Often, however, the aliens authority does not issue a formal notification but simply claims that reasons for expiry have arisen and might refuse to renew the residence authorisation or the refugee passport, withdraw the passport or refer to the legal obligation pursuant to §72 II AsylVfG. In this case an action for a declaratory judgement to determine that the status has not expired is admissible. Defendant in this case must be the aliens authority (in some Länder also the Land or the district/town not belonging to a Land), even if the official conception of the case is based on an (internal) expert opinion for the Federal Office. Only in exceptional cases, where the Federal Office itself found (by way of a formal notification) that the status has expired, must the action be brought against the Federal Republic (as an action for rescission). In the action itself it must be presented that reasons for expiry do not exist, and why this is so. The action does not have a suspensive effect (§ 75 AsylVfG), therefore it might be necessary to file additionally an application for a decree for suspensive effect pursuant to 3 80 V VwGO. This application will always have to be granted if the question whether reasons for expiry exist is controversial, because otherwise the refugee would not only temporarily lose his status but would even be under the threat of deportation. The deportation must, however, not be enforced until the declaration on the expiry of the status has become final and non-appealable, because up to this point it is not clear whether the refugee may claim protection from deportation pursuant to article 32 / 33 GFK.

If the travel documents have already been withdrawn, it might be sensible to file additionally an application for a temporary order pursuant to § 123 VwGO for return of the passport until the pending lawsuit is finally settled and non-appealable.

A provision regulating the expiry of refugee status has now been introduced to the HumHA, too. (§ 2 a HumHAG)

In Germany there are 82.03 m inhabitants, ca. 7.3 m of whom are foreigners. This number includes persons requesting asylum as well as students, "guest workers" and businessmen. This fact alone suggests that legal matters concerning aliens cannot be regulated by means of only one single law. In fact there is a multitude of laws which regulate the legal position of foreigners in the Federal Republic of Germany.

Aliens law is the general law which in principle applies unless there are special laws. It regulates the conditions for entry and stay of foreigners – unless another law applies. "An alien is every person who is not a German citizen in terms of article 116 I GG.", is what § 1 II AuslG provides. Many subordinate pieces of legislation amending aliens law have been passed, in particular:

• Ordinance regulating the enforcement of aliens law

• Ordinance on residence authorisations for gainful employment (Arbeitsaufenthalteverordnung; AAV)

Also directives within the administration play an important role. So far they have existed as provisional instructions of application; soon they will be issued as general administrative provision pursuant to § 104 AuslG.

The EC law governing residence (AufenthaltsG/EWG) constitutes a special legal basis for citizens of EU member states..

The EC residence law, being a special law, has priority over the general provisions and is pursuant to § 14 c EC residence law also applicable to citizens of EFTA member states which have signed the treaty on the European Economic Area (EEA).

In the field of EU law also directives and provisions of the EU Council are of considerably growing importance, for instance the

• Provision No. 1612/68 of the EC concerning the mobility of labour within the Community

• Directive No. 64/221/EC concerning the co-ordination of special provisions regarding entry and stay of foreigners

• Directive No. 68/360/EC concerning the abolition of restrictions regarding travel and residence

Various international agreements and treaties contain provisions re entry and residence. The Schengen Implementation Convention (Schengner Durchführungsübereinkommen) must especially be made mention of. It determines the conditions for entry and stay of foreigners from third countries and introduces a uniform "Schengen visa" for stays up to three months as well as the Schengen Information System (SIS) as a compensation for the abolition of the Community’s internal borders. Also the Association Agreement between the EU and Turkey is in practice most significant. It is the foundation of the EU-Turkey Association Committee’s Decision No. 1/80 which, as a result of the jurisdiction of the European Court of Justice (ECJ), grants Turkish employees a legal claim to reside. Association Agreements with Poland, Hungary and the Czech Republic are likely to obtain similar significance in future.

The Asylum Procedure Act (Asylverfahrensgesetz; AsylVfG) contains special regulations which, as described, have priority over Aliens Law. It is concerned with the legal position of persons requesting asylum and regulates the procedure. The same applies to the Act on measures for refugees accommodated within the framework of humanitarian aid programmes (HumHAG), which is concerned with granting protection for humanitarian reasons to a limited group of persons.

In cases where these special laws do not contain any special provisions, aliens law and other provisions also apply to asylum seekers. This principle is of special importance especially when the refugee no longer has the status of a person requesting asylum but has been granted a status, of one form or another, which guarantees his right to reside.

There are several other special provisions affecting foreigners. In principle, aliens (with the exception of citizens of EU member states) require a work permit, whose details are to be found in §§ 283 to 287, 404 to 406 Code of Social Law, Book III (SGB III) and in additional provisions such as the Arbeitserlaubnisverordnung (AEVO) and the Anwerbestopp-Ausnahmeverordnung (AAVO).

There are of course other laws which contain certain provisions affecting aliens. Mention has already been made of the special provisions concerning citizens of EU member states and associated states, but also in the Code of Social Law or in the Law Relating to Associations individual provisions which exclusively affect foreigners can be found.

Apart from these national laws international treaties and agreements are increasingly gaining importance. In the field of foreign labour the EC provisions and association agreements, especially that between the EC and Turkey, are most important in practice. In addition to these there is a multitude of bilateral friendship and trade treaties, as well as agreements on the taking back of refugees; such agreements have been negotiated with Vietnam and Yugoslavia, for example.

