Federal Administrative Court, 22.03.2012, Ref.: BVerwG 1 C 3.11
Between 1991 and 2004, all federal states admitted Jewish immigrants from the countries of the former Soviet Union.
During this period, the respective state prime ministers were authorized to decide on admissions based on the so-called Contingent Refugee Law (Law on Measures for Refugees Admitted in the Context of Humanitarian Relief Operations – HumHAG).
However, with the enactment of the Immigration Act, the HumHAG lost its validity on January 1, 2005. Since then, Jewish immigrants must apply for entry to Germany based on the Residence Act.
Since the expiration of the HumHAG, the previously immigrated Jewish emigrants from the former Soviet Union no longer hold the legal status of contingent refugees.
In the decision presented here, the Federal Administrative Court had to rule on whether the prohibition on deportation according to Article 33 of the Geneva Refugee Convention (GRC) and its implementation in Section 60 (1) of the Residence Act still applies to Jewish emigrants with the loss of their status as contingent refugees.
Article 33 of the Geneva Refugee Convention contains the prohibition to:
„expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion.“
Facts of the Case:
The plaintiff was a Russian national who had come to the Federal Republic of Germany as a Jewish emigrant.
The plaintiff, a 46-year-old Russian national, had been admitted to Germany as a Jewish emigrant from the former Soviet Union in 1997.
In December 2003, the plaintiff was convicted of murder and sentenced to 12 years in prison. The criminal chamber assumed a significant reduction in his capacity to control his actions due to a mental illness.
The Immigration Authority Wanted to Deport the Plaintiff for Murder
The defendant immigration authority expelled the plaintiff in February 2006 and threatened him with deportation to the Russian Federation.
The Bavarian Administrative Court rejected the lawsuit against the expulsion.
Bavarian Administrative Court Revoked Deportation Threat
However, it revoked the deportation threat, stating that Jewish emigrants from the former Soviet Union enjoyed the legal status of contingent refugees according to a resolution by the heads of the federal and state governments from January 9, 1991, in accordance with Section 1 of the Law on Measures for Refugees Admitted in the Context of Humanitarian Relief Operations – Contingent Refugee Law.
Judgment of the Federal Administrative Court
The Federal Administrative Court, however, did not see any protection from deportation under Article 33 GRC.
The Federal Administrative Court overturned this decision of the Bavarian Administrative Court.
In doing so, the Senate left open whether the legal status granted to the plaintiff by his admission in 1997 in the corresponding application of the Contingent Refugee Law included the prohibition on deportation under Article 33 GRC or Section 60 (1) of the Residence Act.
Because, in any case, with the enactment of the Immigration Act on January 1, 2005, the legislator has redefined the rights of this group of people.
According to the now-applicable Section 23 (2) of the Residence Act, the Federal Ministry of the Interior may order the issuance of a promise of admission to foreigners from certain countries or groups of foreigners to safeguard specific political interests of the Federal Republic of Germany. After entry, they are granted a humanitarian residence permit; however, they do not enjoy protection from deportation under Article 33 GRC or Section 60 (1) of the Residence Act.
The transitional provisions of the Residence Act indicate that the new regulation is also intended to definitively shape the future legal status of Jewish emigrants admitted before January 1, 2005.
No Concerns Regarding Legitimate Expectations
There are also no concerns regarding legitimate expectations, as the affected individuals possess the right to permanent residence and still have the option to apply for asylum if they fear persecution.
The assumption of the Court of Appeal that the deportation prohibition under Section 60 (7) Sentence 1 of the Residence Act would apply in favor of the plaintiff due to his heart condition also violates federal law.
It fails to meet the standards required when assessing the future course of the disease and the availability of necessary medical treatment.
Source: Federal Administrative Court
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