Last Updated on June 1, 2021 by LawEuro
Asylum Act (Germany)
Chapter 9
Court proceedings
Section 74
Period within which action must be brought; rejection of late submission
(1) Action against decisions pursuant to this Act must be brought no later than two weeks after the decision has been delivered; in cases where an application pursuant to Section 80 (5) of the Code of Administrative Court Procedure must be filed within one week (Section 34a (2), first and third sentences, Section 36 (3), first and tenth sentences), the action must also be brought within one week.
(2) The plaintiff shall submit the facts and evidence on which the action is based within a period of one month after the decision was delivered to him. Section 87b (3) of the Code of Administrative Court Procedure shall apply accordingly. The plaintiff shall be informed of the obligation pursuant to sentence 1 and the consequences resulting from failing to observe the time limit. The submission of new facts and evidence shall remain unaffected.
Section 75
Suspensive effect of court action
(1) Action brought against decisions pursuant to this Act shall have suspensive effect only in cases pursuant to Section 38 (1) and Section 73, 73b and 73c.
(2) Action brought against decisions by the Federal Office to revoke or withdraw asylum or refugee status shall not have suspensive effect in the following cases:
1. where the status was revoked or withdrawn because the requirements of Section 60 (8), first sentence, of the Residence Act or Section 3 (2) are met,
2. where the status was revoked or withdrawn, because the Federal Office decided not to apply Section 60 (1) of the Residence Act pursuant to Section 60 (8), third sentence, of the Residence Act.
The same shall apply accordingly when action is brought against the revocation or withdrawal of subsidiary protection because the conditions of Section 4 (2) are fulfilled. Section 80 (2), first sentence, no. 4 of the Code of Administrative Court Procedure shall remain unaffected.
Section 76
Individual judges
(1) In disputes resulting from this Act the Chamber should, as a rule, refer the legal dispute to one of its members for decision as an individual judge, unless the case presents particular difficulties of a factual or legal nature or unless the legal matter is of fundamental significance.
(2) In cases where the Chamber has already conducted oral proceedings, the dispute may not be referred to an individual judge unless a provisional, partial or interlocutory judgment has been passed in the meantime.
(3) After having heard the parties involved, the individual judge may refer the dispute back to the Chamber if it is clear from a substantial change in the proceedings that the legal matter is of fundamental significance. It shall not be possible to refer the matter to the individual judge a second time.
(4) In temporary relief proceedings a member of the Chamber shall decide as an individual judge. The individual judge shall refer the dispute to the Chamber if the legal matter is of fundamental significance or if he intends to deviate from previous rulings by the Chamber.
(5) A judge subject to an initial probationary period may not act as an individual judge within the first six months of his appointment.
Section 77
Decision by the court
(1) In disputes resulting from this Act, the court shall base its decision on the factual and legal situation at the time of the last oral proceedings; if the decision is taken without oral proceedings, it shall be based on the situation at the time the decision is taken. Section 74 (2), second sentence shall remain unaffected.
(2) The court shall dispense with a further presentation of the facts and of the reasons for its decision, provided that it follows the statements and justification of the administrative act against which the appeal was filed and so states in its decision, or provided that the parties concerned unanimously renounce such presentation.
Section 78
Legal remedy
(1) If the administrative court rejects an action brought in connection with legal disputes resulting from this Act as manifestly inadmissible or manifestly unfounded, its judgment shall be incontestable. The same shall apply if only the plaintiff’s action against the decision on the asylum application has been rejected as being manifestly inadmissible or manifestly unfounded, while the remainder of the plaintiff’s action has been rejected as inadmissible or unfounded.
(2) In the remaining cases, the parties concerned shall be entitled to file an appeal against the administrative court’s judgment if the appeal is granted by the higher administrative court. There shall be no revision of the administrative court’s decision.
