The information on the appeal procedure that was attached to notices by the Federal Office for Migration and Refugees has been worded incorrectly.
On 18 April 2017, the Higher Administrative Court (Verwaltungsgerichtshof) issued a judgement on a dispute concerning asylum law. The court came to the conclusion that the information on the appeal procedure (Rechtsbehelfsbelehrung), which the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge) was regularly attaching to its notices (Bescheid), has in fact been worded incorrectly. The court held that this information was inaccurate within the meaning of the Code of Administrative Court Procedure. The 9th court panel (Senat) of the Higher Administrative Court based its decision on the following reasons.
Contrary to the view taken by the Administrative Court of Stuttgart, the Higher Administrative Court decided that the legal action for appealing the decision in the notice is admissible, although it was not filed within the one week time period prescribed in the Asylum Act. The Higher Administrative Court said it was admissible in this case because the time period would only begin once the information on the appeal procedure has been carried out properly. Since the information on the appeal procedure that was attached to the notice being contested was issued incorrectly, the higher court decided that filing the action to appeal the decision within a year after receiving the notice was permitted under Code of Administrative Court Procedure. The court ruled that the plaintiff met the filing deadline.
The Higher Administrative Court also determined that the information on the appeal procedure was also incorrect within the meaning established in the Code of Administrative Court Procedure. The information is inaccurate if it is capable of causing the person affected to make a mistake about how to fulfil the formal or material requirements for the appeal procedure in question and if it is capable of preventing him or her from even being able to file an appeal at all before the deadline using a correct method. The higher court said the information on the appeal procedure, which was attached to the notice being disputed, had this type of inaccuracy.
In the information sheet it says, among other things, that the legal action for appealing the administrative decision in the notice had to be ‘written in the German language’; the critical wording in the German text is the phrase ‘in deutscher Sprache abgefasst’. The court believed that the way that this is worded could give the people affected the impression that the action against the notice from the Federal Office for Migration and Refugees had to be submitted in writing to the Administrative Court and that the person affected was required to meet the written form requirement by himself. The court, however, believes this contradicts the rules in the Code of Administrative Court Procedure, which states that the legal action for appealing the decision can also be lodged at the Administrative Court by having the person affected verbally declare his or her appeal to a clerk at the court registry who will put it on record. The court explained this rule is intended to make it easier for the person filing the action (the plaintiff) to seek legal protection if he or she prefers this method of filing a case with the court for reasons related to his personal circumstances, such as only having limited knowledge of the German language. The court found that the wording that the Federal Office for Migration and Refugees used in its information about the appeal procedure made it more difficult for the person affected to bring action before the court in a way that was not intended by the law.
Although the Higher Administrative Court came to this conclusion about the wording of the information, the merits of this particular case were unsuccessful. The court was not able to determine that the plaintiff in this case had a right to being granted one of the three different forms of protection – entitlement to asylum (Asylberechtigung), refugee protection (Flüchtlingsschutz) or subsidiary protection (subsidiären Schutz) – , or that he had a right to being issued a national ban on deportation (Abschiebungsverbot). The plaintiff’s appeal against the decision made by the Administrative Court in Stuttgart was rejected for this reason.
An appeal on points of law against the Higher Administrative Court’s ruling was not permitted. A complaint against the non-admission of an appeal on points of law can be submitted to the Federal Administrative Court (Bundesverwaltungsgericht) in Leipzig within one month after notification of the court’s decision.
Translated into English by Rosa Foyle, DipTrans