With growing international influence the decisions of international courts are becoming more and more significant. The European Court of Justice (ECJ), whose decisions are binding in the field of EU law, stands up to national bigotry in a determined manner and thus furthers the internationalisation of law and the adjustment of the legal and actual situation within the EU. Also the European Court of Human Rights, which decides on matters concerning the European Convention on Human Rights, is becoming ever more important.

This guide addresses refugees and their advisors/supporters. Problems in respect to aliens law are only portrayed in so far as they could affect the refugee or are indispensable in order to understand the matter described. A description of EU law and special problems such as the law relating to stateless persons cannot be given. Yet it seems important to explain the mechanisms of aliens law.

Aliens law in Germany sees itself traditionally as a "security law". Only a few years ago, many aliens authorities were located in police stations – right next to the prison. Until the aliens law took effect on 28 April 1965, judicial relations between Germans and foreigners were regulated by the national-socialist law on "aliens police and matters relating to identification and the obligation to register" of 11 May 1937 and the "provisions on aliens police" of 22 August 1938. The present aliens law came into existence on 1 January 1991. Yet the old attitude of mind is persistent. As late as December 1994 the official responsible for aliens’ matters of the Bavarian state capital Munich emphasized that the aliens law had a "police and security" function, it existed to prevent dangers. (SZ, 13/12/94)

Aliens are regarded as a safety risk.

The fact that an alien is considered in the view of the law as a unwished-for safety risk must be kept in mind when dealing with the aliens authorities. This does not mean that the individual official in charge should be seen as an adversary – among them there are a lot of very decent persons who are willing to help – but it does mean that one should proceed rather carefully. An ingenuous approach may be harmful. Before candidly explaining a refugee’s complicated case to the official in charge one should first gather information – anonymously, if necessary. It has often been the case that naively asking for the right to stay in the case of marriage later lead to the suspicion that the marriage was fictitious. Several persons asking for their visitor's visa to be renewed received a stamp "requested to depart". More often than not it occurs that the question of whether it was possible to invite a relative is a sure way not to get a visa for a while. So you should rather be sceptical and inquire generally and anonymously before you tell the official in charge about your personal plans. If the case is unclear and the law does not provide for a right (but for discretionary decision), you should rather seek professional advice. Especially as there is only little room for manoeuvre with the aliens law, it is worth the effort.

1) Obligation to Obtain a Visa

Foreigners are generally required to be in possession of a residence authorisation for both entry and stay in Germany. Should the applicant still be abroad, he will be issued a visa by the German diplomatic representation (embassy or consulate), which has to contact the aliens authority responsible, however, if the person requesting the visa wants to stay in Germany for more than three months or wants to take up a gainful employment.

During the last few years the German diplomatic representations have become very restrictive with handing out visas with countries which are "refugee-relevant". Even if guarantees within the meaning of § 84 AuslG were at hand or the aliens authority had given its consent, the request for a visa has often been rejected. It is hard to receive any official reason for this, allegedly because of international conventions. Informally, one often receives the information that it was doubtful whether the applicant would return or that the he or she had sought asylum in Germany years ago. Arguing that the aliens authorities had consented and that it had been the applicant’s own decision to return is pointless. Legal protection from a visa being refused can be received by bringing an action for the issue of a visa before the Administrative Court in Berlin. It is, however, very doubtful whether this action will have any effect, because on the one hand the question of whether a visa will be issued is at the discretion of the state – and in the case of visitor’s visas the scope for decision is especially large – and on the other hand because the proceedings take up a considerable amount of time (one to two years) and therefore most cases take care of themselves. Especially in matters of families entering the country after one member has been recognised as entitled to asylum – also here restrictive practices have been clearly aggravated in the past few years – this practice is, under the viewpoint of protection of marriage and family, intolerable. People are de facto made to give up one or two more years of their basic right to live together as a family until the court finally comes to a decision. There is practically no way to obtain expedite legal protection, as the corresponding urgency motions are usually rejected with the argument that this would anticipate the main action. Only in exceptional cases – e.g. if a family member is handicapped or seriously ill – can the immediate entry be enforced by means of a provisional order.

When applying for a visa it is important to state the reason for or the purpose of the stay exactly. German diplomatic representations tend to only issue visitors’ visas if the person affected states a purpose of stay different from the actual, underlying one. There have been cases where persons actually intending to study had only received a visitor’s visa or where persons who wished to participate in long-term language courses, but for a start were only enrolled for one semester received visas limited to exactly this period of time. If such misunderstandings occur, huge problems may entail, because if the legal situation is interpreted extremely narrowly (which is everyday practice), the issue or renewal of a residence authorisation exceeding the period of time originally stated is impossible. On the contrary, the person concerned first has to return to his or her home country in order to apply for a new visa. Quite a few German diplomatic representations have been seeing themselves as the vanguard in the fight against foreigners, even before the amendment of the asylum law.

The above mentioned is so important because § 8 I Nr. 1 AuslG and § 8 I Nr. 2 AuslG mention a false visa as a "special reason for refusal" (besonderer Versagenssgrund), which means that the issue of a residence authorisation ought to be refused even if the applicant has a claim to it. This leaves only the obtaining of a visa by an act of "clemency" as defined in § 9 AuslG, which, however, is only an option if a legal right to the issue of a residence authorisation (not based on anyone’s discretion) exists or if any special exceptional provisions apply.

A residence authorisation is refused pursuant to § 8 I Nr. 1 AuslG if the alien entered the country "without appropriate visa" and pursuant to § 8 I Nr. 2 AuslG, if he entered the country with a false visa.

