In January 2018, the German lawyers association, Deutsches Anwaltsinstitut, held its 24th annual conference on administrative law in Leipzig, where the President of the Federal Administrative Court, Prof. Dr. Dr. h.c. Klaus Rennert, spoke about the challenges the administrative courts are facing as a result of the dramatic increase in legal proceedings in asylum-related matters.
The number of asylum cases filed at the 51 administrative courts has increased from approximately 45,000 in 2014 to 400,000 in 2017. Asylum cases now comprise about three fourths of all the cases being dealt with at the administrative courts. The excessive number of lawsuits is clogging the courts and is prolonging the time needed to process all types of cases, not only those concerning asylum related matters. While the German states have increased the number of judges over the past two years, this increase only represents a 15% increase in the number of full-time judges working at the administrative courts compared to a 120% increase in the number of cases being filed. As a result, the number of cases assigned to each judge has more than doubled since 2011, when it averaged 143 cases per judge. Moreover, it is becoming increasingly harder to attract qualified lawyers to the profession.
It is apparent that the situation requires improvements be made in terms of human and material resources as well as changes to asylum procedural law. Legislators have already addressed the issue by permitting so-called ‘leapfrog appeals’ in asylum cases, which allow an appeal to bypass the next higher court and to go straight to the Federal Administrative Court. Another way that the situation could be alleviated would be to make it easier to lodge appeals, which could contribute to obtaining more consistent court rulings. The rule prohibiting appeals courts from sending cases back to the lower court should also be abolished. This special rule, which was introduced in 1992 and was intended to speed up the judicial process, has proven to be increasingly counterproductive. This is particularly true in cases where the appeals court decides it is wrong that an administrative court did not individually verify a person’s claim of persecution in their asylum application and instead assumed he or she was being persecuted because they belonged to a certain ethnic or demographic group. In these cases, an individual assessment of the reasons why an asylum-seeker is being persecuted must be subsequently undertaken, which is a procedure normally carried out by an administrative court and not a higher administrative court. The rule prohibiting higher courts from sending these cases back to lower courts has turned out to be quite a hindrance in this respect. The last option for addressing the backlog in cases would be to extend the Federal Administrative Court’s authority to make assessments of facts pertaining to specific countries. The Federal Administrative Court currently only has the authority to decide on legal issues and does not have the power to evaluate factual findings. Only the higher administrative courts can make these assessments, and they have been assessing the facts in some countries, such as Syria, differently, which has led to inconsistent rulings. Giving the Federal Administrative Court this authority would enable the court to make landmark decisions, which the higher and lower administrative courts will follow.
Translation from German into English by Rosa Foyle
