Foreigners who have been granted subsidiary protection as their final status, and as such are not entitled to family reunification, do not have a legitimate interest in taking legal action for the additional ascertainment of meeting the preconditions for being issued a national ban on deportation, which would make it easier to meet the requirements for family reunification. This was the ruling of the Federal Administrative Court in Leipzig in its judgment from 19 April 2018 (BVerwG 1 C 29.17) in a leapfrog appeal filed by the plaintiff in December 2017, which bypassed the lower appeals court.
The plaintiff was a mother and her son who are Eritrean nationals. The plaintiff’s husband had deserted the military in Eritrea. The Federal Office for Migration and Refugees (BAMF) granted the plaintiffs subsidiary protection status, but rejected other aspects of their asylum applications. BAMF also refused to grant them a deportation ban. The Administrative Court dismissed the plaintiff’s claim for refugee status or for the alternative, a national ban on deportation. The court concluded the plaintiff was indeed facing a threat of extrajudicial and arbitrary detention by the Eritrean state at the time she and her son left their country and they would again face this threat in the event they returned to Eritrea. However, the court also believed this type of detention did not constitute grounds for persecution due to their political convictions or belonging to a particular social group. The court also found that the defendant (The Federal Republic of Germany) does not have a duty to establish a national ban on deportations to Eritrea.
The Federal Administrative Court dismissed the plaintiff’s appeal. In its opinion, the Administrative Court had assessed the facts and circumstances surrounding the plaintiff’s case for her persecution and the Eritrean authorities’ motivation for persecuting her in a binding manner without violating federal law, and it determined that the looming threats faced by the plaintiff are not one of the recognised reasons for persecution set out in the Geneva Convention on Refugees. The appeals court had no objections to honouring the previous decision of the lower court. After the lower court had fully considered and weighed all the circumstances and their significance, it concluded it was not very likely that the Eritrean state would attribute opposing political beliefs to all military service deserters and conscientious objectors, and their family members, without there being other indications that this was the case. Nor was it likely that the Eritrean authorities would seek to punish them as a result. According to the Administrative Court’s findings, the threat of detention that the plaintiff faces as the wife of a deserter has nothing to do with belonging to a particular social group; deserters’ families are not considered a social group, even if they are under threat.
With regard to the plaintiff’s alternative action to oblige the defendant, the Federal Republic of Germany, to issue her and her son a national ban on deportation status in accordance with section 60, paragraph 5 of the Residence Act (Aufenthaltsgesetz) in conjunction with article 3 of the European Convention on Human Rights, the action does not have the required legitimate interest to proceed. Granting a plaintiff a national ban on deportation would not improve his/her legal status with respect to being awarded subsidiary protection status because it would not give him/her any legal or real advantage. The additional declaration of a national deportation ban would specifically not give the husband an opportunity to join his wife and child in Germany. Section 104, paragraph 13, sentence 1 of the Residence Act currently generally excludes foreigners with subsidiary status who have been issued a residence permit under section 25, paragraph 2, sentence 1 (second alternative) from being entitled to family reunification. This section in effect also suspends family reunification for foreigners who in individual cases have been granted a national ban on deportation, and as a result, have been issued a residence permit under section 25, paragraph 3 of the Residence Act.
Source: Press release from the Federal Administrative Court. Translated from German into English by Rosa Foyle