Federal Administrative Court, 06.03.2014, Case No.: BVerwG 1 C 2.13
Since the amendment of § 11 (1) of the Residence Act (AufenthG) by the Directive Implementation Act of 22.11.2011 (BGBl I S. 2258), foreign nationals have the right to have the immigration authority set a time limit on the effects of an expulsion order (entry and residence ban, issuance ban) when the expulsion order is issued.
In determining the duration of the expulsion’s effects, the immigration authority must consider several factors. First, the seriousness of the grounds for expulsion and the purpose pursued by the expulsion must be taken into account.
Additionally, the principle of proportionality must be observed, considering the foreign national’s personal circumstances, such as their family ties
For example, a minor child’s right to have contact with their father, as derived from Article 6 of the Basic Law (GG), must be taken into account when determining the duration of the expulsion’s effects.
In this case, the Federal Administrative Court had to decide whether the effects of the expulsion of a foreign national, who had never left Germany despite being deported due to his asylum status, had to be limited to zero.
Introduction: Sri Lankan Plaintiff Committed Crimes – Deportation
The plaintiff, a Sri Lankan national, entered Germany in 1994 and was recognized as an asylum seeker in 1996. In 2000, he was convicted of organized and commercial smuggling of foreign nationals and sentenced to a total of five years in prison. As a result, the State of Baden-Württemberg expelled the plaintiff from Germany in 2001 without setting a time limit on the effects of the expulsion. The state justified the expulsion by citing serious reasons of public security and order, particularly to prevent a recurrence of the crimes and to deter other foreign nationals.
Revocation of Asylum Status and Re-recognition as a Refugee
Although the plaintiff was not initially deported due to his asylum status, this protection was revoked in 2004. However, following a subsequent application, the plaintiff was re-recognized as a refugee in 2010. Since his release from prison, the plaintiff had been living in Germany with his partner and three minor children, initially on the basis of temporary toleration (Duldung), and later, from July 2011, with a residence permit under § 25 (5) of the Residence Act.
Application for Time Limitation and Lawsuit
In May 2010, the plaintiff applied for the effects of his expulsion to be limited to zero. The defendant set a time limit of one year from the date of his departure in December 2010. The plaintiff then filed a lawsuit seeking an immediate time limitation. The Administrative Court ruled in favor of the plaintiff, ordering the defendant to limit the effects of the expulsion to March 16, 2011, as ten years had passed since the service of the expulsion order.
Appeal and Revision Procedures
The Higher Administrative Court upheld this decision, reasoning that there were no longer any specific or general preventive reasons to maintain the effects of the expulsion. The plaintiff had not committed any criminal offenses for more than twelve years and therefore no longer posed a threat to public security and order. Additionally, the court found that the deterrent effect on other foreign nationals was no longer relevant. The defendant appealed this decision to the Federal Administrative Court, arguing that the time limit on the entry and residence ban could only begin upon the plaintiff’s departure.
Decision of the Federal Administrative Court
The Federal Administrative Court rejected the defendant’s appeal and upheld the decisions of the lower courts. It held that the plaintiff had a legal interest in having the effects of the expulsion limited to zero. The legal basis for this could be found in § 11 (1) Sentence 3 of the Residence Act, which mandates that the effects of the expulsion must be time-limited upon request. The court emphasized that the decision on the length of the time limit is a legally binding decision and not subject to the discretion of the immigration authority. Considering the circumstances of the case, particularly the long period since the conviction and the plaintiff’s family ties, a time limitation to zero without requiring prior departure was justified.
Conclusion: Importance of the Decision – Time Limitation of Expulsion Required
The Federal Administrative Court’s decision emphasizes that foreign nationals who have behaved lawfully for a long period after a conviction and have strong family ties in Germany have a right to have the effects of their expulsion time-limited. The court clarified that in such cases, the individual’s departure is not necessary to start the time limit for the expulsion’s effects. This decision strengthens the protection of the rights of foreign nationals who have successfully reintegrated into society in Germany after a criminal conviction.
Source: Federal Administrative Court
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