Augsburg Administrative Court, 01.03.2016, Ref.: AU 6 K 15.30772
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, Section 11 para. 7 sentence 1 of the Residence Act stipulates that the Federal Office for Migration and Refugees (BAMF) can impose an entry and residence ban on a foreigner whose asylum application has been rejected as manifestly unfounded pursuant to Section 29a para. 1 of the Asylum Act, who has not been granted subsidiary protection, who has not been found to fulfil the requirements for a ban on deportation pursuant to Section 60 para. 5 or 7 and who does not hold a residence permit or whose application pursuant to Section 71 or Section 71a of the Asylum Act has repeatedly failed to result in further asylum proceedings being conducted. However, this requires that the asylum application is actually still to be rejected. This means that the application is initially submitted by the applicant and is also maintained. However, if the application is withdrawn or the matter is settled for other reasons, the BAMF may no longer decide on an application and therefore not impose a ban. Something else would only apply if the BAMF had to decide ex officio, but this is not the case with an asylum application.
This legal dispute concerned the question of whether the BAMF was authorised to issue an administrative act on the plaintiff's asylum application and whether it was permitted to impose an entry and residence ban in this act.
Facts of the Case:
The plaintiff is seeking the cancellation of the ordered entry and residence ban.
The applicant is an Albanian national and entered the Federal Republic of Germany on 23 July 2015. He then submitted an application for asylum on 28/09/2015. He stated that he was unemployed and that his family was in poor financial circumstances.
In a decision dated 16 December 2015, the Federal Office rejected the application for refugee status (No. 1) and asylum recognition (No. 2) as manifestly unfounded. Subsidiary protection status was also not recognised (No. 3). At the same time, it was determined that the prohibitions on deportation pursuant to Section 60 (5) and (7) sentence 1 of the Residence Act did not apply (No. 4). The deportation to Albania was threatened (No. 5). The ban on entry and residence pursuant to Section 11 (7) Residence Act was limited to 10 months from the date of departure (No. 6) and the ban pursuant to Section 11 (1) Residence Act was limited to 30 months from the date of deportation (No. 7). The BAMF justified its decision by stating that the applicant came from a safe country of origin. The temporary entry and residence ban pursuant to Section 11 (7) AufenthG and Section 11 (1) AufenthG was appropriate.
The applicant argues that he tried to withdraw the asylum application.
On 22 December 2015, the applicant lodged an appeal against this with the Augsburg Administrative Court and applied for the decision to be revoked and, alternatively, for a declaration that it was unlawful. In his grounds, he stated that he was aware of the futility of his application, which is why he tried to withdraw his application on 14 December 2015 in order to prevent an entry ban.
He was particularly concerned with the lifting of the re-entry ban.
However, this had not been possible due to the lack of original personal documents, although he had pointed out that he had handed these in during registration. He also stated that he had already informed the authorities on 2 December 2015 that he wished to leave the country voluntarily, which he did on 21 January 2016. He had also withdrawn his application in writing on 23 December 2015. Therefore, in the claimant's opinion, the decision should not have been issued. In particular, the authority had not properly exercised its discretion.
Judgement of the Augsburg Administrative Court
The court first states that the defendant's decisions on the merits no. 1-3 have become irrelevant due to the withdrawal of the asylum application. Furthermore, it states that the plaintiff lacks the need for legal protection with regard to No. 7 (entry and residence ban pursuant to Section 11 (1) Residence Act), as he is not adversely affected due to his voluntary departure.
The action is otherwise admissible. However, the action is only justified with regard to Section 11 (7) AufenthG. Insofar as the applicant sought a declaration of a national ban on deportation pursuant to Section 60 (5) and (7) Residence Act, the action was unfounded (No. 4). In this respect, the deportation order (No. 5) is also admissible.
The plaintiff is not entitled to a declaration of a ban on deportation pursuant to Section 60 (5) and (7) AufenthG.
According to Section 60 para. 7 sentence 1 AufenthG, the deportation of a foreigner to another country should be refrained from if there is a considerable concrete danger to life, limb or freedom for this foreigner there. Dangers in this country to which the population or the population group to which the foreigner belongs is generally exposed are taken into account in decisions pursuant to Section 60a (1) AufenthG (Section 60 (7) sentence 2 AufenthG). General dangers can only justify protection against deportation if the foreigner would be exposed to an extreme danger situation in such a way that, if he were deported there, he would be at the mercy of certain death or the most serious injuries and these dangers would threaten him immediately after his return and throughout the country (see BVerwG, judgement of 8 September 2011 - 10 C 14/10). There are no indications that the applicant would encounter such poor humanitarian conditions in Albania that deportation would constitute a violation of Art. 3 ECHR. The applicant should be able to secure his minimum subsistence level on his return. In this respect, Albania is a safe country of origin.
The threat of deportation was to be issued in accordance with § 34 Para. 1 AsylG in conjunction with § 59 AufenthG. § 59 Residence Act despite the withdrawal of the application. The court also found that there were no legal objections to the deadline for departure.
However, the action was justified due to the entry and residence ban issued in accordance with Section 11 (7) AufenthG (No. 6).
The entry and residence ban ordered by the BAMF pursuant to Section 11 para. 7 sentence 1 AufenthG depends on the asylum status decision becoming final. This follows directly from the statutory provision of § 11 para. 7 sentence 2 AufenthG, according to which the entry and residence ban takes effect when the decision on the asylum application becomes final. However, the withdrawal of the asylum application meant that the matter was closed (no longer relevant), which prevented the administrative act from taking effect. The contested entry and residence ban was therefore unlawful and therefore infringed the rights of the applicant.
Source: Administrative Court Augsburg
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.
