The Federal Republic of Germany has concluded numerous friendship, trade, and settlement agreements with various countries. The objective of these international treaties, with their goodwill and most-favored-nation clauses, is primarily to favor nationals of one contracting state over other foreigners.
Do international treaties include privileges for entry?
The question of whether existing treaties provide immigration privileges concerning the entry or deportation of nationals of the respective contracting parties is frequently the subject of court decisions.
In its decision of March 24, 1998 (13 Tz 1048/98), the Higher Administrative Court of Hesse (Hessischer VGH) ruled, for example, that Article II, No. 5 of the Treaty of Friendship, Commerce, and Navigation between the Federal Republic of Germany and the United States of America (FHSV D-USA) does not grant any protection against expulsion beyond the provisions of the Aliens Act. Contrary to the applicant’s view, the FHSV D-USA could not be used to counteract expulsion.
The Wiesbaden Administrative Court recognized suspensive effect of a lawsuit for U.S. citizens
In contrast, the Wiesbaden Administrative Court ruled in its decision of March 23, 1998 (4 G 1137/97) that the „most-favored-nation clause“ in Article 3(3) sentence 3 of the FHSV D-USA prevents the enforceability of § 72(1) of the Aliens Act („An objection or lawsuit against the rejection of an application for issuance or extension of a residence permit does not have suspensive effect“). According to Article 3(3) sentence 3 of the FHSV D-USA, nationals of one contracting state may not be treated less favorably than nationals of a third country. EU citizens would be considered comparable nationals of a third country, for whom § 72(1) of the Aliens Act does not apply under § 12(9) AufenthG/EWG and § 4(2) FreizügVO/EG.
The Higher Administrative Court of Hesse considers priority review necessary for U.S. citizens as well
Another significant court decision in this context is the ruling by the Higher Administrative Court of Hesse on October 28, 2009 (9 A 2134/08). The plaintiff, an American citizen, already held a residence permit for employment purposes under § 18 AufenthG. Since he wanted to change jobs, he sought a new residence permit, which was denied due to the lack of approval from the Federal Employment Agency, as preferential workers were available for the intended employment (§ 39(2) sentence 1 no. 1b AufenthG).
The plaintiff argued that as an American citizen, he was generally protected by the Treaty of Friendship, Commerce, and Navigation between the Federal Republic of Germany and the United States of America (FHSV D-USA). According to the most-favored-nation principle or the principle of national treatment contained in the FHSV D-USA, the denial of approval by the Federal Employment Agency was unjustified.
The Higher Administrative Court of Hesse did not follow this reasoning: The plaintiff, as an American citizen, was not exempt from the approval requirement under § 39 AufenthG based on the agreements made between the Federal Republic of Germany and the United States with the FHSV D-USA.
There was no provision in the treaty that would grant U.S. nationals a better or privileged status regarding residency rights compared to other non-priority third-country nationals.
International treaties do not provide better treatment
The administrative court correctly emphasized the principle laid down in Article II(1) FHSV, according to which nationals of the other contracting state may only enter, travel freely within, and reside in the other state „subject to the laws regarding the entry and stay of foreigners.“
This granted the nationals of the other contracting state the right to have their application for a residence permit decided according to the law. However, the contracting states reserved the right to apply their respective national residency laws. This reservation applies without limitation to all provisions governing the entry and stay of foreign nationals in the Federal Republic, including both formal and substantive residency law in its entirety.
There is no indication in the aforementioned treaty provision or in the treaty as a whole that the national residency law for the nationals of the other contracting state should be modified, in whole or in part, contrary to this reservation (see also VGH Baden-Württemberg, decision of October 32, 2006 – 13 S 1943/06).
Similar references are also found in the accompanying protocol to the FHSV.
Examples of existing international agreements:
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- Germany – Dominican Republic: Treaty of Friendship, Commerce, and Navigation between the Dominican Republic and the Federal Republic of Germany
- Germany – Indonesia: Trade Agreement of April 22, 1953
- Germany – Iran: Settlement Agreement of February 17, 1929
- Germany – Japan: Treaty of Commerce and Navigation of July 20, 1927
- Germany – Philippines: Agreement on Immigration and Visa Issues of March 3, 1964
- Germany – Sri Lanka: Protocol on Trade-Related General Questions of November 22, 1972
- Germany – Switzerland: Settlement Agreement of November 13, 1909, and the Memorandum of December 19, 1953
- Germany – Turkey: Settlement Agreement of January 12, 1927
- Germany – United States: Treaty of Friendship, Commerce, and Navigation of October 29, 1954.
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