Federal Administrative Court, February 22, 2017, Case No.: BVerwG 1 C 3.16
The deportation of a foreign national serves the purpose of terminating their stay. A prevailing interest in deportation is a prerequisite for expulsion. According to Section 54, Paragraph 1 of the Residence Act (AufenthG), the interest in deportation is particularly strong if, for example, the foreigner has been convicted of one or more intentional crimes and sentenced to more than two years of imprisonment.
Recognized refugees and persons entitled to asylum enjoy special protection against deportation, unlike those with subsidiary protection. According to Section 53, Paragraph 3 of the Residence Act (AufenthG), persons entitled to asylum and refugees can only be expelled if their personal behavior currently poses a serious threat to public security and order, affecting a fundamental interest of society, and if the expulsion is essential to safeguard this interest.
Background and Personal Situation of the Plaintiff
The plaintiff, a Turkish national of Kurdish origin, has lived in Germany for over 20 years. Along with his wife and seven children, he has built a life in Germany after being granted refugee status in 1997 under Section 51, Paragraph 1 of the former Aliens Act due to his pro-Kurdish activism in Turkey. His grounds for fleeing were based on the risk of persecution due to his political activities, particularly his advocacy for Kurdish rights. Consequently, a deportation ban was imposed based on the European Convention on Human Rights (ECHR). In 2009, he was granted a settlement permit, allowing him indefinite residence in Germany.
Expulsion Due to Terrorism Allegations
In January 2012, the plaintiff was issued a deportation order based on allegations of supporting the PKK, an organization classified as terrorist. This expulsion was not triggered by mere suspicion but by extensive evidence proving his support over more than ten years. Among other activities, he served on the boards of PKK-affiliated associations and spoke at events linked to the PKK. Despite these serious allegations and the associated threat to Germany’s security, actual deportation was not carried out due to his continued refugee status and the resulting deportation ban under Article 3 of the ECHR.
Legal Dispute Over the Expulsion
The plaintiff challenged the expulsion and the accompanying restrictions, which limited his residence to the city of Mannheim and required regular reporting to the police. The lower courts partially upheld his challenge, requiring the immigration authority to limit the statutory re-entry and residence ban to eight years. However, the Federal Administrative Court determined that a new discretionary decision by the immigration authority was necessary because the legal basis for the expulsion had changed in the meantime. Since January 1, 2016, a new deportation law has applied, which, due to the standstill clause of the EEC-Turkey Association Agreement, does not worsen the situation for Turkish nationals.
Federal Administrative Court and Legal Situation
The Federal Administrative Court based its decision on the fact that the plaintiff posed a serious threat to Germany’s security due to his long-standing support of the PKK. The court found that there was a particularly significant interest in deportation under Section 54, Paragraph 1, Number 2 of the Residence Act. Despite the plaintiff’s refugee status and associated protections, the court ruled that the deportation was proportionate, as national security took precedence.
Although the plaintiff cannot be deported due to the deportation ban, the expulsion automatically invalidates his residence permit, meaning certain rights can be revoked despite his continued recognition as a refugee. The EU Qualification Directive 2011/95/EU permits the expulsion of refugees when compelling reasons of national security are present. However, the plaintiff retains rights such as the right to work and education as a recognized refugee.
Implications and Further Action
The Federal Administrative Court’s decision has significant implications for the practices of immigration authorities. It clarifies that despite the protections offered by the ECHR and EU directives, national security interests can take precedence. The court required the immigration authority to make a new discretionary decision regarding the duration of the re-entry and residence ban, demonstrating that individual circumstances must still be considered.
The reporting requirements and the geographical restriction on the plaintiff’s residence remain in effect, as these measures are legally permitted under Section 12, Paragraph 2, Sentence 2 of the Residence Act for reasons of public security.
Conclusion
This case highlights the complex balance between individual protection rights and the demands of national security. Although the plaintiff enjoys certain rights due to his refugee status, the expulsion shows that these rights can be restricted under specific circumstances. The Federal Administrative Court’s decision underscores the importance of national security for the German state while also recognizing the need for careful consideration to avoid unnecessarily undermining the legal protection of refugees.
Source: Federal Administrative Court
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