Immigration Law: Equal Assessment of Deportation Prohibitions under § 60 Abs. 5 AufenthG for Families

Anyone who applies for asylum in Germany goes through a procedure in accordance with the Asylum Act (AsylG). The Federal Office for Migration and Refugees (BAMF) is responsible for this. In a decision, the BAMF decides in several stages whether protection is granted:

1. Basic right to asylum (Art. 16a GG) - historically important, but rare in practice because most procedures under EU law are based on refugee status.

2. Refugee status (§ 3 AsylG) - Implementation of the Geneva Refugee Convention.

3. Subsidiary protection (§ 4 AsylG) - in the event of imminent death penalty, torture or serious individual danger in an armed conflict.

4. National bans on deportation (Section 60 (5) and (7) AufenthG) - if neither refugee protection nor subsidiary protection is available, but deportation to the country of destination would nevertheless be inadmissible for human rights reasons.

The examination of the prohibition of deportation is expressly the task of the BAMF; this results today, among other things, from § 24 and § 31 AsylG.

It is important to differentiate here:

• Deportation bans related to the country of destination:
  It is about the danger in the country of destination of the deportation - e.g. Afghanistan, Syria, Iraq, Iran, Turkey, Somalia, Eritrea, Nigeria, Pakistan, Russia or Belarus, but also about transfers to other EU countries such as Greece, Italy, Bulgaria or Croatia.
  Section 60 (1), (2), (3), (5) and (7) AufenthG apply here in particular.

• Domestic obstacles to enforcement:
  These are reasons that are related to the situation in Germany - e.g. the current fitness for transport, special family ties here or formal errors by the authorities. These reasons can block or delay the execution of a deportation, but do not in principle justify a deportation. destination state Prohibition of deportation within the meaning of Section 60 (5) AufenthG.

This distinction between destination-related and domestic-related reasons has been further sharpened by recent case law of the Federal Administrative Court (BVerwG) (see IV. below).

II Section 60 Residence Act and Art. 3 ECHR - Protection against torture, inhuman treatment and extreme hardship

1. content of Section 60 (5) and (7) AufenthG

§ Section 60 AufenthG bundles the so-called Prohibition of deportation and refoulement („non-refoulement“). In para. 5, the legislator refers to the European Convention on Human Rights (ECHR), in particular Art. 3 ECHR (prohibition of torture and inhuman or degrading treatment).

To put it simply:

• § Section 60 (5) AufenthG protects against being deported to a state in which there is a considerable likelihood of a violation of the ECHR - especially Art. 3.

• § Section 60 (7) AufenthG protects against „other significant risks“ to life, limb or freedom, in particular against serious illness-related risks or extreme individual risks (e.g. in the case of particularly vulnerable persons).

The threshold is high: poorer living conditions, poverty or a strained supply situation are not enough. It must be a Extreme humanitarian emergency in which basic needs - accommodation, food, minimal medical care - are no longer permanently guaranteed. This line has been confirmed in recent case law, particularly in the case of returns of recognised beneficiaries of protection to Greece and Italy: For single persons entitled to protection who are able to work and are not particularly vulnerable, the Federal Administrative Court does not currently see a violation of Art. 3 or Art. 4 of the CFR in Greece or Italy due to the general reception conditions.

2. tightening of security law - § 60 para. 8 ff. Residence Act

Sections 60 para. 8 to 8b of the Residence Act have been tightened several times in recent years, most recently by the Act to Improve Internal Security and the Asylum System of 25 October 2024.

Key point:

• In the case of certain serious criminal offences or constellations of danger (in particular with a terrorist or extremist connection), the application of Section 60 (1) AufenthG - i.e. protection under refugee law - may be waived or refugee status may not be granted in the first place.

