Blog post by Dr Valentin Feneberg, Institute of Political Science, Public Policy & Law, Leuphana Universität Lüneburg.

In judicial Refugee Status Determination, German courts increasingly use Assisted Return (AR) programmes to argue against the risk of life-threatening impoverishment in the country of origin—and, consequently, against granting protection. In many cases, courts simply reference the existence of these programmes without assessing their actual effectiveness. By relying on AR programmes to justify asylum rejections and emphasising the ‘voluntary’ nature of return decisions, judges indirectly implement migration policy.

This blog post is based on the paper Money, not protection. Assisted return programmes and the timing of future harm in refugee status determination, published in the Journal of Ethnic and Migration Studies in January 2025 (open access). An earlier draft was awarded the Best Paper Award by the German Network for Forced Migration Studies in 2023.

Assisted Return (AR) programmes have long been framed as a humane and cost-effective alternative to deportation. In addition to counselling services, they include financial support for the person’s return as well as payments to support reintegration in their country of origin. The German REAG/GARP programme (Reintegration and Emigration Programme for Asylum Seekers in Germany/Government Assisted Repatriation Programme) offers monetary assistance in three ways: Travel assistance (tickets and €200 travel money), medical support (a total of up to €2000, available only within the first three months after arrival), and a one-time cash disbursal (€1000 per person, up to €4000 per family). The ‘StarthilfePlus’ programme (‘Start-up assistance plus’) provides additional financial support of up to €1000 per person (up to €2000 per family) half a year after the return. The availability and exact amount depend on the country of origin.

However, these programmes are no longer merely post-asylum measures; they increasingly influence asylum procedures themselves. In Germany, asylum seekers receive return-related information even before applying and are offered financial incentives to forgo an appeal after rejection and leave immediately instead. More strikingly, courts now reference AR programmes as evidence in determining whether a claimant faces life-threatening deprivation upon return. Often overlooked, such deprivation can serve as grounds for protection: Based on Article 3 of the European Convention on Human Rights (ECHR), the prohibition of torture and of inhuman or degrading treatment or punishment, Germany provides a third protection status beyond refugee and subsidiary protection – the ban on deportation (Abschiebungsverbot). This status is granted when the risk of human rights violations arises not from intentional actions by individuals but from severe living conditions in the country of origin. 

To analyse how courts use return assistance in judicial Refugee Status Determination (RSD), I searched the central German case law database ‘juris’ for all asylum decisions on Afghanistan, Iraq, Nigeria, Somalia, Ethiopia and Russia that contained return-assistance-related keywords. For procedures of asylum seekers from these countries, the ban on deportation is a key element in the judicial reasoning. This resulted in a dataset of 346 decisions issued between 2006 and 2024, encompassing rulings from 46 of the 51 administrative courts and 10 of the 15 higher administrative courts. The sample thus captures the interpretative variety of judicial reasoning in German RSD and provides a robust basis for analysing how courts reference AR programmes.

Immediate deprivation and the matter of responsibility

Courts vary in their assessments of the programmes’ effectiveness and apply different standards concerning the timing of future harm. They either argue that only a risk of immediate deprivation warrants protection (imminence requirement), or that long-term reintegration must be taken into account (sustainability requirement). The judicial opinion that the programmes are effective against deprivation, combined with a strong imminence requirement, clearly prevails: courts primarily use AR programmes to justify the rejection of claims, arguing that deprivation upon return is unlikely due to the availability of return assistance. However, rather than conducting a substantive evaluation of their impact on reintegration, courts often take the existence of these programmes as sufficient proof of their effectiveness. Many reference general statements in country of origin information or simply acknowledge the availability of return assistance without further scrutiny.

This superficial approach is further reinforced by the application of a strong imminence requirement. Only a minority of courts argue that protection should only be denied if sustainable reintegration is likely. These courts assume that the impact of AR programmes on long-term reintegration is limited and, as a result, do not consider them sufficient grounds to justify return. By contrast, the majority of courts limit their risk assessment to the immediate post-return period. This approach is based on the legal argument that protection requires a direct causal link between removal and harm, thereby demanding temporal proximity between deprivation and return. Under this reasoning, deprivation must occur “shortly” after return to warrant protection. Consequently, as long as return assistance provides short-term support, the risk of deprivation is considered too remote to justify granting protection.