A person returning the visit of a German exchange student, for instance, and inquiring on this occasion whether the fact that he/she has (by now) finished school back home would enable him/her to study in Germany, has to return to the country of origin in order to obtain a visa even if the inquiry has been answered with yes.

It is obvious that such a concept of stubborn categorisation causes a lot of human suffering, superfluous bureaucratic activity and unnecessary expenses. The bureaucratic cumbersome nature of this can only be understood under the fundamental premise of German aliens law, which is: every foreigner must in principle be rejected.

2) Residence Authorisation (Aufenthaltsgenehmigung)

There are four different types of residence authorisation (= general term), which are residence permit, certificate confirming the right to reside, residence title for special purposes and residence title for exceptional purposes.

The residence authorisation is granted in the form of a residence title for special purposes if "the alien is allowed to reside for a certain purpose, which in its nature only requires temporary residence" (§ 28 I AuslG). Its characteristic feature is therefore the focus on a certain purpose of the stay and on its temporary nature. Typical examples of cases where a residence title for special purposes is granted are stays for reasons of study or the fulfilment of contracts for work and services.

In principle both a change of the purpose of the stay and an extension of the residence title for special purposes are excluded. Merely changing the subject of study therefore poses considerable difficulties. Only in cases of extremely special nature are exceptions possible. (§ 28 III AuslG)

Permission to stay is granted in the form of a residence title for exceptional purposes if "the alien shall be allowed to enter and stay in the Federal Territory for reasons relating to international law or for compelling humanitarian reasons or for the safeguarding of the political interests of the Federal Republic of Germany". The various possibilities of interpretation of this formulation (and also the way § 30 III and IV AuslG are worded) would actually make it possible to take the edge off some provisions of German Asylum Law via § 30 AuslG and thus allow for humane individual solutions. In practice, however, this provision is left out of account. Its application is basically limited to the "Altfälle", i.e. cases for which the Conference of the Ministers of the Interior decided on certain qualifying-day provisions for former asylum seekers, and to a few prominent exceptions. Although the legislative intent of the residence title for exceptional purposes was expressly to regulate the residence of certain groups of persons who do not only stay for a short while on Federal Territory with a title which, other than the statutory temporary suspension of deportation, suggests a legally justified stay, in the past those civil-war refugees who did not qualify for § 32 a AsylVfG received in practice most of the time only a statutory temporary suspension of deportation. There were a few exceptions in individual Länder, which sadly only proved the rule.

Pursuant to § 30 I AuslG a diplomatic representation may issue a visa (requiring approval) as a residence title for special purposes. The visas granted to civil-war refugees from Bosnia-Herzegovina are a practical example.

It is possible to grant a residence title for special purposes via § 30 II AuslG to those aliens who already legitimately stay in Germany for compelling humanitarian reasons. In § 30 II Nr. 2 2. Hs AuslG it is expressly defined that the alien’s and his family members’ duration of the stay so far are not to be regarded as compelling humanitarian reasons if the alien had reason to assume that a continuation of his stay on the Federal Territory was improbable. The cumulative mention of the defining characteristics that constitute "for compelling humanitarian reasons" and "extraordinary hardship" in § 30 II AuslG suggest that this provision only applies in exceptional cases of extremely special nature. § 30 II AuslG is not applicable to asylum seekers who fail to be recognised.

More important than section II, however, are sections III and IV, which apply to those aliens who are already "under a non-appealable obligation to leave the country", i.e. whose previous status has already expired. In most cases these are former asylum seekers or persons whose residence authorisations have expired or have not been renewed as well as persons who were expelled from the Federal Territory on a non-appealable basis.

A residence title for special purposes in terms of § 30 AuslG may also be granted if there are impediments to deportation pursuant to § 55 II AuslG. The difference between section III and IV is that the former applies to cases where impediments to departure and deportation are not to do with the alien himself whereas section IV allows for the issue of a residence title for special purposes – after a waiting period of two years – if these impediments are to be accounted for by the alien. Another prerequisite according to prevailing legal opinion is the existence of a non-appealable notification on the obligation to leave the country. The existence of a de jure enforceable obligation to leave the country (e.g. because illegal entry) is not considered sufficient. If therefore no notification of the Federal Office regarding the obligation to leave the country exists or if this notification was annulled by a court decision, the issue of such an obligation must be provoked (provided that this is in the refugee’s interest), e.g. by applying for a residence permit. Thus the issue of a residence title for special purposes can be obtained in a round-about way. This superfluous procedure is rightly criticised in the literature and by some courts as unreasonable and uneconomical, but the Federal Administrative Court still adheres to this opinion.

In practice the option of granting a residence title for special purposes pursuant to section III and IV is made use of only very hesitantly. Even if there is no way of deporting certain aliens for years and years, they still have to make do with a statutory temporary suspension of deportation.

