Cologne Administrative Court, judgement of 11.02.2020, ref.: 2 K 3167/17.A
Freedom of religion is an essential human right. Asylum seekers who have fled their country of origin due to their religion or who change their religious affiliation after fleeing so that they are no longer safe in their country of origin are not excluded from this. If the latter is the case, the Asylum Act stipulates that this can also be cited as a reason in the case of refugee status. However, it must also be convincingly demonstrated that the applicant has converted out of religious conviction and not for reasons of convenience.
In this case, an asylum seeker lodged an appeal against a negative BAMF decision and applied to be granted refugee status as he would be punished with the death penalty in Afghanistan as a Christian convert. However, the Cologne Administrative Court dismissed the appeal as unfounded due to the lack of credibility of the asylum seeker's religious beliefs.
FactsThe applicant was an Afghan national and, according to his own statements, belonged to the Hazara people. According to his own statements, he left his home province of C1. with his parents at the age of two to three and fled to Mashad in Iran. According to him, he stayed there until mid-September 2015. He then left Iran and entered the Federal Republic of Germany by land on 18 October 2015. He registered as an asylum seeker and submitted a formal application for asylum on 12 July 2016.
In support of his application, the applicant essentially stated at the personal hearing before the Federal Office for Migration and Refugees (BAMF) on 9 February 2017 that he had been repeatedly discriminated against in Iran as an Afghan. He had recruited Afghans for the war in Syria. Some of those recruited had died, whereupon he had been threatened by the families of the deceased. He could not return to Afghanistan. He had heard that Hazara had difficulties there. He also had no one in Afghanistan and it was dangerous in his home country. Furthermore, there was no work and no housing there. The applicant also claimed that he had been baptised in Cologne on 5 February 2017 at the Evangelical Free Church in Cologne-Ostheim and attended the Persian-language service there. He submitted corresponding certificates from the free church. Reference was made to the minutes of the hearing with regard to the details of the hearing.
In a decision dated 21 February 2017, served on 25 February 2017, the BAMF refused to recognise or grant any protection status and determined that there were no prohibitions on deportation pursuant to Section 60 (5) and (7) sentence 1 of the Residence Act (No. 4). It also set a deadline for the applicant to leave the country and threatened him with deportation to Afghanistan (point 5). The Federal Office limited the statutory entry and residence ban pursuant to Section 11 (1) Residence Act to 30 months from the date of deportation (No. 6).
On 25 February 2017, the plaintiff filed an action against the decision.
He referred to his submission in the administrative proceedings as justification. In addition, the applicant claimed that he would have to expect persecution in Afghanistan due to his conversion because of his Christian religious affiliation. Conversion is punishable by death there. He practised his Christian faith in the Protestant church in G. and in his private life.
The claimant applied for the defendant to be obliged to grant him refugee status and, alternatively, to grant him subsidiary protection in accordance with Section 4 (1) Asylum Act (AsylG) and, alternatively, to declare that there is a ban on deportation in accordance with Section 60 (5) or Section 60 (7) sentence 1 Residence Act (AufenthG) with regard to Afghanistan, partially revoking the decision of the Federal Office for Migration and Refugees of 21 February 2017.
The defendant requested that the action be dismissed.
The plaintiff was heard on his claim at the hearing.
Cologne Administrative Court: The Cologne Administrative Court rejected the action as admissible but unfounded. The applicant was not entitled to the claims asserted at the relevant time of the oral hearing (Section 77 (1) sentence 1 AsylG), and the decision of the Federal Office of 21 February 2017 was therefore lawful insofar as it was challenged.
The VG reasoned that the plaintiff was not initially entitled to refugee status in accordance with § 3 Para. 4 in conjunction with Para. 1 AsylG. para. 1 AsylG. In order to be a refugee within the meaning of Section 3 (1) AsylG, the applicant must be a foreigner who is outside their country of origin due to a well-founded fear of persecution based on a reason for persecution by an actor of persecution, provided there is a lack of protection there and there are no grounds for exclusion. The fear of persecution is justified if the foreigner is actually threatened with the aforementioned dangers due to the circumstances prevailing in his country of origin in view of his individual situation, i.e. with considerable probability. (Federal Administrative Court, judgement of 20 February 2013 - 10 C 23/12 -, juris, para. 19).
