at second instance until the end of November 2022. The number of pending cases at the BAMF, which had more than doubled between the end of 2020 and 2021 from 52,056 to 108,064, increased again to 136,448 at the end of 2022.

Asylum Procedure

• Act on the acceleration of asylum court proceedings and asylum procedures. The reform entered into force on 1 January 2023 and thus does not apply to the reporting period for this update. The most important changes of the reform include:
  • The introduction of independent counselling for asylum seekers, instead of the state-run counselling which was introduced in 2019 (see Information for asylum seekers and access to NGOs and UNHCR)
  • Changes to the rules for personal interviews: an additional ground for dispensing with the interview was introduced when the BAMF is of the opinion that the foreigner is unable to attend a hearing due to permanent circumstances beyond their control and the possibility of conducting video interviews (see Personal interview)
  • The provisions on time limits for the asylum procedure were changed in order to closely mirror the relevant provisions of the EU Asylum Procedure Directive (see General (scope, time limits))
  • A change in the rules for onward appeals (Revision) to the Federal Administrative Court, according to which the latter can now also adjudicate on the facts of the case, rather than merely on points of law (see Onward appeal(s)).
  • Complete revision of the grounds for cessation of the residence permit and substantial amendments to the grounds of revocation of the residence permit (see Cessation and review of protection status).
• Humanitarian admission programme for Afghan nationals: On 17 October 2022, the Federal Government launched a federal admissions programme which had been announced in the coalition agreement of 2021.[8] This programme is in addition to the admission programme for former employees of German authorities. 1,000 admissions per month are foreseen until the end of the current government’s term in 2025. Applicants are registered via cooperating NGOs and then selected by the Federal government. Admission is foreseen for human and women’s’ rights activists, persons who have worked in justice, politics, the media, education, culture, sport or academia, or particularly vulnerable persons who are subject to violence or persecution based on gender, sexual orientation, gender identity or religion (see Differential treatment of specific nationalities in the procedure).
• LGBTIQ+ refugees: The Federal Ministry of the Interior issued new guidelines according to which as of 1 October 2022, applicants who fear persecution on the basis of their sexual orientation can no longer be expected to hide their sexual orientation upon return to the country of origin.[9] This is a significant change in the BAMF practice, which before had repeatedly rejected asylum claims of LGBTIQ+ applicants on this basis,[10] even in cases of LGBTIQ+ activists who had openly advocated for the rights of queer refugees in Germany.[11]
• Beneficiaries of protection in another country who apply for asylum in Germany: The BAMF had “de-prioritised”, and thus de facto stopped processing, asylum applications from Syrians who had been granted protection in Greece since 2019. As of April 2022, the BAMF took up decision-making again, as a result of which the number of pending cases from this group dropped from 39,000 as of December 2021 to 12,500 as of December 2022. In deciding these cases, the BAMF re-examines the merit of the claims rather than recognising the decision made by Greek authorities, a practice that has been challenged in courts and is the subject of a request for preliminary ruling to the CJEU (see Suspension of transfers).
• Key jurisprudence on the regular asylum procedure: following a 2021 decision by the CJEU according to which there is a ‘strong presumption’ that refusal to perform military service in the context of the Syrian civil war relates to one of the reasons to be granted refugee status,[12] the Federal Administrative Court ruled in January 2023 that the risk of persecution still has to be established in each individual case, based on a connection between the ground for persecution and the type of persecution to be feared (see Differential treatment of specific nationalities in the procedure).[13]
• Key jurisprudence on the Dublin procedure: The CJEU, in a preliminary ruling, found that the BAMF practice to extend the time limit after which Germany becomes responsible for a case during the suspension of transfers due to Covid-19 pandemic was unlawful under the Dublin Regulation.[14] In a case concerning the practice of ‘church asylum’, the Bavarian High Court ruled on 25 February 2022 that granting shelter and food to persons obliged to leave Germany cannot be considered a criminal offence if the agreement on church asylum is followed. The court further found that there is no obligation on the host to actively end church asylum when the stay is unauthorised.[15]
• Key jurisprudence on subsequent applications: The Administrative Court of Sigmaringen issued a preliminary ruling request to the CJEU, asking whether two conditions for the admissibility of a subsequent application – a change in the material or legal situation; and the bringing forward of new evidence which would have changed the outcome of the first instance procedure, had it been known before – are compatible with the EU Asylum Procedures Directive (APD), which merely refers to new elements or findings as requirements for subsequent applications, and does not mention whether they would change the decision. The court further requested clarification on the status of new CJEU rulings, which are currently not considered a ‘new legal situation’ in Germany if the ruling only concerns the interpretation of EU law.[16]

