Afghan nationals, a mother and her two children, were initially accepted for admission to Germany under the humanitarian admission programme called ‘Human Rights List'. The Human Rights List was adopted with the aim to provide individuals who had put themselves at risk through their activities in society, for example by furthering German interests, and who were thus in danger once the Taliban took power, with a possibility of being admitted to Germany.
In September 2021, the Federal Ministry of the Interior declared to the Federal Foreign Office that the applicants must be admitted to Germany under this programme, pursuant to Section 22(2) of the Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (Residence Act).
After being notified of the admission declarations, the applicants liaised with the Federal Foreign Office and the German Agency for International Cooperation (GIZ). They further travelled to and are currently living in Pakistan. Previously, they lived in women's shelters in Afghanistan. In Pakistan, they receive support from the GIZ, and they submitted their visa applications at the Embassy of the Federal Republic of Germany in Islamabad.
The new governmental coalition formed in 2025 in Germany decided to end the voluntary admission programmes. In December 2025, the Federal Ministry of the Interior declared that the admission declarations issued, amongst other, under the ‘Human Rights List' were ‘invalid and expired'. As a result, the applicants' visa applications were rejected based on the revocation decision and because the prerequisites for visa issuance pursuant to Section 22(2) of the Residence Act ceased to exist. They unsuccessfully contested the rejection of their visa applications before administrative courts. The rejection of their applications for interim protection was confirmed by the Higher Administrative Court of Berlin in judgments of 16 February 2026 and 21 April 2026 on grounds that Section 22(2) of the residence Act did not confer individuals a public right to a visa. The Higher Administrative Court justified its decisions by stating that the provision did not serve to protect and fulfil the fundamental rights of individual foreign nationals, but it reflected the Federation's autonomous exercise of its leeway in foreign policy matters. The court also considered that the revocation decision was a matter for the Federal Government, and thus not subject to judicial review. The Higher Administrative Court also found no grounds for a judicial review of the Federal Ministry of Interior's change of opinion based on the prohibition of arbitrariness. The court explained that the declaration of willingness to accept refugees is merely an internal administrative matter. Similarly, the court considered that a review of the change of opinion by the Federal Ministry of the Interior based on the prohibition of arbitrariness could not be warranted. This is because a declaration of willingness to accept refugees itself is individual in nature, and the reasons of the Federal Ministry of the Interior should be protected, their disclosure being therefore incompatible with the purpose of the law. Accordingly, the court subsequently found that the need for protection remained unchanged even if the original political considerations were followed by altered political considerations. As such, the court asserted that, in a review for arbitrariness, the Federal Ministry of the Interior would, contrary to the purpose of the law, need to first disclose the reasons for its initial willingness to accept refugees before making the subsequent change of opinion comprehensible.
The applicants further challenged the Higher Administrative Court judgments before the Constitutional Court, arguing that there has been a violation of: i) Germany's extraterritorial duty to protect pursuant to Article 2 (2)(1) and Article 3 (2)(1) , in conjunction with Article 1(2) of the Basic Law; ii) the principle of legitimate expectations under Article 2 (1) in conjunction with Article 20(3) of the Basic Law, or under Article 2(2)(1), in conjunction with Article 20, paragraph 3, of the Basic Law; iii) their right to effective legal protection under Article 19(4)(1) of the Basic Law; iv) their right to equal treatment under Article 3(1) of the Basic Law; and v) their right to be heard under Article 103 (1) of the Basic Law.
The applicants emphasised that the denial of visas put them at serious risk and danger due to a high probability of being deported to Afghanistan, where they would face persecution by the Taliban, thus violating their right to life and physical integrity. The applicants claimed that Germany had an extraterritorial duty to protect them by virtue of its declaration of intent to admit them to Germany, which triggered their departure from Afghanistan to Pakistan, followed by support by Germany with housing and living conditions for over a year and a half, pending the visa procedure. The first applicant alleged a particular risk in her personal circumstances because she had been active in human rights work in Afghanistan since June 2016, where she advocated for the protection and strengthening of women's rights. She was joined by other victims of domestic and sexual violence in organising events for the International Women's Day, the International Day of the Girl Child, the Mother's Day, and numerous meetings with other Afghan women to raise awareness and educate about women's rights. The applicant substantiated a particular risk for her life in Afghanistan since the Taliban seized power due to her human rights activism and her personal circumstances. She further claimed that the Higher Administrative Court failed in considering gender-specific danger in a context where the Taliban regime continued to perpetrate gender-based violence against women, reaching a level of humiliating inequality and violating their human dignity.