The way § 30 III and IV AuslG are applied clearly demonstrates the wide-spread practice of aliens authorities to fail to apply existing law in cases where the alien would benefit from them. Corrective measures on the part of the courts are in practice seldom, as we are dealing with a discretionary decision in this case, and the courts only intervene if absolutely no use has been made of this discretion (e.g. if in the notification it is explained that the aliens authority was not authorized to grant a residence title for exceptional purposes.) In all other cases, supposedly based on a discretionary "decision" (usually taken from a limited selection of given formulations), the court is highly unlikely to intervene, unless it arrives at the conviction that the result is untenable under every possible aspect and that any other decision than granting a residence title for exceptional purposes would be wrong (reduction of the discretion to zero). If in individual Länder the issue of a residence title for exceptional purposes is provided for refugees from certain countries such as e.g. Afghanistan, then a Verbescheidungsklage, i.e. an action obliging the aliens authority to make use of its discretion, promises to be more successful. Bringing an action against the general refusal of some aliens authorities to make use of their discretion in such cases has proved successful in the past. In the respective court rulings usually the way this discretion should be made use of in the view of the courts is pointed out, so that the result of such an action eventually was the issue of a residence title for exceptional purposes. Especially the practice of some Länder to make no use of § 30 III AuslG at all or to demand generally a two-year waiting period has been reprimanded by the courts in the past for the reason that § 30 III AuslG obliges the aliens authorities to consider the possible issue of a residence title for exceptional purposes before expiry of the two-year waiting period.

§ 30 III and IV AuslG are mainly applied to cases in which impediments to deportation as defined in § 53 AuslG have been found. It is up to the aliens authority to make a discretionary decision as to whether by issuing a residence title for exceptional purposes a legitimate stay in Germany is granted. The decisive criterion in this case ought to be the presumable length of time the impediment to deportation will exist. The reason for the legislator to introduce the residence title for exceptional purposes was precisely the fact that a statutory temporary suspension of deportation is neither suitable nor intended for the granting of a relatively long stay for humanitarian reasons. If it is clear from the beginning that the stay will have to be tolerated for a rather long time and that the alien cannot be deported as a change of the situation in the country of origin is not to be expected in the near future, the only appropriate decision in the matter is granting a residence title for exceptional purposes. Additionally all the individual circumstances are to be taken into account. The specific reasons for refusal as defined in § 8 I AuslG are no hindrance, whereas the normal reasons for refusal pursuant to § 7 II AuslG are applicable but are not of decisive weight.

It must be stressed that § 30 III AuslG is a provision for offsetting particular hardship in cases where strictly adhering to the provisions for entry would be intolerable, putting the aliens authority in a position to grant a residence authorisation notwithstanding § 8 I AuslG. This fact is often overlooked in practice. If the refugee cannot be expected to break his family ties by leaving the country, this constitutes at the same time an impediment to his voluntarily leaving and to his deportation which he is cannot be made accountable for (§ 30 III AuslG). Correspondingly, this must apply if other humanitarian reasons exist and the refugee’s family has no possibility of entering the country.

§ 30 IV makes the issue of a residence title for exceptional purposes possible even if the impediments to departure and deportation are to be accounted for by the refugee – unless the refugee refuses to fulfil acceptable demands for the removal of the impediment to deportation. In this case a waiting period of two years is required; the Federal Administrative court has, however, now clarified that § 30 IV AuslG does not demand that the refugee possess the statutory temporary suspension of deportation for as long as two years, but only that he should be obliged to depart for more than two years and that he be in possession of a statutory temporary suspension of deportation at the decisive point in time. Times in which the refugee was in possession of a border crossing certificate (a certificate confirming the crossing of a German border) or similar certificates must therefore also be taken into account. § 8 I and II constitute no obstacle to issuing a residence title for exceptional purposes.

The issue of a residence title for exceptional purposes is in principle at the discretion of the aliens authority. If, however, the Federal Office for the Recognition of Foreign Refugees has declared the existence of impediments to deportation pursuant to § 51 I AuslG and if the deportation of the refugee is not only temporarily impossible for legal or actual reasons the refugee has a claim to the issue of a residence title for exceptional purposes (§ 70 I AsylVfG), unless the refugee has been deported for serious reasons of public safety and order (§ 70 II AsylVfG).

The modification that the deportation of the refugee must not only be temporarily impossible for legal or factual reasons is in practice important in exceptional cases exclusively, namely when a third country exists which is willing to receive the refugee or is likely to do so at first appearance. If there is no evidence for this – which is the usually the case – the person who was granted a status pursuant to § 51 AuslG must be given a residence title for exceptional purposes without checking the possibility of a possible transfer to a third country.

Before the residence title for exceptional purposes is renewed it must be investigated whether the reasons that led to the issue of the residence title for exceptional purposes still exist, as the nature of this title is a temporarily limited humanitarian permission to reside. Should the situation in the home country have changed fundamentally by then and if therefore return seems possible, a renewal is usually impossible. It must be taken into consideration, however, that it is not the improvement of the situation alone which makes return possible. Refugees are not only in financial but often in psychological and emotional distress as well. This fact must be taken into account. A return to the country of origin is only possible if the situation in this state has changed so much that any after-effects of the reasons why they have fled the country can be excluded.

If the fact that the refugee was a child or teenager when he fled was one of the reasons why he was granted a residence title for exceptional purposes, the refugee’s protection does not automatically end with his ceasing to be under age. Rather the overall situation has to be considered, which not only includes taking the situation in the country of origin into account, but also the personality and situation of the refugee. Assuming a girl had to flee from a fundamental Islamic country when small, returning into an unchanged political system is just as intolerable for the adult woman (even if the existence of general impediments to deportation is denied and despite the fact that the deportation of women is not uncommon) because it makes a big difference whether a person grew up with the e.g. Islamic norms and conception of life and only for a short time turned his/her back on it, or whether a child was brought up in the "Western" ways and therefore his/her character was moulded in the view of the world of the West and then would have to find his/her way around in a society run and ordered by Islamic fundamentalists. This person would be in the same situation as someone who has no command of the national language because he left his home country as a small child (which in our example would most likely also be the case). In such cases the reasons for the extension of the residence title for exceptional purposes continue to exist.