• However, this changes nothing The fact that deportation to a country in which the person concerned would be at risk of torture or inhumane treatment is still inadmissible under Art. 3 ECHR. In such constellations, Section 60 (5) Residence Act remains in place as an „emergency brake“; although the person concerned often does not receive regular protection status, they are de facto protected from deportation to this country.

III Residence permit in the event of a ban on deportation - Section 25 (3) AufenthG and new obligations

If the BAMF (or later a court) establishes a ban on deportation in accordance with Section 60 (5) or (7) AufenthG, the person concerned will be sent to the persons entitled to national protection. Legal consequence:

• According to § 25 para. 3 AufenthG shall be granted a residence permit on humanitarian grounds.

• This residence permit is initially limited in time, but can be extended and - depending on the individual case - opens the way to longer-term forms of status (e.g. settlement permit).

However, Section 25 (3) AufenthG now contains a clear catalogue of grounds for exclusion:

• repeated or gross violations of obligations to co-operate (e.g. false information, misrepresentation of identity),

• serious crime,

• Crimes against peace or against humanity,

• a danger to the general public or the security of the Federal Republic of Germany.

Those who fall under these grounds for exclusion retain the ban on deportation (repatriation to the country at risk remains prohibited), but often receive no residence permit, but only toleration. This is tricky from a human rights perspective, but is justified politically with security interests.

New: Obligation to register when travelling to the country of origin (§ 47b AufenthG)

Section 47b AufenthG has been in place since 31 October 2024. According to this

• Persons entitled to asylum,

• persons entitled to international protection (refugees or beneficiaries of subsidiary protection) and

• Persons with an established ban on deportation pursuant to Section 60 (5) or (7) AufenthG

any journey to their country of origin and the reason for the journey in advance to the foreigners authority. The authority forwards the notification to the BAMF, which must check whether a Revocation protection status or prohibition of deportation comes into consideration. A breach of the obligation to notify can be punished as an administrative offence.

In practice, this means that if you are an Afghan, Syrian, Iraqi, Iranian, Somali, Eritrean, Nigerian, Pakistani, Russian or Belarusian with a ban on deportation and wish to travel to your country of origin - for family reasons, for example - you should definitely seek advice in advance.

IV. The VG Munich 2017 case - and its categorisation in the current legal situation

1. briefly on the facts

The plaintiff in the proceedings before the Administrative Court of Munich was an Afghan national. He travelled to Germany by land with his wife and son in December 2015 and applied for asylum in July 2016.

He presented, among other things:

• His father was abducted in October 2015 and later killed,

• His mother had been threatened to kill him too,

• his son was suffering from tuberculosis,

• his wife was seven months pregnant when she entered the country.

The BAMF rejected the application in January 2017. It denied eligibility for asylum, refugee protection and subsidiary protection and saw neither an individual risk nor a ban on deportation. The reasons given included the fact that the applicant was a healthy young man who was able to work and could secure a minimum subsistence level in Afghanistan; state protection was possible in principle.

In contrast, the applicant pointed out that his wife and son had already been granted a ban on deportation in accordance with Section 60 (5) Residence Act in December 2016 and that the security situation in his home town was characterised by heavy fighting. In the course of the court proceedings, he withdrew his applications for asylum and refugee protection and only pursued the determination of a ban on deportation.

2. the decision of the VG Munich (2017)

The Munich Administrative Court ruled in favour of the plaintiff and established a ban on deportation in accordance with Section 60 (5) AufenthG in conjunction with Art. 3 ECHR. Art. 3 ECHR.

Key points of the explanatory memorandum - greatly simplified:

• Art. 3 ECHR protects against treatment that falls short of a minimum standard of human dignity.

• In the case of the plaintiff, a Uniform family return He could not be viewed in isolation as a „single young man“. Article 6 of the Basic Law (protection of marriage and family) requires the family to be seen as a whole.

• In view of the security situation at the time, the poor medical care and the lack of economic prospects in Afghanistan, the family - with a sick child and another infant - faced a serious risk of being subjected to treatment contrary to Article 3.

