Administrative Court Munich, May 7, 2020, Case No.: M 10 K 18.4623
When an asylum application or a request for the issuance or extension of a residence permit is rejected, a deportation order often follows. In such cases, the foreigner is required to leave the Federal Republic of Germany within a specified period. If they do not comply, forced deportation ensues.
In this case, the plaintiff contested both his expulsion and his already executed deportation to North Macedonia. However, since the plaintiff had already been deported, rendering the deportation order ineffective, and both the deportation order and the deportation itself were lawful, the Administrative Court of Munich dismissed the lawsuit.
Facts of the Case:
The plaintiff appealed against the refusal to extend his residence permit.
The plaintiff held a residence permit that was last valid until March 19, 2015. He applied for an extension.
On August 14, 2018, the plaintiff received a notice that his applications for extension were denied and that he faced deportation to North Macedonia.
On September 17, 2018, the plaintiff filed a lawsuit against the decision.
Accommodation of the plaintiff was ordered due to drug use and violence:
On January 22, 2019, the district hospital requested the termination of the plaintiff’s accommodation and thus the completion of the measure. The plaintiff was diagnosed with dependence syndrome from cannabinoids, abuse of stimulants with a preference for MDMA, and harmful use of cocaine. During his accommodation in the district hospital, the plaintiff repeatedly engaged in physical altercations with fellow patients and committed several rule violations. Due to his behavior, the continuation of the therapy no longer seemed promising. The therapy process aimed at controlling excessive emotions, but the plaintiff’s repeated assaults showed that this process was no longer effective. It was expected that the plaintiff would likely continue to commit similar offenses to those that led to his accommodation, as well as bodily harm. Therefore, a termination of the therapy in the measure of execution was requested.
The correctional facility’s leadership report from February 19, 2020, indicated that the plaintiff had twice come to disciplinary attention. He regularly received visits from his parents and siblings, who fully utilized the visiting opportunities. In two routine drug screenings, the plaintiff tested negative. The plaintiff sought contact with an external addiction counseling service and participated in several in-depth individual sessions and a relapse prevention training that included twelve group sessions.
The plaintiff is eventually deported to North Macedonia:
On February 24, 2020, the plaintiff was deported to North Macedonia.
In a decision dated February 26, 2020, the defendant ordered the plaintiff to pay deportation costs amounting to €1,281.00 and set a payment deadline of four weeks from the notification of the decision.
On March 26, 2020, the plaintiff’s representative supplemented the lawsuit of September 17, 2018, and requested that the defendant’s decisions of August 14, 2018, and February 26, 2020, be annulled. Additionally, the defendant was to be required to issue the plaintiff a residence permit. Alternatively, it was requested that the plaintiff’s application for issuance/extension of a residence permit be reconsidered by the court with regard to the legal opinion of the court. The lawsuit also stated that the plaintiff’s deportation on February 24, 2020, was illegal.
In the oral hearing on May 7, 2020, the plaintiff’s father stated that the plaintiff could work in his business, which he ran together with the plaintiff’s brother, upon returning to Germany.
Judgment of the Administrative Court Munich
The Administrative Court of Munich ruled that the lawsuit was unsuccessful. It was partly inadmissible and otherwise unfounded.
The attorney had sufficient time to respond, according to the court:
In the oral hearing, the plaintiff’s representative requested a deadline to respond to the district hospital’s statement of January 22, 2019, and the correctional facility’s leadership report of February 19, 2020.
However, the plaintiff’s representative was not entitled to a deadline for submission. According to § 173 Sentence 1 VwGO in conjunction with § 283 Sentence 1 ZPO, the court may set a deadline for a party to submit a response if they cannot respond to the opponent’s submission during the oral hearing because it was not communicated in time before the hearing.
The plaintiff’s representative was notified on the same day about the transmission of the correctional facility’s leadership report to the court on March 12, 2020, and the district hospital’s report to the court on March 24, 2020. Therefore, he had sufficient opportunity to respond to the reports.
Moreover, he had been in contact with the court and its office for file inspection purposes since March 4, 2020. He was offered file inspection several times. Since it was expected that the representative would take advantage of the file inspection, a separate transmission of the reports was not necessary from the court’s perspective. The fact that the plaintiff’s representative did not utilize the offered opportunities was his own responsibility.
Furthermore, the reports were sent to him by fax on May 5, 2020, prior to the oral hearing, allowing him another opportunity to respond to them. Since the reports did not mention any new circumstances that would have required an extensive response, the representative still had enough time to respond after receiving them by fax. As the circumstances mentioned in the reports were already known to the plaintiff’s representative, he could have responded well before the oral hearing. Given his knowledge of these circumstances, he could also have responded briefly before or during the oral hearing. Therefore, the court did not base its decision on new submissions within the meaning of § 173 Sentence 1 VwGO in conjunction with § 283 Sentence 1 ZPO.
