Federal Administrative Court, 21.03.2017, Case No.: 1 VR 1/17 (1 A 2/17)
Summary of Deportation Order Under § 58a AufenthG for an Individual Identified as a Threat Within the Radical Islamist Scene According to § 58a AufenthG, the highest state authority can issue a deportation order against a foreigner based on a fact-based prognosis to prevent a special threat to the security of the Federal Republic of Germany or a terrorist threat without prior expulsion. However, a case-by-case decision must be made, balancing the interests involved. Additionally, no deportation prohibitions under § 60 AufenthG must be present. A deportation prohibition exists, among other reasons, if the foreigner faces a serious risk of harm, such as the imposition or execution of the death penalty, torture, inhumane or degrading treatment or punishment, or a serious individual threat to the life or physical integrity of a civilian due to arbitrary violence in an international or internal armed conflict. Furthermore, deportation should be avoided if the foreigner faces a significant, specific danger to life, limb, or freedom in another state.
Introduction: Application for Interim Legal Protection Against Deportation Under § 58a AufenthG
In this case, an Algerian national born in Germany applied for interim legal protection against a deportation order under § 58a of the Residence Act (AufenthG). The deportation order was based on the security authorities‘ assessment that the applicant posed a terrorist threat. He was arrested during a large-scale raid, and his deportation to Algeria was ordered. The applicant challenged this order, arguing that § 58a AufenthG was unconstitutional and that he faced specific dangers if deported.
Constitutionality of § 58a AufenthG
The Federal Administrative Court first addressed the question of whether the legal basis of § 58a AufenthG was constitutional. The court found that both the formal and substantive constitutionality were given. The applicant’s argument that § 58a AufenthG was not included in the original government draft of the Immigration Act but was added later by the Mediation Committee was deemed unfounded by the court. The Mediation Committee had acted within its competence, and the proposal was sufficiently related to the legislative process.
The court also held that the transfer of authority to issue deportation orders to the highest state authorities by the federal legislature was constitutional, as these federal laws are executed as independent matters. Regarding substantive constitutionality, the court emphasized that the legislature had enacted the regulations in the interest of the security of the Federal Republic of Germany to effectively counter particularly severe threats. The restriction of legal protection was covered by Art. 19 Abs. 4 GG, as constitutional obligations were observed.
Concept and Application of “Threats” under § 58a AufenthG
The term “security of the Federal Republic of Germany” was interpreted by the Federal Administrative Court as narrower than the concept of public security in general police law. It encompasses the internal and external security of the state and its institutions. The applicant was assessed by security authorities as belonging to the radical Islamist scene in Germany and had repeatedly issued threats of violence. Although no concrete plan to carry out a terrorist act was known, there was a significant risk that the applicant could commit such an act.
The court found that while the term “terrorist threat” was not clearly defined, it was based on international conventions to combat terrorism. Applying these principles, action under § 58a AufenthG was justified if there was a sufficiently concrete danger that the applicant was planning a serious crime. The assessment of danger had to be based on reliable facts, which, in this case, were provided by the security authorities‘ findings.
Assessment of the Specific Danger
The court assessed the danger posed by the applicant as significant. The security authorities determined that the applicant had connections to violent Islamist groups and had repeatedly announced violent acts. This assessment was based on a solid factual foundation, including surveillance materials and other intelligence. The court emphasized that there was a substantial risk that the applicant could carry out a terrorist act. Given this threat, the deportation order was deemed lawful and necessary to ensure the security of the Federal Republic of Germany.
Compatibility with European Law and Deportation Prohibitions
The Federal Administrative Court also examined whether the deportation order was compatible with the EU Return Directive of 2008. The court concluded that the applicant, due to the danger he posed, did not need to be granted a period for voluntary departure. Additionally, the court noted that the decision of the respondent was free from errors of discretion, as the public interest in deportation outweighed the applicant’s private interest.
The court also addressed the applicant’s claim that he faced torture or the death penalty if deported to Algeria. The court found that the death penalty had not been carried out in Algeria since 1993 and that there was no concrete risk that the applicant would be subjected to such a penalty. Regarding the risk of torture in Algeria, the court noted that diplomatic assurances could be obtained to eliminate such a risk.
Outcome: Rejection of the Application for Interim Legal Protection
In conclusion, the Federal Administrative Court ruled that the application for interim legal protection was unfounded. The deportation order under § 58a AufenthG was constitutional, and the reasons cited by the applicant were insufficient to justify suspending the order. Since the applicant was classified as a significant terrorist threat, the public interest in his deportation prevailed. Diplomatic assurances to prevent possible torture were considered adequate to proceed with the deportation to Algeria.
Source: Federal Administrative Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, please feel free to call us at 0221 - 80187670 or send us an email to info@mth-partner.de
Lawyers in Cologne advise and represent clients nationwide in immigration law.
