In an order published on 22 July 2026 (BvR 319/26), the Second Senate of the Federal Constitutional Court granted a constitutional complaint lodged by Afghan nationals – a mother and her two minor sons.
The complainants were initially accepted for admission to the Federal Republic of Germany as part of the humanitarian admission programme called ‘Human Rights List’ under § 22 second sentence of the Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet – AufenthG, hereinafter: the Residence Act). The complainants were notified accordingly.
In 2025, the newly formed coalition government decided to end the voluntary admission programmes to the greatest extent possible. In December 2025, the Federal Ministry of the Interior thus declared that the admission declarations under, inter alia, the Human Rights List were ‘invalid and expired’. The complainants’ visa applications were rejected on grounds of the revocation decision; their requests for interim protection were unsuccessful.
Their constitutional complaint is successful. The Federal Ministry of the Interior’s declaration of revocation of December 2025 does not satisfy the requirements of the prohibition of arbitrariness. Even if the executive branch is afforded broad leeway e.g. when deciding on the admission of foreign nationals pursuant to § 22 second sentence of the Residence Act, under the rule of law the executive branch can never have unlimited discretion. Rather, the executive branch is bound by rule of law principles such as the prohibition of arbitrariness. The prohibition of arbitrariness requires that once notice of an admission declaration is effected, a revocation declaration is only permissible if the specific case and the individual interests of the affected foreign national are taken into account.
The Senate reversed the challenged order of the Higher Administrative Court. In its new decision, the Higher Administrative Court will review – based on the standards set out in the Senate’s order – the decision of the Federal Ministry of the Interior on the political interests in admitting the complainants.
Facts of the case:
The constitutional complaint concerns visa applications by Afghan nationals in the context of the humanitarian admission programme called Human Rights List, which has since been terminated. The complainants, a mother with her two minor sons, lived in women’s shelters in Afghanistan. Currently, they are in Pakistan where, upon commission of the Federal Government, they received support from the federal German Agency for International Cooperation (Gesellschaft für Internationale Zusammenarbeit GmbH – GIZ).
In September 2021, the Federal Ministry of the Interior declared to the Federal Foreign Office that it should admit the complainants to Germany as part of the Human Rights List programme pursuant to § 22 second sentence of the Residence Act. The Human Rights List was intended to provide, inter alia, those individuals with a possibility of admission to Germany who had put themselves at risk through their activities in society, e.g. by furthering German interests, and who thus were in danger once the Taliban took power.
The complainants were informed of the admission declaration. They thereupon liaised with the Federal Foreign Office and the German Agency for International Cooperation. The complainants travelled to Islamabad (Pakistan) where they filed their visa applications at the Embassy of the Federal Republic of Germany.
Following the Bundestag elections in 2025, a new Federal Government was formed. In the coalition agreement, the ruling parties agreed to end the voluntary admission programmes, e.g. in respect of Afghanistan, to the greatest extent possible.
In December 2025, the Federal Ministry of the Interior declared to the Federal Foreign Office that the admission declarations under the ‘Stopgap’ programme (Überbrückungsprogramm) and the Human Rights List, which concerned approximately 640 individuals, were ‘invalid and expired’. The complainants’ visa applications were rejected due to the decision of the Federal Ministry of the Interior to end the admission programme for Afghanistan. The factual prerequisite for issuing visas based on § 22 second sentence of the Residence Act no longer existed.
The complainants challenged the rejection of their visa applications before the Administrative Court and sought interim legal protection. The Administrative Court rejected the applications to grant interim protection. The Higher Administrative Court upheld the appealed decision. In its order, the Higher Administrative Court held that § 22 second sentence of the Residence Act does not give rise to an individual public right to a visa. According to the Higher Administrative Court, the provision did not serve to protect and fulfil the fundamental rights of individual foreign citizens but instead reflected the Federation’s autonomous exercise of its leeway in foreign policy matters; as this decision was a matter for the Federal Government, it was as such not subject to judicial review. The Higher Administrative Court also found no grounds for a judicial review of the defendant’s change of opinion based on the prohibition of arbitrariness.
The complainants challenge the Higher Administrative Court’s order in their constitutional complaint.
Key considerations of the Senate:
The constitutional complaint is well-founded.
