The Regional Administrative Court of Cologne allowed the appeal submitted by a Nigerian asylum applicant, finding that the collection and storage of personal data by the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) from security interviews conducted in Malta was unlawful.

The applicant arrived in Malta in January 2019, and Germany agreed to take over his case from a group of migrants with whom he arrived in Malta. The Federal Office for the Protection of the Constitution conducted security interviews in Malta, following which Germany decided to no longer take over the applicant for conducting the asylum procedure. The applicant requested information about the personal data collected and complained that the collection and storage were unlawful.

In its reasoning, the Regional Administrative Court of Cologne held that the fact of questioning the applicant in Malta constituted an intrusion on his right to informational self-determination, as provided by the German Basic Law. The court found that such intrusion was deprived of a legal basis, lacked authorisation and questioned the competence of the Federal Office for the Protection of the Constitution to act on behalf of the Federal Office for Migration and Refugees (BAMF). It affirmed that this body did not have a statutory power to intervene, and that the questioning was not allowed even if the applicant gave his consent. The court emphasised that the decisive factor to assess the applicant’s consent under the data protection law was the circumstances under which the consent was given, since these circumstances were characterised by a disproportion from the relationship of superiority exercised by the respective authority and the subordination of the applicant, thus there was no voluntariness in this process.

The court allowed the appeal due to its fundamental importance and the case will be further decided by the Higher Administrative Court in Münster.