Aktualisiert am:
Administrative Court Aachen, Judgment of April 13, 2023, Case No.: 4 K 2548/22
The residency requirement (Residenzpflicht) can be imposed by the authorities and refers to a local restriction, meaning that one is not allowed to leave a specific (spatial) area. This spatial restriction is noted in the supplementary provisions of the toleration (Duldung) or residence permit (Aufenthaltsgestattung) and can be lifted upon request. Reasons for lifting the restriction can include family or work-related matters, or the commencement of a training relationship.
In the present case, the plaintiff applied for the lifting of the residency requirement. After the authority rejected this request, he filed a lawsuit.
Case Background
The plaintiff, a national of Guinea, entered Germany in December 2016 and applied for asylum, which was rejected by the BAMF (Federal Office for Migration and Refugees) as inadmissible. Despite the order of deportation, no deportation to Italy took place. Following the rejection of the asylum application, the plaintiff received a residency requirement from the district government. By decision dated April 26, 2017, he was assigned to the city of B. in the district of A. as his place of residence and was required to take up his habitual residence there in accordance with Section 60(1) AsylG.
Subsequently, the plaintiff applied to the district government of C. for redistribution within NRW under Sections 50/51 AsylG, as his commute to work had become significantly longer. The plaintiff argued that it took him three hours to reach work from B. He had now found a residence that allowed him to reach his workplace within 30 minutes.
The authority rejected the application, arguing that the plaintiff could be expected to endure the long commute, as his personal interest during the asylum procedure must take a back seat to the public interest in an even distribution of asylum seekers.
Judgment of the Administrative Court Aachen
The court sided with the plaintiff and ruled that his lawsuit against the residency requirement was successful.
Court’s Reasoning
The allocation decision by the district government of C. dated April 26, 2017, was based on Section 50 AsylG. According to Section 50(4) Sentence 1 AsylG, the competent authority issues the allocation decision. Case law indicates that the decision regarding the allocation and its modification lies within the broad discretion of the competent authority. The authority’s discretion is only bound by Section 50(4) Sentence 5 AsylG, which requires the authority to consider the household community of family members or other humanitarian reasons when making the allocation.
Special reasons that can lead to a claim for redistribution exist when the individuals concerned are dependent on the assistance of others due to illness, pregnancy, age, or infirmity. Significant personal reasons, such as special protection needs or a concrete opportunity for employment, can also be considered.
The plaintiff had demonstrated that his livelihood was secured in accordance with Section 2(3) AufenthG. This is the case if the foreigner can support himself, including adequate health insurance, without recourse to public funds. Since the plaintiff was able to secure his livelihood through his employment both currently and likely in the future, the residency requirement had become unlawful.
The residency requirement represents a significant restriction of general freedom of action (Article 2(1) GG), especially when it persists for an above-average length of time, as in the plaintiff’s case. The plaintiff has been in Germany since the end of 2016, and the residency requirement has been in place since April 2017, without a decision being made on his asylum application.
Outcome
As a result, the residency requirement was lifted.
Source: Administrative Court Aachen
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