Federal Administrative Court, March 22, 2012, Case No.: 1 C 5.11
Deportations of foreigners, according to Section 11, Paragraph 1, Sentence 1 of the Residence Act (AufenthG), result in the foreigner being prohibited from re-entering and residing in the Federal Republic of Germany.
Gem. § 11 Abs. 1 S. 2 AufenthG darf dem Ausländer auch kein Aufenthaltstitel erteilt werden.
According to Section 11, Paragraph 1, Sentence 2 of the Residence Act, the foreigner is also not allowed to be granted a residence permit. However, the effects of the deportation can be limited upon request according to Section 11, Paragraph 1, Sentence 3 of the Residence Act. Since the application for limitation should be properly substantiated, it is advisable to consult a lawyer for the limitation process. This is particularly important because the decision on the period and the length of the period is at the discretion of the authority.
According to Section 11, Paragraph 1, Sentence 4, the period is to be determined by the competent foreigners‘ authority, taking into account the circumstances of the individual case, and may only exceed five years if the foreigner has been expelled due to a criminal conviction or poses a serious threat to public security or order.
The authority’s criteria for discretion include, for example, the length of a prison sentence that led to expulsion, the payment of deportation costs, or whether the applicant has a spouse or children in Germany.
However, determining the competent foreigners‘ authority for the limitation of deportation is problematic, as the Residence Act in Section 71 only regulates the subject-matter jurisdiction, not the local jurisdiction.
This very issue was the subject of the aforementioned decision of the Federal Administrative Court.
Case Background
The plaintiff, born in 1934 and a Turkish national, first entered the Federal Republic of Germany in October 1984 and applied for asylum. During the asylum process, she was assigned to the city of S. in the Hochsauerland district, North Rhine-Westphalia, in January 1985 and took up residence there. After her asylum application was rejected, she received an order to leave the country, which she did not comply with. Instead, she was repeatedly granted temporary suspension of deportation (Duldung) until she was deported in 1988 at the instigation of the district administrator of the Hochsauerland district. After a brief re-entry and a subsequent asylum application, which was also rejected, she was deported again to Turkey in 2005.
In February 2006, the plaintiff applied to the district administrator of the Hochsauerland district to limit the effects of her 1988 and 2005 deportations with immediate effect. She justified her application by stating that she was suffering from age-related illnesses and needed support from her son, who lived in Berlin. The lifting of the entry ban was necessary for her to apply for a visa for family reunification. The district administrator partially granted her application and set the limitation of the deportations until April 30, 2010. The plaintiff’s objection to this decision was rejected.
Jurisdictional Conflict
After the plaintiff unsuccessfully sued the district administrator before the Arnsberg Administrative Court, she filed a new application in December 2009 with the foreigners‘ authority of the state of Berlin to limit the effects of the 1988 and 2005 deportations with immediate effect. Her goal was to apply for a visa to join her son in Berlin after the limitation. The Berlin foreigners‘ authority declared itself not competent and forwarded the application to the foreigners‘ authority of the Hochsauerland district. The Hochsauerland district, in turn, informed the Berlin authority in February 2010 that it was not competent to make the limitation decision and agreed to a decision by the Berlin authority.
Inaction Suit and Administrative Court
In March 2010, the plaintiff filed an inaction suit before the Berlin Administrative Court, seeking to compel the state of Berlin to immediately limit the effects of the 1988 and 2005 deportations. The Berlin Administrative Court dismissed the lawsuit in January 2011, arguing that the state of Berlin was not authorized to make the decision. It reasoned that the jurisdiction for the limitation decision lay with the authority that had ordered the deportation. The plaintiff appealed this ruling to the Federal Administrative Court.
Decision of the Federal Administrative Court
The Federal Administrative Court upheld the decision of the Administrative Court in its outcome but disagreed with its reasoning. The court found that the Residence Act in Section 71 only contains provisions on subject-matter jurisdiction and does not address local jurisdiction. Therefore, the decision on local jurisdiction lies within the discretion of the states, in accordance with the division of competence under Article 83 of the Basic Law (Grundgesetz). An ancillary competence of the authority that ordered the deportation cannot be derived from the Administrative Procedure Act. In the present case, by applying the rules on local jurisdiction from the Administrative Procedure Act of the state of North Rhine-Westphalia, it was determined that the foreigners‘ authorities in North Rhine-Westphalia were competent for the limitation decision.
Significance of the Ruling
The ruling of the Federal Administrative Court clarifies that the competence for subsequent limitation decisions does not automatically lie with the authority that ordered the deportation. Instead, local jurisdiction is to be determined according to state law. The ruling highlights that there is no general ancillary competence for subsequent restrictions of an administrative act, which can have important implications for similar cases.
Source: Federal Administrative Court
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