Higher Administrative Court of Lüneburg, 18 February 2021, Case No.: 13 LB 269/19
When a foreigner is deported due to drug offenses, a re-entry ban is usually imposed against them. This means that the foreigner is prohibited from re-entering Germany for several years.
Regarding the duration of the re-entry ban, an individual assessment is required—as under the previous legal framework—based on a forecast of how long the behavior that led to the deportation, intended also for special preventive purposes, justifies the public interest in preventing the threat.
In the case discussed here, the plaintiff, who resides in Turkey, filed a lawsuit against an eight-year re-entry ban, seeking to have it lifted or shortened.
Facts of the Case:
Deported Turk demands reconsideration of his application for shortening the re-entry ban.
The plaintiff sought the obligation of the defendant to reconsider his application for shortening the duration of a re-entry and residence ban.
The plaintiff, born in 1982, is a Turkish citizen who had lived in Germany with his mother and siblings since 1985. The Federal Office for the Recognition of Foreign Refugees rejected his asylum application by decision dated 17 March 1987. A subsequent asylum application also failed.
Due to the residency regulation of the Lower Saxony Ministry of the Interior dated 18 December 1990, the plaintiff was granted a residence permit in 1993, which, after the Residence Act came into force, continued as a temporary residence permit under § 23 (1) of the Residence Act and was last extended until 21 November 2006.
The plaintiff repeatedly appeared in criminal cases, particularly for drug offenses.
After repeated warnings under immigration law, the defendant issued a deportation order against the plaintiff on 25 April 2007 and threatened to deport him to Turkey. The reason for the deportation was a total of seven criminal convictions between 1997 and 2006 for numerous property offenses, dangerous bodily harm, and the illegal acquisition of narcotics, for which he was last sentenced to one year and ten months in prison. In the legal proceedings against this decision before the Lüneburg Administrative Court, the plaintiff and the defendant reached a settlement on 1 December 2008. As a result, the plaintiff did not pursue his request to annul the decision of 25 April 2007, and the defendant granted the plaintiff a residence permit on the condition that any conviction for an intentional crime or the failure to prove his drug-free status would result in the expiration of the permit. In the event of expiration, the plaintiff committed to leaving the country.
The plaintiff was eventually deported to Turkey from prison.
On 28 February 2010, the plaintiff reoffended, and as a result, his residence permit expired. A lawsuit to compel the defendant to grant the plaintiff a residence permit was dismissed by the Lüneburg Administrative Court on 18 May 2012. After the D. Public Prosecutor’s Office consented to the termination of his residence, the plaintiff was deported to Turkey from prison on 21 January 2014 and now lives there.
Foreigners Authority issues an eight-year re-entry ban.
By decision dated 26 May 2014, the defendant limited the effect of the deportation to eight years after the plaintiff’s departure, i.e., until 20 January 2022. The repeated criminal offenses leading to the deportation, the lack of impact from numerous criminal judgments and enforcement actions, and the lack of influence of the plaintiff’s relatives living in Germany on his lifestyle required his exclusion from the country for the specified period. He is an adult, childless, and unmarried. He can lead a private life in Turkey and, if necessary, rely on the help of his relatives. The lawsuit filed against this decision was dismissed by the Lüneburg Administrative Court on 26 November 2015.
Plaintiff applies for a reduction of the re-entry ban.
On 16 December 2016, the plaintiff applied to the defendant for a reduction in the duration of the re-entry and residence ban. He argued that the separation was severely affecting him and his relatives living in Germany. He stated that further residence in Turkey was unreasonable, that he lived in a nearly deserted Yazidi village, and that increasing tensions between the Turkish government and the Kurdish minority prevented him from leaving the village or his home. He claimed to face threats and had no prospects for a normal life. After repeated requests from the defendant to provide evidence of progress, the plaintiff submitted a certificate of his clean criminal record in Turkey and argued that he could not receive therapeutic treatment for his deficits in Turkey due to a lack of health insurance.
Foreigners Authority maintains the duration of the re-entry ban.
