A federally-funded and authority-independent asylum procedure counselling for Germany?

By Rhuta Deobagkar

The administrative hearing conducted by the BAMF is crucial for deciding the outcome of an application for asylum. It is, therefore, essential that applicants are well-prepared for this hearing. This piece discusses the current situation in Germany regarding provision of individualised legal aid and independent procedural counselling prior to the BAMF hearing.


The asylum and residence regulations in Germany are extremely complex. The administrative hearing conducted by the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge/BAMF) for applicants seeking asylum or other forms of international protection plays a decisive role in determining the outcome of their application. Difficulties faced by applicants are further compounded by their unfamiliarity with the German language and lack of knowledge about the German legal system. While the asylum procedure has safeguards built in to protect certain rights of applicants, applicants cannot exercise these rights unless they are first made aware of them. Access to cost-free individualised counselling for each applicant can facilitate such awareness.

Non-governmental organisations (NGOs) in Germany offer free counselling and individualised advice to applicants in relation to the administrative hearing. As part of a research project, I interviewed representatives of 14 NGOs based in Lower Saxony, North-Rhine Westphalia, Hamburg and Berlin that provide such services. The interviews reflected the benefits to applicants who can avail this service. It became clear that free independent asylum procedure counselling can have a transformative effect on an applicant’s ability to understand the procedure and exercise their rights. However, these NGOs have limited resources and some face challenges in accessing applicants during this stage of the asylum process. For the counselling to be offered to each applicant in Germany, funding and support must be provided at a Federal level. It has been announced that such restructured authority-independent counselling may soon be introduced throughout the country. Based on the findings of my research interviews on the status quo, I argue that this change is both crucial and long overdue.

The administrative hearing itself places extremely high expectations on applicants. They must provide a clear, comprehensive and credible narrative of the reasons for flight and inability to return to the country of origin. Narrating traumatic incidents in an orderly manner is extremely difficult for any person, but it is particularly difficult for asylum applicants; asylum applicants have been recognised by the European Court of Human Rights as usually being in a state of physical and psychological emergency. Thus, at the very outset of the asylum procedure, applicants face a number of hurdles. These could be overcome to some extent if applicants have access to legal representation during the administrative hearing. However, Germany does not currently offer free legal advice or representation to applicants during the administrative stage of the asylum procedure. Applicants in Germany are not prohibited from getting legal advice on their own, but most lack the financial resources to do so. Apart from the cost, additional barriers are posed by the residence mandate, remote accommodation, and lack of local lawyers specialised in migration law.


Benefits of individualised counselling in the administrative procedure

In a scenario where applicants are not familiar with the language or legal system, individualised advice and counselling play an essential role. As discussed in preceding paragraphs, legal advice or individualised counselling can help applicants to overcome material barriers to accessing their rights in the asylum procedure. Availability of legal advice can also help to generate a sense of procedural justice and encourage trust and compliance on the part of applicants. Further, applicants may have a mistrust of state authorities due to past experiences with authorities in the country of origin and hesitate to share information with the authorities in Germany as a result. Individualised counselling can help assuage these fears and facilitate the disclosure of information to the authorities.

Errors in the administrative decision-making process that are caused by miscommunication or misunderstanding of the procedures by applicants can be difficult to correct at the appeal stage, but many of these could be avoided by facilitating access to legal assistance from the beginning. In the absence of counselling that takes individual circumstances into consideration, applicants may miss out on presenting the reasons for flight or other relevant aspects of their claim during the hearing. Additionally, if applicants know what information is relevant and what isn’t, this can significantly improve the efficiency and quality of the hearing and decision-making, thereby safeguarding the interest of the State as well. Individualised counselling can also help in the early identification of vulnerabilities, so that procedural and other rights are safeguarded.

Cost is one of the main factors used to argue against early legal aid in asylum procedures, but in fact, providing legal aid can actually make the asylum process more cost-efficient by reducing the volume of appeals, thereby reducing possible costs of detention or social support throughout longer asylum procedures and freeing up valuable state resources, as demonstrated by a pilot project in the United Kingdom. A reduction in appeal costs could have significant implications in the German context. Statistics released by the BAMF in January 2022 indicate that a third of appeals filed against negative asylum decisions by the BAMF end up being revised. These statistics fluctuate from year to year due to a number of factors, including change in circumstances in the country of origin: such as Taliban’s takeover in Afghanistan. However, the costs incurred by the BAMF annually due to unfavourable appeal decisions have been substantial regardless, ranging from  €16 million to €25 million, and averaging at about €17 million annually.


Asylum procedure counselling under §12a Asylgesetz

Currently, the German asylum framework does not provide access to free legal advice or independent counselling to each applicant during the administrative proceedings. What it provides instead, is asylum procedure counselling by the BAMF in two stages: first, group counselling on the asylum procedure and possibilities of returning; second, individual advice on the asylum procedure through one-on-one interviews that may be carried out by the BAMF or by welfare organisations. Before the introduction of such counselling in 2019, the standard source of procedural information was informational leaflets handed out at the initial stages of the procedure.

