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Germany – Administrative Court Cottbus, 28. April 2017, 1 L 568/16.A
Country of Decision:
Country of Applicant:
Date of Decision:
28-04-2017
Court Name:
Verwaltungsgericht Cottbus
Relevant Legislative Provisions:
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011
European Union Law > EN - Family Reunification Directive, Directive 2003/86/EC of 22 September 2003
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011
National / Other Legislative Provisions:
Germany – Verwaltungsgerichtsordnung (VwGO)
Germany – Asylgesetz (AsylG)
Germany – Verwaltungsverfahrensgesetz (VwVfG)
Germany – Aufenthaltsgesetz (AufenthG)
Germany – Asylgesetz (AsylG)
Germany – Verwaltungsverfahrensgesetz (VwVfG)
Germany – Aufenthaltsgesetz (AufenthG)
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PDF version of Summary
Headnote:
A grave psychological disease (post-traumatic stress disorder – PTSd) is a reason to grant interim legal protection against deportation, if the applicant is in a state of self-endangerment or potentially suicidal in case of a deportation.
Facts:
The applicants are from the Russian Federation. In 2008 they came to Poland where their applications for asylum were denied. In 2013 both came to Germany where they applied a second time for asylum.
The first applicant’s application for asylum was denied.
The second applicant suffers from PTSD and a recurrent depression. She attempted suicide in October 2016.
On the 2 1October 2016 she received a threat of deportation (Abschiebungsandrohung) from the Federal Office for Migration and Refugees (BAMF) in order to leave Germany. On the 11 of November 2016 she applied for interim measures against the deportation order.
Decision & Reasoning:
The Administrative Court grants the suspensive effect of the deportation order for the second applicant.
The court states that of the risk to life or health of an applicant can prevent deportation from going ahead (section 60 subsection 7 sentence 1 of the German law on residence [Aufenthaltsgesetz]). These risks must emanate from a life-threatening or grave disease which could lead to fatal psychological or physical damage in case of deportation.
In respect of PTSD, the court follows the consistent view of other courts. PTSD does usually not constitute a grave disease, so that it does not present a bar to deportation. The legal threshold to recognise psychological diseases as grave diseases are set high. It is only if the deportation could lead to a significant health risk or self-harm that PTSD can be seen as a grave disease.
The applicant needs a medical certificate to prove her disease and its graveness. The certificate must provide information on the disease and on what facts the diagnosis is based.
The applicant's certificate fulfilled these requirements and confirmed that she suffered from PTSD and recurrent depression. This has led to a grave risk of self-harm and repeated suicide attempts. The deportation back to the Russian Federation could cause the applicant to be re-traumatised and could lead to a grave risk of suicide, as confirmed by a medical examination.
Altogether her disease justified a suspension of deportation.
Outcome:
Interim legal protection was granted.
Observations/Comments:
The case shows the high requirements for a psychological disease, in this case PTSD, to (temporarily) prevent a deportation.
The case also touches upon the issue of an official hearing in case of a second asylum application since the first applicant was not heard by German authorities within the second asylum application. He was only heard within his first asylum application in Poland which is also sufficient for the second application, because German authorities accessed the files of the first hearing. In this way the applicant’s right to be heard was granted.
This case summary was written by Lars Rohrberg, LLM-student (Amsterdam/Columbia)
Case Law Cited:
Germany – Bundesverwaltungsgericht – 11.09.2007 – 10 C 8/07
Germany – Oberverwaltungsgericht Berlin-Brandenburg – 27.09.2016 – OVG 3 N 24.15
Germany – Verwaltungsgericht München – 26.01.2017 – M 4 S 1636173
Germany – Verwaltungsgericht München – 26.04.2017 – M 16 S7 16.30786
Germany – Verwaltungsgericht Ansbach – 23.03.2017 – AN 4 S 17.30922
Germany – Bundesverwaltungsgericht – 14.12.2016 - 1 C 4.16
