Germany’s asylum authorities had no right to comb the mobile phone of an Afghan asylum seeker without a passport for clues to their origin – according to the verdict by Germany’s highest judges in administrative law.
In 2019, the Federal Office for Migration and Refugees (BAMF) read the woman’s phone at the beginning of her asylum procedure without first checking her information on nationality with “milder means”. The authority has thus violated the law, the Federal Administrative Court in Leipzig ruled on Thursday.
“The court decided on our client’s individual case, but it corresponds to standard practice,” lawyer Lea Beckmann from the Berlin Society for Freedom Rights (GFF) told DW after the verdict was announced. “Now it has been clearly established that the current practice of the BAMF is unlawful – which means that the BAMF must stop it.”
The Afghan, whose name DW did not publish at the request of her lawyers, sued the BAMF in 2020 with the support of the GFF. In June 2021, an administrative court in Berlin ruled in her favour. But the authorities appealed. The case ended up before Germany’s highest administrative court.
On Thursday, the court supported the Berlin decision. Before they asked the plaintiff to access her cell phone, BAMF employees had to check other documents that she had submitted as proof of her origin – including a marriage certificate or an Afghan identity document. “A corresponding examination by the defendant did not take place at all,” said the presiding judge at the verdict.
The decision from Germany is likely to attract international interest. Around the world, migration authorities are now using similar technologies for asylum applications. In March 2022, a court in Great Britain ruled that British asylum officers had broken the law by taking away cell phones from asylum seekers and downloading data.
At the same time, the fundamental judgment will in all likelihood also have consequences for the practice of the BAMF. “After this decision, it is clear that the BAMF – unlike what it is doing now – must first check other documents and hear those affected before it can read cell phone data,” said Matthias Lehnert, the plaintiff’s second lawyer. “And since there are numerous other means of proving nationality, I assume that the entire practice of cell phone swiping will become obsolete.”
The BAMF declined to comment on the decision before the court published its written verdict. According to the judges, this is expected “in a few weeks”. In the run-up to the hearing, the authority had defended its practice to DW as “of fundamental importance for the security of our country and for the correctness of asylum decisions”.
How the BAMF reads cell phones
Paragraph 15a, which Germany added to its asylum law in 2017, is at the center of the legal dispute. Since then, it has allowed authorities to require asylum seekers to have access to their mobile phones, laptops and tablets if they cannot present a valid passport or ID card and identification “cannot be obtained by less stringent means”. The law does not specify what such “milder means” look like.
The authority uses software for the evaluation. She combs through the devices for clues as to where their owners are and which languages they used when using them. Such digital trails include metadata that records where photos were taken; Country codes of phone numbers that are stored; or languages and dialects found in text messages.
Almost all refugees have a smartphone so that they can find their way around and stay in touch with those they trust
The program then automatically compiles the results in a report. This is kept under lock and key until BAMF lawyers release it. Employees can then access it and incorporate the results into the asylum decision.
So far, the authority has searched over 80,000 devices belonging to asylum seekers, said a BAMF representative during the hearing.
opposition from civil society
Digital rights activists have been criticizing mobile phone evaluations since they were introduced. The spearhead of the movement is the non-profit GFF. In 2019, the organization published a study. She argued that the practice was both ineffective and massively encroaching on the digital privacy of refugees.
A year later, the GFF convinced three asylum seekers from Syria, Afghanistan and Cameroon to use their support to sue the BAMF. The authorities, the refugees argue in three separate lawsuits, gained access to very intimate data on their phones without meeting legal requirements. This constitutes a disproportionate interference with their fundamental right to privacy.
June 1, 2021: On the first day of the hearing after a total of three lawsuits from asylum seekers, the judges decided on the same day
As early as the afternoon of June 1, 2021 – the first day of the hearing in all three trials – the judge upheld the complaint of the Afghan refugees in an inconspicuous courthouse in Berlin-Mitte. The quick decision came as a surprise. On site, the parties involved agreed – against the background that tens of thousands of refugees are affected by the practice – that an appeal would be negotiated directly by Germany’s highest authority in administrative law. Subsequently, the Society for Freedom Rights, together with the plaintiffs from Syria and Cameroon, decided to let the other lawsuits rest until the decision of the Federal Administrative Court.
Since then, 20 months have passed in which the BAMF has not changed its practice because “from the point of view of the Federal Office, the first-instance judgment represented an isolated case,” according to a spokesman for the authority. However, the fundamental decision from Leipzig now puts the BAMF under pressure to act.
What does the Federal Data Protection Commissioner say?
At the same time, the judgment will also affect another GFF complaint, which runs separately from this procedure but could also lead to the end of the mobile phone evaluations in their current form. In early 2021, the organization had the Federal Commissioner for Data Protection and Freedom of Information asked to review the practice. His authority could instruct the BAMF directly to change or completely stop its mobile phone evaluations.
Two years later, however, there is still no response – a period of time that lawyer Beckmann calls “disappointing”.
Christoph Stein, a spokesman for the authority, confirmed to DW in the run-up to the hearing that the case was “not yet closed”. His authority wants to wait for the pending decision of the Federal Administrative Court and “take it into account in their further action”.
After the verdict was announced, Beckmann said she expected the authority to “certainly wait for the written verdict with the exact reasons for the decision”.
“But after that there is no longer any reason for the federal commissioner to wait any longer,” she emphasized. “We hope that he will take action soon.”
The article was first published on 02/14/2023 and updated on 02/16/2023 after the decision of the Federal Administrative Court.