The court therefore saw a Exceptional case general humanitarian emergency, in which Art. 3 ECHR applies, although the threat is not only based on targeted attacks, but also on the combination of violence, instability and lack of care in the country of origin.

The core statement remains valid in 2025: In particularly exceptional circumstances - especially in the case of families with small children or seriously ill people - general conditions in the country of origin in conjunction with the individual situation can justify an Art. 3 violation.

V. Current leading decision: BVerwG, judgement v. 22.05.2025 - 1 C 4.24

1. background of the procedure

In the decision 1 C 4.24, the Federal Administrative Court had to decide on cases in which foreigners with family ties in Germany were not entitled to asylum, refugee protection or subsidiary protection, but the lower instance a ban on deportation pursuant to Section 60 (5) AufenthG solely because of

• the best interests of the child and

• of family ties in Germany

had assumed.

The lower court had referred to Art. 5 of the Return Directive 2008/115/EC. This stipulates that Member States must take into account the best interests of the child, family ties and the state of health of the person concerned when making return decisions.

2. core statement of the BVerwG

The BVerwG expressly rejected this view and clarified it:

• Domestic issues - In particular, the best interests of the child, family ties in the federal territory and the current state of health with regard to the realisation of the return - can be do not justify a ban on deportation pursuant to Section 60 (5) AufenthG.

• These aspects are rather in the return procedure specifically within the framework of the Threat of deportation according to § 34 AsylG and the application of the Return Directive. German law today expressly implements Art. 5 of the Directive in Section 34 (1) No. 4 AsylG: A threat of deportation may only be issued if the deportation does not conflict with the best interests of the child, family ties or state of health.

Dogmatically, the court draws a clear line:

• § Section 60 (5) AufenthG remains on Target state-related risks (torture, inhumane detention conditions, extreme hardship in the destination country, etc.).

• Child welfare, family ties and state of health at home are Enforcement issues and are part of the examination of the legality and proportionality of the threat of deportation or later of the deportation itself.

In practice, this means

• Arguments such as „the child is well integrated here“, „the family lives together in Germany“ or „the person concerned is currently unable to travel“ are primarily used today. against the threat of deportation resp. against the execution of deportation, not (any longer) to justify a § 60 para. 5 prohibition of deportation.

• Risks related to the country of destination - such as the threat of torture, persecution by militias, extremely poor medical care in the country of origin - remain key starting points for Section 60 (5) and (7) AufenthG.

3. classification of the Munich judgement from today's perspective

The decision of the Munich Administrative Court from 2017 can be largely harmonised with the new BVerwG case law if you look closely:

• The fact that the Munich Administrative Court considered the family as a unit is also permissible from today's perspective - the family is a unit. as far as The question is what specific dangers the family is exposed to. in the destination country Afghanistan would be exposed.

• On the other hand, it would be inadmissible to derive a ban on deportation under Section 60 (5) Residence Act solely from the integration of the children in Germany or from the mere fact that the family lives here.

As a result, the case would probably be structured similarly today: The dogmatic focus would be more clearly on the specific dangers to the family related to the destination state (security situation, medical care, particular vulnerability of the children), while Article 6 of the Basic Law and the best interests of the child would be more strongly located at the level of the threat of deportation and enforcement.

VI Further current developments and examples from case law

The discussion about bans on deportation has long been taking place not only in the case of returns to Afghanistan or Syria, but also in other contexts:

1. Recognised beneficiaries of protection in other EU countries (Greece, Italy, etc.)
   Since 2023, the Federal Administrative Court and various higher administrative courts have clarified in landmark decisions that single, able-bodied and non-vulnerable recognised refugees returning to Greece or Italy are currently, in principle No treatment incompatible with Art. 3 ECHR or Art. 4 CFR is imminent. Prohibitions on deportation in accordance with Section 60 (5) or (7) AufenthG are primarily considered in the case of particularly vulnerable persons (families with very young children, seriously ill persons, traumatised persons).