The counselling procedure under §12a which is termed as “independent state asylum procedure counselling” raises the question of whether it is possible for a state-run institution to provide “independent” counselling, particularly on the same issues where it is a decision-maker.  Moreover, the BAMF is also the adversary party in any court proceedings. As a result, a mere internal separation between the decision-making and counselling staff cannot fully safeguard against such conflict of interest.

In relation to the administrative procedure, Article 19 of the recast Asylum Procedures Directive requires the free provision of legal and procedural information taking into account the applicant’s particular circumstances, and information about the basis for rejection and appeal options available. However, the counselling provided under §12a Asylgesetz does not meet the requirements under the Asylum Procedures Directive, because it does not take into account the special circumstances of each applicant and prepare them for the hearing. Moreover, the scope of information provided under §12a Asylgesetz does not cover rejection grounds and possibilities for appeal.

Further, simply providing information about the procedure, no matter how detailed, cannot serve the same function as an advisor using their expertise and knowledge to advise the applicant on their specific case. Another aspect to note is that the counselling offered by the BAMF does not cover any follow-up, revocation or appeal proceedings. So, when an individual questions a decision of the BAMF or defends themselves against such a decision, there is no statutory access to counselling. Similarly, even in case of a positive decision, aspects such as work permits, family reunification, etc. are not addressed.


Non-statutory asylum procedure counselling

NGOs in each Federal State in Germany offer a variety of services to applicants throughout the asylum procedure, including free individualised asylum procedure counselling during the administrative procedure of the BAMF. The counselling usually informs applicants not only about the procedure, but also what to expect during the hearing. Applicants are familiarised with the questions they may be asked, and made aware of their rights during the hearing. For applicants who are willing to share information about their specific circumstances, NGOs also provide individual advice and preparation. NGOs do not restrict their advice to the administrative hearing, but instead provide holistic counselling at all stages of the process, including after receipt of a decision from the BAMF.

In all 14 NGOs that I interviewed, representatives indicated that the individualised counselling is conducted not by lawyers, but by qualified social workers or other individuals who have undergone specific training for this purpose. Counsellors occasionally consult with or seek advice from lawyers, but it is extremely rare for applicants to have a lawyer or directly receive advice from a lawyer in relation to the administrative hearing. In the absence of formal legal aid during the administrative hearing, the individualised counselling conducted by NGOs is one of the best resources available to applicants to prepare for the administrative hearing at the BAMF.

However, due to resource constraints, this free independent asylum procedure counselling only reaches a small fraction of applicants in Germany. There is large variance among the Federal States in the funding available to NGOs and their ability to reach asylum applicants. Of the 14 NGOs interviewed, only three have access to the centres where applicants are accommodated. As this counselling is not an established part of the procedure, there is no standard method to reach applicants or inform them about the offer of individualised independent asylum procedure counselling by NGOs. For more applicants to avail these services, structured support and funding at a Federal level is required.


Federal funding for individual counselling independent of state authorities

A possible solution would be to divert Federal funds to expand the individualised counselling and advisory services provided by NGOs and welfare organisations with the goal of ensuring that each applicant can access them. In the Koalitionsvertrag 2021 – 2025, the coalition undertook to introduce a comprehensive asylum procedure counselling service that is independent of the authorities. On 24th March 2022, the Bundesarbeitsgemeinschaft der Freien Wohlfahrtspflege (BAGFW) published a comprehensive document setting out the essential characteristics for establishing a federally-funded asylum procedure counselling service that is independent of state authorities. The BAGFW suggests that the law must be amended to make asylum procedure counselling completely independent of the authorities, and a corresponding statute must be drafted; welfare associations should be in charge of implementing the federal programme for counselling on asylum procedures with funds from the federal budget. The BAGFW takes the view that this would have to be firmly anchored in the federal budget, and provides an estimate of the budget that would be required. The document discusses the content of the counselling, which would include preparation for the hearing and if required, accompaniment to the hearing. The document published by the BAGFW also addresses aspects such as the period and location of the counselling, quality of the counselling and cooperation between relevant actors.

Discussions with representatives of NGOs involved in advocacy indicate that changes to the law that will incorporate some of these suggestions can be expected in the coming months. The upcoming changes are also reflected in the statement of SPD representative Martin Gerster during the 41st Session of the German Bundestag on 2 June 2022. Mr. Gerster indicated that a budget of 5 million Euros has been assigned for independent asylum counselling, and that initial preparations can now be made in this regard. Thus, federally-funded asylum procedure counselling by organisations independent of state authorities may soon be a reality in Germany. This vital development is a long-awaited outcome of advocacy by NGOs and civil society. However, the precise form that it will take and the manner in which such authority-independent asylum procedure counselling will be implemented remains to be seen.

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