The Federal Administrative Court in Leipzig issued a decision earlier in the week ruling that foreigners without a right of abode in Germany can legally still be asked to leave the country even if their circumstances are such that a de-facto deportation to their home country cannot actually be executed.

However, this might be good news for some rejected asylum seekers, as the court ruling focused more on the protections of individuals rather than the enforceability of the law itself.

In the ruling, the court stressed that the interests of the person concerned must also be taken into account holistically at all stages when their entitlement to a residence permit is being assessed by authorities.

In practise this means that legally, there can even be more deportation-related orders and consequences hanging over the head of any given foreign national in Germany, while at the same time they might get to enjoy more protections from actually being sent back home.

Longer prison sentences result in deportation — if feasible

The peculiar case relates to an Iranian national who originally had been granted subsidiary protection in Germany in March 2017. However, in 2019 the man was later sentenced to spend two years and three months in prison on various drug offenses.

The Federal Office for Migration and Refugees (BAMF) then revoked his refugee status in response to these developments, as is standard practice with most felonies committed by asylum seekers that result in a prison sentence of more than one year.

BAMF also determined as part of the cancellation of the Iranian's protection status that his deportation was not actually enforceable due to what consequences he might face in Iran, and started exploring other options with the authorities, where the Iranian national was registered.

The city of Bremen, where the man had been residing prior to his incarceration in prison, decided that he should still be deported, refusing to extend any form of residence permit to the now-failed asylum seeker, and also issued a ban for the Iranian national to keep him from reentering Germany for at least three years.

Immigration authorities in Bremen justified this approach by saying that the man could technically still be deported to a third country other than Iran that might be willing to accept him — but did not specify which country this might be.

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A firm ruling, which however cannot be applied

The latest decision issued by the Federal Administrative Court in Leipzig now confirms that the issuance of the initial deportation order was in line with the law, and therefore sets a legal precedent that could be applied to other cases across Germany involving prison sentences issued to otherwise protected foreign nationals, as the court operates at a federal level.

The court cited "purely general preventative reasons" for its ruling.

Effectively, this decision means that the Iranian man — and people with similar cases — would still have to leave the country as soon as there is no longer an obstacle to his deportation to the country of origin, in this case Iran. 

This, however, is a highly unlikely scenario, as there are no signs of any potential change in Iran's overall political direction, which would prevent the man from potentially suffering persecution in his home country.

Read AlsoNumber of Iranian asylum seekers in Germany doubles as unrest continues

Neither here nor there?

Meanwhile, the court also decided that in this particular case, a deportation to any country other than Iran would be invalid since the immigration authorities in Bremen had not specified an alternative destination country at the time of their ruling.

While this could be regarded as only a technicality, it also means that the re-entry and residence bans issued by Bremen are also invalid, as they legally linked to the original deportation order, which is now deemed unenforceable once more.

The Federal Administrative Court further ruled that in the absence of any feasible deportation and lack of residence papers, the city of Bremen will now have to reconsider the extension of the man's residence permit under existing laws, leaving it at the discretion of the local government to decide what particular kind of residence document it might want to issue.

Typically, if a municipality runs out of options of justifying one kind of residence permit over another in the absence of laws specifically covering a particular set of circumstances, it issues a so-called "Duldung," (a toleration order, meaning their stay is tolerated) which comes with a lot of limitations but still allows an individual to remain in Germany.

Further consequences and legal no-man's-land

"[T]here is no scope for an entry and residence ban under national law without a return decision," the court said in a press statement, adding that a "ban on the issuance of a [residence] title only exists as a legal consequence of an effectively imposed entry and residence ban."

Citing multiple federal laws, the court further justified its decision by saying that "[e]ven if the issue of a residence permit is excluded … due to committing a criminal offense of considerable importance … a residence permit can be issued to a foreigner who is obliged to leave the country on a discretionary basis … without the regular conditions for issuing a residence permit."

The court added that in such instances, as the one involving this Iranian man, the overall interests of a foreign national in Germany also have to be taken into account along with any subsequent future decisions — including their overall integration in the country, their work situation and their potential links to any family members who also might already be in the country.

It is unclear, however, if in future a municipality faces a similar case and issues a deportation order in which a third country might be clearly specified, whether this court ruling by the Federal Administrative Court would still be applicable.

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with AFP, dpa