Immigration Law: On the Scope of the Declaration of Commitment for Syrian Refugees

Administrative Court of Cologne, April 19, 2016, Case No.: 5 K 79/16

A declaration of commitment is a written assurance by a private individual to cover the living expenses of a foreign national. It is a unilateral declaration of intent that requires receipt by the immigration authority. The declaration must be made in writing (§ 68 (2) sentence 1 of the Residence Act) and signed in person by the host at the immigration authority.

By signing the declaration, the guarantor becomes liable for the foreign national’s living expenses, including basic needs such as food, clothing, and housing, as well as for care in case of illness or need for long-term care. The obligation may also cover repatriation costs (e.g., airfare) if the foreign national is unable to bear them.

Moreover, the declaration of commitment also covers the costs of any necessary forced termination of residence, such as deportation under §§ 66 and 67 of the Residence Act. This includes, for example, transportation and travel costs, necessary escorts, translation, food, and detention costs. Consequently, the guarantor may be required to pay significant expenses.

In the case discussed here, the Administrative Court of Cologne had to decide whether a guarantor, who had provided a declaration of commitment for two Syrian refugees, was required to reimburse the Jobcenter for the benefits it had paid to the refugees.

(A similar case was decided by the Administrative Court of Düsseldorf on March 1, 2016, Case No.: 22 K 7814/15)

Background: Declaration of Commitment for Syrian Refugees

The plaintiff in this case made a declaration of commitment on May 6, 2014, in accordance with § 68 of the Residence Act (AufenthG) at the immigration authority of the city of Leverkusen. By this declaration, he committed to covering the living expenses of two Syrian nationals, K. and C. X., who were at that time residing in Turkey. The declaration was part of a humanitarian measure aimed at allowing Syrian refugees to enter Germany if a relative living in Germany was willing to support them.

The declaration of commitment stipulated that the plaintiff’s financial obligation would last from the time of the Syrian nationals‘ entry into Germany until the end of their stay or until they were granted a residence permit for another purpose. The two Syrians entered Germany on September 8, 2014, with a visa issued by the German embassy in Ankara. On December 15, 2014, they were granted residence permits under § 23 (1) of the Residence Act, valid until December 14, 2016.

Asylum Application and Recognition as Refugees

On May 5, 2015, the two Syrians applied for asylum in Germany. The Federal Office for Migration and Refugees (BAMF) recognized them as refugees in decisions dated July 23, 2016, and August 11, 2016, respectively, granting them secure residence in Germany. As a result of this recognition, the two Syrians were granted residence permits under § 25 (2) of the Residence Act, leading to a legal debate regarding the duration and scope of the plaintiff’s declaration of commitment.

From September 1, 2015, to November 30, 2015, the Jobcenter Leverkusen provided the two refugees with benefits under the Social Security Code II (SGB II) amounting to €1,706.55 each. These benefits were intended to secure their livelihood, as they had no means of their own.

Jobcenter’s Demand and Legal Action

On December 10, 2015, the Jobcenter Leverkusen demanded that the plaintiff reimburse the amount of €1,706.55 that had been granted to one of the refugees. This demand was based on the declaration of commitment that the plaintiff had made. Following a hearing, the Jobcenter issued a decision, against which the plaintiff initially lodged an objection before filing a lawsuit with the Administrative Court of Cologne. Another decision dated January 8, 2016, required the plaintiff to reimburse the same amount for the second refugee, prompting the plaintiff to expand his lawsuit.

The plaintiff argued that his obligation to reimburse costs ended with the recognition of the refugees‘ status and the change in their legal basis for residence. He asserted that the issuance of the residence permit under § 25 (2) of the Residence Act constituted a change in the purpose of their stay, which terminated his obligation.

Decision of the Administrative Court of Cologne: Obligation Remains

The Administrative Court of Cologne ruled in favor of the Jobcenter, finding the claims to be lawful. The plaintiff was required to reimburse the living expenses of the two Syrian nationals. The court based its decision on § 68 (1) of the Residence Act, which stipulates that anyone who has made a declaration of commitment must reimburse all public funds used for the foreign national’s living expenses, even if these funds were provided based on the foreign national’s legal entitlements.

The court emphasized that the plaintiff’s declaration of commitment was made under the directive of the North Rhine-Westphalia Ministry of the Interior dated September 26, 2013. This directive allowed Syrian nationals to enter Germany if they had fled due to the civil war and had relatives in North Rhine-Westphalia who were willing to support them. The directive explicitly required that the Syrians’ living expenses be secured by their relatives in Germany, which was ensured through the declaration of commitment.

Change of Residence Permit: No Termination of Obligation

The court clarified that the change in the Syrians‘ residence permits from § 23 (1) of the Residence Act to § 25 (2) of the Residence Act did not constitute a „residence permit for a different purpose“ as defined by the declaration of commitment. The plaintiff argued that his obligation ended with the change of residence permit, but the court rejected this argument. The court explained that the interpretation of the declaration of commitment must consider not only the specific legal provision but also the underlying circumstances.

The court concluded that the plaintiff’s declaration of commitment should be interpreted as a general obligation to secure the living expenses of the Syrians for the entire duration of their stay in Germany due to the civil war. The change in the residence permit did not represent a new purpose of stay but was a continuation of the original humanitarian objective that led to the granting of the residence permit.

No Discretionary Decision Required

The Administrative Court also found no need for the Jobcenter to make a discretionary decision regarding the plaintiff’s liability. It noted that established case law dictates that those who make a declaration of commitment are typically required to reimburse costs. This is especially true when the conditions for granting the residence permit and the financial capacity of the guarantor have been assessed in the administrative process, and there are no indications of undue hardship.

The court emphasized that there was no significant discretion in this case, as the plaintiff’s obligation was clear and unambiguous. The fact that the Syrian nationals had since been recognized as refugees did not alter the plaintiff’s obligation to cover costs incurred during the period covered by the declaration of commitment.

Conclusion and Legal Significance

The ruling of the Administrative Court of Cologne highlights the extensive obligations associated with making a declaration of commitment under § 68 of the Residence Act. It demonstrates that such an obligation remains in effect even if the foreign national’s residence status changes, as long as the original purpose for entry continues. For individuals considering making a declaration of commitment, this ruling serves as an important reminder of the potential financial risks and long-term consequences.

Source: Administrative Court of Cologne

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.

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