In February 2017, the Administrative Court of Baden-Württemberg (Case No.: 11 S 447/17) made a landmark decision. The court ruled that deportation is not legally permissible if there is a concrete danger that the health of the person concerned will deteriorate substantially or life-threateningly as a result of the deportation itself. This prohibition takes place if it is not possible to reduce or eliminate this danger even by taking precautions.


In Principle: Obligation to Leave the Country if the Asylum Application is Rejected

Under § 50(1) Residence Act (AufenthG), a non-German is obliged to leave the country if he or she does not or no longer holds a required residence title and a right of residence. According to § 50 (2) Residence Act, the person in question must leave the Federal territory without delay or, if a deadline for departure has been set, by the expiry of the deadline.

If you as a non-German do not comply with the obligation to leave the country, deportation may result. Deportation constitutes the execution of this obligation to leave the country, which is ordered as a measure of direct coercion by the immigration authorities or by the Federal Office for Migration and Refugees in accordance with Section 71 (1) German Residence Act and is carried out by the enforcement authorities of the Länder (regions). In this case it is carried out by the police in accordance to Section 71 (5) German Residence Act.


Exception: Right to Suspension of Deportation in the Case of Obstacles to Deportation

However, deportation must be suspended in accordance with § 60a para 2 (1) German Residence Act as long as deportation is impossible for legal or factual reasons (obstacles to deportation) and no residence permit has been issued.

The case submitted to the Administrative Court of Baden-Württemberg for decision in February 2017 was based on such an obstacle to deportation. The woman in question was a woman at risk of suicide who had originally entered the Federal Republic of Germany from Macedonia and was now to be deported after her asylum application had been rejected. Since the woman in question was a woman at risk of suicide, the German authorities notified the Macedonian authorities of her actual deportation in order to ensure that she would be medically received at Skopje airport upon arrival in Macedonia. However, this notification was made only by e-mail and was answered by the Macedonian authorities only by an automatically generated e-mail.


Health Risk as an Obstacle to Deportation

For more information about the need to protect the life and health of deportees see the case note from this decision by the German Constitutional Court BVerfG, Kammerbeschluss vom 17.09.2014 – 2 BvR 939/14, NVwZ 2014, 1511 (marginal note 10).

Article 3 ECHR is also intended to protect against deportation that leads to a serious and irreversible deterioration of health or that causes serious suffering or a considerable reduction in life expectancy, cf. ECHR (GK), judgment of 13 December 2016- 41738/10- Paposhvili). It was also established from the most recent case-law of the European Court of Human Rights in the case of Paposhvili v. Belgium (ECHR (GK); Judgment of 13.12.16- 41738/10) that the deporting state must obtain an individual and sufficient assurance from the target state in order to fulfil its obligation under Article 2.2 Grundgesetz (German constitution) and to ensure that the deportation is compatible with Article 3 ECHR.


Requirements for the Notification of the Deportation to the State of Destination

In cases where a significant deterioration in the health of the person to be deported is expected, a merely automatically generated reply from the authority of the State of destination is therefore not sufficient for a proper deportation. This technical system carries the risk that, in the worst case, the notification or announcement of the deportation may not be noticed at all or only insufficiently. In other words, the deportee may not receive the help they need on the other end as the receiving country authorities may not be aware of the danger.

Consequently, there must be at least a short non-automated affirmative reply from the authorities of the target Member State. Only then can the German authorities assume that they have done everything necessary to actually carry out the deportation. Confidence in the regular functioning of the cooperation would not be sufficient. In this context, the functioning of the cooperation must be ensured on a regular basis, see Mannheim Supreme Court, decision of 22 February 17-11 p 447/17. Only abstract promises by the authority of the target state are deemed to be insufficient in this context, see OVG LSA, decision of 21.06.16-2 M 16/16.


Notification Needs to be Acknowledged

Since the woman to be deported was a woman at risk of suicide, it had to be ensured that she was not in a position to commit suicide during the deportation proceedings and also when travelling to the state of destination. As the German authority in the present case had only weakly directed the actual execution of the deportation due to the insufficient registration in the state of destination, the Administrative Court halted the deporting authority in the above-mentioned case by way of a temporary injunction suspending the deportation until a certain date. The court drew the attention of the deporting authority to the fact that a deportation in the case of persons who are seriously endangered to health is only legally permissible if it meets the above-mentioned standards.


Conclusion

The case shows that an email to the country of destination, in which the person concerned is merely announced and asked for medical reception, is not sufficient. Instead, basic medical care must be provided. However, whether the precautions taken by the authority to be deported actually comply with the legal requirements must always be checked on the basis of the individual case. In this case, an automated response by email was deemed to be not sufficient.

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