I. In finding that there was no right to a visa for entry into the Federal Republic of Germany based on an extraterritorial constitutional duty of protection under Art. 2(2) first sentence in conjunction with Art. 1(2) of the Basic Law (Grundgesetz), the Higher Administrative Court did not violate specific constitutional law. The contested decision is also in line with the obligation to protect legitimate expectations under the rule of law (Art. 2(1) in conjunction with Art. 20(3) of the Basic Law), to the extent that this decision denied a right on behalf of the complainants to be issued the requested visas. Such a claim also does not follow from the general principle of equal treatment under Art. 3(1) of the Basic Law.
II. However, the Higher Administrative Court failed to recognise the scope of the prohibition of arbitrariness under the rule of law, which follows from Art. 3(1) in conjunction with Art. 20(3) of the Basic Law.
- Even when the executive branch is permitted broad leeway, under the rule of law the executive branch can never have unlimited discretion. Rather, the executive branch is bound by principles of the rule of law such as the prohibition of arbitrariness.
The executive branch uses its leeway in an arbitrary manner if the decision is not in line with the purpose for which leeway has been afforded, to wit: if an executive decision is based on irrelevant considerations. If a law expressly subjects the issuance of residence permits to a bespoke (foreign) policy decision, this may mean – in light of the particular rationality of political decisions and in view of the diversity and heterogeneity of conceivable political purposes – that the only purposes considered irrelevant and thus arbitrary are unlawful and evidently abusive ones. However, the executive branch narrows the scope of its generally broad leeway when it exercises this leeway in favour of one specific individual and this individual is notified accordingly. A state governed by the rule of law as laid down in the Basic Law must guarantee human dignity, respect every single human being and it is obliged to recognise an individual as a legal subject with individual interests. The interests of the affected individual must be taken into consideration when further exercising political leeway.
- Accordingly, it was justified for the Higher Administrative Court to assume a broad political leeway and find the Federal Ministry of the Interior’s declaration of the admission declaration as ‘invalid and expired’ based on its foreign policy character to not be subject to a review as to whether the revocation declaration was tenable. However, once the admission declaration had been notified to the complainants, the Higher Administrative Court would have had to recognise that the revocation decision, in which the Federal Ministry of the Interior exercised its leeway, was objectively arbitrary, given that the decision failed to take into account the specific circumstances of the complainants’ case. The Federal Republic of Germany must therefore recognise that it created the ‘Human Right List’ programme based on § 22 second sentence of the Residence Act – a provision which was specifically created for decisions in individual cases.
A revocation declaration by the Federal Ministry of the Interior is possible and permissible even after an admission declaration was notified to the affected individual. However, it must be recognisable from the revocation decision that the personal interests of the foreign national affected in the individual case were taken into consideration. Apart from examining whether a decision was made in the specific case, courts are not required to examine – based on the legal criteria of proportionality and reasonableness – whether the political interest or the individual’s interests are to be prioritised. Furthermore, it is not the courts’ task to examine (political) revocation decisions as to potential mistakes in the balancing exercise. The way in which individual needs are weighed and considered is not subject to judicial review. As a political decision (taken by the government), the revocation declaration is subject only to political review; the executive branch must take political responsibility for the decision in Parliament and potentially justify it through public debate.
As the complainants were notified of the admission declaration of September 2021, a revocation declaration by the Federal Ministry of the Interior requires taking into account the complainants’ individual needs. The blanket revocation decision of December 2025 does not satisfy these requirements as this decision was taken without considering the complainants’ specific case.
The contested decision by the Higher Administrative Court, in which the rejection of the requests for interim protection is based on the revocation decision and thereby fails to recognise the scope of the constitutional prohibition of arbitrariness, must be reversed. In its new decision, the Higher Administrative Court will examine whether the Federal Ministry of the Interior’s decision on the political interest in admitting the complainants meets the standards set out in the Senate’s order.
As the case is referred back to the Higher Administrative Court, it will have to decide – possibly by way of an interim decision – on the applications requesting the Federal Republic of Germany to temporarily continue to support the complainants in Pakistan.
The Higher Administrative Court will have to assume a constitutional duty of the Federal Republic of Germany to support the complainants in Pakistan either until their visas have been issued or until the Federal Ministry of the Interior issues a revocation decision which is in line with the above standards. Furthermore, Germany has to engage with the Pakistani government requesting that the complainants be neither imprisoned nor deported. The Federal Republic of Germany is prohibited from withdrawing its (voluntary) support based on an objectively arbitrary revocation declaration which makes the act of withdrawing support itself objectively arbitrary, especially as this would otherwise render the complainants’ right to a non-arbitrary decision meaningless.
Press Release No. 46/2026, Date of 24 July 2026
