The Regional Administrative Court of Berlin dismissed, by decision of 29 December 2025, the request of Afghan nationals, who were admitted to Germany by virtue of a declaration of the Federal Ministry of the Interior in September 2021, under the ‘Human Rights list' programme, to oblige the ministry to issue a visa pursuant to Section 22(2) of the Residence Act and to maintain Germany's previously granted support which included accommodation, food and medical care.
The court justified its decision by the fact that the Federal Government revoked by a general decision adopted on 8 December 2025 all declarations of admissions granted under the ‘Human Rights list' programme. Additionally, the administrative court rejected the applicants' request for free legal aid on grounds that their application for preliminary legal protection lacked sufficient prospects of success.
By decision of 16 January 2026, the Higher Administrative Court of Berlin-Brandenburg rejected the applicant's onward appeal.
By ruling of 22 July 2026, the Constitutional Court overturned the Higher Administrative Court's decision of 16 July 2026 and referred the case back for re-examination.
Consequently, in the current reopening proceedings, the Higher Administrative Court of Berlin-Brandenburg found the applicants' appeal well-founded and granted them the right to free legal assistance and the appointment of a lawyer for the proceedings at first instance. It found that the legal action pursued had sufficient prospects of success and did not appear frivolous.
The court referenced the ruling of the Constitutional Court which found that the general declaration of the Federal Ministry of the Interior, adopted on 8 December 2025, by which it withdrew its willingness to admit refugees, could not deprive Afghan applicants of legal protection pursuant to the principle of legitimate expectations. The court noted though that the initial declaration to admit refugees as notified to foreign nationals extended the scope of Section 22(2) of the Residence Act to these foreigners. In such context, a revocation decision entails a case-by-case assessment of individual circumstances concerning the continuous validity of the commitment to accept refugees. Since administrative courts are bound to find that the Federal Government's general withdrawal declaration of 8 December 2025, adopted under its foreign policy prerogative, is objectively arbitrary, and in the absence of a case-by-case decision, judicial review is limited to the existence of a case-by-case decision.
Against this background, the Higher Administrative Court affirmed that Germany must continue to provide voluntary and practical support to Afghan nationals pending visa proceedings pursuant to Section 22(2) of the Residence Act until either a visa is granted, or until the Federal Government issues a constitutionally compliant withdrawal declaration of its willingness to accept refugees. The court expressed the view that such support is intrinsically linked to the visa procedure and serves the purpose of its implementation. A decision to the contrary would render the right to a decision free from arbitrariness futile.
In view of the abovementioned, the court found that the applicants' initial application for preliminary legal protection had sufficient prospects of success at the relevant time when the application for legal aid was ready for a decision. Thus, the court amended the decision of 29 December 2025 of the Regional Administrative Court of Berlin in the sense that the applicants were granted free legal aid for proceedings at first instance and a lawyer to be assigned to their case.
By referring to the findings of the Constitutional Court, the Higher Administrative Court ruled also that the applicants are entitled to continue receiving support and payments from the Federal Ministry of the Interior.