Other than the residence title for special purposes, the residence title for exceptional purposes may lead to a permanent residence. The above mentioned case is a possible example. § 35 AuslG states as necessary preconditions apart from the general preconditions (guarantee of being able to earn one’s living, sufficient living space, no reasons for deportation) to be in possession of a residence title for exceptional purposes for at least eight years with the duration of a preceding asylum procedure being credited. The period of time in which one is in possession of a statutory temporary suspension of deportation is counted as if one were in possession of a residence title for exceptional purposes if the basis for the issue of the statutory temporary suspension of deportation were §§ 53 or 54 AuslG. This can lead to problems in cases in which the Federal Office did not take a decision because the refugee was happy with a statutory temporary suspension of deportation from the beginning on. The aliens authority never wasted a thought in such cases as to the existence of impediments to deportation (and regularly complains that this would be asking too much of them), but granted the statutory temporary suspension of deportation for the simple reason that a deportation was impossible at the time. In these cases an administrative act or a notification which would give an overview of the reasons does not normally exist. This (understandable) practice is considered to be unlawful by the author. The aliens authority is obliged when first issuing a statutory temporary suspension of deportation to decide whether the legal basis for issuing the certificate is a legal impediment to deportation pursuant to § 53 AuslG or a actual one pursuant to § 55 AuslG. Since this decision entails far-reaching legal consequences, as § 35 AuslG shows, the refugee has to be entitled to receive a notification.

If such a notification has not been issued, which has normally been the case so far, it must be examined later (when deciding on § 35 AuslG) whether at the time of the issue of the statutory temporary suspension of deportation the existence of impediments to deportation for the respective country pursuant to § 53 AuslG was confirmed. To do so, one should best take the administrative practice of decision-making at the time as a yardstick. If impediments to deportation were confirmed, the time in which the refugee was in possession of a statutory temporary suspension of deportation must be taken into account even if the aliens authority did not bother to check but simply issued the statutory temporary suspension of deportation since a deportation at the time was virtually impossible.

§ 32 AuslG makes it possible for the highest Land authority to order by way of a decree with the agreement of the Federal Ministry of the Interior the issue of a residence title for exceptional purposes for certain groups of foreigners. This provision corresponds to § 54 AuslG. In the case of an official decree an examination of the individual case does not take place. Conversely, the absence of an arrangement within the meaning of § 32 AuslG for certain groups of foreigners does not lead to a possible dropping of the examination of individual cases.

§ 32 a AuslG, which was added as a result of the "asylum compromise", provides the issue of a residence title for exceptional purposes by way of a decree by the highest Land authority for refugees from war and civil war if there is a mutual agreement between Federal and Länder Governments to receive the group of refugees affected on a temporary basis. Although this arrangement has existed since 1993, it was applied for the first time in 1999, to Kosovar refugees.

Other than the previously described residence titles the residence permit is not pre-determined for specific reasons. This is what differentiates the residence permit from the residence title for exceptional purposes and the residence title for special purposes. The certificate confirming the right to reside, which is also not pre-determined for specific reasons, represents nothing but a more permanent form of the residence permit.

The residence permit may be granted with a temporary limitation and be renewed or (e.g. in the case of a person entitled to asylum) it can be granted without limitation in time.

As a rule it is first issued on a limited basis. Although § 15 AuslG, which in principle regulates the issue of residence permits does not provide any further requirements and thus allows for wide scope in the aliens authority’s decision, non-EC citizens newly entering Germany can receive the residence title of the residence permit only in exceptional cases due to a stop to the immigration of foreign labour from non-EC states valid since 1973. This affects especially family member or persons who qualify for the exceptional cases regulated in the Arbeitsaufenthalteverordnung (AAV).

Foreigners not subject to EU law or ARB 1/80 can receive a residence permit for the purpose of gainful employment only under the terms of the AAV. This regulation is a final one; if the AAV does not apply then there is supposed to be no room for a discretionary decision pursuant to § 7 AuslG (which also excludes § 15 AuslG), unless the case in question is regulated by special law (§§ 16, 28 AuslG).

A fundamental prerequisite as defined in the AAV is the issue of a work permit or the permission to practice in one’s profession or the prospect thereof by the labour office. (§ 1 AAV)

If this condition is met, a residence permit for temporarily limited stays pursuant to § 4 AAV may be issued. Granting a unlimited residence permit is in principle ruled out pursuant to § 4 VI AAV (with the exception of teaching staff that are explicitly mentioned there). Pursuant to § 4 V AAV a work permit for a new job as defined in paragraphs II to IV must not be issued before the end of a period of three years.

§ 4 IV AAV, which provides the issue of a residence permit for specialty chefs, is in practice especially important. Turkish specialty chefs can in this way obtain a permanent residence via Art. 6 I ARB 1/80.

§ 5 AAV provides the option of a residence permit for other, specifically mentioned, occupations. This applies to scientists, skilled workers with an academic or similar degree if a public interest in his employment due to his special knowledge, senior employees and specialists, pastors, members of orders, skilled social workers and nurses under certain circumstances, artists, artistes and their helpers, and professional sportsmen and trainers.

§ 7 AAV provides the option of a residence permit on the basis of mutual bi-national agreements.

