Germany - Administrative Court Ansbach, 16. February 2017, AN 6 K 16.01533

Country of Decision:
Country of Applicant:
Date of Decision:
16-02-2017
Citation:
AN 6 K 16.01533
Court Name:
Administrative Court Ansbach
National / Other Legislative Provisions:
Germany - AufenthG (German Residence Act) - Article 44
Article 166
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Headnote: 

Decision to authorise legal aid in a process which concerns whether the applicant has a right to access an integration course.

Facts: 

The claimant is an Afghan national. She lodged an application on the 26 February 2016 to allow her to attend an integration course (language and orientation course), this request was rejected. According to the authorities, the notion of rejection was due to the reason that the claimant could not meet the requirement of ‘prospect to remain’ set out in § 44 AufenthG, since she was not a citizen of a country with a high protection rate (Syria, Eritrea, Iran and  Iraq) .

The claimant lodged an appeal  stating that there are prospects that she  remains, since she has personal reasons for the asylum application and that nobody is allowed to be discriminated or disadvantaged because of his or her nationality, citizenship or origin. This appeal was rejected again. On the 9 August 2016 the claimant lodged a legal action requesting permission to attend the integration course, legal aid and legal representation. She stated that the legal action was justified since the country of origin cannot be the sole criteria to decide if she can attend such a course.

Decision & Reasoning: 

The court justified under which circumstances the request for legal aid is permissible. According to §§ 166 VwGO, 114 ZPO an application for legal aid has to be granted if an applicant cannot afford the costs of a proceeding due to his or her financial situation, there is a prospect of success, and it is not a manifestly unfounded claim.

The time to decide the chances of success is the moment in time when the decision is “ready”. This moment is commonly reached at the time when all documents have arrived before the court. Legal aid is granted to satisfy the need of legal protection of the more impecunious. The prospects of success cannot weigh too heavily, especially if the decision of the court is dependent on the interpretation of difficult legal issues. According to the court, the request for legal aid has to be granted, since complicated legal questions have to be answered, namely, is there a prospect of the applicant remaining?

The chances of success are still open at the time of approval of the request; this is enough to fulfil the requirement of § 114 ZPO, since it is dependent on the defining of ‘legal and permanent residency’ of § 44 Abs. 4 S. 2 Alt. 2 Nr. 1 AufenthG and the resulting ‘prospects to remain’. The High Court has not defined these terms so far. According to the legislator § 44 Abs. 4 S. 2 Alt. 2 Nrs. 1 till 3 AufenthG should limit the applicants for an integration course to those applicants who are most likely to be granted permanent residency. This likelihood might be established through the country of origin and its high protection rate or a relevant individual asylum claim.

According to the court the questions raised in this legal claim are valid difficult legal issues which need to be clarified. The court will not clarify the issues in the proceedings to grant legal aid. Therefore, since these issues have not been elaborated the claimant has the right to legal aid as the prospects of success exists as per the terms of § 144 ZPO. Additionally, it is not a manifestly unfounded claim, and the claimant cannot afford the costs of trial herself.

Outcome: 

Request for legal aid granted.

Subsequent Proceedings : 

Court decision to decide whether the claimant has a right to attend the integration course according to § 44 Abs. 4 S. 2 Alt. 2 AufenthG.

Observations/Comments: 

This case summary was written by Melina Heinl, a LLM student at Queen Mary University.

This case summary was proof read by Julia Oberndorfer, a law student at Leibniz Universität Hannover.
Case Law Cited: 

Germany - Federal Constitutional Court, B.v. 13. March 1990 - 2 BvR 1439/88

Germany - Administrative Court Bayern, B.v. 28. December 2004 - 12 CE 04.2960

Germany - Bavarian Administrative Court, B.v. 28. April 2003 - 12 C 03.488

Germany - Administrative Court Bayern, B.v. 4. February 2003 - 12 C 02.1942