By taking for granted the effectiveness of AR programmes and applying a strict imminence requirement, courts circumvent the need for deeper fact-finding on the realities of reintegration and the socio-economic conditions faced by returnees. This legal reasoning reduces poverty and socio-economic hardship to temporary obstacles rather than recognising them as structural risks, narrowing the conditions under which international protection is granted.

A strong imminence requirement coincides with the additional requirement that it is the asylum seekers’ responsibility to avail themselves of return assistance to prevent deprivation upon return. Courts expect asylum seekers to take advantage of return assistance, shifting the burden of preventing harm onto the individual rather than the state. This reinforces the argument that claimants must “help themselves” before seeking protection, aligning with the broader policy discourse that emphasises personal responsibility and “voluntariness” in return decisions. According to this, asylum seekers are expected to cooperate in facilitating their own “deportability”; they are even responsible to do so. At the same time, it is not a receiving state’s responsibility to provide protection against life-threatening impoverishment, as long as it provides money to compensate for protection.

Policy implemented by judges

The alignment between the political and judicial understanding of responsibility and voluntariness highlights the close connection between asylum policy and judicial RSD. This connection becomes even more apparent when considering that the original purpose of AR programmes is to provide an alternative to deportation after the asylum procedure. The increasing use of return assistance as an argument in the procedure not only demonstrates how policy measures have effects beyond their initial scope, it also serves the political objective of increasing the number of returnees through return assistance. In this way, policy is indirectly implemented by judges who reference AR programmes to reject asylum applications.

In their written decisions, judges do not acknowledge or critically reflect on their role in extending the enforcement of a policy beyond its original intent. Instead, they approach AR programmes from a legal perspective, using them to assess a claimant’s future situation based on the standards determining when deprivation warrants international protection. For judges, an AR programme is not a policy measure but a piece of evidence. By incorporating it into the legal process, the policy becomes judicialised.

Given the increasing role of AR programmes in asylum decisions, courts must engage in a more thorough and critical assessment of their actual impact. Rather than assuming that these programmes function effectively, judges should evaluate independent evidence on their implementation and long-term effects. However, there is little detailed information on the specific impact of individual return programmes. The only evaluations available on German return programmes have been conducted by the implementing organisations – the Federal Office for Migration and Refugees and the IOM – resulting in a lack of critical, independent perspectives. In contrast, a broad body of academic literature examines the key factors influencing the success of return and reintegration, such as the impact of stigmatisation of returnees and the ambivalent role of social networks, the support via mentoring programmes, and the inclusion of local civil society organisations in the return regime.

Moreover, the dominance of the imminence requirement needs to be reconsidered. When courts limit their assessment to only the short period following return, they can justify their decisions by simply noting the existence of return assistance while disregarding its long-term consequences. International refugee law, however, does not insist that harm must be imminent upon return to be considered. Stemming from a widespread but misleading “event paradigm”, this neglects “slower-onset harms which may present less immediate, but no less serious, risks to human rights” – such as extreme poverty. Deprivation is not an event.

AR programmes have quietly become an element of assessment in asylum decisions. Their use in RSD shifts responsibility from the state to the individual and narrows the chance of protection. While Germany has been at the forefront of embedding return assistance into asylum procedures, similar trends can be observed in other European countries. For instance, the Swiss asylum authority’s manual describes return assistance as a means of “cushioning” situations that threaten a person’s livelihood (p. 16), while in the United Kingdom, the Upper Tribunal references the national Voluntary Returns Scheme in country guidance decisions (p. 7). Understanding how courts use these programmes is crucial for broader debates on migration management and the intersection between policy and judicial decision-making.

A German version of this blog post was published on the Forced Migration Studies Blog of the German Network for Forced Migration Studies.

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