2. Non-refoulement to the country of origin despite refugee recognition abroad
   In 2025, the VG Hannover ruled on the interpretation of Section 60 (1) AufenthG that the principle of non-refoulement also applies if a person has already been recognised as a refugee in another country and Germany has refused to deport them to that country. Country of origin In this constellation, the provision continues to protect against return to the country of persecution.

3. Diplomatic assurances in the case of deportation orders (Section 58a Residence Act)
   In security law proceedings (deportation order against so-called "Gefährder"), the Federal Administrative Court emphasised in 2023 that diplomatic assurances from the destination state are only suitable for eliminating an Art. 3 risk if they are sufficiently specific, verifiable and reliable. Otherwise, a ban on deportation pursuant to Section 60 (5) AufenthG remains in place, even if there are important security interests to the contrary.

In practice, deportation bans therefore not only affect „classic“ war and crisis states such as Afghanistan, Syria, Iraq, Iran, Somalia or Eritrea, but also states with authoritarian tendencies (e.g. Russia, Belarus), states with pronounced regional conflicts (e.g. Nigeria, Pakistan) as well as transfers within the EU, in particular to Greece, Italy, Bulgaria or Croatia.

VII. What does this mean for those affected and their counsellors?

For those seeking advice, but also for counsellors and colleagues, the current legal situation provides some clear guidelines:

1. Clearly identify target state-related risks

   • Specific presentation on the security situation, persecution by state or non-state actors, access to accommodation, food and medical care in the country of origin.

   • For families: What are the particular risks for children, pregnant women, sick people?

2. Precisely document health aspects

   • Medical certificates, ideally stating the diagnosis, severity, necessary treatment and the consequences of interruption or discontinuation in the destination country.

   • In the case of mental illness: structured expert opinions with reference to Art. 3 ECHR and case law on the risk of suicide.

3. Positioning child welfare and family ties correctly

   • Today, these arguments are primarily part of the Examination of the threat of deportation and enforcement (Section 34 Asylum Act, Art. 5 Return Directive), not to justify a ban on deportation pursuant to Section 60 (5) Residence Act.

   • At the same time - depending on the case - a residence permit due to sustainable integration (Sections 25a, 25b AufenthG) or a hardship application can be examined.

4. New reporting obligations must be observed

   • Since 2024, travelling to the country of origin must be reported if there is international protection or a ban on deportation. Anyone who ignores this obligation risks fines and, above all, a review or revocation of their protection status.

VIII. Conclusion

The decision of the Administrative Court of Munich from 2017 is an example of how courts can affirm a ban on deportation in special constellations - in this case an Afghan family with small children and a sick son - in accordance with Section 60 (5) Residence Act in conjunction with Art. 3 ECHR. Art. 3 ECHR can be affirmed.

The legal situation in November 2025 has been further outlined by several legislative reforms (Repatriation Improvement Act, Act on the Improvement of Internal Security and the Asylum System) and a condensed supreme court case law:

• § Section 60 (5) AufenthG remains the central instrument for implementing the human rights non-refoulement principle, focussed on Dangers in the destination country.

• Domestic issues such as the best interests of the child and family ties are now even more firmly anchored as a separate examination stage in the return procedure.

• At the same time, security aspects and control mechanisms (reasons for exclusion, reporting obligations when travelling home) have become noticeably more important.

This means for those affected: If you want to obtain or defend a ban on deportation, you need as precise, up-to-date and well-documented a presentation as possible on the conditions in the country of origin and your own vulnerability - and a clear strategy as to where to place which argument in the complicated migration law „puzzle“.

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.
This article provides an overview of the legal situation and case law Status November 2025. The subject matter is complex and subject to constant change. No liability is accepted for the correctness, completeness or topicality of the content and it does not replace individual legal advice.

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