Eventually, a residence permit may be issued pursuant to § 8 AAV if the highest Land authority has found, with the approval of the Land labour office, that a specific public interest exists in the foreigner’s being employed, in particular a regional or economic interest or one relating to labour market policies. A certain company’s interest in employing the refugee is not enough. Under certain circumstances and in exceptional cases, however, a company’s interest can simultaneously be the basis for a special regional interest or one relating to labour market policies.

§ 9 AAV gives a list of individual states whose subjects may after conscientious consideration be granted a residence permit, in deviation from the above provisions.

Whereas the residence permit for reasons relating to gainful employment is regulated in detail by § 10 AuslG and AAV, a detailed regulation for persons wishing to work independently is lacking. The basis for the required discretionary decision is § 15 AuslG. Starting out from the principle that further immigration of non-EU citizens must be prevented (a principle which has been an apparent guideline of German politics since the stop of the recruitment of foreign labour in 1973 at the latest), a public interest in the issuing of a residence permit has been made a prerequisite. This interest can be an overall economic one or a specific local requirement.

Corresponding guidelines also apply to free-lance professions, e.g. to doctors, lawyers, architects or tax consultants.

Additionally, § 15 AuslG as a general clause also covers other exceptional cases; one has to consider, however, that the existence of a detailed regulation suggests that those cases have intentionally been exempted.

Pursuant to to § 23 I 2. Hs. AuslG the foreign non-custodial parent of a minor unmarried German too may be granted permission to enter the country if the family already lives together as a community on German territory. The existence of a supportive relationship is therefore sufficient, a marriage certificate is not required. Conversely it has to be made clear that mere paternity (in a few cases: maternity) of a child of German citizenship does not lead to the issuing of a residence title if this parent does not take care of his/her child at all and fails to perform duties as a parent.

The provisions of § 23 AuslG might in future be applied increasingly to foreign parents because of the new citizenship law (acquisition of German citizenship at birth). In individual cases this will make possible to deduce that a claim exists to the right of family members to immigrate, e.g. of the unmarried foreign father, even is other special preconditions are not fulfilled.

§ 20 AuslG contains detailed regulations as to when it is possible for the children of a person in possession of a residence permit to enter the country to join their parent or parents. According to the prevailing legal opinion this is a concluding regulation, which would prohibit any resort to the general provision of § 17 AuslG. In other words: If a child does not fall under § 20 AuslG (or, as child of a German, under § 23 AuslG), it is to stay at home, irrespective the fact that his/her parents live in Germany.

Minor children of a person entitled to asylum shall be granted a residence permit provided that the general preconditions of § 17 AuslG are met. (§ 20 I AuslG). A legal claim does exist!

2) Children under 16

Otherwise children are only allowed to enter the country to live with their parents if the general preconditions are fulfilled and the child has not yet turned 16. (§ 20 II Nr. 2 AuslG) and both parents are either in possession of a residence permit or are either single or divorced. If these preconditions are met, a legal claim exists.

3) Children between 16 and 18

If, however, the child is over 16 years of age no legal claim exists, but the child is subject to the goodwill of an official who may decide at his discretion. The residence permit is only granted if the child speaks German or if one can reasonably expect that the child will integrate him-/herself into German society or if the issue is called for in order to prevent special hardship in individual cases. Cases in which the child is allowed to enter the country under this last provision are extremely rare. The aliens authorities claim regularly that special hardship does not exist as it was foreseeable that the child will become older and the parents could have tried to pick up the child earlier. General developments such as the growing older of a child do therefore not constitute special hardship. These were also the arguments used to deny adolescent children of civil-war refugees (from Bosnia or Kosovo) the right to live with their families in Germany, because war, being of a general nature, does not constitute special hardship according to the aliens authorities. The absurdity of this logic becomes apparent in some cases of families who fled from civil war to Germany. Mother and minor children were granted a residence permit, whereas the older children were subject to a civil-war statutory temporary suspension of deportation and were therefore requested to leave Germany at the end of the civil war despite a stay for three years.

The only non-individual exception can be found in § 20 V AuslG for minor unmarried children of foreigners of the "second generation", i.e. those born in Germany or who came to Germany as minors. Here there is no age limit, and also the guarantee of family support may be left out of account as long as no public benefits are made use of.

As for the rest, the German state takes a rigorous stance.

4) Minor children of Germans

Foreign minor and unmarried children of a German shall be issued a residence permit pursuant to § 23 I Nr. 2 if the German parent has his/her habitual residence in Germany. There is no age limit, the general preconditions of § 17 AuslG must be fulfilled, however.

IV) Residence Permit for Parents of Minor Germans

A further special provision (§ 23 I Nr. 3 AuslG) must be made mention of. It provides that a foreign parent of a minor unmarried German may be issued a residence permit for reasons of care and custody of the child. This provision benefits mainly foreign parents of illegitimate children. The illegitimate child always acquires German citizenship if the mother is German and, as for the father, as soon as his paternity is established. As usually the mother of an illegitimate child is the custodial parent, she can derive a right to stay from being the mother of a minor unmarried German. The father of a illegitimate child can be awarded joint custody (unless he has sole custody as a result of the death of the mother or if she was withdrawn the custody). Joint custody suffices to fulfil the preconditions of § I Nr. 3 AuslG, if custody is actually performed. To have (joint) custody in a merely formal manner is not enough.

