Federal Administrative Court, 13.02.2014, Case No.: BVerwG 1 C 4.13
The legal consequences of a declaration of commitment are regulated in § 68 of the Residence Act (AufenthG). According to § 68 (1) AufenthG, a person who has committed to covering the living expenses of a foreign national to the immigration authorities or a foreign representation must reimburse all public funds expended for the foreign national’s living expenses, including housing, medical care, and long-term care.
This obligation applies even if the expenses are based on a legal claim of the foreign national.
As the wording of the law suggests, the liability of the person making the declaration is extensive, and careful consideration should be given before entering into such a commitment.
Although it is theoretically possible to challenge a declaration of commitment later on due to defects of will under §§ 119 ff. of the German Civil Code (BGB), this is typically difficult in practice.
In the case mentioned above, the Federal Administrative Court had to decide whether the obligation to reimburse social benefits under a declaration of commitment ceased to exist because the foreign national was later recognized as a refugee.
Facts of the Case:
The plaintiff had issued a declaration of commitment for Moroccan nationals.
In June 2008, the plaintiff made a written commitment to the defendant, pursuant to § 68 AufenthG, to cover all living expenses for his sister-in-law, Ms. B., a Moroccan national, in the event a visitor visa was granted, until her departure or the issuance of another residence title.
Ms. B. was subsequently granted a visitor visa and entered Germany in July 2008. She applied for asylum in October 2008 and received benefits under the Asylum Seekers Benefits Act between March and August 2010.
Entry with Schengen Visa and Later Recognition as a Refugee
In January 2011, Ms. B. was recognized as a refugee. The defendant demanded reimbursement from the plaintiff for the benefits granted to Ms. B. prior to her recognition as a refugee, totaling approximately 1,300 euros.
The initial administrative court ruled in favor of the plaintiff, but the higher administrative court later dismissed the claim.
Judgment of the Federal Administrative Court
The Federal Administrative Court considered the declaration of commitment still valid.
The Federal Administrative Court agreed with the higher administrative court and confirmed that the reimbursement obligation was not retroactively nullified by the subsequent recognition as a refugee.
According to the Federal Administrative Court, the liability arising from the declaration of commitment only ends with the departure of the foreign national or the issuance of a residence title for a different purpose.
As a result, the reimbursement of social benefits that the foreign national received during an asylum procedure also applies in the event of a successful asylum application.
Although the period of the asylum procedure is counted as a lawful stay for acquiring rights (e.g., for naturalization) under § 55 (3) of the Asylum Procedure Act in favor of a recognized refugee,
this does not result in a retroactive issuance of a residence title nor does it benefit a third party who has assumed liability for the foreign national’s living expenses through a declaration of commitment.
EU Law Does Not Preclude the Reimbursement Claim
Article 13 of Directive 2003/9/EC on minimum standards for the reception of asylum seekers allows Member States to make the granting of social benefits to asylum seekers conditional on need and to seek reimbursement if necessary.
The directive aims solely at the social protection of asylum seekers and therefore does not preclude a claim against a third party based on a declaration of commitment.
Similarly, the declaratory recognition of refugee status under Directive 2011/95/EU (the so-called Qualification Directive) does not have retroactive effects on residence rights and does not affect the guarantor’s liability.
Source: Federal Administrative Court
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