Reception conditions

• Reintroduction of emergency shelters: Due to the increasing arrivals of protection seekers, several municipalities, especially larger cities, have had to reintroduce emergency shelters. Especially in larger cities, exhibition grounds and/or made-up tent facilities are used to host asylum seekers. The conditions in these emergency shelters are below standards. It has been reported that no adequate heating systems were installed in winter and that often access to social and legal assistance is difficult.

• Overcrowding in arrival and reception centres: As a consequence of the increasing arrivals, many regular arrival centres are heavily overcrowded. This has led to deteriorating conditions in the facilities. In many municipalities there is a backlog in registrations of asylum seekers and access to health care and social assistance became more difficult. Especially children do not receive adequate assistance in mass accommodations.
• Jurisprudence on reception conditions: Following a decision by the Federal Constitutional Court, single adults who live in mass accommodation centres and those who live in private housing shall now receive the same amount of financial social benefits. Prior to the judgement it was assumed by the authorities that those who live in mass accommodations economise together and therefore require less financial benefits.[17] In February 2022 the Higher Court of Baden-Wuerttemberg ruled that private rooms in mass accommodation centres are protected under the German Constitution and that consequently any entry and raids by security personnel must be regulated by law and justified in the individual case.[18]

Detention of asylum seekers

• Grounds for detention pending removal: With a legal change that entered into force on 31 December 2022, the time within which the removal must be expected to take place has been extended from 3 to 6 months for persons with a criminal conviction (see Grounds for detention).

• Key jurisprudence on detention: On 10 March 2022, the CJEU issued its decision as to whether the possibility of using regular prisons for detention due to an ‘emergency situation’, in place between 2019 and July 2022, was in line with the Return Directive.[19] The Court did not adjudicate on the existence of an emergency situation, but ruled that national courts would have to examine the question when asked to issue a detention order. However, the CJEU argued that an emergency situation cannot be based solely on a high number of persons who are obliged to leave, and that a failure on the side of the state to provide for sufficient specialised detention facilities cannot justify an emergency situation. Furthermore, the court ruled that conditions in detention facilities must not be prison-like if they are to qualify as specialised detention facilities in the sense of the Return Directive.

Content of international protection

• Cessation and revocation: In 2022 the number of revocation procedures further decreased in comparison to the three previous years Nevertheless, the status of 2,649 persons was revoked in 2022, mainly of persons from Syria, Iraq, Afghanistan and Iran (see detailed statistics under Cessation and review of protection status). More importantly the legal framework on cessation and revocation has been amended substantially. The changes serve to relieve the administrative and judicial bodies, therefore no more routine revisions are foreseen by the amended legal framework.
• Long term residence for beneficiaries of international protection: Beneficiaries of international protection are eligible for a permanent residence permit after five years (three years if they have a good command of the German language).
• Family reunification for beneficiaries of subsidiary protection: Family reunification for beneficiaries of subsidiary protection continues to be limited to 1,000 persons per month as a matter of policy. However, However, in 2022, 8,900 visas were issued for family members of beneficiaries of subsidiary protection in practice, thus only half of the foreseen quota was used. This is similar to previous years. Difficulties for family reunification continued to be exacerbated by long waiting periods at embassies.

• Ad hoc family reunification programmes: Several Federal States have initiated ad hoc programmes for family members of Syrians living in Germany. Many of these programmes have been extended beyond 2021. A number of Federal States decided to put similar family reunification programmes in place for family members of Afghan refugees, which have been authorised by the Federal government in 2022. The Federal government set up a family reunification programme for Afghan nationals as well but its implementation seems to progress rather slow.

