Hi @Ny
The person’s identity can also be clarified with a photo ID. There is a range of different documents that can be accepted to clarify the identity of a person. Different documents provide different levels of credibility. The best and most reliable is a valid passport. However, a valid photo ID is the next best option. After that comes a passport or photo ID that is expired. After that, the authorities may accept other documents with biometric data, such as a student photo ID. At the bottom of the list are documents without biometric data such as a birth certificate, school certificates, marriage certificate etc.
If the person was in the asylum process until June 2020, then I do not see how the identity cannot be seen as clarified. They did not have a passport and during the asylum process a person cannot be expected to make contact with the authorities of their home country to get one. During the asylum process, however, a person is expected to take other steps, such as requesting family members or a lawyer in the home country, to assist in clarifying their identity. This is only necessary if the identity is not clarified and as I wrote above, a valid photo ID is a strong form of proving identity.
If the person had a Duldung before June 2020, then they need to have made clear what steps they took in the time period from the end of the asylum process to June 202. Have these steps been documented and described to the Ausländerbehörde?
Has the Ausländerbehörde formally rejected the application for 16g with a letter called an Ablehnungsbescheid? Or have they written of their intention to reject it while giving the opportunity to respond? This is called an Anhörung.
The Federal Ministry of the Interior is responsible for implementing immigration law. When a new law comes in, it usually issues detailed guidelines for the local Ausländerbehörde on how it is to be implemented. These are called ‘Anwendungshinweise’. They have ones for 16g but when it describes the section on clarifying identity it refers to the Anwendungshinweise for the Ausbildungsduldung. This is because the requirement around clarifying identity is the same for 16g and Ausbildungsduldung.
In the guidelines on the Ausbildungsduldung, it provides clear detail on what I have described above, i.e. what types of documents are suitable and what steps need to be taken at what part of the asylum process. If the person has the opportunity to respond in writing either to an Anhörung or Ablehnung, then I recommend they make reference to these specific sections 60c.2.3.2, 60c.2.3.3 and 60c.2.3.4 (pages 11-13) of the guidelines:
https://***.bmi.bund.de/SharedDocs/downloads/DE/veroeffentlichungen/themen/migration/anwendungshinweise-zum-gesetz-ueber-duldung-bei-ausbildung.pdf?__blob=publicationFile&v=3
If the deadlines to reply/appeal are over, the person can take the case to court. For this, they need to seek legal advice.
Best,
Éanna