(3) An appeal shall be granted only if
1. the legal matter is of fundamental significance or
2. the decision deviates from a decision of the Higher Administrative Court, the Federal Administrative Court, the Joint Panel of the highest federal courts or the Federal Constitutional Court and rests on this deviation or
3. one of the parties claims that a defect in the proceedings pursuant to Section 138 of the Code of Administrative Court Procedure exists and if such a defect exists.
(4) A request for appeal shall be made within a period of one month after the judgment was delivered. The request shall be filed with the administrative court. It shall indicate the decision to be appealed. The request shall state the reasons why an appeal should be granted. Filing the request shall impede the legal force of the decision.
(5) The Higher Administrative Court shall decide whether to grant the request; the court shall not be required to give any reasons for its decision. The original decision shall become final upon rejection of the request. If the Higher Administrative Court grants the request, the application procedure shall be continued in the form of appellate proceedings; there shall be no need to file an appeal.
(6) (repealed)
(7) Any appeal pursuant to Section 84 (2) of the Code of Administrative Court Procedure shall be filed within two weeks from the time the court decision was delivered.
Section 79
Special provisions governing appeals
(1) In the proceedings before the Higher Administrative Court, Section 128a of the Code of Administrative Court Procedure shall apply accordingly to statements and evidence which the plaintiff has failed to submit within the time limit given in Section 74 (2), first sentence.
(2) Section 130 (2) and (3) of the Code of Administrative Court Procedure shall not apply.
Section 80
Inadmissibility of complaints
Subject to the provisions of Section 133 (1) of the Code of Administrative Court Procedure, a complaint against decisions on cases brought under the present Act shall be inadmissible.
Section 80a
Suspension of the proceedings
(1) When a court action is brought, Section 32a (1) above shall apply accordingly. The suspension shall have no influence on time limits for filing or justifying appeals.
(2) The action shall be regarded as withdrawn if the plaintiff does not notify the court within one month of the expiry of the temporary residence permit pursuant to Section 24 of the Residence Act that he intends to pursue the legal action proceedings.
(3) The Federal Office shall inform the court without delay of the issue and the expiry of the temporary residence permit pursuant to Section 24 of the Residence Act.
Section 81
Abandonment of the proceedings
In legal proceedings pursuant to this Act, the action shall be deemed to have been withdrawn if the plaintiff, despite a request by the court, has failed for a period exceeding one month to pursue the proceedings. The plaintiff shall bear the costs of the proceedings. The request by the court shall inform the plaintiff of the consequences resulting from the first and second sentences above.
Section 82
Inspection of the files in temporary relief proceedings
In proceedings for temporary relief, access to the files shall be granted at the court’s registry. The files may be handed over to the authorized lawyer to take to his home or office provided that this does not delay the proceedings. The second sentence shall apply accordingly to the dispatching of files.
Section 83
Special panels of deciding judges
(1) Disputes under the present Act should be aggregated at special panels of deciding judges.
(2) The Land governments may form, by virtue of statutory instruments, special arbitration bodies at the administrative courts to deal with disputes under the present Act and to determine the seat of such bodies. The Land governments may confer this power on other authorities. The arbitration bodies formed pursuant to the first sentence should have their seat close to the relevant reception centres.
(3) The Land governments shall be authorized to issue statutory instruments allocating to a single administrative court legal disputes under this Act which concern the districts of several administrative courts and deal with specific countries of origin, provided this is relevant to the proceedings related to these disputes. The Land governments may confer this power on other authorities.
Section 83a
Notification of the foreigners authority
The court may informally notify the foreigners authority of the result of the proceedings. The court must inform the foreigners authority of the result, if the proceedings deal with the lawfulness of a deportation warning or a deportation order pursuant to this Act.
Section 83b
Court costs, value of the subject matter
Court costs (fees and expenses) shall not be charged in disputes pursuant to the present Act.
Section 83c
Procedure for ordering entry and residence bans and for setting time limits for such bans
The provisions of this Chapter and Section 52 (2), third sentence, of the Code of Administrative Court Procedure shall also apply to appeals against decisions by the Federal Office in line with Section 75 no. 12 of the Residence Act.
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