By decision dated 26 June 2017, the defendant upheld the ordered re-entry and residence ban for eight years after the plaintiff’s departure. The conditions for a reduction were not met. The public interest in keeping the plaintiff out of the country remained unchanged. Progress that would require a reassessment of the original prognosis was not proven. While there were no indications of criminal activity in Turkey, the plaintiff had not worked through his deficits therapeutically, nor had he obtained a psychological report. The claimed lack of access to the social system and healthcare in Turkey was not substantiated.
The plaintiff files a lawsuit against this decision at the Lüneburg Administrative Court.
On 30 August 2017, the plaintiff filed a lawsuit at the Lüneburg Administrative Court. He argued that further upholding the re-entry and residence ban was unnecessary. The crimes committed in Germany were due to youthful immaturity, which he had now overcome. According to a medical certificate from Dr. E. and Dr. F. in Batman, Turkey, dated 9 June 2018, his health was normal, and he did not suffer from a psychiatric disorder. The difficult and dangerous living conditions in Turkey had deeply impacted him and led to a change in his behavior. He lived in Hasankeyf, Turkey, a region under threat by the Turkish government due to dam construction, which had forced many people to leave.
The plaintiff requested that the court annul the defendant’s decision of 26 June 2017 and order the defendant to reconsider his application in line with the court’s legal opinion. The defendant requested that the lawsuit be dismissed and defended the contested decision, arguing that there were no grounds for shortening the re-entry ban. The plaintiff had not demonstrated sustainable improvement. The crimes leading to his deportation were not solely due to youthful immaturity. A forensic report from Dr. G. dated 2 May 2011 indicated that the plaintiff’s potential for maturity was difficult to assess. Despite repeated suggestions to therapeutically address his deficits, the plaintiff had not pursued therapy.
During the first-instance proceedings, the plaintiff applied to the defendant on 18 March 2019 for permission to re-enter Germany temporarily to obtain a psychiatric report assessing the risk of recidivism. His brother offered to provide a €2,000 deposit to secure his return. The defendant informed the plaintiff on 2 May 2019 of its intention to reject this application.
The Lüneburg Administrative Court dismissed the lawsuit.
The Lüneburg Administrative Court dismissed the lawsuit on 7 May 2019. The plaintiff could not claim a reduction of the immigration ban. According to § 11 (4) sentence 1 of the Residence Act, there were no valid reasons for a reduction. The reasons that led to the plaintiff’s deportation and the imposition of an eight-year re-entry and residence ban remained unchanged. A reduction solely based on the passage of time was not possible. The plaintiff’s circumstances in Turkey, where he led a private life dependent on his relatives in Germany, did not justify a reduction either.
Plaintiff appeals against the dismissive ruling.
The plaintiff appealed against this ruling, which the Senate admitted on 13 August 2019 due to a procedural error. The plaintiff renewed his first-instance submissions in the appeal.
Higher Administrative Court of Lüneburg Ruling:
The Higher Administrative Court of Lüneburg also found that the plaintiff had no claim to a reduction of the re-entry ban.
The plaintiff could not demand that the defendant reconsider his application for reducing the duration of the eight-year re-entry and residence ban imposed by the decision of 26 June 2014. The defendant’s decision of 26 June 2017 to reject the reduction was lawful.
According to Section 11 (4) Residence Act, the entry and residence ban can be lifted or the period of the entry and residence ban can be shortened in order to protect the interests of the foreigner worthy of protection or if the purpose of the entry and residence ban no longer requires it (sentence 1). The entry and residence ban should be lifted if the requirements for the issue of a residence title in accordance with Chapter 2 Section 5 of the Residence Act are met (sentence 2). When deciding on the shortening of the time limit or the cancellation of the entry and residence ban issued together with an expulsion order, it must be taken into account whether the foreigner has complied with his or her obligation to leave the country within the time limit set, unless the foreigner was prevented from leaving the country through no fault of his or her own or the delay in leaving the country was not significant (sentence 3). The decision to shorten the period is discretionary (sentence 5 in conjunction with para. 3 sentence 1).
