Guidance for the implementation of § 42 ABS. 2 Set 5 SGB VIII
Since the 29. July 2017 are the youth offices obliged by unaccompanied minors in certain cases for immediate asylum applicants during the incarceration. This duty requires but, that was determined in an asylum case examination together with the child/adolescent, that there are the conditions for making asylum applications, as well as the personal situation of the child/young person makes the request for asylum at this time. The child / young person is required to participate in this decision. Where these requirements are not, There is according to § 42 ABS. 2 Set 5 SGB VIII no duty of the Youth Office (ASD) for immediate asylum applicants.
Blanket asylum applications without individual examination are not allowed in this context.
Since entry into force of the Act to better enforce of the obligation to exit the 29. July 2017, has the o.g. Change in § 42 SGB VIII led to great uncertainty in the practice. In the standard, It regulates the incarceration in the SGB VIII, was in ABS. 2 Set 5 the commitment of the youth offices added, for unaccompanied accompanying children and adolescents without delay an application for international protection (Application for asylum) to make, If there are facts, justify the adoption of, that the child / young person needed international protection:
"In the case of the paragraph 1 Set 1 Number 3 among the acts to set 4, to which the Youth Welfare Office is obliged, in particular the immediate status of an asylum application for the child or the young people in cases, which justify the adoption facts, that the child or the young person international protection within the meaning of § 1 Paragraph 1 Number 2 needs of the asylum Act; the child or the young person should be involved." (§ 42 ABS. 2 Set 5 SGB VIII)
Ambiguity exists in particular as regards the specific change content of the standard and the question, what consequence arising from this for the youth offices.
The Federal Association this has, already during the legislative procedure amending been critical.1 Because the modified addition includes only a clarification of
Powers and duties, the Youth Office as the legal representation of emergency to secure the
1 Opinion of the Federal Association unaccompanied minor refugees e.V (BumF) on the draft of law to the better enforcement of the obligation to exit from the 14. February 2017 http://www.bUMF.de/images/20170217_Stellungnahme_des_Bundesfachverband_umF_zum_Entwurf_eines_Gesetzes
_zur_besseren_Durchsetzung_der_Ausreisepflicht.PDF [22.08.2017]; Additional commentary of BumF to the Cabinet Bill to better enforce of the obligation to exit from the
22.02.2017, http://www.bUMF.de/images/2017_03_10_Stellungnahme_Fortsetzung_Durchsetzung_der_Ausreisepflicht.PDF, [22.08.2017].
Federal Professional Association unaccompanied minors refugees e.V Paulsen str. 55 – 56T 030 / 82 09 743 – 0 E firstname.lastname@example.org 12163 Berlin F 030 / 82 09 743 – 9 I www.b-umf.de
Child welfare already fall within the framework of the regular incarceration. Now however unclear formulated and ambiguous for practice change, is the proper and the well-being of the child-oriented representation of young people in the asylum- and stay proceedings at risk. So the notion is in many places incorrectly, the addition of modified justify a new duty, immediately and traveled a flat rate for all unaccompanied minors to apply for asylum – regardless of the specific protection sought, the individual (Exits)History and clarification based on the well-being of the child, whether an asylum in the interest of the child/adolescent applciation. The linked here shows this as an example Letter from Baden–Württemberg.
Just this section commits 42 ABS. 2 S. 5 SGB VIII but not. Supreme Maxime is the well-being of the child, next to the individual (Exits)History and the views of the child must be taken into account.
To contribute to the uncertainty in the practice to help and to a uniform implementation, the Federal Association created this following instructions for practice:
1. When is the requirement for asylum applicants
The legal obligation to the immediate position of an asylum application by the Youth Welfare Office (ASD) arises only in the context of the regular incarceration pursuant to § 42 SGB VIII, so after finishing the preliminary incarceration and thus either after delivery to the Youth Office in connection to the distribution procedure or after the display on the exclusion of the distribution procedure for the regular incarceration (section 42a ABS. 6 SGB VIII).
– The obligation of the Youth Welfare Office to the emergency mission, as long as the legal representation by the family court – by ein_e Vormund_in - still not established.
Already during the preliminary incarceration pursuant. section 42a SGB VIII – so before the distribution procedure or. front display on the exclusion of the distribution process – can a commitment to the locally competent youth welfare office already (ASD) arise, an application for asylum or. the necessary to stay secure application to, Although still kein_e Vormund_in has been appointed. This is all legal acts indirectly from the statutory obligation of the youth welfare office as legal representative of the child/adolescent, which are necessary for the well-being of the child or adolescent as well as directly from the legal rationale for section 42a ABS. 3 S. 1 SGB VIII:
"With this rule child protective services public law is obliged and empowered, during the preliminary incarceration to assume the representation of unaccompanied foreign minors, to perform the acts, they are necessary for the well-being of the child or youth. With this obligation to the immediate representation of the unaccompanied minor after the start of the preliminary incarceration measures is short-term the emergency situation of the child or youth and the possible need for securing legal residence Taken into account." (BT-Drucksache 18/5921, S. 24).
