Law to improve the accommodation, care and care of foreign children and young people

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Basic data
Title: Law to improve the accommodation, care and care of foreign children and young people
Type: Federal law
Scope: Federal Republic of Germany
Issued on the basis of: Art. 74 para. 1 nos. 4, 7 GG
Legal matter: Youth welfare law , immigration law
Issued on: October 28, 2015
( BGBl. I p. 1802 )
Entry into force on: November 1, 2015
GESTA : I010
Weblink: Text of the law
Please note the note on the applicable legal version.

The law to improve the accommodation, care and care of foreign children and adolescents of October 28, 2015 is an article law with which in particular the taking into care of unaccompanied foreign children and adolescents after their entry in the eighth book of the Social Code (SGB VIII) with effect from 1. November 2015 was changed.

Since then, unaccompanied minor refugees (umF) have been distributed within the federal states just like adult refugees according to the Königstein key , so that all youth welfare offices in Germany are entrusted with the care of umF. If previously unaccompanied underage refugees were taken into custody at the place of arrival (and connection assistance was granted there) and the costs were distributed afterwards, the young people are now - after a clearing phase - distributed nationwide.

Taking into care was preceded by a procedure for provisional taking into care by the youth welfare office in Sections 42a ff. SGB VIII.

Content overview

Amendment to Book Eight of the Social Code

Change of other laws

The procedural legal capacity to act has been abolished in Section 80 of the new version of the Residence Act for underage foreigners who have reached the age of 16. Since then, all foreigners who are not yet of legal age require a legal representative . The capacity to act according to the Nationality Act for persons who have reached the age of 16, however, was retained in Section 37 of the StAG new version.

Two-stage distribution process

The provisional taking into care begins with a clearing procedure by the youth welfare office at the place where the child or adolescent is “picked up” or when he or she reports himself. In a second step, a decision is made about its distribution to a federal state and its final taking into care there.

Clearing process

As soon as the unaccompanied entry of a foreign child or young person to Germany is determined, the youth welfare offices are entitled and obliged to take temporary care into care (Section 42a, Paragraph 1, Sentence 1 of Book VIII of the Social Code). In order to relieve the youth welfare offices close to the border, various federal states have decided to take temporary care in accordance with Section 88a, Paragraph 1 of Book VIII of the Social Code created special regional offices. In North Rhine-Westphalia and Baden-Württemberg, these are the state youth welfare office , in Brandenburg a state distribution center and in Bavaria the state commissioner for the reception and distribution of foreign refugees and foreigners who have entered the Zirndorf central reception center .

Independent providers can also be involved in accommodation in a suitable facility, with a suitable person or other form of housing ( Section 76 of Book VIII of the Social Code).

The youth welfare office has to assess whether the implementation of the distribution procedure and thus the change of place of residence, both in terms of physical and psychological stress, leads to a child's welfare endangerment and to a possible exclusion from distribution (Section 42a (2), Section 42b (2)) . 4 SGB VIII).

In particular, the possibility of family reunification with relatives in Germany such as parents or siblings as well as the state of health of the child or adolescent must be examined (Section 42a, Paragraph 2, No. 2 and No. 3, Paragraph 5, Clause 2 of Book VIII of the Social Code).

Since, according to Section 2, Paragraph 3, No. 2, Section 7, Paragraph 1 and No. 2 of Book VIII of the Social Code, only children and young people may be temporarily taken into custody, minority is not a prerequisite for the beginning, but for the continuation the (provisional) taking into care and for a distribution according to § 42b SGB VIII. § 42f SGB VIII contains more precise specifications for the procedure for determining the age .

The youth welfare office is entitled to represent the unaccompanied foreign minor during the provisional taking into care. However, the referral youth welfare office must arrange for a guardian or carer to be appointed as soon as possible in the event of final taking into care ( Section 42 (3) sentence 4 of Book VIII of the Social Code).

Depending on the result of the clearing process, the youth welfare office either takes care of the placement within the framework of a distribution procedure or excludes the child or young person from the distribution (Section 42a, Paragraph 2, Sentence 2, Section 42b, Paragraph 4 of Book VIII of the Social Code).

Allocation Process

If the child or young person is to be accommodated as part of a distribution procedure, the body responsible under state law must register the child or young person for distribution with the Federal Office of Administration . The Federal Office of Administration then determines the federal state that is obliged to accept admission (Section 42b, Paragraph 1, Sentence 1, SGB VIII) according to certain admission quotas. So far, the federal states have not reached an agreement that deviates from the Königstein key (Section 42c (1) SGB VIII). The agency responsible in the host country for the distribution of unaccompanied foreign children or young people in turn assigns the child or young person to a youth welfare office in his or her area for permanent care in accordance with Section 42 (1) Sentence 1 No. 3 of the Book of Social Code VIII (Section 42b, Paragraph 3 of the SGB VIII).