Also a parent who does not have custody may be granted a residence permit if he lives in family community with a minor unmarried German on Federal Territory, usually in a common apartment. In exceptional cases family community can also exist if the family members live in separate places. The decisive question is whether, in line with the principles of the Federal Administrative Court, one can assume a supportive relationship.

V) Family entering the country in other cases

Other members of the family may only enter the country pursuant to § 22 AuslG if this is necessary in order to prevent extraordinary hardship. The wording shows clearly how often this provision is made use of in practice: Hardly ever (only in extremely exceptional cases). This means that older children or the parents of foreigners who live in Germany usually have no chance to come to Germany by way of a right to enter the country.

O Termination of Residence

Sometimes a residence ceases before it has started. These are cases of "rejection" and "repulsion" at the border. If entering the country is not allowed, this is termed rejection (Zurückweisung). If the person affected is found close to the border and there is still a direct connection with his attempt to effect entry and if he or she is immediately sent back to the neighbouring country, this is termed repulsion (Zurückschiebung). Rejection and repulsion are effected if entering the country is not allowed, i.e. if the refugee is not in possession of the visa required. Entry for the purpose of filing an asylum application is – since Art. 16a GG has been altered – officially only possible by air and by sea and if no safe third country has been entered.

The rejection is documented by a stamp in the passport with the consequence that later entries are not possible any more. With this "flaw" it is impossible to obtain a visa, and one will be rejected in case of an entry not requiring a visa.

Lodging an appeal is theoretically possible though not successful in practice and fact pointless as a positive decision is not to be expected within an adequate period of time.

More important for the persons providing support to foreigners living in Germany might be the chapter about the termination of the residence, with which the aliens law deals in the fourth paragraph. One must distinguish between the grounds for the obligation to leave the country (§§ 42 to 48 AuslG) and their enforcement through deportation (§§ 49 to 57 AuslG).

I) Basic Information about the Obligation to Leave the Country

§ 42 I AuslG provides that a foreigner is obliged to leave the country if he is not or is no longer in possession of the residence authorisation required. So if the aliens law (see § 2 AuslG) and other laws ( Aufenthaltsgesetz/EWG, §12 HumHAG, §19 I AsylVfG) or regulations issued in connection with them do not allow exceptions, every foreigner is obliged to leave the country if he is not in possession of a residence authorisation any more. One can see a basic fundamental mistake in there, even if it is historically justified and understandable. The system of national states inevitably led to the situation that only the respective citizen is granted a right to reside and that the refugee is in principle to be treated as not entitled to reside. Today this concept is obsolete. States are not – and probably never were – homogenous entities connected through a common ethnicity and history and united through the tie of the nation. Not only the huge migration movements evoked by wars and recruitment as workers, but also the internationalisation of all aspects of life, the mobility of large sections of the population and the limitless (tele-)communication, such as the dissolution of the concept of national states in favour of a unification which can be seen at least in Europe throw doubt on this obsolete concept. States are no longer communities sharing the same fate any more but see themselves – at least in the Western part of the world – as forms of organised coexistence without ideology (a doubtful self-assessment). At least for the majority thoughts and actions are not decisively characterised by words like "people" and "nation" any more, but also by the interests of the individual. We consider it natural to take holidays not only in Italy and Spain but also in the Antilles and in Sri Lanka. German enterprises sell their cars in China just as American and Japanese enterprises sell theirs in Germany. The freedom of movement and the universal freedom of the movement of goods are in stark contrast to the anachronistic system of the aliens law as it requires a non-existent static idyll of a unity of "people" and "state". The reality of a global mobility not limited to goods is denied. Even if this contradiction reflects the current balance of power between Germany and other industrialised countries on the one side and the poorer countries, especially in the Third World, on the other, aliens law too will have to change in the long run as law must not only correspond to the economic needs of a society but must also be founded on the conviction and the reality of those living under this law. A world in which all its aspects are interactive is in the long term incompatible with a national segregation policy.

II) How the Obligation to Leave the Country Arises

So an obligation to leave the country not only arises if the person affected has never been in possession of a residence authorisation but also if a residence authorisation expires, if it is shortened in retrospect (§ 12 II or § 24 II 2 AuslG), if it is revoked or if it loses its validity. A residence authorisation can be revoked through an administrative act, especially if the foreigner is not in possession of a valid passport or surrogate passport any longer, if he changes his nationality or if his recognition as a person entitled to asylum or his legal status as a foreign refugee or contingency refugee loses its validity or becomes ineffective. A revocation must certainly not be effected in this case if the foreigner has a right to a residence authorisation for other reasons, for example if he has married or if now the preconditions pursuant to § 35 AuslG are fulfilled.

1) The Residence Authorisation Loses its Validity

A residence authorisation can lose its validity, a fact still unknown to many foreigners. A residence authorisation loses its validity pursuant to § 44 I Nr.2 AuslG by act of law if the foreigner leaves the country for a reason that is in its nature not temporary. It is thus only the – objectively documented – motivation that counts when the foreigner leaves the country: If a foreigner leaves the country to return to his home country for good, any residence authorisation, even a right to reside, loses its validity with the refugee's departure. Another reason for the residence authorisation to lose its validity is laid down in § 44 I Nr.3 AuslG. If a foreigner leaves the country and does not return to the federal territory within 6 months without having – either in advance or from abroad - the aliens authority grant him a longer time limit, the residence authorisation loses its validity as well.

