German government passes a new law for Asylum Seekers to better tackle deportations, repatriation, and settlement issues in the countries. Managing the increasing migrant numbers, the Repatriation Improvement Act came into force on February 27, after the upper house of parliament passed the bill – with amendments. The Act was published in the Federal Law Gazette on February 26, 2024 (BGBl. 2024 I No. 54 of February 26, 2024).
Major Changes Announced in the New Asylum Law
Toleration for training remains
The law on the further development of skilled worker immigration from August 2023 stipulated that the option, which has existed since 2015, to receive a toleration for training by Section 60c of the Residence Act, should be deleted. This change would have come into effect on March 1, 2024, but has now been reversed. The training toleration will now exist in parallel to the newly created training residence permit by Section 16g of the Residence Act (see below). It is therefore likely to be particularly suitable for people who do not meet the requirements for the training residence permit (e.g. about securing their livelihood).
Changes to the training (Ausbildung) residence permit
The law for the further development of skilled worker immigration from August 2023 created, among other things, a new Section 16g Residence Act, which provides for the issuance of a residence permit for vocational training. Before this new regulation comes into force on March 1, 2024, it has now been adjusted in various points. Among other things, it is regulated that in addition to vocational training, employment of up to 20 hours per week may be carried out (new Section 16g Paragraph 3a Residence Act).
In addition, the hurdles for providing proof of livelihood security (as a prerequisite for issuing the training residence permit) will be partially lowered: available funds in the amount of Section 12 BAföG should now be considered sufficient, these are funds in the amount of the so-called ” Student BAföGs” that are below the usual BAföG rate (change in Section 2 Paragraph 3 Sentence 5 Residence Act). For people who receive vocational training allowance (BAB), the use of other public benefits to secure their livelihood should be “harmless”, i.e. no longer lead to the entitlement to the training residence permit being excluded (§ 16g para. 10 sentence 3 Residence Act).
Employment toleration (Beschäftigungsduldung)
The conditions for employment toleration will be adjusted and partially reduced. The applicant must have entered the country by December 31, 2022, and the deadlines for clarifying their identity will be adjusted. The person must have been in employment subject to social insurance contributions with a regular working time of 20 (and no longer 35) hours for at least 12 (and no longer 18) months.
Asylum Seekers Benefits Act
Section 2 AsylbLG limits the maximum duration of receipt of benefits under the Asylum Seekers Benefits Act for people who “have not abused the duration of their stay themselves”. After this period has expired, the transition to the so-called analog benefits takes place, which corresponds to the benefits under SGB II or SGB XII (citizen’s benefit or social assistance). This transition is now only possible after 36 months (instead of the previous 18 months).
A longer period of validity of the residence permit for those entitled to subsidiary protection
Residence permits for persons entitled to subsidiary protection were previously only allowed to be issued for one year, and for two years if extended. The corresponding sentence in Section 26 Residence Act has now been deleted. Just like those entitled to asylum and refugees within the meaning of the Geneva Refugee Convention, those entitled to subsidiary protection will in future receive residence permits for three years.
Longer period of validity of residence permits
People who are in the asylum procedure receive a certificate of residence permit by Section 63 AsylG. The period of validity of this document is now extended from three to six months for people who are obliged to live in (initial) reception centers – mostly during the first phase of the asylum procedure. For asylum seekers who are no longer obliged to reside in the reception facility, the residence permit will in the future be valid for twelve (previously six) months.
Tightening of the requirements for a follow-up application for asylum
Section 71 Paragraph 1 and Paragraph 8 AsylG are amended in such a way that a further asylum procedure can only be carried out if “new elements or findings have come to light or have been presented by the foreigner which are very likely to lead to a contribute to a more favorable decision for the foreigner, or there are reasons for readmission by Section 580 of the Code of Civil Procedure and the foreigner, through no fault of his own, was unable to assert the reasons for the follow-up application in the previous asylum procedure, in particular through an appeal.
Expansion of the reasons for rejection as “obviously unfounded”
Section 30 Asylum Act is being revised and its content expanded. For example, a rejection as “obviously unfounded” is possible if the asylum procedure only presents circumstances that are not relevant to the examination of the asylum application or if a follow-up application (or second application) has already been submitted and a further asylum procedure has been carried out or if a person opposes entered the federal territory under an entry and residence ban imposed on them.