According to § 3 a AsylG, the act of persecution must be of a certain nature and severity, be linked to one of the grounds listed in § 3 para. 1 AsylG and explained in more detail in § 3 b para. 1, and emanate from the state, a group or organisation dominating the state or a non-state actor (§ 3 c AsylG). Furthermore, there must be no effective protection against this persecution in the country of origin (cf. Sections 3 d, 3 e AsylG).
The circumstances establishing a risk of persecution must be established to the satisfaction of the court (see Section 108 (1) sentence 1 VwGO). Due to the procedural obligations to co-operate (see also Section 25 (1) and (2) AsylG), the asylum seeker is required to provide a substantiated and coherent description of the factual circumstances that fall within their sphere of responsibility and to resolve any contradictions to their submissions at earlier stages of the proceedings in a comprehensible manner. Overall, the applicant's submission must be suitable to support the asylum claim without any gaps. BVerwG, decision of 26 October 1989 - 9 B 405/89 -, juris, para. 8; Hess. VGH, judgement of 27 September 2019 - 7 A 1923/14.A -, juris, para. 25.
Based on this, the court was not convinced that the applicant was outside his country of origin, Afghanistan, due to a well-founded fear of persecution within the meaning of Section 3 (1) no. 1 AsylG.
He was not threatened with persecution simply because he belonged to the Hazara ethnic group. In this respect, according to unanimous supreme court case law - also taking into account the current state of knowledge - the required density of persecution in Afghanistan was not given. (See OVG NRW, judgement of 18 June 2019 - 13 A 3741/18.A -, juris, para. 156 et seq.; Nds. OVG, judgement of 29 January 2019 - 9 LB 93/18 -, juris, para. 83; VGH BW, judgement of 11 April 2018 - A 11 S 924/17 -, juris, para. 45; Bay. VGH, decision of 14 August 2017 - 13a ZB 17/30807 -, juris, para. 17; in each case with further references. N.)
The applicant was also not threatened with persecution in Afghanistan due to his claimed conversion from Islam to Christianity. According to § 28 para. 1a AsylG, the well-founded fear of persecution within the meaning of § 3 para. 1 AsylG can also be based on events that occurred after the foreigner left their home country. Conversion to Christianity is also generally suitable to justify refugee status in accordance with Sec. 3 Asylum Act. Persons who have turned away from Islam (apostates), including persons who have converted from Islam to Christianity, are exposed to danger to life and limb in Afghanistan if their religious beliefs become known. In individual cases, suspicion alone may suffice. Converts to Christianity, as well as apostates in general, are at risk of prosecution by the state. Apostasy is not explicitly regulated in the Afghan Penal Code, but according to the prevailing legal opinion there, it is one of the "egregious offences" that are not explicitly defined and are punishable by death or up to life imprisonment. Converts must also expect social ostracism and violence, including lynching, from family members, other members of the local community and anti-government forces, particularly the Taliban, even before state persecution begins. People who have converted to Christianity are therefore forced to conceal their faith and behave as if they were (still) Muslims. (cf. OVG NRW, judgement of 18 June 2019 - 13 A 1390/18.A -, juris, para. 69 with reference to the available evidence with further references). N.)
Based on the baptism certificate submitted, the court had no doubt that the plaintiff was baptised on 5 February 2017 in the Evangelical Free Church L. P.. The fact that the plaintiff attended church services on Sundays, as he submitted, was also quite possible.
However, the court was not convinced that the applicant had turned to the Christian faith, which made religious activity indispensable for him in order to preserve his religious identity. It was therefore not to be expected that he would practise the Christian faith in Afghanistan, nor that he would come into internal conflict by refraining from religious activity.
The plaintiff also had to prove his religious identity and the internal fact that he considered the suppressed religious practice of his faith to be obligatory for himself in order to preserve his religious identity in order to fully convince the court. This was only possible on the basis of his submissions and by drawing conclusions from external evidence about his inner attitude. For this purpose, the religious self-image of the person concerned is fundamentally important both before and after leaving the country of origin. If he invokes a threat due to conversion to another faith, he must credibly demonstrate the inner motives that prompted him to convert. (See BVerwG, judgement of 20 February 2013 - 10 C 23/12 -, juris, para. 30 f.; decision of 25 August 2015 - 1 B 40/15 -, juris, para. 14; OVG NRW, judgement of 18 June 2019 - 13 A 1390/18.A -, juris, para. 71 f.; decision of 27 April 2016 - 13 A 854/16.A -, juris, para. 10; decision of 10 September 2014 - 13 A 1171/14.A -, juris, para. 7; VGH BW, decision of 5 December 2017 - A 11 S 1144/17 -, juris, para. 63).
