Judgements by German courts

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 its ruling of 7 September 2021, the Federal Administrative Court has established important principles on the limitation of the entry and residence ban issued under the condition precedent of his deportation (Ref.: 1 C 46.20). The decision deals in particular with the question of which integration achievements are to be taken into account within the framework of the discretionary decision and, if applicable, lead to the illegality of the entry and residence ban imposed by the Federal Office for a period of 30 months.

According to a recent press release, the 1st Senate of the Federal Administrative Court ruled on 7 September 2021 (BVerwG 1 C 46.20) that, when assessing the duration of a deportation-related entry and residence ban, only the successful completion of qualified vocational training in Germany by the foreigner during the asylum proceedings is to be taken into account in order to shorten the time limit, not the commencement of such training. At the same time, the Federal Administrative Court has clarified that the practice of imposing a 30-month entry and residence ban by the Federal Office is not subject to any legal objections, provided that the foreigner does not present any special circumstances that are to be taken into account in the discretionary determination of the time limit.

In its decision of 16 April 2021, the 9th Senate of the Hessian Administrative Court ruled that a Union citizen who was employed as a worker in a temporary employment relationship and became unemployed through no fault of his or her own did not acquire a permanent right of residence under section 4a(1) of the Freedom of Movement Act/EU due to the fiction of being an employee for several years.

On 26 January 2021, the 1st Senate of the Federal Administrative Court referred a case to the Court of Justice of the European Union to clarify whether an administrative suspension of the enforcement of a deportation order due to the actual impossibility of deportation as a result of the COVID 19 pandemic is suitable to interrupt the transfer deadline provided for in Art. 29 para. 1 Dublin III Regulation (case reference: BVerwG 1 C 52.20 ).

For young, healthy men returning to the Kabul area and the city of Masar-e Sharif, the general living conditions in Afghanistan mean that there is regularly no danger of deportation even if they do not receive support from family or tribal members. Even the formal act of baptism and the membership in the Catholic Church which is based on this act alone does not lead to a ban on deportation. This was decided by the Higher Administrative Court of Rhineland-Palatinate in Koblenz in its judgment of 22 January 2020 (file number: 13 A 11356/19.OVG).

On March 28, 2019, the Federal Administrative Court in Leipzig ruled that under European Union legislation a spouse from a third country that is married to an EU citizen has the right to reside in Germany and is entitled to the right of free movement even if they live separately from one another and the EU citizen temporarily returns to his/her country of origin (BVerwG 1 C 9.18).

The Higher Administrative Court of Hesse issued a ruling on 5 March 2018 (case no: 9 B 56/19) withdrawing the right to free movement for European Union workers from a Bulgarian national. The Court issued this ruling because an overall assessment of the objective circumstances in her case led it to believe that she did not comply with the intent of the freedom of movement regulations, even though she formally met the conditions set out under EU law. The court came to this conclusion because the Bulgarian had acted with the intention of benefiting from EU law by arbitrarily meeting the prerequisites for freedom of movement as a worker in order to obtain additional social security benefits.

On 21 August 2018, the Federal Administrative Court in Leipzig decided that the deportation of a foreigner is not illegal even if a decision has not been previously made about how long the foreigner’s entry ban into Germany will last. The fact that a decision has not been made also does not prevent the government from imposing deportation costs on the foreigner concerned. Furthermore, the Federal Administrative Court clarified once again that under EU law, a ban on entry and residence always requires an official or judicial case-by-case decision and cannot be automatically imposed.

On 11 July 2018, the Federal Administrative Court in Leipzig issued a ruling (case no. BVerwG 1 C 18.17) concerning the right of asylum applicants to file legal actions to force The Federal Office for Migration and Refugees (BAMF) to make a decision about their asylum applications. The court determined that applicants may lodge an action against BAMF if a decision has not been made on their asylum application within three months. It also believed applicants have a legitimate interest in taking legal action for the sole purpose of obliging BAMF to make a decision on their applications.

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.

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.

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.

On 17 December 2015, the German Federal Administrative Court decided that a foreigner is not entitled to a temporary residence permit (Aufenthaltserlaubnis) if his asylum procedure has not been fully completed. This is also the case if the foreigner cannot be deported because the Federal Office for Migration and Refugees (BAMF) has protected him from deportation by granting him the protection status known as a national ban on deportation.

Where doubts concerning the interpretation and application of European Union law arise in proceedings before the regular courts for the review of extradition requests received by way of mutual legal assistance as determined by European Union law, the right to one’s lawful judge requires that the relevant questions be referred to the Court of Justice of the European Union (ECJ) for a preliminary ruling. Failure to comply with the duty of referral incumbent upon regular courts under European Union law does not always violate the guarantee of Art. 101(1) second sentence of the Basic Law (Grundgesetz – GG).

On 29 August 2017, the 1st chamber of the 2nd court panel of the Federal Constitutional Court decided unanimously in several cases that denying legal aid for lawsuits brought forward by asylum seekers from Syria is not compatible with the constitutionally protected right of having equal access to judicial review. The Federal Constitutional Court overturned the judgments from lower courts, which had denied the Syrian asylum seekers financial assistance from public funds for legal expenses associated with their cases, otherwise known as legal aid.

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