Germany, Berlin Administrative Court, 1 June 2021, VG 9 K 135/20 A

Case Summary

The judgment concerned the case of an Afghan woman (applicant) who applied for asylum in Germany in May 2019. During her asylum procedure, the applicant was asked to hand over her mobile phone and provide its password. Asylum officers then connected the phone to a specialized computer, which extracted and automatically evaluated certain data, generating a report of the findings. This report contained information on: a) the countries the applicant had communicated with most frequently via calls or texts, b) the languages used in the applicant’s communications, and c) the country codes of the numbers saved in her contact list.

According to §§ 15 and 15a of the German Asylum Law, asylum officers could perform such searches if necessary to verify an asylum seeker’s identity and nationality, provided no less intrusive measures were available. The applicant argued that these provisions were unconstitutional as they violated asylum seekers’ constitutional right to privacy, specifically their right to the integrity and confidentiality of IT systems.

The Court found that the phone search was unlawful because the preconditions of §§ 15 and 15a of the German Asylum Law were not met. The asylum officers would have needed to first utilize less intrusive measures to verify the applicant’s identity and nationality, such as reviewing the official documents submitted by the applicant (Afghan identity card and marriage certificate) or consulting an interpreter regarding the applicant’s language usage. Only if these measures proved unsuccessful could they resort to extracting data from asylum seekers’ mobile phones. However, the Court did not declare the provisions themselves unconstitutional.

Author of the case note

Paul Friedl