Germany: Federal Administrative Court rules that rights of the whole family must be examined in return decisions

Thursday, July 4, 2019

On 4 July 2019, the Federal Administrative Court of Germany ruled that the rights of each family member, as well as the nuclear family as a whole, must be considered in questions of refoulement.
The applicant, an Afghanistan national, travelled with his wife and two children to Germany in December 2015. They made an asylum application, which was later refused by the Federal Office for Migration and Refugees (BAMF). The applicant’s wife and children received a prohibition on deportation. In determining the question of whether to return the applicant to his country of origin, the Federal Administrative Court concluded that a risk assessment must consider the risks posed towards the family as a whole despite the effective prohibition of deportation for the rest of the family. While hypothetical, this assessment must present a realistic evaluation of the situation upon return. The assumption is thus that the family members either do not return, or they return together, provided it’s safe to return.
The Federal Administrative Court has therefore departed from previous case law. The presumption of a joint return now requires that the interests of the family be assessed as a whole, in line with Article 8 of the European Convention of Human Rights, to determine whether it can continue to coexist in the same way in the country of origin. Such a ruling follows the principle that the State support and protect the family, and the interests of the family are reflected in State measures.
Thank you to Hannah Berwian, Communications Assistant at ECRE, for assisting us with the summary. Based on an unofficial translation by the EWLU team.

Photo: mrhayata, March 2006, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



Family member
Family unity (right to)