Administrative Court Munich, 18.05.2017, Case No.: M 17 K 17.31269
If an asylum procedure is pursued in the Federal Republic of Germany, the Federal Office for Migration and Refugees (BAMF) decides on the recognition of asylum status due to political persecution (Art. 16a Abs. 1 GG) and on the determination of country-specific deportation prohibitions under § 60 AufenthG. § 60 AufenthG contains provisions under which a foreigner may not be deported. For example, under § 60 Abs. 5 AufenthG, a foreigner may not be deported if the application of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of November 4, 1950, results in the inadmissibility of the deportation. This links the material guarantees of the ECHR with German immigration law, establishing a deportation barrier if a violation under Art. 3 ECHR or another provision of the ECHR is imminent.
If a deportation prohibition exists under § 60 Abs. 5 AufenthG, the BAMF must grant the foreigner a residence permit for humanitarian reasons under § 25 Abs. 3 S. 1 AufenthG, provided that there are no other opposing reasons. Such reasons may include lack of cooperation, serious crimes, or threats to public safety and order in the Federal Republic of Germany.
The case before the Administrative Court Munich dealt with whether the plaintiff was subject to a deportation prohibition under § 60 Abs. 5 AufenthG and whether a unified assessment should be made regarding his wife and children.
If there is a ban on deportation in accordance with Section 60 (5) AufenthG, the BAMF must issue the foreigner with a residence permit on humanitarian grounds in accordance with Section 25 (3) sentence 1 AufenthG, provided there are no other reasons to the contrary. These reasons include a lack of cooperation, serious criminal offences or a threat to public safety and order in the Federal Republic of Germany.
The proceedings before the Administrative Court in Munich centred on whether the plaintiff was subject to a ban on deportation in accordance with Section 60 (5) of the Residence Act and whether a uniform assessment should be made with regard to his wife and children.
Facts of the Case:
The plaintiff, an Afghan national, entered Germany by land in December 2015 with his wife and son. On July 16, 2016, he applied for asylum, stating that his father had been kidnapped in October 2015, but no ransom was paid due to police intervention. Shortly afterward, the family learned of the father’s death. The plaintiff’s mother was also threatened with his murder. Additionally, the plaintiff reported that his son was suffering from tuberculosis.
In its decision of January 13, 2017, delivered on January 17, 2017, the BAMF rejected the application, citing various reasons. The conditions for granting refugee status or recognition as an asylum seeker were not met. The plaintiff had not demonstrated that his entry was due to personal persecution. The events surrounding the kidnapping did not constitute acts of persecution relevant to refugee status, nor did they represent a significant connection under refugee law. Moreover, state authorities could provide protection against such threats.
BAMF Found No Grounds for Asylum, Subsidiary Protection, or Deportation Prohibitions
The BAMF also determined that there was no entitlement to subsidiary protection or a deportation prohibition, as there was no indication that the plaintiff would face the death penalty, torture, or inhumane or degrading conditions upon return. The BAMF further noted that the plaintiff did not face individual conflict-related risks. The plaintiff was a healthy and able-bodied young man who could at least secure a subsistence level in Afghanistan. Additionally, his significant financial means for travel suggested support in his home country.
The plaintiff filed a lawsuit with the Bavarian Administrative Court Munich on January 25, 2017, seeking recognition as an asylum seeker or refugee under § 3 Abs. 4 AsylVfG. Alternatively, he requested the determination of a deportation prohibition. The defendant did not file any motions.
Plaintiff Sought Recognition of Deportation Prohibitions
The plaintiff argued that his son and pregnant wife, who was in her seventh month, were granted a deportation prohibition under § 60 Abs. 5 AufenthG by decision dated December 8, 2016. He also cited heavy fighting in the entire city area, making the defendant’s statements irrelevant to the reality.
During the oral hearing, the plaintiff withdrew his applications regarding asylum status and refugee status and continued to seek only the determination of a deportation prohibition.
Decision of the Administrative Court Munich:
The court found the lawsuit to be admissible and well-founded. A decision could have been made without the defendant’s presence in accordance with § 102 VwGO.
Under § 60 Abs. 5 AufenthG in conjunction with Art. 3 ECHR, a deportation prohibition exists if there are serious and substantiated reasons to believe that the person concerned would be subjected to treatment contrary to Art. 3 ECHR. The overall circumstances of the case and the standard of prognosis are decisive (see, e.g., VG Lüneburg, Judgment of 6.2.2017, 3 A 140/16 – juris para. 53 with references). An exceptional case under § 60 Abs. 5 AufenthG in conjunction with Art. 3 ECHR may exist in cases of general violence in the country of origin if extreme violence and poor humanitarian conditions prevail. Such an exceptional case could apply, particularly to a family with minor children (see Bavarian Administrative Court, Judgment of 21.11.2014 – 13 a B 14.30285).
Court Considered Fundamental Rights Protection Applicable, As a Unified Family Return Must Be Assumed
The court found that an exceptional case applied to the plaintiff. In addition to his wife, he had two small children to care for. The plaintiff could not be assessed as a single individual, as the defendant had done. In view of the fundamental rights protection under Art. 6 GG, the unified return of the entire family had to be assumed (see Bavarian Administrative Court, Judgment of 21.11.2014 – 13 a B 14.30285 – juris para. 21 with references). Therefore, he was responsible for the care and support of his children and ensuring their adequate care, particularly by doctors, which was not available in the country of origin.
Thus, the lawsuit was granted. A deportation prohibition existed for the plaintiff under § 60 Abs. 5 AufenthG.
Source: Munich Administrative Court
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.
