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In the current political situation, asylum procedure times are in the public eye. This is because the limitation of irregular migration through the repatriation of rejected asylum seekers is limited by the duration of asylum proceedings at the administrative courts. While the average duration of court proceedings in 2022 was still 26 months, this could be reduced to 21.9 months in 2023.

On November 22, 2022, the Court of Justice of the European Union issued a decision on the impact of an illness on the issuance of a return decision. The decision does not have a significant impact on the system of German law, which distinguishes between the power to issue a deportation order and the possibility to suspend deportation.

The Court of Justice of the European Union ruled in Joined Cases C-245/21 and C-248/21 of 22.09.2022 that a suspension of the transfer procedure under a Dublin procedure due to the Covid 19 pandemic does not result in an interruption of the six-month transfer period. Once this period has expired, the requesting Member State becomes responsible for examining the asylum application.

The yardstick for the assessment of national protection against deportation pursuant to Section 60 (5) of the Residence Act in conjunction with Article 3 of the European Convention on Human Rights (ECHR) is basically whether the foreigner Article 3 of the European Convention on Human Rights is whether the foreigner who is subject to an enforceable obligation to leave the country will be able to meet his or her most basic needs for a foreseeable period of time after his or her return, if necessary by means of return assistance granted to him or her. On the other hand, it is not decisive whether a foreigner's subsistence level is ensured in his country of origin on a sustainable or even permanent basis. This was decided by the Federal Administrative Court in Leipzig on April 21, 2022.

In its ruling of 7 September 2021, the Federal Administrative Court has established important principles on the limitation of the entry and residence ban issued under the condition precedent of his deportation (Ref.: 1 C 46.20). The decision deals in particular with the question of which integration achievements are to be taken into account within the framework of the discretionary decision and, if applicable, lead to the illegality of the entry and residence ban imposed by the Federal Office for a period of 30 months.

According to a recent press release, the 1st Senate of the Federal Administrative Court ruled on 7 September 2021 (BVerwG 1 C 46.20) that, when assessing the duration of a deportation-related entry and residence ban, only the successful completion of qualified vocational training in Germany by the foreigner during the asylum proceedings is to be taken into account in order to shorten the time limit, not the commencement of such training. At the same time, the Federal Administrative Court has clarified that the practice of imposing a 30-month entry and residence ban by the Federal Office is not subject to any legal objections, provided that the foreigner does not present any special circumstances that are to be taken into account in the discretionary determination of the time limit.

In its judgment of 9 September 2021 (C-18/29), the Court of Justice of the EU ruled that it is incompatible with EU law to reject a subsequent application as inadmissible solely because the application was not filed within a certain period. This decision has a direct impact on the applicability of the 3-month time limit of section 51(3) VwVfG, which is enshrined in German asylum law and applies via section 71(1) Asylum Act.

In its decision of 16 April 2021, the 9th Senate of the Hessian Administrative Court ruled that a Union citizen who was employed as a worker in a temporary employment relationship and became unemployed through no fault of his or her own did not acquire a permanent right of residence under section 4a(1) of the Freedom of Movement Act/EU due to the fiction of being an employee for several years.

On 26 January 2021, the 1st Senate of the Federal Administrative Court referred a case to the Court of Justice of the European Union to clarify whether an administrative suspension of the enforcement of a deportation order due to the actual impossibility of deportation as a result of the COVID 19 pandemic is suitable to interrupt the transfer deadline provided for in Art. 29 para. 1 Dublin III Regulation (case reference: BVerwG 1 C 52.20 ).

The Court of Justice of the European Union ruled in its judgment of 19.11.2020 (C-238/19) that escape from military service in Syria is very likely to be a reason for persecution by the authorities there. In the context of the civil war in Syria, there is a strong presumption that the refusal to perform military service is linked to a ground which may give rise to a right to refugee status. In many cases, that refusal is the expression of political or religious convictions or is based on membership of a particular social group. In its statements on the causality test between the act and cause of persecution, the Court of Justice of the European Union creates scope for granting refugee status in cases of withdrawal from military service.

According to a communication from the Federal Foreign Office of 27 October 2020 to Akbulut Gökay, the spokesperson for migration and integration policy of the parliamentary group DIE LINKE (question on SF no. 9-393), it is currently not possible to take the German test required for the reunification of spouses in a total of 81 third countries (including the main countries of origin Egypt, Albania, Iran, Lebanon and Mexico).

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Anne Glinka, Lawyer Anne Glinka, Lawyer Send Us Your Request