• Tense housing market for beneficiaries of international protection. Beneficiaries of international protection generally have the same access to the housing market as German nationals. However, in Germany in 2022 there is a huge lack of apartments, especially low-cost apartments. In practice this leads to disadvantages for beneficiaries of international protection in comparison to German nationals since beneficiaries often face discrimination and scepticism by landlords. In many cases beneficiaries of international protection therefore have no choice but to stay in reception centres.

• Change in social welfare system: The legal framework on social benefits for German nationals as well as for beneficiaries of international protection was revised completely, with the new rules entering into force on 1 January 2023. The reforms include inter alia higher unemployment benefits and less possibilities for sanctions in cases of non-compliance with the obligation to cooperate.
• Key jurisprudence on the content of international protection: In August 2022 the CJEU strengthened the right to family reunification and condemned the age assessment cut off for family reunification of the German authorities.[20] Prior to the judgement the child had to be a minor at the time of effective reunification in cases where the sponsor was the child as well as in cases where the sponsor was the parent. This had been criticised heavily by civil society organisations, since the visa procedure may take several months or even years and minor children may turn eighteen in the meantime. The CJEU decided that the age at the time of the original application for international protection is decisive in both scenarios. Following the judgment, the Federal government urged the local authorities to swiftly implement the judgement. In December 2022 the Federal Administrative Court ruled that a distinction between refugees and beneficiaries of subsidiary protection concerning the right to family reunification does not violate the Constitution.[21] As the judgement has not been fully published yet, the consequences of the judgment remain partly unclear. In October 2022 the Federal Administrative Court ruled that beneficiaries of subsidiary protection may not be required to sign a ‘repentance statement’ at the embassies of the country of origin in order to obtain a passport. If such a practice is adopted by the country of origin, the beneficiary cannot be reasonably expected to obtain a passport of the country of origin.[22]

Temporary protection

The information given hereafter constitute a short summary of the German Report on Temporary Protection, for further information, see Report on Temporary Protection.

• Key statistics on temporary protection: as of March 2023, 1,072,248 persons were registered in the Central Register of Foreigners, and 778,799 persons held a residence permit for temporary protection. 69% of registered persons are women, and 33% are children.

Temporary protection procedure

• Scope of temporary protection and disadvantageous treatment of third country nationals: In Germany the scope of temporary protection is wider than in the Council decision. Temporary protection is awarded to Ukrainian nationals and their family members, which includes spouses, non-married partners, minor children and other close relatives if there is a ‘dependency relationship’ that was already established prior to entering Germany. Temporary protection may also be granted to third country nationals holding a residence permit in Ukraine, even if not a permanent one, but only if they are unable to return to their countries of origin. It has been criticised that in practice applicants from third countries face several disadvantages in all stages of the procedure compared to Ukrainian nations. The different treatment of third country nationals applying for temporary protection and applicants of Ukrainian nationality constitute the most flagrant legal disputes as to the German implementation of the Council Decision. The difference in treatment is displayed in the registration process where access to the application for temporary protection is sometimes not granted to third country nationals or where eligible third country nationals are pressured into the asylum procedure instead. After having lodged their application, third country nationals are further treated differently with regards to access to the labour market and other social benefits.
• No automatic suspensive effect upon appeal: Differing from the asylum procedure, the appeal of a negative decision on temporary protection does not have automatic suspensive effect, an application for interim measures must be filed to guarantee legal stay during the appeal proceedings.
• Accessibility of information on temporary protection: The German government is putting effort into distributing information for people fleeing Ukraine on entry, legal stay and housing on their websites in different languages.
• Flaws in identification of vulnerable groups: As for the asylum procedure no systemic mechanisms exist to identify applicants with special needs and meet these needs.
• Access to regular social benefits: In 2022 the system of social benefits for applicants for and beneficiaries of temporary protection were revised completely. As of June 2022, applicants and beneficiaries of temporary protection have access to regular social benefits. The unequal treatment between applicants for temporary protection who receive regular social benefits and applicants for international protection who receive social benefits under the Asylum Seekers Benefits Act has been criticised by many civil society organisations.

