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Germany - Federal Administrative Court, 04 July 2019 - 1 C 45.18
Country of Decision:
Country of Applicant:
Date of Decision:
04-07-2019
Citation:
BVerwG - 1 C 45.18
Court Name:
Federal Administrative Court
Keywords:
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
National / Other Legislative Provisions:
Germany – VwGO (Administrative Court Act) – Section 137 Para. 1 ; Section 154 Para. 2; Section 155 sentence 1
Germany – AsylG (Asylum Act) – Section 77 Para. 1
Section 3c
Section 26
Section 73c Para. 2
Section 83b
Germany – AufenthG (Residence Act) – Section 60 Para. 5 and 7; Section 60a Para. 2
Germany – GG (Basic Law/German Constitution) – Article 6 Para. 1
Germany – ZPO (Civil Procedure Act) – Section 100
Germany – RVG - Lawyers' Remuneration Act - Section 30 Para. 2
Germany – AsylG (Asylum Act) – Section 77 Para. 1
Section 3c
Section 26
Section 73c Para. 2
Section 83b
Germany – AufenthG (Residence Act) – Section 60 Para. 5 and 7; Section 60a Para. 2
Germany – GG (Basic Law/German Constitution) – Article 6 Para. 1
Germany – ZPO (Civil Procedure Act) – Section 100
Germany – RVG - Lawyers' Remuneration Act - Section 30 Para. 2
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Headnote:
In order to examine prohibitions of deportation, the Federal Office for Migration and Refugees (BAMF) has to consider the case of each family member even in cases of family associations separately whether deportation prohibitions exist. In this case, the risk assessment must be based on the assumption that a nuclear family living together in the Federal Republic of Germany will return to its country of origin as a family unit. This also applies if individual family members have already been granted a protection status or if national deportation prohibitions have been established.
Facts:
The applicant is an Afghan national. He entered the Federal Republic of Germany in December 2015 together with his wife and their two minor children. In August 2016 the BAMF rejected the asylum application filed and called on the applicant and his family to leave the Federal Republic of Germany under threat of deportation.
The complaint filed by the applicant was dismissed by the Administrative Court. The Higher Administrative Court partly allowed the appeal against the previous decision regarding the determination of deportation prohibitions in accordance with Section 60 Para. 5 or 7 AufenthG and concluded that a deportation prohibition only applies with regard to the wife and children. The Higher Administrative Court explained that the examination of national deportation prohibitions does not consider the nuclear family as a whole, but rather each family member individually. For the applicant's wife and the joint children individual deportation prohibitions apply, since the wife will almost certainly not be able to earn the minimum subsistence level for herself and her children, due to care and educational tasks. For the applicant no deportation prohibition will be granted, since he is a “healthy, capable man” and could secure his own livelihood even without a social network .
In support of the appeal, the applicant argued that, in order to assess the risk upon return, he could not be regarded in isolation as a single young man capable of working but rather as part of his nuclear family.
With regard to the examination of possible separation-related violations of Art. 6 Para. 1 of the Basic Law for the Federal Republic of Germany (GG) and Art.8 ECHR as an obstacle to enforcement in Germany, the defendant (BAMF) argues that the foreigner’s authority (Ausländerbehörde) and not the BAMF is the competent authority (para. 20).
Decision & Reasoning:
The applicant's appeal is admissible and successful. The BAMF is obliged to establish a deportation prohibition for the plaintiff in accordance with Section 60 Para. 5 AufenthG.
Although the Higher Administrative Court correctly assumed that national prohibitions of deportation must be examined separately for each person seeking protection, a “hypothetical but realistic return situation” must be taken as a basis for the assessment of the dangers threatening the applicant in his country of origin (para. 16). When assessing the return situation in the case of actual cohabitation of the family, it must therefore be assumed that the family either does not return at all or only returns together within the family unit. A nuclear family that is particularly worthy of protection under Art. 6 GG/ Art. 8 ECHR may therefore in principle not be dissolved or even separated by any state measures (para. 17).