With the handover of the child or young person to the youth welfare office responsible on the basis of the allocation decision, the temporary taking into care ends (Section 42a, Paragraph 6, SGB VIII).

In order to ensure that the distribution is carried out smoothly for reasons of the best interests of the child, both decisions cannot be contested (Section 42b (7) sentence 1 SGB VIII, Section 68 (1) sentence 2 Case 1 VwGO) nor does the action have suspensive effect (Section 42b ( 1)) . 7 sentence 1 SGB VIII, § 80 Abs. 2 Nr. 3 VwGO).

The receiving youth welfare office is obliged to submit an asylum application for the child or young person without delay ( Section 42 (2) sentence 5 SGB VIII).

The transitional regulation of Section 42d of Book VIII of the Social Code was intended to offer federal states in which only very few unaccompanied foreign minors had been admitted, the opportunity to provide suitable first aid, socio-educational support and, if necessary, therapeutic assistance for children or young people who are physically and psychologically stressed create.

Official procedure for determining age (§ 42f SGB VIII)

At the request of the person concerned or his representative or ex officio, the youth welfare office must arrange for a medical examination to determine the age in cases of doubt.

The investigation requires the consent of the person concerned. If the clarification of the facts is made considerably more difficult by a refused consent and it has not been proven whether the person concerned is a child or adolescent within the meaning of youth welfare law ( Section 7 (1) No. 1 and No. 2 SGB VIII), the youth welfare office can, however Failure to take into care because of a violation of the duty to cooperate under social law ( Section 42f (2) sentence 4 SGB VIII, Section 62 , Section 66 SGB ​​I ). The youth welfare office has to decide on this at its own discretion . The refusal of the person concerned alone does not reflexively lead to the assumption of majority and the loss of all corresponding protective rights of minors.

With regard to the procedure and choice of method, there is so far no uniform legal regulation in Germany. A graduated procedure is required in the federal states of Hamburg and Bavaria. If a safe non-medical age determination is possible, a decision is made on the basis of this information; otherwise a medical age determination will be ordered.

The federal work group for state youth welfare offices has developed a recommendation for the official procedure for determining age . If the minority cannot be determined on the basis of identification documents, the age should be assessed by means of a "qualified inspection". In addition, the youth welfare office should avail itself of other possibilities, such as the use of any documents or other evidence, information of any kind or hearing of those involved ( Section 21 of the Social Code Book X ). Appropriate evidence may also include an age estimate based on external physical characteristics, a physical examination and also an X-ray of the hand and collarbones and a dental examination of the dental status. The medical examination is to be carried out by qualified medical professionals using the gentlest and, as far as possible, most reliable methods and, if the legislature wishes, a genital examination is excluded.

In view of the cost of around 1500 euros per test, an X-ray examination is rarely arranged in the practice.

Age determination is not independently actionable procedural act . Objections and lawsuits against the decision of the youth welfare office to refuse or end the care based on the age determination have no suspensive effect ( Section 42f (3) SGB VIII).

The age assessment by the youth welfare office is not binding on third parties, for example the immigration authorities. A binding effect was rejected in the legislative procedure, since such a preliminary examination would lead to delays in the proceedings at the immigration authorities and could be used in this sense. However, the status of an unaccompanied minor foreigner can only be determined uniformly in the asylum and youth welfare procedures.

statistics

Provisional and regular taking into care according to §§ 42, 42a SGB VIII after unaccompanied entry of foreign children and young people in numbers:

year number
2010 2,822
2011 3 482
2012 4,767
2013 6 584
2014 11 642
2015 42 309
2016 44 935
2017 22 492

Distribution to the federal states (as of December 31, 2015):

state Actual number Königstein key in% Fulfillment of the admission quota in%
Baden-Württemberg 6 281 12.9 71.9
Bavaria 15 789 15.5 149.9
Berlin 4 062 5.0 118.5
Brandenburg 1 345 3.1 64.7
Bremen 2 562 1.0 394.4
Hamburg 2 601 2.5 151.5
Hesse 6 860 7.4 137.3
Mecklenburg-Western Pomerania 984 2.0 71.4
Lower Saxony 4 911 9.3 77.6
North Rhine-Westphalia 12 388 21.2 86.0
Rhineland-Palatinate 2 142 4.8 65.2
Saarland 1 299 1.2 156.6
Saxony 2 191 5.1 63.5
Saxony-Anhalt 832 2.8 43.3
Schleswig-Holstein 2 569 3.4 111.2
Thuringia 1,067 2.7 57.7

literature

  • Henriette Katzenstein, Nerea González Méndez de Vigo, Thomas Meysen: The law to improve the accommodation, care and care of foreign children and young people. A first overview . In: The youth welfare office . No. 11 , 2015, p. 530-537 ( kiwa-umf.de [PDF; 194 kB ; accessed on February 19, 2019]).