The plaintiff lacked the need for legal protection in the lawsuit against the deportation order:
The lawsuit was also inadmissible as it was directed against the deportation order in the defendant’s decision of August 14, 2018. The plaintiff lacked the necessary need for legal protection in this regard.
According to established case law, only those pursuing a legitimate interest in legal protection have a claim to a court decision. This requirement is an expression of the general prohibition of abuse of rights and must be examined by the court ex officio at any stage of the proceedings. If this is lacking, the request must be dismissed as inadmissible.
The plaintiff could not improve his legal position by having the order annulled, which is why the necessary interest in the requested annulment was denied.
The deportation order became moot due to the deportation:
On February 24, 2020, the plaintiff was deported to North Macedonia. Thus, the deportation order became moot under Article 43(2) BayVwVfG. An administrative act becomes moot when it becomes „pointless,“ meaning no further formal or material effects can arise from it. According to § 11(1) AufenthG („An entry and residence ban must be issued against a foreigner who has been expelled, removed, or deported“), the legal consequences (here the issuance of an entry and residence ban) follow the deportation or expulsion itself, not the deportation order. Similarly, for the question of the legality of a performance decision under §§ 66 f. AufenthG, the legality of the deportation carried out is decisive. Accordingly, the legal consequence of the deported person’s obligation to bear costs attaches to the deportation itself, not the deportation order. Since the plaintiff could not improve his legal position by annulling a provision that no longer had any effect on him, the interest in the requested decision was denied.
Re-entry into Germany could be achieved by limiting the entry and residence ban:
The plaintiff pursued his lawsuit with the aim of remaining in Germany and preventing the deportation that had already occurred. However, since he had already been deported to North Macedonia, he could no longer achieve his goal. A return to Germany, which he now sought after the deportation, could be achieved by other means, such as an application to shorten the duration of the entry and residence ban under § 11(1) AufenthG. For this reason, too, there was no legitimate interest in the requested annulment.
The lawsuit was also unfounded:
The Administrative Court found that the defendant’s decision of August 14, 2018, was lawful and did not violate the plaintiff’s rights (§ 113(1) Sentence 1 VwGO). Moreover, the plaintiff had no claim to the issuance of a residence permit (§ 113(5) Sentence 1 VwGO).
The plaintiff posed a danger to public safety and order in the Federal Republic of Germany within the meaning of § 53(1) AufenthG. Particularly due to his drug addiction, which was not fully treated after the termination of his accommodation in the rehabilitation institution, and the fact that he had not yet proven himself outside of detention or accommodation, there was a risk of recurrence.
Interests in expulsion outweighed the plaintiff’s interests in staying:
According to § 53(1), (2) AufenthG, a balancing of interests must be undertaken, which, however, was to the detriment of the plaintiff. No circumstances were presented that would lead to an outweighing of the plaintiff’s interests in staying. The plaintiff had particularly serious expulsion interests under § 54(1) Nos. 1 and 1a AufenthG. The possibility that the plaintiff could work in his father’s and brother’s business after his return did not outweigh the expulsion interests present.
The deportation to North Macedonia on February 24, 2020, was also lawful (§ 43(1) VwGO):
The legal basis for the deportation was § 58(1) Sentence 1 AufenthG.
According to this provision, a foreigner must be deported if the obligation to leave the country is enforceable, a deadline for leaving has not been granted, or has expired, and voluntary compliance with the obligation to leave is not ensured or if supervision of the departure is necessary for reasons of public safety and order. All these conditions were met.
The plaintiff was obligated to leave the country on February 24, 2020. According to § 50(1) AufenthG, a foreigner is obligated to leave if he does not or no longer possesses the required residence permit.
The plaintiff’s residence permit under § 32(3) AufenthG was last valid until March 19, 2015. The plaintiff’s applications for an extension were rejected in the decision of August 14, 2018, which is also the subject of this dispute. Since the rejection of the application ended the legal fiction under § 81(4) Sentence 1 AufenthG, the plaintiff was no longer in possession of the required residence permit and was obligated to leave under § 51(1) AufenthG.
This obligation to leave was enforceable despite the lawsuit. According to § 58(2) Sentence 2 AufenthG, the obligation to leave is only enforceable when the denial of the residence permit or other administrative act that makes the foreigner obligated to leave under § 50(1) AufenthG is enforceable. The rejection of the application for an extension of the residence permit, from which the plaintiff’s obligation to leave derived, was immediately enforceable. The current lawsuit for the issuance of the residence permit, in which the rejection decision is also challenged, did not have a suspensive effect according to § 84(1) Sentence 1 No. 1 AufenthG.
Due to his detention, the plaintiff was not granted a departure deadline under §§ 59(5) Sentence 1, 58(3) No. 1 AufenthG, and the monitoring of his departure was required under § 58(3) No. 1 AufenthG.
Therefore, all conditions for deportation were met on February 24, 2020.
Source: Munich Administrative Court
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