On November 22, 2022, the Court of Justice of the European Union issued a decision on the impact of an illness on the issuance of a return decision. The decision does not have a significant impact on the system of German law, which distinguishes between the power to issue a deportation order and the possibility to suspend deportation.
The ECJ ruled that Euprean Law precludes a Member State from issuing a return decision against or deporting a third-country national who is suffering from a serious illness, if there are serious grounds, confirmed by facts, for believing that the return of the third-country national would expose him or her to a real risk of a substantial reduction in his or her life expectancy or of a rapid, substantial and irreversible deterioration in his or her state of health.
Initially, the "or" in the sentence indicated that the Member State has a choice between issuing a deportation order or merely suspending removal. Initially, the "or" in the sentence indicated that the Member State has a choice between issuing a threat of removal or merely suspending removal. However, the reasoning makes it clear that an illness that exceeds the materiality threshold of Article 3 ECHR already precludes the issuance of a return decision, i.e. the issuance of a threat of deportation. The "or" obviously has the purpose of ensuring that no deportation may take place even in cases in which a return decision has already been issued prior to an illness. Significant illnesses are thus to be taken into account in the entire procedure from the issuance of the return decision to the deportation.
In practice, however, the decision has little impact:
Insofar as the foreigner is threatened in his country of origin with an actual danger of a considerable shortening of his life expectancy or a rapid, considerable and irreversible deterioration of his state of health, which would be associated with severe pain, this country of destination is to be excluded from the deportation order pursuant to Section 59 (3) sentence 2 of the Residence Act. This is because both the Federal Office for Migration and Refugees and the foreigners authority must take into account the prohibition of deportation under Art 3 ECHR/Art 4 Charter of Fundamental Rights. The legal requirement to exclude the destination state is sufficient to meet the requirements of the Court of Justice of the European Union. It is not necessary that the deportation order is completely omitted.
