On 11 July 2018, the Federal Administrative Court in Leipzig issued a ruling (case no. BVerwG 1 C 18.17) concerning the right of asylum applicants to file legal actions to force The Federal Office for Migration and Refugees (BAMF) to make a decision about their asylum applications. The court determined that applicants may lodge an action against BAMF if a decision has not been made on their asylum application within three months. It also believed applicants have a legitimate interest in taking legal action for the sole purpose of obliging BAMF to make a decision on their applications.
The court came to this conclusion in a case brought by an Afghan national who had filed an asylum application in October 2014. In August 2016 she filed a lawsuit on the grounds of administrative inaction because BAMF had still not given her a hearing nearly 22 months after she submitted her application. She asked the court to require BAMF to proceed with her asylum procedure and to make a decision about her asylum application. The Administrative Court dismissed her case saying her lawsuit was not permitted because she should have filed an action seeking protection immediately. The Higher Administrative Court overruled the Administrative Court’s decision and required BAMF to make a decision on the plaintiff’s asylum application. This court believed the plaintiff does have a legitimate interest in bringing legal proceedings on the grounds of administrative inaction, which are intended to oblige the administrative authorities to make a final decision. The Higher Administrative Court determined that it is not the job of the Administrative Court to make a decision about the details of an asylum application if BAMF has still not held a hearing; this is true particularly in this case because the Asylum Procedures Directive of the European Union (2005/85/EG and 2013/32/EU) requires BAMF to personally hear an applicant’s case and to protect applicants’ procedural rights.
The Federal Administrative Court dismissed BAMF’s appeal. It allowed the lawsuit brought on grounds of administrative inaction, which was intended to compel BAMF to make a decision. In any event, the court believed there was no sufficient reason for BAMF not to have made a decision about the asylum application given it was submitted 22 months before the action was filed. The plaintiff also had a legitimate interest in filing the action on grounds of administrative inaction. When looking at the overall merits of the case, the court came to the conclusion that the special arrangements in the asylum procedure, which include the pre-eminent standing of the administrative process and the applicant’s associated procedural rights, justify this type of legal action to oblige the administrative authorities to act. An asylum applicant whose case has not yet been heard cannot be prevented from challenging the way official proceedings are being conducted. In these cases, it is not for the court to decide whether protection should be given or not, but the responsibility of BAMF to do so.
The Federal Administrative Court did not rule on whether the asylum applicant is limited to the option of filing an action in the administrative court to compel the authorities to make a decision, or whether the court action on the grounds of administrative inaction can also have the intention of obliging BAMF to grant the applicant international protection.
Source: Press release from the Federal Administrative Court. Translated from German into English by Rosa Foyle