However, the court had considerable doubts about the plaintiff's actual reasons for changing his faith. At the hearing before the Federal Office, the plaintiff was not even remotely able to convincingly convey a genuine conversion to Christianity. In this respect, the court initially referred to § 77 (2) AsylG to the relevant statements on pages 6 and 7 of the contested decision of 21 February 2017, which it followed. The applicant was in no way familiar with the essential features of the Christian religion and had virtually no knowledge of Christianity. He did not know how to explain the significance of the cross in Christianity. When asked what else he knew about Christianity, the plaintiff replied that there were five holidays and the birth of Jesus, and that he was still learning the rest. These meaningless statements were all the more disconcerting as the plaintiff stated at the hearing that he had been a Christian for six months and that he had also been certified by the Evangelical Free Church L. P. on 1 February 2017 that he had attended two basic faith courses and successfully completed both.
At the hearing, the plaintiff also failed to convincingly explain to the court the main reasons for his alleged conversion from Islam to Christianity. His presentation of how he had supposedly converted to Christianity was poor and was limited to explaining that the Christians he had met here in Germany had all been nice and friendly and had helped him. They had taken him into their church congregation, where he had been welcomed as if into a family. How the plaintiff wanted to practise his Christian faith in everyday life was also in no way clear from his descriptions. Overall, his submission did not reveal a serious conversion to Christianity based on inner conviction. Furthermore, it was not very convincing that the plaintiff had stated in the oral hearing that he had already been interested in Christianity before fleeing to Germany. He had been in contact with a Christian family in Iran and had also watched some programmes about Christianity on television via satellite. The programmes contained songs and explanations about Christianity. However, there was no mention of such points of contact with the Christian religion in Iran at the hearing before the Federal Office, although it would have been obvious to report this to the individual decision-maker. Instead, when asked by the individual decision-maker how he had come to Christianity, the applicant explained that nice Iranians had helped him here in Germany and that he had then gone to church with them.
After all, the court had serious doubts that the applicant had made a serious change of faith from Islam to Christianity and that the Christian faith was now his identity. He could not be granted refugee status due to a well-founded fear of persecution on the grounds of his religion.
The court also ruled that the plaintiff was not entitled to the alternative claim for subsidiary protection under Section 4 (1) AsylG.
The claimant himself did not assert any serious harm to his person within the meaning of Section 4 (1) sentence 2 no. 1 AsylG.
The granting of subsidiary protection to the applicant in accordance with § 4 Para. 1 Sentence 2 No. 2 AsylG in view of the poor humanitarian conditions in Afghanistan was also ruled out. The general fear that the applicant would not be able to find a sufficient livelihood if he returned to Afghanistan, which is why a return to his home country would be regarded as inhuman or degrading treatment, is not taken into account when considering whether to grant subsidiary protection. A risk of serious harm in the form of torture or inhuman treatment or punishment justifying subsidiary protection must always emanate from an actor within the meaning of § 4 para. 3 in conjunction with § 3c AsylG. (BVerwG, judgement of 31/01/2013 - 10 C 15/12 -, juris, para. 29; decision of 13/02/2019 - 1 B 2/19 -, juris, para. 6).
The case law of the Court of Justice of the European Union on Art. 15 lit. b of Directive 2011/95/EU (Qualification Directive) - which has the same wording as Section 4 para. 1 sentence 2 no. 2 AsylG - has clarified that the corresponding act of an actor in this sense must also be consciously and purposefully brought about. (ECJ, judgment of 18 December 2014 - C-542/13 -, juris, para. 35; judgment of 24 April 2018 - C-353/16 -, juris, para. 51; also BVerwG, decision of 13 February 2019 - 1 B 2/19 -, juris, para. 13, with reference to this case law).