The Federal Administrative Court argues that the assessment of the applicant’s risk upon return constellations must consider the conditions under which a realistic return can and will take place (para. 21). In this context, the protection of the existing nuclear family under fundamental and convention law has an effect on the return constellation and also fundamentally prohibits the separate consideration of individual family members even if individual permissions to stay were granted.
In making this finding, the Federal Administrative Court expressly deviates from earlier case-law, which assumed an exception to the joint return within the family unit in cases where individual family members were granted protection against deportation (para. 19 et seq.).
In the present case, due to the living conditions in Afghanistan and the resulting threats to the existence of the applicant and his family members, there is a considerable probability that the applicant and his family members will live under conditions that are no longer compatible with Art. 3 ECHR and therefore a deportation prohibition must be granted to all the family members of the applicant including himself.
Outcome:
Appeal granted.
Subsequent Proceedings :
This is a final judgment.
Observations/Comments:
Not to be decided in the present case, was the fact, whether the principle of joint return within the family association also applies if a family separation would exceptionally for example for reasons of public safety be compatible with the special family protection under Art. 6 of German Basic Law/ Art. 8 ECHR.
With the present judgment, the Federal Administrative Court has deviated from earlier case-law of the judgments of BVerwG 9 C 12.99 and BVerwG 9 C 9.00.
The case summary was written by Theresa Richter, LLM student at Queen Mary University of London
Other sources cited:
Domestic Case Law cited
Germany – Federal Constitutional Court (BVerfG), Chamber resolution of 10 October 2001 - 2 BvR 891/00
Germany – Federal Constitutional Court (BVerfG), order of 27 July 2016 - 1 BvR 371/11
Germany – Federal Constitutional Court (BVerfG), order of 09 April 2003 - 1 BvL 1/01, 1 BvR 1749/01
Germany – Federal Administrative Court (BVerwG), 08 September 1992 - 9 C 8.91
Germany – Federal Administrative Court (BVerwG), 16 August 1993 - 9 C 7.93
Germany – Federal Administrative Court (BVerwG), 21 September 1999, 9 C 12.99
Germany – Federal Administrative Court (BVerwG), 27 July 2000, 9 C 9.00
Germany – Federal Administrative Court (BVerwG), 11 September 2007 - 10 C 8.07
Germany – Federal Administrative Court (BVerwG), 20 February 2013 - 10 C 23.12
Germany – Federal Administrative Court (BVerwG), 31 January 2013 - 10 C 15.12
Germany – Federal Administrative Court (BVerwG), 13 June 2013 - 10 C 13.12
Germany – Federal Administrative Court (BVerwG), order of 08 August 2018 - 1 B 25.18
Germany – Federal Administrative Court (BVerwG), 16 June 2004 - 1 C 27.03
Germany – Federal Administrative Court (BVerwG), 06 August 1993 - 9 C 7.93
Germany – Federal Administrative Court (BVerwG), order of 05 June 2013 - 2 BvR 586/13
Germany – Federal Administrative Court (BVerwG), order of 24 June 2014 - 1 BvR 2926/13
Germany – Federal Administrative Court (BVerwG), 23 May 2000 - 9 C 2.00
Germany – Higher Administrative Court (VGH München), 21 November 2018 - 13a B 18.30632
Germany – Higher Administrative Court (VGH Mannheim), 12 October 2018 - A 11 S 316/17
Germany – Higher Administrative Court (VGH Mannheim), 03 November 2017 - A 11 S 1704/17
Germany – Higher Administrative Court (VGH Mannheim), 11 April 2018 - A 11 S 1729/17
Germany – Higher Administrative Court (OVG Münster), order of 14 March 2018 - 13 A 341/18.A
Germany – Higher Administrative Court (OVG Bautzen), 03 July 2018 Az: OVG 1 A 215/18.A
Germany –Administrative Court (VG Chemnitz), 10 April 2017 Az: VG 5 K 1907/16.A
Case Law Cited:
CJEU - C-578-16, C. K. and Others, 16 February 2017
CJEU - C 163/17 Jawo, 19 March 2019
C 297/17, C 318/17, C 319/17 and C 438/17, Ibrahim and Others, 19 March 2019
