General deterrence is justifiable grounds for the expulsion of foreigners who have committed crimes  

The Federal Administrative Court issued a ruling in Leipzig on 12 July 2018 (Case no BVerwG 1 C 16.17) which addresses the issue of expelling foreigners who have committed crimes on grounds of general deterrence. According to German law, general deterrence can be used as a reason for justifying the government’s demand to expel a foreigner even under the new expulsion legislation in effect since 2016. The law stipulates that a residence permit normally cannot be granted if there is a public interest in expelling a foreigner.

The ruling was made in a case involving a legal action filed by a Nigerian national seeking a residence permit for family reasons. The plaintiff has lived in Germany since 2009. He applied for asylum under a false name and his application was rejected as it was considered clearly unfounded. Since this decision, the plaintiff has remained in Germany because he received temporary suspension of deportation (Duldung). He was issued two monetary fines for repeatedly violating the territorial restrictions of this special status. The plaintiff only revealed his true identity once his German son was born in January 2013, when he submitted his Nigerian passport to the authorities. In April 2013 the Foreigners’ Registration Office refused to issue a residence permit because of his convictions for criminal offences and the identity fraud he had committed over several years. As a result, he has not met one of the general prerequisites for a residence permit under section 5, paragraph 1, no. 2 of the German Residence Act, which stipulates that there cannot be any public interest in expelling the foreigner. The Administrative Court dismissed the plaintiff’s legal action seeking a residence permit. The court held that the government did indeed have an interest in expelling the plaintiff from the country in order to deter other foreigners from committing similar crimes. However, in the plaintiff’s appeal the Higher Administrative Court subsequently ruled that the German state concerned was required to issue the Nigerian national a residence permit. The appeal court held that under the new expulsion legislation, general deterrence alone cannot constitute grounds for refusing a residence permit.

In the subsequent appeal, the 1st Appeals Senate of the Federal Administrative Court came to a different conclusion to the Higher Administrative Court. It determined that even under the new legislation in place since the 1st of January 2016, general deterrence could still justify the government’s interest in expelling a foreigner. The wording of section 53, paragraph 1 of the Residence Act leaves it unclear, because it implies a risk does not have to come directly from the foreigners, but only from ‘their residing’ in the country. Therefore, it is important to take the legislators’ intentions into account; the documentation pertaining to the legislation makes it clear that they wanted to continue to allow justified expulsions for the purpose of deterring other foreigners from committing crimes. The court’s decision confirms that the authorities are allowed to use general deterrence as a reason for justifying their interest in expelling a foreigner for committing crimes, such as identity fraud (see section 54, paragraph 2, number 8 of the Residence Act). However, this interest must exist at the point in time a decision is made in court. Determining if an interest in expelling a foreigner who has committed a crime still exists depends on the time periods laid out in the criminal statutes of limitation (section 78 of the German Criminal Code). Additionally, the federal central penal register also specifies absolute maximum repayment periods relating to the conviction of crimes.

The Federal Administrative Court believed identity fraud still needed to be taken into account in this case. If – as in this case – a foreigner who would not normally be allowed a residence permit (section 10, paragraph 2 of the Residence Act) makes a narrowly defined legal claim to one, he cannot be issued a residence permit for family reasons unless he leaves the country beforehand. For this reason, the Higher Administrative Court’s previous ruling which required the German authorities to issue a residence permit had to be overturned. However, the Federal Administrative Court referred part of the case back to the Higher Administrative Court and instructed the lower court to determine if the plaintiff has a right to reside in Germany under European law. The Higher Administrative Court must still decide if the plaintiff, who now has two German children under the age of 18, is entitled to reside in the country according to case-law established by the European Court of Justice. This could be the case if the children, who live with their mother, are dependent upon the plaintiff, which would mean that if the plaintiff were denied his right to reside in the country, the children would effectively be forced to leave the European Union.

The German Residence Act is available in English from the Juris website

Source: Press release from the Federal Administrative Court. Translated from German into English by Rosa Foyle