With these provisions, the legislator has created a special legal basis for the subsequent extension or shortening of the time limit and also for the lifting of the entry and residence ban, which excludes recourse to the general provisions of the Administrative Procedure Act (see Senate decision of 14 June 2018, 13 ME 208/18).
Plaintiff does not meet the criteria for a reduction according to the court.
According to the court, the plaintiff did not meet the requirements of § 11 (4) sentence 1 or 2 of the Residence Act for reducing the duration of the re-entry and residence ban imposed by the decision of 26 June 2014 for eight years.
According to Section 11 (4) sentence 1 AufenthG, the entry and residence ban can be lifted or the period of the entry and residence ban can be shortened in order to safeguard the interests of the foreigner that are worthy of protection or if the purpose of the entry and residence ban no longer requires it.
According to this provision, the ban on entry and residence (see BVerwG, 22 February 2017, 1 C 27.16) should be lifted if the special or general preventive reasons for the expulsion no longer require it, i.e. if the purpose of the specific expulsion order has been achieved or no longer applies (see Senate decision of 14 June 2018, 13 ME 208/18).
This element of § 11 para. 4 sentence 1 AufenthG refers to the first examination step to be carried out when determining the initial time limit in accordance with § 11 para. 2 sentence 3, para. 3 and para. 5 et seq. AufenthG (see BVerwG, 22 February 2017, 1 C 27.16), in which it must be predicted how long the purposes pursued with the specific expulsion order (see Bayerischer VGH, 26 March 2009, 19 ZB 09.498) require the foreigner to be kept away from the federal territory.
Distinction between special preventive and general preventive expulsion
If the expulsion was carried out as a special preventive measure, it is questionable for how long the foreigner is at risk of repeating or continuing the grounds for expulsion. If the expulsion is for general prevention, the question arises as to when the deterrent effect has been achieved or exhausted (see BVerwG, 6 March 2014, 1 C 2.13). When answering this question, the weight of the reason for expulsion, the behaviour of the foreigner after the expulsion, the extent of the concrete danger posed by the foreigner and the foreseeability of the future development of this danger must be taken into account (see BVerwG, 10 July 2012, 1 C 19.11). In addition, the framework established by § 11 para. 3 sentence 2 and para. 5 et seq. AufenthG must also be observed. According to this, the duration of the entry and residence ban may not exceed five years (Section 11 (3) sentence 2 AufenthG). The period of the entry and residence ban should not exceed ten years if the foreigner has been expelled due to a criminal conviction or if they pose a serious threat to public safety and order (Section 11 (5) sentence 1 AufenthG). The period of the entry ban should be twenty years if the foreigner has been expelled for a crime against peace, a war crime or a crime against humanity or a terrorist threat (Section 11 (5a) sentence 1 AufenthG).
These standards must also be applied when deciding whether to lift or shorten an entry ban in accordance with Section 11 (4) sentence 1 AufenthG. Taking into account all current factual findings, which do not necessarily have to be "new" (see Senate decision of 20 November 2020, 13 ME 374/20), it must be assessed whether the existing entry ban to be reviewed should be lifted because the purpose pursued with the specific expulsion order has already been achieved or no longer applies. If this is the case, the entry ban should be cancelled. The discretion of the immigration authority is reduced in this respect (see VGH Baden-Württemberg, 21 November 2016, 11 S 1656/16). If this is not the case, it must be assessed whether the purpose pursued with the specific expulsion order is likely to be achieved before the expiry of the existing entry ban to be reviewed. If this is the case, it would be at the discretion of the immigration authority to shorten the duration of the existing entry ban accordingly.
Applying these standards, a revocation or shortening of the entry and residence ban ordered in the decision of 26 June 2014 for a period of eight years was not necessary because the purpose pursued with the specific expulsion order had already been achieved or had ceased to exist or this was to be expected before the expiry of the entry and residence ban on 20 January 2022.
Criminal convictions and negative psychological reports
The reason for the deportation order was a total of seven criminal convictions in the period from 1997 to 2006 for numerous property offences, dangerous bodily harm and unauthorised acquisition of narcotics.
