Decisions of the Court of Justice of the EU raise doubts as to whether the German legal situation, according to which a deportation order, which constitutes a return decision under the Return Directive (Directive 2008/115/EC), can be issued irrespective of possible domestic prohibitions on deportation, is compatible with EU law.
The separation made in German law between the issuance of a deportation order and the procedure for granting a toleration pursuant to Section 60a (2) of the Residence Act is under scrutiny under EU law after the Federal Administrative Court referred this issue to the Court of Justice of the EU on June 8, 2022 (BVerwG 1 C 24.21).
Recent decisions of the Court of Justice of the EU (especially the judgments of January 14, 2021 - C-441/19, TQ - and of March 11, 2021 - C-112/20, M. A. -) raise doubts as to the conformity of Section 59 (3) sentence 1 AufenthG with Union law. According to these decisions, it seems conceivable that Art. 5 of the Return Directive mandatorily leads to the fact that already in the context of issuing a deportation order, a concrete-individual consideration of the welfare of the child, family ties or health impairments must take place. Shifting this question via Section 59 (3) sentence 1 of the Residence Act to the temporary suspension of deportation pursuant to Section 60a (2) of the Residence Act would not be consistent with EU law in this case.
The Court of Justice of the EU has emphasized several times in the aforementioned decisions that the family ties and the best interests of the child must be taken into account before issuing a return decision, i.e. also a deportation order. The competent national authority must therefore give due consideration to the best interests of the child and family ties even if it intends to issue a deportation order.
In practice, this case law means that in all proceedings in which deportation orders are issued, the best interests of the child, family and health reasons must be asserted; this also applies in asylum proceedings before the Federal Office for Migration and Refugees.