Administrative Court Augsburg, 15.05.2017, Case No.: AU 5 K 17.31212
The revocation of the determination of a deportation prohibition under § 60 Abs. 5 or 7 of the Residence Act (AufenthG) is governed by § 73c Abs. 2 of the Asylum Act (AsylG) when the conditions for the prohibition are no longer met. In the event of such a revocation or withdrawal of asylum or refugee recognition, § 73c Abs. 3 AsylG also requires an examination of whether subsidiary protection under § 4 AsylG or a deportation prohibition under § 60 Abs. 5 or 7 AufenthG is applicable. This means that it must be assessed whether the foreigner faces serious dangers such as the death penalty, torture, or a threat of arbitrary violence in their home country. A revocation is possible at any time if the risk situation has changed significantly. The one-year deadline according to the administrative procedure laws (§§ 48, 49 VwVfG) does not apply here.
The following ruling by the Administrative Court of Augsburg addresses whether a revocation under § 73c Abs. 2 AsylG can occur even when a prior final judgment had determined a deportation prohibition.
Introduction and Background of the Case
The plaintiff, an Afghan national born in 1990, is a member of the Tajik ethnic group and a Sunni Muslim. He challenged the revocation of a deportation prohibition under § 60 Abs. 7 AufenthG and the determination that no deportation prohibition existed under § 60 Abs. 5 AufenthG. The case dates back to 2010 when the Federal Office for Migration and Refugees (BAMF) rejected the plaintiff’s asylum applications and determined that neither refugee status nor a deportation prohibition applied.
Despite this decision, the Administrative Court of Augsburg issued a final judgment on June 9, 2010, stating that the plaintiff was entitled to a deportation prohibition under § 60 Abs. 7 AufenthG due to a significant risk to life, limb, or freedom upon return to Afghanistan. This decision was based on the assumption that the plaintiff would be unable to establish a secure livelihood in Afghanistan. The BAMF confirmed this decision in a notice dated January 31, 2011.
Revocation of the Deportation Prohibition in 2017
On February 20, 2017, the BAMF revoked the previously granted deportation prohibition under § 60 Abs. 7 AufenthG and determined that no deportation prohibition existed under § 60 Abs. 5 AufenthG. The BAMF justified the revocation by stating that the plaintiff’s situation had significantly changed since the 2010 judgment, particularly due to his adulthood and increased ability to establish a livelihood in Afghanistan.
The plaintiff, now a 27-year-old healthy and able-bodied man, was deemed capable of securing the necessary subsistence through casual work in Afghanistan. The BAMF further argued that even if the plaintiff did not receive family support in Afghanistan, he would not face an extreme danger. This assessment also considered the general situation in Afghanistan, which, according to the BAMF, had not worsened to a degree that would pose a significant individual risk to the plaintiff.
Lawsuit Against the Revocation of the Deportation Prohibition
The plaintiff filed a lawsuit with the Bavarian Administrative Court Augsburg against the BAMF’s decision. He argued that the final judgment from 2010 precluded the revocation unless the facts and legal situation had significantly changed. The plaintiff maintained that the conditions for a deportation prohibition under § 60 Abs. 7 AufenthG still existed and that he remained in need of the protection granted to him in 2010.
The plaintiff particularly argued that the general security situation in Afghanistan had not improved but rather worsened. He claimed that the security situation for returnees, especially for young single men without family support, was extremely precarious. Additionally, he highlighted that the humanitarian conditions in Afghanistan were catastrophic, and that upon return, he would likely face inhuman or degrading treatment, justifying a deportation prohibition under § 60 Abs. 5 AufenthG.
Decision of the Administrative Court Augsburg
The Administrative Court Augsburg dismissed the lawsuit as admissible but unfounded. The court found that the legal requirements for revocation under § 73c Abs. 2 AsylG were met. The court explained that revocation could occur if the conditions for the originally recognized deportation prohibition no longer existed. In this case, new facts had emerged that justified a changed risk situation.
The court emphasized that the plaintiff’s situation had fundamentally changed due to his adulthood and workability. There was no serious risk that the plaintiff would face extreme danger in Afghanistan that would justify a deportation prohibition. Additionally, the general security situation in Afghanistan had not escalated to an individual, extreme risk for the plaintiff. The court particularly noted that there was no immediate threat of life-threatening conditions upon return.
Analysis of the Risk Situation and Court’s Assessment
The court followed the consistent jurisprudence of the Bavarian Administrative Court, which holds that single, able-bodied Afghan men returning from Europe do not face an extreme risk that would lead to a deportation prohibition. The court ruled that the general danger in Afghanistan, in terms of nature, extent, and intensity, was insufficient to establish an individual deportation prohibition.
The court assumed that young, able-bodied men could establish a livelihood in Kabul or another major city. It was noted that the plaintiff had worked as a car painter in both Afghanistan and Germany, providing him with a certain level of professional qualification and the means to secure his livelihood. The fact that the plaintiff lacked family support in Afghanistan was not deemed decisive, as he was considered capable of supporting himself without such assistance.
Conclusion and Court’s Ruling
The Administrative Court Augsburg concluded that the plaintiff’s lawsuit was unfounded. It determined that the conditions for a deportation prohibition under § 60 Abs. 5 or 7 AufenthG no longer existed, and the revocation of the deportation prohibition was lawful. The court also denied the claim for subsidiary protection under § 4 AsylG, as the plaintiff failed to demonstrate a serious threat of harm in Afghanistan.
The court concluded that the plaintiff had an internal flight alternative within Afghanistan, allowing him to establish a secure livelihood. This assessment was based on an individual case review that considered the plaintiff’s personal circumstances, such as his professional qualifications and workability. Therefore, while the lawsuit was admissible, it was unfounded, and the BAMF’s decision was upheld.
Source: Administrative Court Augsburg
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