Contrary to the expectations of the criminal court and despite the warning under immigration law and the announcement of termination of residence in the event of revocation of probation or re-offending by the defendant on 20 January 2005, the plaintiff had committed further offences. In the appeal instance, the K. Regional Court imposed a total prison sentence of one year and ten months for theft in four cases and attempted theft in two cases in its judgement of 29 November 2006. The plaintiff had been given an unfavourable legal prognosis.
The plaintiff is very immature, mentally retarded and has only limited intellectual capacity. There is a disorder of social behaviour with a predominantly dissocial orientation, but no impairment of culpability and also no inclination within the meaning of § 64 StGB, as the substance abuse was carried out in order to deal with unpleasant personality traits without reaching the level of a serious disorder of the overall life circumstances. There was an urgent need for support in order to prevent an expansion and manifestation of the existing disorders. The Regional Court suggested the establishment of legal guardianship in order to provide the plaintiff with a structural framework. The Regional Court based its findings on the expert opinion of the specialist in psychiatry and psychotherapy Dr. L. dated 9 May 2006, which attested to the plaintiff's massive dissocial behavioural patterns. He was an "early starter" with dissocial behavioural problems from the beginning of puberty and delinquency from the age of 14. In view of the plaintiff's personality profile, the expert considered socio-therapeutic measures to be absolutely necessary in order to steer his life to date in a significantly different direction.
The plaintiff's many years of delinquency described in this way up to the issuing of the deportation order on 25 April 2007, in particular the high number of offences committed by him in relatively short periods of time and the circumstances of the commission of the offence. April 2007, in particular the high number of offences committed by him in relatively short periods of time and the circumstances of the commission of the offences, but also his behaviour after the discovery of the offences, the lack of confrontation with the injustice committed, the lack of efforts to eliminate the causes of the offences committed and any lack of influence of several criminal convictions and warnings under immigration law justified keeping the plaintiff out of the federal territory after leaving the country using the upper limit of the framework set by § 11 para. 3 sentence 2 AufenthG and § 11 para. 5 sentence 1 AufenthG from a regulatory point of view.
The plaintiff was repeatedly given opportunities to make a fresh start, which he let slip by
However, the plaintiff again disappointed the expectations placed in him of a life free of punishment, so that the residence permit granted to him expired. On 9 December 2010, the H. Local Court sentenced the plaintiff to eleven months' imprisonment for two counts of theft, one of which was a joint offence.
In a psychiatric report by Dr F. from M. dated 2 May 2011, the plaintiff was certified as having full legal capacity and it was established that the ability to freely determine his own will had not been removed or significantly impaired. There was a mental disorder in the form of a combined personality disorder with self-confident and avoidant traits as well as reactive depressive symptoms, an addiction problem, especially alcohol and cannabis, as well as intellectual borderline giftedness in the border area between lower normal intelligence level and incipient giftedness. The plaintiff's social and emotional skills are diminished. He lacks drive and is completely disorientated with regard to everyday life and life organisation. In order to remedy these deficits, inpatient and later outpatient psychotherapy with adherence to abstinence from drugs, appropriate psychopharmacotherapy and social skills training are important. However, the plaintiff had not yet taken advantage of these measures.
In its judgement of 7 November 2012, the H. Local Court imposed a further two-month prison sentence on the plaintiff for forgery of documents.
On 19 November 2012, the K. public prosecutor's office brought charges against the plaintiff before the H. district court, accusing him of intentionally setting fire to another person's building by throwing a Molotov cocktail into a retail shop on 24 September 2011 and of giving false testimony as a witness in court on 5 July 2012. In this case, the plaintiff was remanded in custody from 27 October 2012 and subsequently in prison. In a judgement dated 18 April 2013, the H. District Court sentenced the plaintiff to eight months' imprisonment, acquitting him of making false unsworn statements.
