Administrative Court of Karlsruhe, 20.07.2017, Ref.: A 10 K 3981/16
Section 60, Paragraph 1 of the Residence Act (AufenthG) stipulates that a foreigner must not be deported to a state where their life or freedom is threatened due to their race, religion, nationality, membership in a particular social group, or political opinion. This also applies to asylum seekers and foreigners who have been granted refugee status or who, for other reasons, enjoy the legal status of foreign refugees within the Federal Republic or are recognized as foreign refugees outside the Federal Republic under the Refugee Convention. If the foreigner invokes the deportation ban under this paragraph, the Federal Office for Migration and Refugees, except in cases under Sentence 2, determines in an asylum procedure whether the conditions of Sentence 1 are met and whether the foreigner is to be granted refugee status.
Deportation of a foreigner to another state is to be refrained from under Section 60, Paragraph 1 of the Residence Act if there is a significant concrete danger to life, limb, or freedom in that state. A significant concrete danger for health reasons only exists in the case of life-threatening or serious illnesses that would significantly worsen due to deportation.
However, Paragraph 1 does not apply if the foreigner is considered a danger to the security of the Federal Republic of Germany for serious reasons or poses a threat to the public because they have been legally sentenced to a prison term of at least three years for a crime or particularly serious offense. Paragraph 1 can also be disregarded if the foreigner poses a threat to the public because they have been legally sentenced to a prison or juvenile detention term of at least one year for one or more intentional crimes against life, physical integrity, sexual self-determination, property, or resistance against law enforcement officers, provided the crime was committed with violence, threats to life or limb, or deceit, or is a crime under Section 177 of the Penal Code.
In these cases, a foreigner who has applied for asylum may be threatened with deportation and have it carried out, contrary to the provisions of the Asylum Act.
The following judgment examines whether persecution relevant to asylum law is likely in Turkey for a Kurdish national who applied for asylum in Germany, lived in the Federal Republic for decades, participated in demonstrations in support of Kurdish causes, but otherwise did not engage in political activities. According to the decision, this is generally not the case, but it may be evaluated differently in individual cases due to prominent exile-political activities.
Background and the Plaintiff’s Stay in Germany
The plaintiff is a Turkish national of Kurdish ethnicity. He was born in Turkey and lived there until the age of eleven. His parents were recognized as political refugees after entering the Federal Republic. In 1998, the plaintiff moved to Germany with his siblings to join his parents. By now, his parents and at least two of his sisters are German citizens. The plaintiff received a settlement permit in 2005. Despite his family’s integration, the plaintiff repeatedly came into conflict with the law in Germany.
Criminal Convictions and Political Background
During his stay in Germany, the plaintiff was convicted several times. The convictions include, among other things, attempted murder in concert with attempted arson, intentional bodily harm, and aggravated bodily harm in multiple cases. The most serious offense was a politically motivated arson attack on the premises of a Turkish „Idealists“ association in Göppingen. The plaintiff and his co-defendants intended to make a political statement in support of Kurdish groups‘ struggle against the Turkish government through the attack. The court found that the plaintiff identified with the goals of extremist Kurdish groups that support the fight against the Turkish government. During a house search, 19 copies of a magazine by the Kurdish youth organization „Komalen Ciwan,“ which had called for violent actions, were found. The court viewed these findings as evidence of the plaintiff’s political motives. In addition to these politically motivated crimes, the plaintiff was convicted of other offenses, including bodily harm and drug possession. During his stay in prison, the plaintiff also began using drugs such as heroin and cocaine.
Expulsion and Deportation Order
In light of the plaintiff’s serious crimes, the Regional Council of Stuttgart decided in May 2015 to expel him from the Federal Republic and order his deportation to Turkey. The Regional Council argued that the plaintiff did not face state persecution or torture in Turkey, as the politically motivated offense was long in the past, and the plaintiff himself had no concerns when applying for a passport at the Turkish consulate. The plaintiff then filed a lawsuit against the expulsion order. The Administrative Court of Stuttgart dismissed the lawsuit in March 2016, finding that there were no legal obstacles to deportation to Turkey. The plaintiff applied for leave to appeal to the Baden-Württemberg Higher Administrative Court, but the court denied the application in August 2016, affirming the decision of the Administrative Court of Stuttgart. The plaintiff subsequently filed an asylum application with the Federal Office for Migration and Refugees (BAMF).
Asylum Application and BAMF Decision
The BAMF rejected the plaintiff’s asylum application in August 2016 as manifestly unfounded. The application for subsidiary protection was also denied. The BAMF justified its decision by stating that there was no discernible serious political motivation for the plaintiff’s crimes. The BAMF stated that the plaintiff had no reason to fear persecution relevant to asylum law upon his return to Turkey. Although the plaintiff had participated in demonstrations against Turkish policy, it was unlikely that he would be persecuted in Turkey for this. Furthermore, there was no concrete danger of state persecution in Turkey due to his Kurdish ethnicity.
Administrative Court of Karlsruhe: Legality of the Deportation Order
In August 2016, the plaintiff filed a lawsuit against the BAMF’s decision at the Administrative Court of Karlsruhe and applied for the establishment of a deportation ban. The Administrative Court of Karlsruhe found that the lawsuit was admissible but unfounded. The court ruled that the BAMF’s deportation order was lawful and that no deportation bans under Section 60 of the Residence Act existed. The court based its decision on comprehensive investigations into the current situation in Turkey. These investigations showed that although the human rights situation in Turkey had deteriorated since the attempted coup in July 2016, there was no concrete danger for the plaintiff. While the risk of arbitrary arrests in Turkey had increased, the plaintiff was more relevant to the Turkish authorities as a convicted criminal than as a political opponent. The plaintiff’s conviction for attempted murder in concert with arson was known to the Turkish authorities, but it was unlikely that the plaintiff would be viewed as a PKK supporter. Furthermore, the plaintiff’s Kurdish ethnicity did not constitute grounds for persecution relevant to asylum law.
Summary and Judgment
The Administrative Court of Karlsruhe concluded that the deportation order and the entry and residence ban were lawful. The plaintiff could not provide sufficient evidence to demonstrate a significant risk upon his return to Turkey. The expulsion and associated deportation were legally justified, as the plaintiff posed a serious threat to public safety. The nine-year entry ban was deemed appropriate given the severity of the crimes committed and the plaintiff’s continued potential for violence. The plaintiff still has the option to reduce the duration of the entry ban by voluntarily leaving the country. Given the overall evidence, the court upheld the BAMF’s decision and dismissed the lawsuit.
Source: Administrative Court of Karlsruhe
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.
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