Judgements by German courts

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.

Spanish authorities systematically and often violently expel refugees and migrants at the border with Morocco. This long-standing practice of push-backs at the external borders of the European Union (EU) is unlawful. Automatic expulsions violate the European Convention on Human Rights (ECHR), as the European Court of Human Rights (ECtHR) today ruled in Strasbourg.

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