Administrative Court Lüneburg, 12.07.2016, Case No.: 5 A 63/16
Under § 11 Abs. 1 AufenthG, a foreigner who has been expelled, removed, or deported is prohibited from re-entering the federal territory, staying in it, and cannot be granted a residence title even if they have a legal claim under this law (entry and residence ban).
Furthermore, § 11 Abs. 7 S. 1 AufenthG stipulates that the Federal Office for Migration and Refugees (BAMF) may impose an entry and residence ban on a foreigner whose asylum application has been rejected as manifestly unfounded under § 29a Abs. 1 of the Asylum Act, who has not been granted subsidiary protection, who has not been found to meet the criteria for a deportation prohibition under § 60 Abs. 5 or 7, and who does not have a residence title, or whose application under § 71 or § 71a of the Asylum Act has repeatedly failed to lead to a new asylum procedure. The BAMF has discretion in this matter, meaning that the authority can decide within the legal framework whether to act. This decision can be challenged by objection or lawsuit. However, in legal proceedings, the court cannot review the appropriateness of the discretionary decision, but only for errors in the exercise of discretion. The court does not have its own discretion. Different types of errors in discretion include non-use of discretion, misuse of discretion, exceeding discretion, and reduction of discretion to zero.
In the present decision, it was necessary to examine whether the BAMF had properly exercised its discretion under § 11 AufenthG and to what extent changed circumstances should be considered.
Facts of the Case:
Plaintiff from Montenegro Sues Against Entry and Residence Bans
The plaintiff sought to have the entry and residence bans associated with the rejection of her asylum application lifted, or alternatively, to have the period reduced to zero months.
The plaintiff is a Montenegrin national who entered Germany on July 31, 2015. On August 28, 2015, she applied for asylum, stating that she wanted to pursue vocational training in Germany before continuing her studies in Montenegro. She was currently attending the Vocational School II in Uelzen, specializing in elderly care.
BAMF Imposes Ten-Month Entry and Residence Ban
In a decision dated December 9, 2015, delivered on February 1, 2016, the BAMF rejected the applications for refugee status and asylum recognition as manifestly unfounded and the application for subsidiary protection as unfounded. It also determined that no deportation prohibitions under § 60 Abs. 5 and 7 S. 1 AufenthG were present and ordered the plaintiff to leave Germany within one week of the decision’s notification, under threat of deportation to Montenegro. Additionally, the BAMF imposed a ten-month entry and residence ban starting from the date of departure or a 30-month ban from the date of deportation under § 11 Abs. 7 AufenthG and § 11 Abs. 1, 2 AufenthG.
Plaintiff Begins Training in Elderly Care and Successfully Completes Internships
The plaintiff filed a lawsuit with the Administrative Court Lüneburg on February 10, 2016, against this decision.
Since November 2, 2015, the plaintiff had participated in a language and integration project for young refugees at the Vocational School II in Uelzen, during which she completed several internships. On February 23, 2016, she signed a three-year training contract in elderly care with C. GmbH, with training to begin in August 2016. From March 1, 2016, she completed an internship at a senior and nursing home with D. GmbH.
On March 8, 2016, the plaintiff’s legal representative applied to the district of Uelzen for a residence permit under § 17 AufenthG, arguing that the plaintiff could begin training in August. The district rejected the application on March 16, 2016, because the plaintiff had not entered with the required visa. An exception under § 5 Abs. 2 S. 2 AufenthG was not possible, as the plaintiff had no entitlement to a residence permit and it was reasonable for her to obtain the visa and re-enter. A temporary suspension of deportation under § 60a Abs. 2 AufenthG was also not possible, as the plaintiff came from a safe country of origin. The plaintiff then applied for a suspension of deportation on March 30, 2016, which was also denied by the district of Uelzen.
In a letter dated June 15, 2016, the district of Uelzen informed that the plaintiff had been deported to Montenegro on June 10, 2016.
Judgment of the Administrative Court Lüneburg:
The Administrative Court Lüneburg found the lawsuit to be admissible and partially well-founded.
The order for the entry and residence ban under § 11 Abs. 7 AufenthG and § 11 Abs. 1 AufenthG in the defendant’s decision of December 9, 2015, was flawed in the exercise of discretion, rendering it unlawful and violating the plaintiff’s rights under § 113 Abs. 1 S. 1 VwGO.
The BAMF had improperly exercised its discretion when ordering the entry and residence ban, thereby violating the plaintiff’s right to a lawful exercise of discretion. Therefore, the decision was to be annulled to that extent.
Under § 11 Abs. 7 AufenthG, the BAMF may impose an entry and residence ban on a foreigner whose asylum application has been rejected as manifestly unfounded and who has not been granted subsidiary protection. This also applies if there is no deportation prohibition under § 60 Abs. 5 or 7 AufenthG, and the foreigner does not have a residence title. In this case, the first condition was met, granting the defendant discretion.
Court Identifies Errors in Discretion Regarding the Entry and Residence Ban
The court identified an error in discretion by the BAMF, as it did not consider the plaintiff’s positive and successful vocational development.
The plaintiff had already indicated during her initial hearing that she was studying elderly care. This was deemed by the defendant as not a legitimate interest. However, the plaintiff subsequently completed several internships and received a training contract. The concrete possibility of vocational training should have been considered in the decision on the entry and residence ban.
Even if the defendant could not consider these circumstances when issuing the decision, the decision would now be flawed and unlawful. The court’s decision depends on the circumstances at the time of the final oral hearing.
The concrete possibility of vocational training and thus legal migration should be considered. Although the entry and residence ban is intended to have a general preventive effect, the legitimate interests of the foreigner must also be considered in the exercise of discretion.
Plaintiff Entitled to a New Decision Free from Discretionary Errors
The plaintiff was entitled to a new decision free from discretionary errors but not to a reduction of discretion to zero. This was particularly true as the plaintiff’s opportunity for vocational training did not directly undermine the general preventive purposes of § 11 Abs. 7 AufenthG.
The entry and residence ban under § 11 Abs. 1, 2 AufenthG was also flawed at the time of the decision, as the defendant did not consider the plaintiff’s training opportunity. This justified the plaintiff’s right to a new decision, as the defendant must consider the plaintiff’s vocational training when ordering and determining the duration of the entry and residence ban, even if this opportunity arose only after the rejection of the asylum application.
Source: Administrative Court Lüneburg
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