On 24 December 2012, the public prosecutor's office in K. filed a further indictment against the plaintiff with the K. Regional Court, accusing him of having committed dangerous bodily harm and aggravated extortion in robberies of gaming arcades on 15 July 2011 and attempted dangerous bodily harm and attempted aggravated extortion on 7 September 2011. On 31 March 2013, the public prosecutor's office in K. accused him of committing a further eight robberies of shops, restaurants and amusement arcades between 15 October 2009 and 24 September 2010.
After the public prosecutor's office in K. agreed to the termination of his stay, the plaintiff was deported from custody to Turkey on 21 January 2014.
The development of the plaintiff from the issuance of the deportation order until his deportation thus confirmed the original assessment that in order to achieve the purpose of the deportation, it was necessary to keep the plaintiff out of the federal territory for a period of time that was at the upper limit of the framework set by § 11 para. 3 sentence 2 AufenthG and § 11 para. 5 sentence 1 AufenthG.
For the Senate, there were no comprehensible indications that the applicant had reoffended since his deportation. This undoubtedly speaks in favour of the plaintiff and indicates a change in his behaviour and lifestyle, but is not in itself a reason to consider the purpose of the deportation to have been achieved or to shorten the fixed duration of the entry ban. Rather, immunity from prosecution for a certain period of time, usually for the period determined by the existing time-limited decision, is necessary to document a lasting change in behaviour and to be able to assume that the expulsion will achieve its purpose. On the other hand, continued or renewed delinquency during an existing entry and residence ban, even after expulsion and termination of residence, provides grounds for an extension of the duration of the entry and residence ban for reasons of public safety and order pursuant to Section 11 (4) sentence 4 AufenthG.
The plaintiff has social and emotional deficits
The existing social and emotional deficits, which were the main reason for the criminal offences, had still not been addressed therapeutically. In this respect, the plaintiff merely refers to the lack of availability of medical care in Turkey. The Senate was not convinced by this reference, as the plaintiff had already made no efforts to undergo therapy in Germany, despite repeated references in criminal and care proceedings, and had not provided evidence of such efforts of a serious nature in Turkey either.
However, even if the established social and emotional deficits no longer existed, there would be no reason for the Senate to assume that the purpose pursued by the specific expulsion order had already been achieved or had ceased to exist, or that this was to be expected before the expiry of the entry ban on 20 January 2022. In view of the plaintiff's past behaviour over a period of around 15 years and his increasing delinquency there, which was unimpressed by state sanctions, this rather requires that the alleged change in behaviour be documented over the entire period determined by the existing time limit decision, especially since other circumstances triggering or determining offences would continue to exist unchanged upon return to the federal territory. For example, the applicant would return to his old family environment, which had not prevented him from committing offences in the past. There would also be a risk that the plaintiff's likely precarious financial circumstances, who still does not have a completed vocational qualification, would tempt him to commit property offences again.
Court also examines the interests of the plaintiff worthy of protection
According to § 11 Para. 4 Sentence 1 AufenthG, the entry and residence ban can also be cancelled or the period of the entry and residence ban shortened in order to protect the interests of the foreigner worthy of protection. Such interests worthy of protection arise from circumstances that reduce the weight of the public interest in continuing to keep the foreigner out of the federal territory or in withholding the granting of a residence title in the federal territory.
This element of § 11 para. 4 sentence 1 AufenthG refers to the second examination step to be carried out in the initial assessment of the time limit pursuant to § 11 para. 2 sentence 3, para. 3 and para. 5 et seq. AufenthG (cf. on the system of time limit assessment: BVerwG, 22 February 2017, 1 C 27.16), in which the time limit required to achieve the purpose of the deportation must be measured against higher-ranking law, in particular constitutional value decisions and EU and international treaty requirements, and, if necessary, relativised. This normative corrective offers the foreigners authority and the administrative courts a constitutional means of limiting the continuing far-reaching consequences of the entry and residence ban for the personal life of the person concerned. In particular, the interests of the foreigner worthy of protection mentioned in Section 53 (2) of the Residence Act must be taken into account. In accordance with the principle of proportionality, a comprehensive weighing of the interests concerned is required based on the circumstances of the individual case (see BVerwG, 22 February 2017, 1 C 27.16).
