According to the final court decision issued in the case, the Federal Office for Migration and Refugees (BAMF) is not allowed to assess any information held on the cell phones of asylum seekers -- unless they have a good reason to do so. 

In practice this means that the BAMF can only resort to using cell phone information, if other available findings and forms of documentation are not sufficient, as ruled by the Federal Administrative Court in Leipzig.

The five federal judges rejected an appeal lodged by BAMF against a judgment of the Administrative Court of Berlin dating June 2021, essentially confirming the Berlin judgment. 

Cell phone data has been used by BAMF in the past to evaluate the identity of asylum applicants, especially when the documents they supply are not internationally recognized.

The implicit expectation is that if someone were to assume a fake identity, it would be revealed by analyzing private communications and interactions on the phone.

Between 2018 and 2021, BAMF searched over 47,000 devices belonging to asylum seekers, according to data provided to DW by BAMF.

Read more: German court to decide over phone searches of asylum seekers

Private data not necessary to prove identity

The court case arose after an Afghan woman born in 1977 had entered Germany and applied for asylum in 2019. To assess her case, BAMF had ordered the woman to give them access to data on her cell phone and also to the device itself. 

The data on the cell phone was transferred to a computer so that data held on the device could be copied over to BAMF for assessment. Authorities use software to scan the data for clues about where the phones have been. Such digital evidence includes location metadata attached to photos, country codes of numbers saved on the phone, or the language used in text messages.

The program automatically compiles results in a report, which can then factor in when a decision to reject of grant asylum is passed. In August 2021, BAMF rejected the woman's asylum application. She then filed a complaint with the Administrative Court of Berlin.

"In the case of the plaintiff, according to the binding findings of the Administrative Court, milder means, and therefore means to be used primarily by the Federal Office, were available to obtain further circumstantial evidence to establish identity and nationality," said the presiding judge of the First Senate, Robert Keller. 

"The cell phone also doesn't tell you whether someone is of Afghan nationality," he added.

The judges in the case also explained that generally speaking, the evaluation of digital data to determine the identity and nationality of a foreigner is only permissible if the purpose of the measure cannot be achieved by milder means, which do not involve such major interference with a person's private life.

Read more: UK seeks scientific methods to determine asylum seekers' age

'Disproportionate' measures

As examples of such milder means that would have been available to the BAMF in this particular case, Keller cited Afghan marriage certificates (known as tazkiras) as well as an inquiry with the language mediator about linguistic anomalies, which might show if someone claimed to be from one part of a country but didn't speak the local dialect. 

"Thus, the request directed by the Federal Office to the plaintiff to provide her access for the evaluation of her cell phone proved to be disproportionate and therefore unlawful," Keller said.

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