The case: Father of two children defends himself against deportation
The applicant, a man from Nigeria, has been living in Germany for several years. He is the father of two minor children who live with their mother. The mother has a residence permit for humanitarian reasons and also has another child who is a German citizen.
The Federal Office for Migration and Refugees (BAMF) rejected the man's asylum application and determined that there was no entitlement to a ban on deportation in accordance with Section 60 (5) or (7) of the Residence Act. The man was therefore obliged to leave Germany.
He resisted the decision and brought an action before the Gelsenkirchen Administrative Court - with success. The court came to the conclusion that he was subject to a ban on deportation in accordance with Section 60 (5) Residence Act in conjunction with Article 8 of the European Convention on Human Rights (ECHR).
The judges based their decision on the protection of family life: deportation would make it impossible to live together with his children and would violate the right to respect for family life (Art. 8 ECHR).
The BAMF appealed against this ruling. And the proceedings ended up before the Federal Administrative Court (BVerwG). The decision there was different. The BVerwG ruled that family ties in Germany alone are not sufficient to justify a ban on deportation under Section 60 AufenthG.
What is the prohibition of deportation according to § 60 AufenthG?
According to Section 60 AufenthG, no one may be deported if the deportation would violate the European Convention on Human Rights (ECHR). This applies, for example, if a person is threatened with torture, the death penalty or inhumane treatment in their country of origin (Section 60 (5) AufenthG).
Deportation is also prohibited under Section 60 (7) AufenthG if there is a serious risk to life, limb or health in the home country - for example due to war, natural disasters or a lack of medical care.
This means that these rules (Section 60 AufenthG) only apply if someone is in danger in their country of origin. This is called a country of destination-related ban on deportation.
Reasons relating to life in Germany - such as family, integration or the welfare of children - are not covered by Section 60 AufenthG. Such reasons relating to living in Germany are examined in other provisions, such as Section 25 (5) AufenthG.
The court's decision
In its ruling, the Federal Administrative Court confirms that Section 60 (5) AufenthG only applies if someone is at risk in their country of origin. This does not include family or personal circumstances in Germany.
The authority must take such family circumstances into account, but elsewhere - for example:
- when issuing a threat of deportation
- when a Tolerance permit is issued in accordance with Section 60a AufenthG, or
- when issuing a residence permit in accordance with Section 25 (5) AufenthG if deportation is not permanently possible
What does the ruling mean for those affected?
The ruling is important for people who live in Germany with their family but do not have a secure residence permit. The court has clearly drawn the boundaries:
- Family ties or the best interests of the child do not lead to a ban on deportation under Section 60 (5) AufenthG
- However, such reasons can be taken into account in other procedures - for example in the case of a Tolerance permit or a humanitarian residence permit
- Only dangers in the country of origin can justify a ban on deportation in accordance with Section 60 (5) or (7) AufenthG
What alternatives do those affected have instead?
In its ruling, the Federal Administrative Court clarified that people with families in Germany must regulate their situation via the right of residence - not via the right of asylum. This means that anyone who does not want to be deported because of their family can use other legal channels.
One option is the Tolerance permit in accordance with Section 60a AufenthG. This means that deportation is temporarily suspended - for example, if the child's welfare or the family relationship would otherwise be at risk. In this way, the separation of parents and children can be avoided, even if the stay is not actually legally permitted.
If deportation is impossible or unreasonable for a longer period of time, a residence permit can be applied for in accordance with Section 25 (5) AufenthG. This applies, for example, if a return to the country of origin is not possible in the foreseeable future or if deportation would violate fundamental rights - such as the right to family (Art. 6 GG) or the best interests of the child. As a rule, this residence permit should be issued if a person has already been tolerated in Germany for a longer period of time.
In certain cases, a residence permit for family reunification (§§ 27-36 AufenthG) may also be considered - for example, if the partner already has a secure Residence permit. These regulations are intended to ensure that families can live together in Germany even if they are not entitled to asylum.
Conclusion
With its decision, the Federal Administrative Court has sent an important signal for the interpretation of residence law. Family ties and the best interests of the child remain important grounds for protection, but do not automatically lead to a ban on deportation under Section 60 (5) Residence Act.
Instead, they must be taken into account elsewhere - for example in the Tolerance permit or when granting a humanitarian residence permit.
The ruling means that it will be more difficult in future for many families with uncertain residence status to invoke family ties in asylum proceedings. However, the right of residence opens up other ways - such as a Tolerance permit or a residence permit for humanitarian reasons - to continue to protect family life in Germany.
