In its judgment from 19 November 2013 (BVerwG 10 C 27.12), the 10th Senate of the German Federal Administrative Court decided that a foreigner’s refugee protection status can be revoked by the Federal Office for Migration and Refugees (BAMF) even in cases where the status was granted on the basis of a legally binding court decision, if the court was misled about a main aspect of the refugee’s story about being persecuted.
The plaintiffs in the case were a mother and her two sons who applied for asylum under a false name in 1998. She untruthfully claimed they were Syrian Orthodox Christians from Turkey and were being persecuted there. BAMF initially denied their asylum applications, but was obliged to grant the woman and her children refugee protection status because of a legally binding decision issued by the Administrative Court. Ten years later it was discovered that the woman and her children were Armenian nationals, they had never lived in Turkey and were not being persecuted in Armenia. The Federal Office for Migration and Refugees (BAMF) subsequently revoked their refugee protection status. The Administrative Court ruled in favour of BAMF, but an appeal was filed, and the Higher Administrative Court reviewed the case. This court was of the opinion that it was not possible for BAMF to revoke their status because it was based on a legally binding judgment, which ordered BAMF to grant the plaintiffs this status. This type of judgment can only be made null and void in a formal retrial and only if strict prerequisites are met.
BAMF subsequently appealed the Higher Administrative Court’s decision and won the appeal. The 10th Senate for Appeals at the Federal Administrative Court overturned the higher court’s decision and reinstated the decision that the court of first instance had made. The Federal Administrative Court concluded that cancelling their refugee protection status is permitted under section 73, paragraph 2 of the German Asylum Procedure Act because it was granted on the basis of incorrect information. The European Union’s refugee laws also have a provision for revoking a person’s protection status in these circumstances. The finality of the court’s decision, which led to refugee protection being granted, does not prevent BAMF from revoking their status, because this is a case where a court ruling was being misused. The notion that exercising a right unlawfully in the manner described in laws, such as section 826 of the German Civil Code, is also considered an unlawful misuse of a court’s decision in administrative procedural law.
Under German law, it is only possible for the authorities to not abide by a final court decision in exceptional cases where the court’s judgment is factually incorrect, the person affected knows the inaccuracy, and utilisation of the judgement is deemed unethical due to special circumstances surrounding the case. In refugee law, these types of circumstances definitely exist if the court was intentionally misled about a main element in the asylum seeker’s story about being persecuted. In particular, this includes any false statements about the asylum seeker’s identity and nationality as well as the people or agents who are threatening him with persecution. In this case, the Federal Administrative Court ruled in favour of BAMF on the basis of the findings that this type of misrepresentation of the main decisive points for being granted refugee protection occurred, and it confirmed that BAMF was justified in revoking the refugee protection status of the woman and her children.
Source: Press statement from 19 November 2013 issued by the German Federal Administrative Court