These standards must also be applied when deciding whether to lift or shorten an entry and residence ban in accordance with Section 11 (4) sentence 1 AufenthG. Taking into account all current findings, which do not necessarily have to be "new" in this respect either (see Senate decision of 20 November 2020, 13 ME 374/20), it must be assessed whether a change to the existing entry and residence ban to be reviewed is necessary because the foreigner's interests worthy of protection would allow the entry and residence ban to be lifted or shortened. If the answer is in the affirmative, the immigration authority decides on the cancellation or shortening at its discretion.
Applying these standards, a cancellation or shortening of the ban on entry and residence ordered for a period of eight years was not necessary because this would be necessary to safeguard the interests of the foreigner worthy of protection.
Plaintiff cannot rely on his family living in Germany
The applicant's interests worthy of protection under Art. 8 ECHR with regard to his private and family life in Germany prior to the termination of his residence neither precluded the expulsion nor the deportation. The interference with this legal position associated with the termination of residence was justified. The same applies to interests worthy of protection under Article 6 of the Basic Law, which, taking into account the age of majority of the applicant and his family members living in Germany, in particular his parents and brother, as well as the lack of dependence on assistance and support services to be provided in Germany (see Senate decision of 9 August 2017, 13 ME 167/17), were of only minor importance and were clearly outweighed by the conflicting public interests in expulsion and deportation.
These interests worthy of protection under Art. 8 ECHR and Art. 6 GG were sufficiently taken into account by the fact that the duration of the entry and residence ban determined according to regulatory aspects, which, as explained, is based on the upper limit of the framework set by § 11 para. 3 sentence 2 AufenthG and § 11 para. 5 sentence 1 AufenthG, was reduced to eight years starting from the date of departure.
This applies to the applicant's interest in being able to live together with his family members in Germany. This interest appears to be purely affective, without the nature and intensity of the bond having been described in more detail by the applicant.
The situation in Turkey for the plaintiff also does not lead to a reduction
However, this also applies to the applicant's interest in being allowed to lead a private life in Germany again. There were no indications that the applicant could currently claim residence in the federal territory. His statements and references to the general situation in Turkey and to the particular situation of the Kurds of Yazidi faith in Turkey were not sufficient in this respect, as there was no comprehensible information on the direct involvement of the applicant.
Rather, a residence permit under Chapter 2 Section 5 of the Residence Act can only be granted to foreigners who are abroad for reasons of international law or urgent humanitarian reasons in accordance with Section 22 of the Residence Act. However, this provision is not a general hardship provision that should or can enable foreigners who do not meet the requirements for entry under other provisions to enter Germany (see OVG Berlin-Brandenburg, 19 September 2017, 3 S 52.17). The decision on admission from abroad in accordance with Section 22 sentence 1 AufenthG is rather an expression of the autonomous exercise of state sovereignty, to which there is no legal entitlement (see BVerwG, 15 November 2011, 1 C 21.10). § In this respect, Section 22 sentence 2 AufenthG serves in particular to safeguard the federal government's room for manoeuvre in terms of foreign policy (see OVG Bremen, 13 February 2018, 1 B 268/17).
If the applicant does not meet the factual requirements of Section 11 (4) sentences 1 and 2 AufenthG for a shortening of the period of validity of the entry and residence ban imposed on him, the defendant lawfully rejected the applicant's application of 16 December 2016 in the decision of 26 June 2017, without the existence of relevant discretionary errors pursuant to Section 114 sentence 1 VwGO being relevant. Irrespective of this, there were no such errors in the exercise of discretion, which was already to be exercised when the decision of 26 June 2017 was issued in accordance with Section 11 (4) sentences 1 and 4 in conjunction with (3) AufenthG and was actually exercised by the defendant. There were also no indications that the discretion granted to the defendant under Section 11 (4) sentence 5 in conjunction with Section 11 (3) sentence 1 AufenthG (see BVerwG, 22 February 2017, 1 C 27.16) could have been reduced to shortening the period of validity of the existing entry ban or even lifting it with immediate effect.
Source: Lüneburg Higher Administrative Court
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