2. Condition of the commitment to the immediate submission of asylum
The commitment to the immediate submission of asylum in the context of § 42 ABS. 2 S. 5 SGB VIII requires, that
- Evidence of facts, justify the adoption of, that he/it sucked affected. international protection needs, that therefore the conditions of the granting of refugee status to the type. 1A the Geneva Refugee Convention (§ 3 AsylG) or subsidiary protection within the meaning of the qualification directive (§ 4 AsylG) There are,
- the personal situation of the child/young person admits the asylum application at this time and
- the young man was involved in the procedure for decision making.
In the reverse, this means, that the immediate obligation does not arise, If these requirements are not. Missing expertise of the professionals in the asylum procedure, however, should not be recognised as basic, the asylum request not to put, because the law has imposed the duty to the offices of youth with this standard, the corresponding qualification to hold. It could be a solution here, the specialists of the subject official guardianship, in the asylum- and right of residence are well versed and have experience with the legal representation of unaccompanied minors, to entrust this task to.
Where the requirements are met, must the Youth Welfare Office (ASD) the obligation immediately, so without undue delay, comply with. The question, whether the obligation for immediate asylum applicants by the Youth Welfare Office (ASD) in the context of incarceration at all, so go ahead following inspection steps:
- There are the conditions of the granting of refugee status or subsidiary protection (§§ 3, 4 AsylG)? 
This question is possible only in the asylum- and residence rights clarified qualified people and answered. Is the affected one sucked. safe country of origin, to obtain professional legal advice in any case is so. Can the wrong application for these young people for deportation 18 Years and the (temporary) The re-entry ban.
Based on an application for international protection is also always the individual
The person's escape history. The relevant experienced professionals must therefore in conversations with the young people discuss his escape history and discuss the pros and cons of an asylum application with the young people. That takes time and technical resources.
- Allows the position of an asylum application at the relevant time the personal situation of the child/adolescent?
As a structural principle of the well-being of the child/adolescent must be considered priority in balancing the status of an application in the asylum procedure (§ 42 ABS. 2 SGB VIII).
The physical and/or psychic Constitution of the child/adolescent, the rigors of the procedure and other child welfare must be observed this question concerns and can cause, that the position of an asylum application, Despite the existence of the material, so asylum, Prerequisites, not the best interests of the child is and therefore time must be moved to the rear. Because during the asylum procedure, applicants must provide proof of persecution. This is already a burden for adults. For children and young people, this is not possible according to age and maturity, She u.U. can not capture the scope of the situation and they therefore not believable reflect their tracking. In addition, that through the play of tracking fate children and young people more will be charged as an adult and this can lead to psychological stress.
Is also to bear in mind, that many young people may still need, to cover the required confidence or dlkdfg. traumatic events to report. The explanatory therefore expressly aims, that the correct time of the asylum application depends also on the personal situation of the young people.12
To exclude negative consequences due to a delayed submission of asylum, If this example. is carried out on the basis of existing trauma, could carry out a check with the Federal Office for migration and refugees here in advance (BAMF) be done.
This should however not be without consultation with a
Be lawyer/Attorney at law or a specialist outpatient clinic.
III. Is the child / the young people according to the mandatory statutory requirement involved in the decision about the request for asylum?
Unaccompanied minors are required to participate in the decision on the request for asylum. This means, they need comprehensive importance, Procedures and consequences will be informed. To do this, generally the use of Dolmetscher_innen and Sprachmittler_innen will be required.
- From the practice: Fall constellations, where an immediate
Request for asylum may be required:
To make an application for asylum immediately, may be useful and necessary for the good of the person concerned, If the young person z.B. is timely legal age or the conditions of intra-European family reunification or of the family reunification of parents from a third country are indisputably.
- But here, whatever the concrete individual case is decisive for the concrete decision.
- Not compatible with the well-being of the child-oriented legal representation and thus inadmissible the blanket asylum position for all unaccompanied minor refugees taken into custody - is what has become common practice in some municipalities and counties. The "classification" of the country of origin or of young people to legally noun categories, as the "good" or "bad place"perspective, While it may be useful for the purposes of work organisation, may form but not the basis for the justification of the requirement for the position of an asylum application. Because the one lack these terms of legally binding content and meet on the other hand, in particular any statement about the actual place perspective from people with foreign citizenship or. about the chance of success in an application for asylum.14 The individual escape story of the person concerned, as well as the question must be relevant to the justification of the requirement for asylum applicants, whether this action is his best interest at this time.
