Foreigners Law: On the Limitation of the Consequences of Deportation for a Repeatedly Criminal Foreigner.

Administrative Court of Ansbach, 12.09.2013, Case No.: AN 5 K 13.01435

If a foreign national repeatedly commits serious crimes, it may result in their deportation from the Federal Republic of Germany. The effects of deportation are regulated by the Residence Act.

According to Section 11 of the Residence Act, a foreign national who has been expelled, returned or deported may not re-enter the federal territory and stay there.

Even if the conditions for granting a residence permit (e.g., a residence permit or settlement permit) under the Residence Act are met for the deported foreigner, no such permit will be issued to them.

To enforce the entry ban, a national search notice is issued, an entry is made in the Central Register of Foreigners, and often a notice is placed in the Schengen Information System (SIS).

However, under § 11(1) sentence 3 of the Residence Act, the effects of deportation may be limited in time. The foreigner must apply for a time limit on the effects of expulsion/deportation (entry and residence ban).

Furthermore, in its ruling of 10.07.2012 (Case No.: BVerwG 1 C 19.11), the Federal Administrative Court ruled that a foreigner who is expelled can request that the effects of the expulsion be limited in time when the expulsion order is issued.

In the above-mentioned ruling of the Administrative Court of Ansbach, the court had to decide whether the time limit on the deportation of a repeatedly criminal foreigner could exceed five years.

1. Background of the Plaintiff and His Recognition as a Refugee

The plaintiff, a Togolese national, entered the Federal Republic of Germany in 1992. Due to the political situation in his home country, he applied for asylum, which was granted by the Federal Office for Migration and Refugees in 1994. With his recognition as a refugee, the plaintiff was granted protection from persecution in Togo, which also secured his legal stay in Germany. In 1997, he was granted an unlimited residence permit, allowing him to live and work in Germany indefinitely. He also received an international travel document, which was extended until January 2013.

2. Criminal Convictions of the Plaintiff – Sexual Abuse of Children

Despite the granted refugee status and associated protection rights, the plaintiff repeatedly came to the attention of law enforcement since 1993. His criminal offenses ranged from minor violations to serious crimes. Among the most serious convictions were the unlawful acquisition of narcotics, intentional bodily harm, and the sexual abuse of children. The conviction for sexual abuse of children resulted in a prison sentence of one year and nine months. Another conviction for robbery, intentional bodily harm, and other offenses led to a prison sentence of two years and three months.

Due to these convictions, the plaintiff spent a total of four years in various correctional facilities from September 2008 to October 2008, and from November 2008 to November 2012, in pre-trial and prison custody. These repeated offenses demonstrated that the plaintiff posed a threat to public safety, which ultimately led to a government decision on his expulsion.

3. Expulsion and Deportation by the Foreigners Authority

In October 2012, the competent Foreigners Authority issued a decision ordering the expulsion of the plaintiff from the Federal Republic of Germany. This decision imposed a re-entry ban of ten years, effective from the date of his departure or deportation. The authority justified the decision with the plaintiff’s serious crimes and the ongoing threat he posed to public safety. Additionally, the authority ordered the immediate deportation of the plaintiff from custody to Togo. If deportation from custody was not possible, the plaintiff was required to leave the Federal Republic of Germany voluntarily within one month after the decision became final.

4. Plaintiff’s Lawsuit and Request for Legal Aid

The plaintiff filed a lawsuit against the expulsion order with the Bavarian Administrative Court of Ansbach and simultaneously applied for legal aid for the proceedings. In his lawsuit, he argued that the imposed re-entry ban of ten years was disproportionate and should be reduced to five years. The request for legal aid was initially denied. However, upon the plaintiff’s appeal, the Bavarian Higher Administrative Court partially granted legal aid. The approval applied to the part of the lawsuit concerning the time limit on the effects of the expulsion. The plaintiff’s appeal was otherwise dismissed.

5. Reduction of the Re-Entry Ban to Eight Years

During the oral hearing before the Administrative Court of Ansbach in September 2013, the representative of the Foreigners Authority amended the contested decision. The re-entry ban, initially set at ten years, was reduced to eight years. This change was particularly made in view of the fact that the plaintiff was the father of six children, three of whom had German citizenship. Two of the children, born in 1999 and 2000, were in foster care, and the plaintiff had sole custody of them. Despite these family ties, the ban period was not further reduced as the authority continued to consider the plaintiff a significant threat to public safety.

The plaintiff’s attorney requested that the Foreigners Authority’s decision be overturned regarding the time limit on the effects of expulsion exceeding five years. He also requested the cancellation of the deportation order. These requests were denied by both the Foreigners Authority and later by the Administrative Court.

6. Judgment of the Administrative Court of Ansbach – Plaintiff to be Deported

On September 12, 2013, the Administrative Court of Ansbach ruled that the Foreigners Authority’s decision was lawful and did not infringe the plaintiff’s rights. Specifically, the court ruled that the eight-year re-entry ban was proportionate and complied with the requirements of § 11 of the Residence Act. The court found that the re-entry ban period must be determined on a case-by-case basis considering all relevant circumstances according to § 11(1) sentence 4 of the Residence Act. The extension of the general maximum period of five years was justified due to the plaintiff’s serious criminal convictions and the ongoing threat he posed to public safety.

The court also considered the plaintiff’s fundamental rights under Article 6 of the Basic Law (protection of marriage and family) and Article 8 of the European Convention on Human Rights (right to respect for private and family life). Nevertheless, the court concluded that public safety interests took precedence in this case and that the eight-year ban period was proportionate. The court rejected any further reduction of the ban period or the cancellation of the deportation order. The judgment thus confirmed the Foreigners Authority’s decision and dismissed the plaintiff’s lawsuit.

Source: Administrative Court of Ansbach

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