This was not the case with regard to the current situation in Afghanistan. The poor supply situation (regarding food, housing, health care) was negatively influenced and determined by Afghanistan's poor economic development, the prevailing environmental conditions (i.e. in particular the difficult climatic conditions and natural disasters) and to a large extent by the volatile security situation. In this respect, it could not be established that any of the actors in question could be directly or indirectly blamed for a significant contribution and that a change in behaviour could lead to an immediate improvement in the situation. In particular, neither the necessary medical or humanitarian care was deliberately withheld nor were all these circumstances deliberately brought about. (VGH BW, judgement of 17/01/2018 - A 11 S 241/17 -, juris, para. 182; Bay. VGH, decision of 3 September 2019 - 13a ZB 19/33043 -, juris, para. 45 with further references. N.; cf. on the generally poor supply situation and its reasons also the situation report of the Federal Foreign Office of 2 September 2019, p. 28).
The court was also not convinced that the applicant would face serious harm in the form of a serious individual threat to his life or integrity as a result of indiscriminate violence in the context of an international or domestic armed conflict within the meaning of Section 4 (1) sentence 2 no. 3 AsylG if he returned to Afghanistan.
There is an internal armed conflict in Afghanistan - at least in some parts of the country. However, if the person seeking protection - as in this case - does not have any particular characteristics that increase the risk, a serious individual threat within the meaning of Section 4 para. 1 sentence 2 no. 3 AsylG can only be assumed if the degree of indiscriminate violence reaches such a high level that a civilian returning to the country or region in question would be at risk of being exposed to a threat to their life or integrity simply by their presence in this area. (Cf. ECJ, judgment of 17 February 2009 - C-465/07 -, juris, para. 35 et seq.; judgment of 30 January 2014 - C-285/12 -, juris, para. 30).
A corresponding density of danger cannot be affirmed merely because a state of permanent danger to the population and serious human rights violations within the framework of the internal conflict is established. Rather, the determination of the density of danger requires a quantitative determination of the injured and killed civilians in relation to the number of inhabitants. In addition, an evaluative (qualitative) overall assessment must be made, for example with regard to the medical care situation. (See BVerwG, judgement of 17 November 2011 - 10 C 13/10 -, juris, para. 22 f.)
As part of the quantitative assessment, the Federal Administrative Court considered a risk of approx. 1/800 (0.125 %) or 1/1000 (0.1 %) of being injured or killed to be far from sufficient to be able to assume an individual threat (see BVerwG, judgement of 17 November 2011 - 10 C 13/10 -, juris, para. 22; judgement of 17 November 2011 - 10 C 11/10 -, juris, para. 20).
The point of reference for the risk prognosis to be made in accordance with § 4 Para. 1 Sentence 2 No. 3 AsylG is generally the region of origin of the person concerned to which they will typically return. The original region of origin is only no longer relevant if the foreigner has already left it before leaving the country, irrespective of the circumstances that triggered the flight, and has settled in another part of the country with the aim of living there for an unforeseeable period of time. (See BVerwG, judgement of 31 January 2013 - 10 C 15/12 -, juris, para. 14.) Based on this, in the present case the region of Kabul, the city of Herat or the city of Mazare-Sharif in the province of Balkh had to be taken into account for the risk prognosis, but not the applicant's home region in the province of C1, where he was born according to his own submission. According to his own statements, he no longer had any relationship with this region. The plaintiff had already left this region at the age of two to three and had neither close relatives nor other contacts there.
In any case, based on the available evidence, in particular the number of security-related incidents reported by UNAMA, the general threat level in Balkh province was not so high that a civilian was likely to be exposed to a threat to their life or integrity simply by being there. According to UNAMA, Balkh province recorded 227 civilian casualties (85 deaths and 142 injuries) in 2018, an increase of 76% compared to 2017 figures. These casualties were mainly due to ground fighting, improvised explosive devices (excluding suicide attacks) and targeted killings. (See UNAMA, Afghanistan - Protection of Civilians in Armed Conflict, Annual Report 2018, February 2019, p. 68; see also the summary of the security situation by EASO, Country of Origin Information Report - Afghanistan Security Situation, June 2019, p. 96 ff.)
