The case concerned a request made by a non-governmental organisation which requested the BAMF to have access to the Upper Bavaria reception facilities and its ‘logs of refugees’ in order to provide advice to asylum applicants. The BAMF has stated before the administrative courts that it had no issue to provide access to persons in order to provide advice if those applicants were specifically asked for advice, similar as for the mandated lawyers. In the first instance, the administrative court partly allowed an unmandated access to the premises and to the logs. However, the BAMF argued that the NGO cannot claim an unmandated access right that was not provided under national legislation nor derived from Article 18 par.2 letter c of the recast APD. According to BAMF arguments, the right to access as provided in the directive is conditional of a prior authorisation/request by an asylum applicant.

The Federal Administrative Court rejected the appeal submitted by the NGO. It concluded that the asserted right to access is not provided nor under national law neither in the recast APD. The court also mentioned that based on the revised Section 12a AsylG as of 1st January 2023, the counselling, although state funded, will be provided independently from the authorities but it does not include the possibility for these providers to access the reception facilities without prior mandates.

The court emphasised that the NGO cannot claim that such a right derives from previous administrative practice in connection with the principle of protection of legitimate expectations or from the requirement of equal treatment with other organizations with access rights because neither the recast APD or Article 18 (2)(c) RCD do not grant legal advisers and NGOs a right to access reception facilities without prior authorisation by an asylum seeker. The access of legal counsel or consultants and relevant national and international organisations to help the applicants as provided by the aforementioned legislation, presupposes the desire for advice previously expressed by a specific asylum seeker without adding unreasonable difficulties in the provision of such counselling. The NGO does not have the right to a new decision on his access request because the negative BAMF decision, on basis of the access practice justified by a need for safety and security of the asylum seekers accommodated in a reception facility, among other things, did not show any error of judgement.