Content of temporary protection

• Excessive waiting periods for receiving residence permits: Depending on the region, decision making may take several months due to a general overburdening of the local authorities.
• Obligation to reside in the allocated municipality also applies to beneficiaries of temporary protection. Following legal amendments in June 2022 beneficiaries of temporary protection are now also obliged to reside in the municipality to which they have been allocated in the determination procedure for three years. However, North Rhine-Westphalia suspended the application of this obligation for beneficiaries of temporary protection.
• Dense housing situation and reintroduction of emergency shelters: While most of the emergency shelters of 2016 had been dismantled, the rising numbers of people fleeing Ukraine but also the continuing high numbers of people fleeing Iran, Syria and Afghanistan in combination with the general lack of affordable housing led the authorities to reintroduce emergency shelters. The conditions in the emergency shelters but also in overcrowded first accommodation centres have been criticised by many NGOs. While beneficiaries of temporary protection are generally allowed to access the regular housing market, due to the lack of affordable housing, they are often required to stay in accommodation centres for extended periods.
• Access to regular social benefits, labour market and health care: Beneficiaries of temporary protection in theory have the same access to social benefits and health care as German nationals. Practical hurdles may however arise due to administrative requirements.

[1] For an overview see AIDA, Country Report Germany – Update on the year 2021, April 2022, available at https://bit.ly/3XnN7RS, 11-12.

[2] Official Gazette I no. Nr. 56 (2022) of 28 December 2022, 2817.

[3] Official Gazette I no. Nr. 57 (2022) of 30 December 2022, 2847.

[4] Section 60a (1) Residence Act.

[5] Section 104c Residence Act.

[6] Federal Ministry of the Interior, Anwendungshinweise des Bundesministeriums des Innern und für Heimat zur Einführung eines Chancen-Aufenthaltsrechts, 23 December 2022, available in German at https://bit.ly/3TaVTRS.

[7] Informationsverbund Asyl & Migration, Chancen-Aufenthaltsrecht und Änderungen im Asylverfahren: die ersten Gesetze der Ampel-Koalition treten in Kraft, 2 January 2023, available in German at http://bit.ly/3WLfGYc.

[8] For further details, see AIDA, Country Report Germany – Update on the year 2021, April 2022, available at https://bit.ly/3XnN7RS, 11.

[9] BAMF, Dienstanweisung Asyl (internal directive for asylum procedures), version of January 2023, 395, available in German at https://bit.ly/3J5jPTA.

[10] See asyl.net, Anwendung des ‚Diskretionsgebots‘ durch das BAMF, 13 January 2023, available in German at http://bit.ly/3Jt2VyJ.

[11] PRO ASYL, Asyl im Zeichen des Regenbogens? 30 September 2022, available in German at https://bit.ly/3Dy9M6d.

[12] CJEU, Case C‑238/19, Judgment of 19 November 2020, available at: http://bit.ly/3z5Hk8U.

[13] Federal Administrative Court, Case 1 C 1.22, 19 January 2023, press release available in German at: http://bit.ly/42EC4qk.

[14] CJEU, Cases Joint Cases C-245/21 and C-248/21, 22 September 2022, available at: http://bit.ly/40rVMUq.

[15] Infomigrants, ‘Ruling in church asylum case creates legal precedent in Germany’, 04 March 2022, available at https://bit.ly/3wAt3jv.

[16] Art. 33(2)d and 40(2) recast APD. To follow on the preliminary ruling see CJEU, Case C-216/22, available at: http://bit.ly/3z3gNJr.

[17] Federal Constitutional Court, Decision 1 BvL 3/21, 19. October 2022, available in German at: http://bit.ly/3z5FN2W, para 70f.

[18] VGH Baden-Wuerttemberg, Decision 12 S 4089/20, 2 February 2022, available in German at: https://bit.ly/3K4VP3e.

[19] CJEU, Case C‑519/20, 10 March 2022, available in German at: https://bit.ly/3NtZt6u.

[20] CJEU, Joined Cases C-273/20 and C-355/20, Judgement of 1 August 2022, available at: http://bit.ly/42CZDjh.

[21] Federal Administrative Court, Voraussetzungen für den Familiennachzug zu subsidiär Schutzberechtigten, press release Nr. 78/2022, 8 December 2022, available in German at: https://bit.ly/3YcL6rO.

[22] Federal Administrative Court, Decision BVerwG 1 C 9.21, 11 October 2022, available in German at: http://bit.ly/3FS5Myr.