From the outset, the Constitutional Court noted that the Higher Administrative Court did not infringe specific constitutional law when finding that Article 2(2)(1) jointly with Article 1(2) of the Basic Law did not give rise to a right to visa for entry into Germany on basis of an extraterritorial constitutional duty of protection and cannot be warranted. Also, the court found that the contested decision was correct about the obligation to protect legitimate expectations under the rule of law in so far as it denied a right of the applicants to be issued the requested visas. Same applies for the general principle of equal treatment.
However, the Constitutional Court ruled that the constitutional complaint was well-founded and that the judgment of the Higher Administrative Court of 16 January violated the applicants' rights under Article 3(1) in conjunction with Article 20(3) of the Basic Law. To reach this conclusion, the court found that the lower court failed to recognise the scope of the prohibition of arbitrariness under the rule of law, deriving from Article 3(1) in conjunction with Article 20(3) of the Basic Law.
First, the court reiterated that the executive branch can never have unlimited discretion under the rule of law, even if it has permission for a broad leeway, and remains bound by the principles of rule of law, including the prohibition of arbitrariness.
The court clarified that the executive branch is considered to use its leeway in an arbitrary manner if the decision is not in line with the purpose for which leeway has been afforded, for example if an executive decision is based on irrelevant considerations.
Moreover, the court found that if a law expressly subjects the issuance of residence permits to foreign policy decision, this may mean – in light of the particular rationality of political decisions and in view of the diversity and heterogeneity of conceivable political purposes – that only unlawful or manifestly abusive purposes are to be considered arbitrary. The court further clarified that the executive branch narrows the scope of its generally broad leeway when it exercises this leeway in favour of one specific individual, and this individual is notified accordingly. The court emphasised that a state governed by the rule of law in line with the Basic Law must guarantee human dignity, respect every single human being and must recognise an individual as a legal subject with individual interests. Thus, the court affirmed that the interests of the affected individual must be considered when exercising political leeway.
The court noted that the Higher Administrative Court rightly assumed a broad political leeway and found the Federal Ministry of the Interior's declaration of the admission as ‘invalid and expired' based on its foreign policy character. The court agreed that the lower court could not subject the Ministry's declaration of reversal to a review.
However, the court clarified that, once the admission declaration had been notified to the applicants, the Higher Administrative Court would have had to acknowledge that the revocation decision, in which the Federal Ministry of the Interior exercised its leeway, was objectively arbitrary, on grounds that that decision failed to consider the specific circumstances of the applicants' case. The court reiterated that Germany must therefore admit that the creation of the ‘Human Right List' programme is based on Section 22(2) of the Residence Act – a provision which was specifically designed for decisions in individual cases.
In such a context, the court confirmed that a revocation declaration by the Federal Ministry of the Interior is possible and permissible even after an admission declaration was notified to the affected individual. But, in such a case, it must be evident from the revocation decision that the personal interests of the affected foreign national in the individual case were taken into consideration. The court further clarified that, besides examining whether a decision was made in the specific case, courts are not required to examine – based on the legal criteria of proportionality and reasonableness – whether the political interest or the individual's interests are to be prioritised. In addition, courts are not mandated to assess (political) revocation decisions against potential mistakes in the balancing exercise. Thus, the court affirmed that way in which individual needs are weighed and considered is not within the scope of the judicial review.
Given that, the revocation declaration, a political decision (taken by the government), is subject only to political review. In such a context, the executive branch must take political responsibility for the decision in Parliament and potentially justify it through public debate.
When applying the abovementioned standards to the current case, the court found that, since the applicants were notified of the admission declaration of September 2021, the Federal Ministry of the Interior would be permitted to issue a revocation declaration provided that the applicants' individual needs were duly considered. Against this background, the court found that the blanket revocation by the decision adopted in December 2025 did not meet these requirements because the decision was adopted without taking into account the applicants' specific circumstances.
To conclude, the Constitutional Court ruled that the contested decision must be overturned in so far as the rejection of the requests for interim protection is based on the revocation decision and thereby failed to recognise the scope of the constitutional prohibition of arbitrariness. The court instructed that, in a new decision, the Higher Administrative Court will have to examine whether the Federal Ministry of the Interior's decision on the political interest in admitting the applicants meets the standards set out above.
The court referred the case back to the Higher Administrative Court to decide, possibly by an interim decision, on the requests in which the applicants asked Germany to temporarily continue to support them in Pakistan.
The court subsequently affirmed that the Higher Administrative Court would need to assume a constitutional duty for Germany to support the applicants in Pakistan either until their visas have been issued or until the Federal Ministry of the Interior will issue a revocation decision, compliant with the above standards. In addition, the court stated that Germany will have to liaise with the Pakistani government to request that the applicants will be neither imprisoned nor deported.
The court also emphasised that Germany is prohibited from withdrawing its voluntary support based on an objectively arbitrary revocation declaration which would make the withdrawal of support objectively arbitrary, particularly because this would otherwise render the applicants' right to a non-arbitrary decision meaningless.