In its ruling of November 20, 2025 (Ref.: 1 C 28/24), the First Senate of the Federal Administrative Court decides on an important question of the division of responsibilities between the immigration authorities and the Federal Office for Migration and Refugees. According to this ruling, the immigration authority, and not the Federal Office for Migration and Refugees (Federal Office), has jurisdiction over applications for the reopening of proceedings with the aim of isolating the revocation of a final threat of deportation under asylum law and a final entry and residence ban outside of follow-up asylum proceedings.
The plaintiff and his partner share custody of their three minor children. His asylum application, submitted in 2018, was unsuccessful. At the end of April 2024, he applied to the Federal Office to reopen the proceedings relating to the threat of deportation and the entry and residence ban issued by the Federal Office and to revoke these considering the provision of ยง 34 (1) sentence 1 no. 4 AsylG (Asylum Act) that had been adopted meanwhile. The Federal Office rejected the application as inadmissible. In the court decision challenged in the appeal proceedings, the Administrative Court obliged the defendant to lift the threat of deportation and the entry and residence ban by reopening the proceedings. The 1st Appeal Senate of the Federal Administrative Court upheld the appeal on points of law lodged by the defendant, the Federal Republic of Germany.
The decision on the reopening of proceedings outside of follow-up asylum proceedings based on Section 51 (1) No. 1 of the Administrative Procedure Act (VwVfG) concerning a final threat of deportation under asylum law and an entry and residence ban is not the responsibility of the Federal Office, but of the immigration authority. The substantive jurisdiction for reopening the proceedings is primarily based on the rules of jurisdiction of the applicable specialist law. The distribution of tasks under foreign nationals' law between the Foreigners Authority and the Federal Office is based on Section 71 (1) sentence 1 of the Residence Act on the one hand and Section 5 of the Asylum Act on the other. According to Section 71 (1) sentence 1 of the Residence Act, the immigration authorities are responsible for measures and decisions relating to residence under the Residence Act and under provisions relating to immigration law in other laws. The substantive jurisdiction of the immigration authority is superseded in the context of asylum proceedings by Section 5 (1) of the Asylum Act.
According to Section 5 (1) sentence 2 of the Asylum Act, the Federal Office is also responsible, in accordance with the Asylum Act, for measures and decisions under foreign nationals' law for which the Asylum Act provides a statutory provision. Once the decision concluding the asylum application and the associated ancillary decisions become final, the asylum procedure generally ends, and with it the Federal Office's substantive jurisdiction. Since the Asylum Act does not provide for the Federal Office to have substantive jurisdiction to reopen the procedure in relation to a final threat of deportation outside a follow-up asylum procedure, pursuant to Section 71 (1) sentence 1 of the Residence Act, the Foreigners Authority has jurisdiction to decide on a corresponding application for reopening and the requested revocation of the threat of deportation and the entry and residence ban.
