What right to privacy do asylum seekers have? The Federal Administrative Court could announce a landmark judgment this week.
Since 2017, German authorities have been able to ask asylum seekers to access their mobile phones in certain cases
How does Germany handle the protection of asylum seekers' data? That's the crucial question in an ongoing court case that could come to a verdict as soon as this week.
On Thursday, judges at the Federal Administrative Court in Leipzig will discuss whether Germany's asylum authority, the Federal Office for Migration and Refugees (BAMF), broke the law in 2019: Employees combed the mobile phone of an Afghan asylum seeker without a passport for clues to her origin .
“The court decides on a case-by-case basis, but what happened to our client is standard practice,” lawyer Lea Beckmann from the Berlin Society for Freedom Rights (GFF) told DW.
The woman, 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. According to the chamber, the BAMF had acted unlawfully when it searched her mobile phone without first checking her identity using “milder means”.
But the authorities appealed. The case ended up before Germany's highest administrative court. The Senate could announce its verdict as early as this week – and either back the Berlin decision or overturn it.
The Federal Administrative Court in Leipzig is Germany's highest authority in administrative law
The decision of the German judges 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 violated existing law when they almost 2000 asylum seekers had taken their mobile phones and downloaded data.
The BAMF itself defended its practice in the run-up to the hearing. “The clarification of identity and nationality by reading mobile data carriers from asylum seekers who cannot present any identity documents is of fundamental importance for the security of our country and for the correctness of asylum decisions,” a spokesman for the authority wrote to DW on request /p>
According to lawyer Beckman, however, a verdict could have far-reaching consequences: “Should the Senate agree with the Berlin court in its reasoning, that would mean that the BAMF would no longer be allowed to evaluate the mobile phones of refugees if it did not first soften all others has exhausted measures available to the authority to check information on nationality.”
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 access their mobile phones, laptops and tablets if they cannot present a valid passport or ID card and identification “cannot be obtained by less severe means”. The law does not specify how 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 used in text messages.
Almost all refugees have a smartphone to find their way around during the flight and to keep in touch with loved ones
The program then automatically compiles the results in a report. This will be kept under lock and key until BAMF lawyers release it. Employees can then access it and incorporate the results into the asylum decision.
According to the BAMF, between 2018 and 2021 the office searched over 47,000 devices belonging to asylum seekers. According to a BAMF spokesman, the evaluations are necessary “to ensure a high-quality and safe asylum procedure”. At the same time, he emphasized that they are only one of many instruments in the asylum procedure preparing for the hearing and thus helping to place the asylum decision on a broader and better basis.”
Headwind 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. The organization published a study in 2019. 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.
1. June 2021: On the first day of the hearing after a total of three complaints from asylum seekers, the judges decided on the same day
Already on the afternoon of June 1, 2021 – the first day of the hearing in all three trials – in an inconspicuous courthouse in Berlin-Mitte, the judge granted the complaint of the Afghan refugees. 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 a revision would be negotiated directly by Germany's highest authority in administrative law. The Society for Freedom Rights then decided, together with the plaintiffs from Syria and Cameroon, to let the other lawsuits rest until the Federal Administrative Court made its decision.
Twenty months have passed since then. The BAMF has not changed its practice, said a spokesman: “From the point of view of the Federal Office, the first-instance judgment represented an isolated case.”
What does the Federal Data Protection Commissioner say?
The upcoming decision in Leipzig could have more legal explosive force. “The Federal Administrative Court will deal with the question of whether the relevant paragraph in the Asylum Act is a sufficient legal basis for the BAMF's action,” says Carsten Tegethoff, spokesman at the Federal Administrative Court of DW: “In this respect, the procedure is of fundamental importance.”
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. At the beginning of 2021, the organization asked the Federal Commissioner for Data Protection and Freedom of Information to review the practice. His authority could directly instruct the BAMF to change or completely stop its mobile phone evaluations.
Ulrich Kelber is Germany's Federal Data Protection Commissioner
Two years later, however, there is still no response – a period of time that lawyer Beckmann calls “disappointing”.
Christoph Stein, a spokesman of the authority, DW confirmed that the case “is not yet closed” . His authority wants to wait for the pending decision of the Federal Administrative Court in order to “consider it in their further action”.
All attention is now focused on the judges in Leipzig.