In relation to the total population of the province, which is estimated at around 1,442,847 people, of which around 454,457 live in Mazare-Sharif (see EASO, Country of Origin Information Report - Afghanistan Security Situation, June 2019, p. 96), the risk for the civilian population of being affected by a security incident was 0.1573 (0.016%) per 1000 inhabitants in 2018 and thus far below the probability considered insufficient by the Federal Administrative Court.
According to the latest UNAMA report from October 2019, the threat situation for civilians in Balkh province had not changed significantly. Although no specific current figures are available, the province is still not one of the provinces most affected by civilian casualties (see UNAMA, Quarterly Report on the Protection of Civilians in Armed Conflict: 1 January to 30 September 2019, 17 October 2019, p. 1 f.)
Finally, the necessary overall consideration of all circumstances - including qualitative ones - did not lead to a different result. Although there were also numerous internally displaced persons in Balkh province, it was still a relatively quiet province. There were no findings that the medical care situation was significantly worse than in other parts of the country. There were also no known large-scale displacements due to the conflict. Balkh is one of the most stable provinces in Afghanistan (see EASO, Country of Origin Information Report - Afghanistan Security Situation, June 2019, p. 96 ff.; EASO, Country Guidance Afghanistan, June 2019, p. 92, 93; Schweizerische Flüchtlingshilfe, Afghanistan: Die aktuelle Sicherheitslage, Update der SFH-Länderanalyse vom 12.09.2019, p. 22 ff.)
The court also ruled that the plaintiff was not entitled to the claim for (national) protection against deportation under Section 60 para. 5 or Section 60 para. 7 sentence 1 of the Residence Act, which he had also asserted in the alternative.
According to Section 60 (5) Residence Act, a foreigner may not be deported if the application of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms (ECHR) indicates that the deportation is inadmissible.
According to the case law of the European Court of Human Rights, this is only the case if there are substantial grounds for believing that there is a real risk of the person concerned being subjected to inhuman or degrading treatment contrary to Article 3 ECHR in the country of destination. (Cf. ECtHR, judgments of 28 June 2011 - nos. 8319/07 and 11449/07 -, para. 212 f.; judgment of 28 February 2008 - no. 37201/06 -, juris, para. 129).
One type. 3 The applicant was not threatened with treatment contrary to the ECHR in view of the general security situation prevailing in Afghanistan and specifically in Balkh province. A general situation of violence that would result in a civilian being at risk of being subjected to ill-treatment contrary to Article 3 ECHR solely due to their presence in Afghanistan, in particular in Balkh Province, had not yet been recognised by the European Court of Human Rights (see ECtHR, decision of 11 July 2017 - no. 46051/13 -, para. 53; decision of 11 July 2017 - no. 41509/12 -, para. 51; decision of 11 July 2017 - no. 41509/12 -, para. 51).07.2017 - No. 41509/12 -, para. 51; decision of 11.07.2017 - No. 77691/11 -, para. 39; decision of 11.07.2017 - No. 72586/11 -, para. 67; decisions of 11.07.2017 - No. 43538/11 and 63104/11 -, para. 80; decision of 16/05/2017 - no. 15993/09 -, para. 120; decision of 05/07/2016 - no. 29094/09 -, para. 87, judgement of 12/01/2016 - no. 13442/08 -, para. 59; judgements of 09/04/2013 - no. 70073/10 and 44539/11 -, para. 92 et seq,), nor the case law of the higher courts (see, for example, OVG NRW, judgement of 18 June 2019 - 13 A 3741/18.A -, juris, para. 100 et seq.; judgement of 18 June 2019 - 13 A 1390/18.A -, juris, para. 122 et seq.; Nds.01.2019 - 9 LB 93/18 -, juris, para. 57 ff.; VGH Baden-Württemberg, judgement of 12.12.2018 - A 11 S 1923/17 -, juris, para. 225 ff.; judgement of 12.10.2018 - A 11 S 316/17 -, juris, para. 302 ff.; Bay. VGH, judgement of 8 November 2018 - 13a B 17.31960 -, juris, para. 43 et seq. in each case with further references). The Chamber continues to share this assessment based on the current findings available to it. In this respect, reference was also made to the examination of Section 4 para. 1 sentence 2 no. 3 AsylG and the current findings mentioned in this context.
