The yardstick for the assessment of national protection against deportation pursuant to Section 60 (5) of the Residence Act in conjunction with Article 3 of the European Convention on Human Rights (ECHR) is basically whether the foreigner Article 3 of the European Convention on Human Rights is whether the foreigner who is subject to an enforceable obligation to leave the country will be able to meet his or her most basic needs for a foreseeable period of time after his or her return, if necessary by means of return assistance granted to him or her. On the other hand, it is not decisive whether a foreigner's subsistence level is ensured in his country of origin on a sustainable or even permanent basis. This was decided by the Federal Administrative Court in Leipzig on April 21, 2022.
In the challenged judgment, the Administrative Court obliged the defendant Federal Republic of Germany, with regard to the plaintiff, an Afghan asylum applicant born in 1998, to issue a national ban on deportation pursuant to Section 60 (5) AufenthG in conjunction with Art. 3 ECHR. Art. 3 ECHR with regard to Afghanistan. Due to the serious deterioration of economic conditions as a result of the COVID-19 pandemic, even able-bodied, single adult returnees from Western countries are regularly only able to legally meet their most basic needs for food, shelter and hygiene in Afghanistan if special favorable circumstances exist. The financial assistance granted to voluntary returnees would have no lasting significance for the question of securing a livelihood in the absence of a network, since it would at best provide initial support and temporarily cover needs.
The 1st Senate of the Federal Administrative Court overturned the appeal judgment and referred the case back to the Administrative Court for a different hearing and decision. The standard used by the Administrative Court for the risk prognosis, according to which a "sustainable" and not only temporary livelihood is required even taking into account return assistance, is not consistent with Art. 3 ECHR and with the requirement of a risk occurring "quickly" or "as soon as possible" after the return. The danger of a condition contrary to Art. 3 ECHR is not already present if there is a threat of inhuman or degrading treatment or punishment at any time after the return to the home country.
Rather, it must be concrete in the sense that the imminent adverse effect on human rights occurs in such a close temporal connection to the return that an assessment still justifies attribution to it - in distinction to later developments in the destination country or conduct on the part of the foreigner. If the returnee is able to take advantage of assistance that excludes impoverishment within a foreseeable period of time, protection against deportation can exceptionally only be granted if it can already be assumed at the relevant time of assessment that the foreigner is very likely to be impoverished after the consumption of the return assistance in a close temporal context. The legal dispute was to be referred back to the Administrative Court in order to give it the opportunity to make up for the insufficient assessment of the facts by the judges with regard to the above standards.