Aliens law: Residence restriction requirement for Jewish emigrants who entered the country under the HumHAG is invalid.

Higher Administrative Court of the State of Saxony-Anhalt, 12.01.2012, 2 L 151/10

Particularly under the now repealed Act on Measures for Refugees Admitted within the Framework of Humanitarian Aid Operations (HumHAG), contingent refugees in Germany formed a particularly privileged special group among foreigners, as they

- received a permanent residence permit after being admitted to Germany (Section 1 III HumHAG),

- the legal status of refugees and

- enjoyed special protection against expulsion.

Jewish emigrants from the former Soviet Union were allowed to enter the country as contingent refugees, as the HumHAG applied to them in accordance with a resolution passed by the Conference of Interior Ministers on 9 January 1991.

On 1 January 2005, the HumHAG ceased to apply as a result of Article 15 Para. 3 No. 3 of the Immigration Act, meaning that the legal basis for the admission of Jewish emigrants from the former Soviet Union, including the application, entry and distribution procedure, ceased to apply from this date.

Since 1 January 2005 (expiry of the Contingent Refugee Act), Section 23 (2) Residence Act in conjunction with the new resolution of the Conference of Interior Ministers has therefore served as the legal basis for the further admission of Jewish emigrants from the former Soviet Union.

According to the new legal basis, such persons can be admitted,

- who, according to state civil status certificates issued before 1990, are themselves of Jewish nationality or are descended from at least one Jewish parent,

- from whom it can be expected that they are not permanently dependent on benefits under SGB II or SGB XII to secure their livelihood (independent securing of livelihood) (this forecast is made for the applicant who is eligible for admission himself, but also includes the family environment),

- who have a basic knowledge of the German language (examination certificate A 1) (cases of hardship which make it possible to waive this requirement can be claimed),

- who do not profess any religious affiliation other than the Jewish religious community and

- who provide proof that there is a possibility of admission to a Jewish community in Germany (this proof is provided by an expert opinion from the Central Welfare Office of Jews in Frankfurt. The Union of Progressive Jews is involved in this procedure and can submit a statement as part of this procedure).

Persons who fulfil these requirements must be issued a residence permit or a settlement permit in accordance with Section 23 (2) AufenthG.

Pursuant to Section 23 (2) sentence 4 AufenthG, a settlement permit can be issued with a condition restricting residence.

In the above-mentioned decision, the OVG of the state of Saxony-Anhalt now had to decide whether Jewish emigrants from the former Soviet Union, who had been granted unlimited residence permits in corresponding application of Section 1 (3) HumHAG, which continued to be valid as settlement permits in accordance with Section 101 (1) sentence 2 AufenthG, could also be granted residence-restricting conditions.

Decision of the Higher Administrative Court of the State of Saxony-Anhalt

The Higher Administrative Court of the state of Saxony denied this possibility and thus confirmed a corresponding judgement by the Administrative Court of Halle, against which the city of Halle (Saale) had lodged an appeal.

In the opinion of the OVG, this group of persons did not fall under the protection of the provisions of the Geneva Refugee Convention, which guarantees freedom of movement, among other things, because the admission of Jewish emigrants from the Soviet Union did not have the purpose of taking account of a persecution situation or a refugee fate through a political solution.

However, there are no differences between the group of refugees and the group of Jewish immigrants of such significance that Jewish emigrants should be treated differently from refugees under the Geneva Convention on Refugees with regard to freedom of movement.

Source: Higher Administrative Court of the State of Saxony-Anhalt

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, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.

Lawyers in Cologne advise nationwide on immigration law