Nor was the applicant threatened with treatment contrary to Article 3 ECHR in view of the poor humanitarian conditions in Afghanistan. Since the poor humanitarian conditions in Afghanistan could not be attributed to a specific actor, but were based on a variety of factors, including the general economic situation, environmental conditions such as climate and natural disasters, as well as the security situation (see OVG NRW, judgement of 18 June 2019 - 13 A 3741/18.A -, juris, para. 70 et seq. with further references). N.), according to the case law of the European Court of Human Rights, degrading treatment within the meaning of Art. 3 ECHR can only be assumed in blatant exceptional cases. A violation of Art. 3 ECHR therefore exists, for example, if the deportation would lead, if not to the death of the person concerned, then at least to a serious, rapid and irreversible deterioration in their state of health, which would result in severe suffering or a significant reduction in life expectancy (see ECtHR, judgement of 13 December 2016 - No. 41738/10 -, para. 183).
Based on the respective findings, the higher courts had not assumed the existence of a corresponding exceptional situation for Afghanistan despite the determination of poor humanitarian circumstances (see OVG NRW, judgement of 18 June 2019 - 13 A 3741/18.A -, juris, para. 205 et seq.; judgement of 18 June 2019 - 13 A 3930/18.A -, para. 195 et seq. N.; also ECtHR, judgement of 29 November 2013 - No. 60367/10 -, para. 88 et seq.; judgement of 13 October 2011 - No. 10611/09 -, para. 84.).
The Chamber concurred with this assessment. According to the current state of knowledge, humanitarian conditions had not deteriorated significantly in the past year. Rather, they remained consistently poor (see, for example, UNAMA, Afghanistan - Protection of Civilians in Armed Conflict, Annual Report 2018, 24 February 2019; EASO, Country of Origin Information Report - Afghanistan Security Situation 2019; UNAMA, Quarterly Report on the Protection of Civilians in Armed Conflict: 1 January to 30 September 2019, 17.10.2019; Schweizerische Flüchtlingshilfe, Afghanistan: Gefährdungsprofile Update vom 12.09.2019; Schweizerische Flüchtlingshilfe, Afghanistan: Die aktuelle Sicherheitslage, Update der SFH-Länderanalyse vom 12.09.2019; Auswärtiges Amt, Lagebericht vom 2. Juli 2019, p. 28 ff.).
Accordingly, the European Court of Human Rights also demanded that, in addition to the generally poor supply situation, humanitarian reasons must also speak against deportation in very exceptional cases (see ECtHR, judgement of 29 January 2013 - No. 60367/10 -, para. 75).
There was no such exceptional case in the person of the plaintiff. The claimant was single and had no other family members to care for. At the age of 27, he was (according to his own statements) still young and able to work, as evidenced by his full-time work in the kitchen of a restaurant in G.. According to the files, he did not suffer from any serious illnesses that significantly impaired his ability to work. According to the personal impression the court gained of him at the hearing, he was a bright, young man who had quickly got to grips with life in Germany, a country that was completely foreign to him. He could already communicate reasonably well in German, as the hearing had shown. Furthermore, according to his own statements, he had completed his A-levels in Iran and then worked as a builder in that country, thus earning his own living. In Germany, he had attended the C2. vocational college. The knowledge and practical skills that he had acquired in these various professional activities and during his training in Germany would very probably be of use to him when he returned to Afghanistan. The applicant spoke Dari, the national language, so there were no communication problems when looking for work or in everyday life. In any case, he had the opportunity to work on construction sites or in the informal sector in Afghanistan in order to secure a minimum subsistence level. Furthermore, he was able to make use of various forms of return assistance (cf. p. 80 ff. of the BAMF file). An extreme risk to the applicant's life or limb in the event of deportation to Afghanistan within the meaning of the case law cited above was not significantly probable in view of all these facts, even taking into account the fact that the applicant had grown up in Iran and, according to his own statements, had no family network in Afghanistan (cf. in this respect also the case law on the "de facto Iranian", OVG NRW, judgement of 18 June 2019 - 13 A 3930/18.A -, juris, para. 117 ff.; 195 ff.,316; decision of 19 December 2019 - 13 A 1165/19.A -; VGH Baden-Württemberg, judgement of 26 June 2019 - A 11 S 2108/18 -, juris, para. 108).
