dministrative Court of Hannover, 13.10.2015, Ref.: 13 A 12068/14
A foreigner who has been expelled, deported, or removed may neither re-enter the federal territory nor stay in it, nor may they be granted a residence permit, even if they are entitled to one under this law (entry and residence ban). This ban period must be limited ex officio according to Section 11, Paragraph 2 of the Residence Act (AufenthG). The period begins with the departure. In the case of expulsion, the period must be set together with the expulsion order. Otherwise, the period should be set with the deportation order, but at the latest upon departure or removal.
The entry and residence ban can be lifted, or the period can be shortened according to Paragraph 2 to protect the legitimate interests of the foreigner or if the purpose of the entry and residence ban no longer requires it. This serves as a specific legal basis for the subsequent extension or shortening of the period, created to make reliance on general administrative procedural regulations unnecessary. However, this presupposes that there is already a legally binding decision on the period, and that the set period is to be shortened afterward.
According to the Federal Administrative Court’s case law, the absence of a decision on the period does not make an otherwise lawful expulsion illegal. Rather, the affected person can assert their right to a period when challenging the expulsion. However, the authority can subsequently limit the expulsion.
This ruling addresses whether these principles also apply to the initial limitation of the effects of expulsion.
Introduction and Background
The plaintiff is a Lebanese national who entered Germany illegally in 1992 and repeatedly applied for asylum without success. Due to the lack of valid travel documents, he was tolerated in Germany. In 1999, he was convicted of attempted manslaughter in conjunction with grievous bodily harm and sentenced to three years in prison. Consequently, the responsible authority issued an expulsion order against him in 2002, which could not be enforced due to the lack of travel documents. Despite being requested to fulfill his duty to cooperate in obtaining travel documents, the plaintiff made insufficient efforts to comply with his obligation to leave the country.
Further Offenses and Application for a Residence Permit
After his imprisonment, the plaintiff again came into conflict with the law. In 2003, he was fined for violating the Foreigners Act, in 2006, he was issued a penalty order for fraud, and in 2014, he was fined for joint tax evasion. In May 2013, the plaintiff applied for the limitation of the expulsion and the granting of a residence permit for humanitarian reasons under Section 25, Paragraph 5 of the Residence Act (AufenthG). The Foreigners Authority rejected this application in August 2014, arguing that the plaintiff was responsible for his obligation to leave and that there was no exceptional case justifying an exception. At the same time, the authority imposed a five-year ban on re-entry, starting with the plaintiff’s actual departure.
Arguments of the Plaintiff and the Defendant
The plaintiff argued that the indefinite expulsion issued before the implementation of the Directive Implementation Act in November 2006 should no longer have any effect, as the European Court of Justice (ECJ) had declared indefinite expulsions to be contrary to EU law. Furthermore, the plaintiff claimed that he was involuntarily prevented from leaving the country because, despite multiple attempts, he had been unable to obtain travel documents. The defendant, on the other hand, referred to the applicable legal situation and the need to ensure public security. The defendant emphasized that the plaintiff was responsible for his failure to leave the country and that this was not an exceptional case warranting immediate limitation.
Decision of the Administrative Court of Hannover
The Administrative Court of Hannover dismissed the plaintiff’s lawsuit as unfounded. It found that the plaintiff was not entitled to the requested immediate limitation of the expulsion or the granting of a residence permit. The court followed the reasoning of the contested decision and refrained from providing a detailed explanation under Section 117, Paragraph 5 of the Administrative Court Procedure Code (VwGO). However, it added that the ECJ’s case law did not lead to the automatic expiration of the effects of the already issued expulsion, as the defendant had taken the requirement of limitation into account in the contested decision.
Proportionality of the Ban Period and the Plaintiff’s Compliance with the Law
The court found the five-year ban period imposed by the defendant to be proportionate and appropriate. The court pointed out that the duration of the ban period must be determined on a case-by-case basis, considering all relevant circumstances and the principle of proportionality. This must also take into account the protective effect of residency law under Article 6 of the Basic Law (GG) and Article 8 of the European Convention on Human Rights (ECHR). Although the offenses that led to the expulsion had occurred several years earlier, the plaintiff’s subsequent behavior, including violations of the Foreigners Act and involvement in fraud and tax evasion, demonstrated his continued difficulty complying with German legal regulations. This justified the maintenance of the ban period.
The court emphasized that the plaintiff had not yet obtained passport documents from his home country and had deliberately resisted his obligation to leave the country. This behavior raised doubts about his future compliance with the law. It was reasonable to expect the plaintiff to make serious efforts to obtain travel documents. Since he had not sufficiently demonstrated this, the five-year limitation of the ban was justified. A shortening of the ban period, for example, for family reasons, was not considered since the plaintiff was divorced and had no contact with his adult children.
Legal Evaluation and Conclusion
The court held that the ban under Section 11, Paragraph 1 of the Residence Act generally precludes the granting of a residence permit. An exception under Section 25, Paragraph 5 of the Residence Act could only be made if the departure was impossible for legal or factual reasons and it was unlikely that these obstacles would be removed shortly. In the plaintiff’s case, it was clear that he had the means to meet the requirements for his return by making serious efforts to obtain travel documents. Also, the rule introduced on August 1, 2015, under Section 11, Paragraph 4 of the Residence Act, which allows for the subsequent extension or shortening of the ban period, was not applicable in this case, as it concerned an initial limitation of the expulsion.
The court concluded that the plaintiff’s expulsion and the established ban period were lawful and that the plaintiff had no entitlement to a residence permit. The lawsuit was therefore dismissed.
Conclusion – Ban Period Appropriate Due to Criminal Offenses
The Administrative Court of Hannover’s ruling confirms that the plaintiff has no right to an immediate limitation of the expulsion or to the granting of a residence permit. The court assessed the imposed ban period as proportionate and appropriate, especially considering the ongoing doubts about the plaintiff’s compliance with the law. The plaintiff’s behavior contributed to the delay in carrying out the expulsion, making him responsible for the continued ban period. The case highlights the importance of foreign nationals’ obligations to cooperate in obtaining travel documents and shows that violations of the legal order can have serious immigration consequences even after a conviction.
Source: Administrative Court of Hannover
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