Criminalization of violations of obligations to cooperate
Violations of obligations are now criminalized in both the Residence Act and the Asylum Act. Section 85 AsylG now stipulates that failure to hand over passports, other documents or data carriers as well as providing false information in the asylum procedure is punishable by a prison sentence of up to one year or a fine. With an expansion of the criminal offenses in Section 95 Paragraph 1 No. 6a Residence Act, a one-time violation of the “residence requirement” (spatial restriction) also becomes a criminal offense.
Extension of the immediate implementation of residence law measures
Objections and lawsuits against several measures that are primarily aimed at people who are obliged to leave the country will no longer have a suspensive effect in the future. This means that these measures can still be challenged through objections and lawsuits, but are already enforceable regardless. For the enforceability to be suspended, those affected may have to apply to the responsible authority or the administrative court to have the suspensive effect of the action established (by the authority or the court). The catalog of measures to which this applies will be significantly expanded by amending Section 84 Residence Act. Among other things, objections and lawsuits against the order of a spatial restriction according to Section 61 Paragraph 1c of the Residence Act, against the order of a residence requirement according to Section 61 Paragraph 1d of the Residence Act, and against the order and time limit of entry and residence bans will no longer have a suspensive effect.
Search of the apartment for data carriers
A change in Section 48 Paragraph 3 of the Residence Act means that the apartments of people who do not have a passport but who are obliged to obtain a passport or to clarify their identity will be searched for documents and data carriers may. The prerequisite for this is that there is “actual evidence” to believe that those affected have relevant documents or data carriers. A court order is required to search the apartment or there must be “imminent danger”.
Expansion of exit custody
The maximum duration of exit custody according to Section 62b of the Residence Act is extended from 10 to 28 days. As with the previous regulation, considerable doubts were expressed here as to whether the regulation is compatible with the European Return Directive.
Changes to detention pending deportation
With an amendment to Section 14 Para. 3 AsylG, it is now possible that the submission of an asylum application does not conflict with the ordering or maintenance of detention pending deportation if, at the time of submission of the asylum application, the conditions for detention pending deportation were met.
The prerequisites for detention pending deportation also apply, for example, if the person concerned is legally obliged to leave the country due to unauthorized entry (Section 59 (2) Residence Act). With the amendment to Section 62 Paragraph 3 of the Residence Act, it will be possible for preventive detention to be ordered if the person concerned has become legally obliged to leave the country after permitted entry or has entered the country in violation of an entry and residence ban. This means that a person who applies for asylum again after re-entry can be imprisoned immediately, even if the asylum application is promising. Detention pending deportation can also be maintained if a new asylum procedure is carried out after a subsequent application. It should also be possible to order detention pending deportation whenever a person poses a significant threat to the life and limb of third parties or important legal interests and it is clear that the deportation can be carried out within six months (no longer within three months as was previously the case).
Searching for third-party rooms in shared accommodation
With the amendment to Section 58 Paragraph 5 Sentence 2 of the Residence Act, it becomes possible for the rooms of third-party uninvolved people or all rooms in shared accommodation to be searched to find a person to be deported.
New regulation of judicial jurisdiction for search orders
By inserting a new Section 58 Paragraph 9a Residence Act, it is regulated that for the ordering of searches for deportation as well as searches for documents and data carriers to clarify identity (see below, an amendment to Section 48 Paragraph 3 AufenthG) the ordinary courts will be responsible in the future. Deviating from this, the federal states can specify that the administrative courts should be responsible for this. This new regulation does not come into force immediately, but in contrast to the other new regulations contained in the law, it will only come into effect on August 1, 2024.
Facilitating deportation at night
By inserting a half-sentence into Section 58 Paragraph 7 Sentence 2 Residence Act, entering and searching the apartment at night for deportation is made easier.
Expansion of the reasons for expulsion
A particularly serious interest in expulsion should now exist “if facts justify the conclusion that [a person] belongs or has belonged to an association within the meaning of Section 129 of the Criminal Code”. A final conviction is not necessary; investigations or assessments by the immigration authorities may be sufficient.
Appointment of legal representation in detention pending deportation
With the new introduction of the 62d AufenthG it is stipulated that for the judicial decision on the ordering of detention pending deportation according to § 62 and custody on departure according to § 62b, the court ex officio gives those affected who do not yet have legal representation the right to do so Legal representation is appointed for the duration of the procedure. Section 62d Residence Act is also applicable in cases of “Dublin detention” (due to a change in Section 2 Paragraph 14 Sentence 5 Residence Act).