Asylum seekers rely on qualitative advice in a very special way, since the outcome of the asylum
procedure is crucial for their ability to protect themselves against persecution or other existential
threats. Lack of knowledge of the German language and the legal system as well as the psychological
and physical burden of escape are major obstacles for those seeking protection. Recognizing one’s own
rights and obligations in the asylum procedure, adequately recounting the causes of flight in the hearing
and finding one’s way around the bewildering diversity of official responsibilities is hardly possible
without qualified advice. This is particularly difficult and often hopeless for asylum seekers who are
particularly vulnerable to illness or disability, for example.
Perspectives and added value of asylum procedure counseling for the asylum seekers concerned and the
host society Early access to free, independent asylum counseling has the following effects:
- In its role (including RL 2013/32 / EU), the BAMF is supported in identifying persons who need special
procedural guarantees (eg the sick, disabled and traumatized). Without asylum counseling, this
identification often fails or succeeds too late to ensure important procedural safeguards (for example,
only during the current hearing or in legal action);
- Asylum applicants will be able to present their grounds for flight in the hearing adequately and
comprehensibly. This streamlines hearings and decision-making processes within the BAMF and reduces
the risk of official wrong decisions.
- The generally improved rule of law, fairness and quality of the procedure through asylum counseling
leads – as experience in Switzerland and the Netherlands shows – to a higher acceptance of negative
BAMF decisions among those affected and to a decline in administrative court cases.
- The administrative asylum procedures are relieved that seekers of protection may already be informed
prior to the application about the hopelessness of an asylum application. If necessary, refugees can opt
for voluntary repatriation and be referred to independent return counseling centers.
- Currently existing offers of asylum procedure advice
The charities, churches and non-governmental organizations have held v.a. from their own resources
and – in some federal states – municipal and state funds independent counseling services on the asylum
procedure. This offer reaches only a fraction of those seeking protection. On the one hand, this is due to
inadequate financing and, on the other hand, that the de facto access of the persons seeking protection
to counseling centers is often not given.
The task of the previously federally subsidized migration services (Migration Counseling for Adults (MBE)
and Youth Migration Services (JMD)) is a case-by-case social counseling and support for individual
integration planning, not legal advice in the asylum procedure.
Return counseling centers can not take over the task of independent asylum procedure advice. Because
for the establishment of the necessary relationship of trust in the asylum procedure consultation and
the necessary independence of the legal advice it depends on the clarity of the consulting context.
Those seeking advice must know whether the purpose of the counseling is support in connection with a
possible return to their country of origin or – incompatible with return – assistance in their search for
protection in Germany; In legal advice, they must also be able to rely on the fact that the advice,
irrespective of regulatory influence, serves their legal interests alone.
Finally, access to financial counseling assistance for counseling in the asylum procedure is often in fact
not given and legal aid only starts after the administrative procedure, at the stage of legal proceedings.
- Legal Aspects and Basics of Asylum Procedural Counseling
In its proposal for a new EU Asylum Procedures Regulation, the EU Commission assumes that free legal
assistance and legal representation are needed in the light of accelerated procedures. From a
constitutional point of view, early asylum procedure counseling is often indispensable in order to
enforce rights guaranteed by the Constitution.
In German law, the Legal Services Act (RDG) explicitly allowed free legal advice from non-legal
counselors. The aim of the legislator was to make disinterested legal advice by welfare associations,
churches and non-governmental organizations possible for people who are middle-headed and helpless
and have no other access to legal advice, for example from the family and friends. The draft law
expressly mentions asylum seekers and immigrants as the target group of non-legal legal advice
provided by non-commercial bodies.
In the interest of those seeking advice and the administration of justice, the RDG requires adequate
instruction and further training of non-legal counselors as well as, if necessary, guidance by a person
qualified for judicial office in individual cases.