Web links

Individual evidence

  1. ↑ Reinhard Wiesner : Law to improve the accommodation, care and care of foreign children and adolescents SGB ​​VIII, child and youth welfare, supplementary comment December 2015, introductory no. N 5
  2. ↑ Youth welfare services for unaccompanied minor refugees Scientific services of the German Bundestag , August 27, 2018
  3. ↑ cf. Report on the situation of unaccompanied foreign minors in Germany. Information by the Federal Government. BT-Drs. 19/4517 of September 20, 2018
  4. ↑ Amendment to § 80 AufenthG of November 1, 2015 buzer.de, accessed on February 15, 2019
  5. ↑ cf. Federal working group for state youth welfare offices : Recommendations for action on dealing with unaccompanied minors: distribution procedures, youth welfare measures and clearing procedures 2nd updated version 2017
  6. ↑ Fifth law for the implementation of the Child and Youth Welfare Act (5th AG-KJHG) of December 8, 2015, GV. NRW. 2015 p. 832; Section 19a Child and Youth Welfare Act for Baden-Württemberg (LKJHG)
  7. ↑ Accommodation, care and support for unaccompanied minor foreigners in Brandenburg Information from the Ministry of Education, Youth and Sport, November 2017
  8. ↑ § 133a Ordinance on the Implementation of Social Laws (AVSG) of December 2, 2008 (GVBl. S. 912, 982)
  9. ↑ Reinhard Wiesner : Law to improve the accommodation, care and care of foreign children and adolescents SGB ​​VIII, child and youth welfare, supplementary comment December 2015, § 42a marginal no. N 9
  10. ^ Draft of a law to improve the accommodation, care and care of foreign children and young people BT-Drs. 18/5921 of September 7, 2015, p. 24
  11. ↑ Reinhard Wiesner : Law to improve the accommodation, care and care of foreign children and adolescents SGB ​​VIII, child and youth welfare, supplementary comment December 2015, § 42b marginal no. N 9
  12. ^ Draft of a law to improve the accommodation, care and care of foreign children and young people BT-Drs. 18/5921 of September 7, 2015, p. 27
  13. ^ Draft of a law to improve the accommodation, care and care of foreign children and young people BT-Drs. 18/5921 of September 7, 2015, p. 27 f.
  14. ↑ Bavarian State Ministry for Labor and Social Affairs, Family and Integration: Orientation framework for emergency and transitional solutions for the accommodation of unaccompanied minors October 20, 2014
  15. ↑ Medical age estimate for unaccompanied young refugees . ( Memento of the original from January 7, 2018 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 268 kB) In: Central Ethics Committee . September 30, 2016. @1@ 2Template: Webachiv / IABot / www.zentrale-ethikkommission.de
  16. ^ Recommendation for a resolution and report by the Committee on Family, Seniors, Women and Youth (13th Committee) BT-Drs. 18/6392 of October 14, 2015, p. 21
  17. ^ Eva Britting-Reimer: Age determination in Germany and in a European comparison . (PDF; 1.6 MB) Publication by the Federal Office for Migration and Refugees (BAMF), February 2005.
  18. ↑ Philip Kuhn: The chaos in the age determination of refugees. In: The world . January 4, 2018, accessed February 2, 2018 .
  19. ↑ Recommendations for action on dealing with unaccompanied minors. Distribution procedure, youth welfare measures and clearing procedure 2nd updated version 2017, p. 36 ff.
  20. ↑ BT-Drs. 18/6392 of October 14, 2015, p. 21
  21. ↑ Rainer Woratschka: Refugees in Germany: Medical Association rejects general age tests for asylum seekers Der Tagesspiegel , January 2, 2018
  22. ↑ Kepert in: Kunkel / Kepert / Pattar, Social Code VIII , 6th edition 2016, § 42f Rnr. 8th
  23. ↑ BT-Drs. 18/6392 of October 14, 2015, p. 20
  24. ↑ VGH Munich, decision of July 5, 2016 - 12 CE 16.1186
  25. ↑ Federal Statistical Office : Provisional protective measures for children and young people: Germany, years, reason for the measure. Retrieved February 20, 2019.
  26. ↑ Federal Association of Unaccompanied Minor Refugees : Figures on unaccompanied minor refugees: Existence, distribution, quota fulfillment and parental reunification Press release, January 29, 2016
  27. ↑ below 100 = under-performance of the quota; over 100 = quota overachievement