The requirements for the determination of a ban on deportation pursuant to Section 60 (7) sentence 1 AufenthG were also not met.
According to this provision, the deportation of a foreigner to another country should be refrained from if there is a considerable concrete danger to life, limb or freedom for this foreigner there.
With regard to the risk of an imminent violation of legal interests due to general circumstances in the country of destination, the requirements correspond to those of Section 60 (5) Residence Act in conjunction with Art. 3 ECHR (see OVG NRW, judgement of 18 June 2019 - 13 A 3741/18.A -, juris, para. 292; VGH BW, judgement of 26 June 2019 - A 11 S 2108/18 -, juris, para.131; Hess. VGH, judgement of 23 August 2019 - 7 A 2750/15.A -, juris, para. 175.).
Since the requirements for a national ban on deportation pursuant to Section 60 (5) AufenthG in conjunction with Art. 3 ECHR were not present, the application of Section 60 (7) sentence 1 AufenthG was also ruled out in this respect.
The plaintiff was also not threatened by any significant concrete danger for individual reasons that would justify the ban on deportation pursuant to Section 60 (7) sentence 1 AufenthG. In particular, he did not have a life-threatening or serious illness that would be significantly worsened by the deportation (Section 60 (7) sentence 3 AufenthG).
The Cologne Administrative Court further stated that the threat of deportation and the deadline for departure in the contested decision of the Federal Office were lawful, they met the requirements of Section 34 para. 1 sentence 1 AsylG in conjunction with Section 59 AufentG and Section 38 para. 1 AsylG. § 59 AufenthG and § 38 para. 1 AsylG.
Point 6 of the contested decision was also unobjectionable. At the time of the hearing, this had its legal basis in Section 11 (1) sentence 1 and (2) sentences 2 and 3 of the Residence Act (AufenthG) in the version applicable since 21 August 2019.
According to the new version of the law, a ban on entry and residence no longer occurs by operation of law, but rather requires an administrative order. Point 6 of the decision of 21 February 2017 did not raise any concerns in this respect. An official decision to impose a time limit (at least insofar as it was made - as in this case - before the deportation) can generally be seen as the constitutive issuance of a temporary entry ban. In accordance with the rules of interpretation of Sections 133 and 157 of the German Civil Code (BGB), which apply accordingly in public law, the interpretation of an administrative act is not based on the subjective ideas of the addressee or the issuing authorities, but rather on the declared intention as the recipient could understand it when objectively assessed. From an objective point of view, the authority presupposes an effective, lawful entry ban by setting a time limit, and orders this at least as a precautionary measure, implicitly but unconditionally, in the event that an entry ban has not already arisen by law. From the perspective of the foreigner, a decision to set a time limit is also linked to an existing entry ban and can only be interpreted to mean that the authority also wants an entry ban ordered by law to take effect in individual cases, namely for the duration determined by the time limit, and thus also sets the entry ban itself. The necessary legal basis for the individual decision on the imposition of an entry ban, which is required under EU law with regard to Art. 3 No. 6 of the Return Directive 2008/115/EC, has so far followed from a legal development of Section 11 para. 1 and 2 of the Residence Act (AufenthG) in conformity with the Directive, at least in cases of a mandatory entry ban. 1 and 2 Residence Act (old version) (for example, Federal Administrative Court, judgement of 21 August 2018 - 1 C 21/17 -, juris, para. 25 et seq.; for the history of the legislative system change in Section 11 para. 1 Residence Act, see VGH Baden-Württemberg, decision of 13 November 2019 - 11 S 2996/19 -, juris, para. 43 et seq.).
In order to fully comply with the requirements of European law, since 21 August 2019, Section 11 (1) sentence 1 of the Residence Act now expressly provides the necessary legal basis for the official order of an entry and residence ban to be issued. This provision does not grant the competent authority any discretionary powers. Due to the binding nature of the decision, there is no difference in terms of content to the statutory entry ban pursuant to Section 11 (1) Residence Act in the version applicable until 20 August 2019. As the length of the specific ban period was also free of legal errors in accordance with Section 114 sentence 1 VwGO, point 6 of the contested decision of the Federal Office dated 21 February 2017 was therefore not objectionable.
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