Administrative Court Berlin, December 20, 2022, Case No.: 39 K 62.19 A
This case involves the application and interpretation of protection provisions under German asylum and immigration law, particularly in the context of deportation prohibitions. The legal framework is primarily determined by the Residence Act (AufenthG) and the European Convention on Human Rights (ECHR). Section 60(5) of the Residence Act, in conjunction with Article 3 of the ECHR, prohibits the deportation of foreigners if there are substantial grounds to believe that they would face inhumane or degrading treatment in the destination state.
Background of the Case: Flight and Asylum Application of the Ukrainian Family
The plaintiffs in this case are a Ukrainian family consisting of the father, a 48-year-old man (plaintiff 1), and his two minor children, who were ten and eleven years old at the time the lawsuit was filed (plaintiffs 2 and 3). The family left Ukraine and arrived in the Federal Republic of Germany by air on July 16, 2018, along with the wife of plaintiff 1 and the mother of plaintiffs 2 and 3, who was involved in a parallel case (VG 39 K 64.19 A) as a plaintiff. The motivation for fleeing Ukraine was due to the health issues of plaintiff 1, who was diagnosed with HIV in 2003 and has since suffered from several related conditions, including hepatitis. Despite the severity of his illnesses, he did not receive adequate medical treatment or medication in Ukraine, ultimately forcing him to leave the country. On August 1, 2018, the plaintiffs submitted asylum applications to the Federal Office for Migration and Refugees (BAMF) to seek protection in Germany.
BAMF Decision: Rejection of the Asylum Application
After the family’s arrival and the submission of the asylum applications, plaintiff 1 underwent a hearing at BAMF on August 9, 2018. During this hearing, he described the reasons for fleeing Ukraine, emphasizing his health problems and the inadequate medical care in his home country. He expressed the fear that returning to Ukraine would lead to a life-threatening deterioration of his health condition due to the widespread discrimination against HIV-positive individuals in Ukraine.
Despite these statements, BAMF decided on August 23, 2018, to reject the plaintiffs‘ applications for refugee status, asylum recognition, and subsidiary protection as manifestly unfounded. BAMF also determined that no deportation bans existed and ordered the family to leave Germany within one week of receiving the decision, under the threat of deportation to Ukraine. Additionally, a re-entry and residence ban for 30 months from the day of deportation was imposed.
Legal Dispute: Lawsuit and Application for Interim Relief
On October 18, 2018, the plaintiffs filed a lawsuit with the Administrative Court, seeking full protection in Germany. They also submitted an application for interim relief to achieve the suspensive effect of their lawsuit. The Administrative Court, specifically the previously responsible 31st Chamber, partially ruled in favor of the plaintiffs on November 2, 2018. The court ordered the suspensive effect of the lawsuit regarding plaintiff 1, as it was not sufficiently certain that the necessary medical therapy would be available and financially accessible to him in Ukraine. This meant that plaintiff 1 could not be deported for the time being. However, the request for interim relief for plaintiffs 2 and 3 was denied.
Case Progression: Amendment of the Lawsuit and Defendant’s Response
As the case progressed, the plaintiffs increasingly focused on the health condition of plaintiff 1 as the main argument for the necessity of a deportation ban. They submitted medical certificates that documented the severity of his illness and the risk of a significant deterioration in his condition if deported to Ukraine. These documents were intended to support the claim that a return to Ukraine would not only constitute an unreasonable hardship for plaintiff 1 but also for his minor children.
On December 15, 2022, the plaintiffs limited their lawsuit to the establishment of deportation bans and withdrew the lawsuit in other respects. During the oral hearing, the defendant’s representative (BAMF) stated that the sections 4 to 6 of the decision of August 23, 2018, regarding plaintiff 1, were repealed and that a deportation ban pursuant to Section 60(7) of the Residence Act (AufenthG) was recognized for him. Regarding plaintiffs 2 and 3, sections 5 and 6 of the decision were repealed. The parties declared the legal dispute settled to this extent.
Court Decision: Establishment of Deportation Bans for the Children
In the remaining part of the proceedings, the plaintiffs, represented by their father, continued to seek the establishment of deportation bans under Section 60(5) or Section 60(7) sentence 1 of the Residence Act for the minor children. The defendant requested the dismissal of the lawsuit. The court examined the facts, considering current findings on the security and human rights situation in Ukraine, particularly in the context of the ongoing war and the resulting humanitarian crisis.
The court found that BAMF’s rejection of deportation bans for the children was unlawful and violated the children’s rights. Under current law, a foreigner may not be deported if deportation would violate the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), especially if there is a serious risk that the person would be subjected to the death penalty, torture, or inhumane or degrading treatment. The court agreed that the children would face such a risk if returned to Ukraine, particularly given the current security situation and the poor humanitarian conditions in the country.
Assessment of the Security Situation in Ukraine
In its decision, the court detailed the current situation in Ukraine, which has significantly deteriorated since the Russian forces‘ invasion on February 24, 2022. The court noted that hostilities have occurred in large parts of the country, including the capital Kyiv, and that the civilian population has been greatly affected. Russian forces have targeted both military and civilian infrastructure, resulting in a large number of civilian casualties. Reports of deliberate attacks on residential areas, schools, and hospitals, as well as widespread human rights violations, including executions, abductions, and torture, underscore the high risk faced by civilians in Ukraine.
The court emphasized that the humanitarian situation in Ukraine is extremely critical. Millions of people have been displaced, many have lost their homes, and access to basic necessities such as food, water, electricity, and medical care is severely restricted. This situation poses an acute danger to the life and health of the civilian population, particularly vulnerable groups such as children and chronically ill individuals.
Conclusion: Legal and Humanitarian Considerations
Given these circumstances, the court concluded that plaintiffs 2 and 3 would face treatment that violates Article 3 of the ECHR if returned to Ukraine. The combination of the general security situation, the humanitarian crisis, and the individual health circumstances of the family, particularly the chronic illness of the father, led the court to conclude that the conditions for establishing a deportation ban under Section 60(5) of the Residence Act were met. Since the court had already established a deportation ban under Section 60(5) of the Residence Act, it was unnecessary to also decide on the conditions under Section 60(7) sentence 1 of the Residence Act, as both provisions converge in a single subject matter.
The ruling illustrates how courts in Germany take into account human rights and humanitarian considerations in asylum cases, particularly when it comes to protecting families and vulnerable individuals in conflict areas. In this case, the court clarified that the humanitarian catastrophe in Ukraine and the specific health needs of the plaintiffs make deportation unreasonable. Thus, the ruling makes an important contribution to protecting human rights and preserving the dignity of refugees.
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