4. Obligations in connection with request for asylum by the Youth Welfare Office
Is an application for asylum by the Youth Welfare Office (ASD) set, is it the Organization responsibility of the Youth Welfare Office to entrust the Department / the subject or an expert with the task, the asylum- and stay legally qualified.
It is in particular to ensure, that all cooperation obligations subsequent to the lodging of the application for asylum can be met and the guardian order procedure is passed continuously.
– U.a belongs to the duty to cooperate. to ensure, all the writing of-BAMF immediately delivered the person responsible in the Youth Office, contained herein deadlines, that the current address of the young people is known the a BAMF at any time. Any omissions, not perceived appointments or delay perceived obligations by the legal representative, in this case so the Youth Office, are the responsibility of the young person and may even result in doubt, that the asylum application is considered withdrawn (§ 33 ABS. 1 AsylG).
5. Advanced materials
Aft field, Obligation for asylum applicants during the incarceration - "New" challenge for the youth offices?, The Youth Welfare Office 2017, S. 349-352.
González Méndez de Vigo, in: Brinks and others, Manual unaccompanied minor refugees, Legal framing: Unaccompanied minor refugees in the SGB VIII, 2017, IGfH self publishing, Frankfurt am Main, Germany.
Opinion of the Federal Association unaccompanied minor refugees e.V (BumF) on the draft of law to the better enforcement of the obligation to exit from the 14. February 2017 http://www.bUMF.de/images/20170217_Stellungnahme_des_Bundesfachverband_umF_zum_Entwurf_eines_ Gesetzes_zur_besseren_Durchsetzung_der_Ausreisepflicht.PDF [22.08.2017].
Additional commentary on the Federal Association unaccompanied minor refugees
(BumF) to the Cabinet Bill to better enforce of the obligation to exit from the
Berlin, the 13.09.2017
 At the latest anyway, since entry into force of the law to improve the accommodation, Care for foreign children and young people, CF.. BT-Drucksache 18/5921, S. 24.
 CF.. a total eight field, Obligation for asylum applicants during the incarceration - "New" challenge for the youth offices?, The Youth Welfare Office 2017, S. 349.
 To do this, where González Méndez de Vigo, in: Brinks, etc., Manual unaccompanied minor refugees, Legal framing: Unaccompanied minor refugees in the SGB VIII, 2017, S. 32, 34.
 Convention relating to the status of refugees by the 28.07.1951.
 EU policy 2011/95/EC of the European Parliament and of the Council of the 13. December 2011 standards for the recognition of third-country nationals or stateless persons as persons with
Beneficiaries of international protection, for a uniform status for refugees and persons eligible for subsidiary protection and the content of the protection to be granted to (Recast).
 BT-Drucksache 18/11546, S. 24.
 In particular, u.a. Nerea González Méndez de Vigo, Guardianship for unaccompanied minors
Foreigners/refugees - child specific peculiarities in the immigration process, Topic opinion TG-1161, www.kijup–Online.de, [22.08.2017]; Rieger, Tasks and Possibilities for guardians at the representation of unaccompanied minors in the asylum procedure, The Youth Welfare Office, 2015, S. 118; Espen Horst/Noske, in: Brinks and others, Manual unaccompanied minor refugees, 2017, Asylum- and right of residence, S. 49 FF.
 According to Anl. Section II 29 AsylG are currently: Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, former Yugoslav Republic of Montenegro Senegal Serbia.
 CF.. also eighth field, Obligation for asylum applicants during the incarceration - "New" challenge for the youth offices?, The Youth Welfare Office 2017, S. 349 FF.
 BT-Drucksache 18/11546, S. 24. 12 BT-Drucksache 18/5921, S. 24.
 GGUA refugee aid 2016, Place perspective, Critique of a conceptual bubble, http://www.einwanderer.net/fileadmin/downloads/tabellen_und_uebersichten/bleibeperspektive.pdf [22.08.2017]; Federal Association, Accompany young refugees on the road to an independent life, 2017, S. 27, http://www.b–umf.de/images/BumF–Leitfaden__Junge_Gefl % C3% BCchtete_05_2017.PDF, [22.08.2017]; Aft field, Obligation for asylum applicants during the incarceration - "New" challenge for the youth offices?, The Youth Welfare Office 2017, S. 352. 14 Ebda.