Asylum Law: Courses of Action for Asylum Seekers After the Final Rejection of the Initial Asylum Application

If the asylum procedure has been conclusively terminated by the irrevocable rejection of an asylum application, the asylum seeker generally has two options to initiate a new procedure.

One option is to file a subsequent asylum application (Asylfolgeantrag), and the other is to submit an application for the reopening of the procedure.

Subsequent Asylum Application

The subsequent asylum application is regulated by § 71 of the Asylum Act (AsylG) and is aimed at recognition as a person entitled to asylum or as a refugee (§ 71(1) sentence 1 AsylG in conjunction with § 13(1) AsylG).

According to § 71(1) AsylG, a further asylum procedure is only to be conducted if the requirements of § 51(1)–(3) of the Administrative Procedure Act (VwVfG) are met.

The VwVfG governs administrative procedures in the Federal Republic of Germany.

According to § 51 VwVfG, the authority must decide, upon application by the person concerned, whether to revoke or amend a final administrative act (in the case of asylum procedures, this is the rejection of the initial asylum application) if:

• • • The factual or legal situation on which the administrative act was based has subsequently changed in favor of the person concerned;
    • New evidence is available that would have led to a more favorable decision for the person concerned;
    • There are grounds for reopening the case in accordance with § 580 of the Code of Civil Procedure.

In simplified terms, a subsequent asylum application can only be successful if new reasons, new documents, or new evidence related to asylum-relevant facts are presented.

Furthermore, according to § 51(2) VwVfG, the subsequent asylum application is only admissible if the person concerned was unable to present the grounds for reopening in the earlier procedure, particularly through legal remedies, without gross negligence.

Additionally, the subsequent asylum application must be submitted within three months from the date on which the person concerned became aware of the grounds for reopening, as stipulated in § 51(3) VwVfG.

Strict requirements are therefore imposed on the subsequent asylum application both by the legislator and by case law.

Both the legislator and the courts impose strict requirements on the subsequent asylum application.

The subsequent asylum application must be submitted in person at the asylum office where the initial application was filed.

According to § 58(2) no. 1 of the Residence Act (AufenthG), a foreigner may be detained by judicial order for the purpose of securing deportation if they are enforceably required to leave due to unauthorized entry. This is regularly the case with subsequent asylum applicants.

The submission of a subsequent asylum application does not grant permission to stay under § 55(1) sentence 1 AsylG. However, submitting the subsequent asylum application generally results in the applicant being tolerated under § 60a AufenthG.

According to § 60a(2) AufenthG, deportation is prohibited for legal reasons until the Federal Office for Migration and Refugees (BAMF) has notified that the subsequent asylum procedure will not be conducted.

If the BAMF indicates that a new procedure will be initiated due to the subsequent asylum application, this may lead to a new residence permit being granted.

Application for Reopening the Procedure

As mentioned earlier, a reopening of the asylum procedure may also occur independently of a subsequent asylum application.

In this case, the BAMF must decide, based on its discretion, whether to change its decision in favor of the person concerned, pursuant to § 51(5) VwVfG in conjunction with §§ 48, 49 VwVfG.

The advantage of this reopening is that the application can be submitted even after the expiration of the three-month period.

However, unlike the subsequent asylum application, the application for reopening the procedure is only possible to establish prohibitions on deportation under § 60(2), (3), (5), and (7) AufenthG. Recognition as a refugee cannot be achieved through this process.

However, if the conditions of § 60(2), (3), (5), or (7) AufenthG are met, the BAMF must reopen the procedure as its discretion in this regard is effectively reduced to zero.

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.

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