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.
A regulation in the German Residence Act stipulates that a foreigner who has been deported is neither permitted to re-enter nor to stay in the federal territory for an unlimited period (section 11, paragraph 1 of the Residence Act). It has been common practice for a time limit for this ban on re-entry and residence to subsequently be imposed ex officio by the German immigration authority (Ausländerbehörde). The Federal Administrative Court determined that this rule is not compatible with European law because the unlimited time limit of the entry ban, which is the direct legal consequence of removing a foreigner from the country, does not permit an assessment to be conducted on a case-by-case basis. Under EU law, in the event of deportation, the period of the ban should be set when the deportation warning is issued, at the latest, however, when the foreigner is actually deported or removed from the country.
The plaintiffs in this case, Serbian nationals, also contested having to pay for the costs of their deportation. The Federal Office for Migration and Refugees (BAMF) rejected their asylum applications, which had been submitted after they entered Germany, as without merit, and threatened to deport them. Following the plaintiffs’ deportation to their country of origin in August 2013, the immigration authority in Germany (Ausländerbehörde) issued two administrative notices in March and June 2014 demanding reimbursement for the costs of their deportation totalling € 5,403.53. The immigration authority also issued an official decision regarding the length of their deportation ban in June 2014, which was after the deportation had already been carried out.
The Administrative Court upheld the plaintiffs’ action contesting the administrative notices and the Higher Administrative Court subsequently dismissed the immigration authority’s appeal. The Higher Administrative Court considered the deportation illegal because the entry ban triggered under the rule in the Residence Act was not time-limited as required by the EU directive; in this case, the time limit for the entry ban should have been issued at the very latest when the plaintiffs were deported.
Upon the immigration authority’s appeal, the 1st Appeal Senate of the Federal Administrative Court reversed the previous court’s ruling and dismissed the action. The 1st Appeal Senate concluded that whether or not a decision had been made about an entry ban and its period of validity has no bearing on the immigration authority’s right to collect money from the plaintiff to cover the deportation costs. If – as in this case – there are no specific official decisions about an entry ban that might be contested at the point in time of a foreigner’s deportation, this situation cannot affect the legality of the deportation, which is a prerequisite for the immigration authority’s right to be reimbursed for the deportation costs.
Translated from German into English by Rosa Foyle