In both cases a foreigner loses all the rights he has been granted so far, and the time he has spent in Germany are not to be taken into account (for instance in view of an unlimited residence permit, a right to reside or naturalisation). A new application for a residence application must be filed which will only be successful if the preconditions for an immigration exist, as from a legal standpoint it is an immigration for the first time. Especially with former guest workers serious problems can result from the stop to further immigration of foreign labour. It must be mentioned at this point that the aliens authorities themselves regard this strict regulation as unfair and often use an existing discretion clause generously in favour of the refugees when judging the elements of the authorisation losing its validity or when re-issuing residence authorisations.

In any case, refugees should be warned of the dangers and problems connected with leaving the country for a longer period of time.

2) Revocation of a Residence Authorisation

One must differentiate between the authorisation losing its validity pursuant to § 44 AuslG and the revocation of a legitimate residence authorisation pursuant to § 43 AuslG. The reasons for a revocation are listed in § 43 AuslG. The revocation is at the dutiful discretion of the aliens authority, and all circumstances of the individual case have to be taken into consideration.

Neither is a revocation pursuant to § 43 I Nr.4 AuslG possible if the recognition as a person entitled to asylum or the legal status as a refugee do not exist any more. This change of status alone does not automatically lead to the loss of the residence authorisation; rather a discretionary decision is necessary. With this decision the reasons for the loss are not decisive, but the general circumstances, especially the duration of the stay so far, the question of how far the refugee has tried to integrate himself and the situation in the home country. It is especially important if the refugee has a right to a residence authorisation already from the general law. If for instance he is entitled to asylum and has been staying in Germany for more than five years, he has a right to an unlimited residence permit pursuant to § 24 I Nr.1 AuslG with the question of the entitlement to asylum having no impact any more. In this case the complete duration of stay should, in my opinion, be taken into account, not only the time when the refugee has been in possession of a residence permit because it would be unfair not to take into account the time of the asylum procedure in case of a positive decision. This question has, however, not yet been decided on in a higher court.

If the refugee has only obtained legal status pursuant to § 51 I AuslG, this status can only become permanent pursuant to § 35 AuslG after an eight-year stay on federal territory. If this precondition is fulfilled, the refugee must not be afraid of a revocation.

The same applies if a right to a residence authorisation has arisen for other reasons for instance due to marriage or custody for a minor German child or for a child entitled to reside.

If no preconditions for a right to a residence authorisation independent of the status according to asylum law exist, a revocation can only not be granted if existing discretion for granting a residence authorisation has been reduced to nil. One tends to think of a residence title for exceptional purposes pursuant to § 30 II AuslG, but one should not automatically stop here. A Turkish former refugee for example may have obtained a right to stay employed pursuant to ARB and thus also a residence authorisation. Also with other nationalities one has to consider whether discretion has been reduced with employment and stay for several years (theory of protection of trust, analogy to § 19 AuslG, regulations of staying pursuant to EU Law and ARB, theory of § 73 I 3 AsylVfG).

In order to avoid misunderstandings: those are only thoughts to point out possible ways, this is not necessarily the prevailing opinion!

Even the residence authorisation of relatives living in cohabitation with the refugee can be revoked pursuant to § 43 II AuslG if they have no right to a residence authorisation. In this case as well discretion has to be effected as explained above.

3) Lodging an Appeal

It is generally admissible to lodge an appeal against negative decisions, but § 71 II AuslG restricts the possibilities. There are other restrictions in Länder regulations which partly exclude preliminary proceedings for asylum seekers.

Objections and actions against a refusal of the granting or the extension of a residence authorisation has no suspensive effect pursuant to § 72 I AuslG. In these cases an application pursuant to § 80 V VwGO has always to be filed as well.

Objections are also admissible against a – sometimes even incidental – judgement that the elements of the authorisation have lost their validity pursuant to § 44 AuslG. As in practice the authorisation losing its validity manifests itself through the residence authorisation being stamped invalid or through the denial of re-entering the country, the right action is an action for a declaratory judgement. Apart from that it will be necessary in most cases to file an application for the re-issuing of an interim residence authorisation pursuant to § 123 VwGO.

All in all the system of appeals is complicated. It is required to pay attention to instructions about a person's available legal remedies and to seek legal advice.

III) Expulsion

One must differentiate between the mere obligation to leave the country and an expulsion pursuant to §§ 45 to 48 AuslG. The expulsion is defined as an administrative method in order to preclude any future disturbance of public security and order or of any other matters of interest to the Federal Republic of Germany. To this end the refugee causing the disturbance is expelled, i.e. ordered to depart within a certain time period and never to return. Residence authorisations expire with the issue of the expulsion order (not when it is res judicata!). A new residence authorisation may not be issued as long as the expulsion is not nullified or its effectiveness limited (§ 8 II AuslG). This makes the expulsion the strongest weapon against refugees.

§ 45 I AuslG provides that an refugee may be expelled if his stay impairs public safety and order or other substantial interests of the Federal Republic of Germany. Therefore this is a provision requiring a discretionary decision; the interests worthy of protection which must be taken into account are listed in § 45 II AuslG. This list is not final, it only contains interests which are must to be taken into account. § 46 mentions some examples of conduct which could justify an expulsion. It is a provision without independent regulatory character. It neither determines that in these cases an expulsion should or must be implemented, nor does it explain whether the cases mentioned call for or really justify an expulsion. It is all a matter of interpretation and discretion pursuant to § 45 AuslG.

1) Reasons for Expulsion

Public safety and order is defined as the entity of all the norms which regulate the foundations of a coexistence as human beings and citizen to mutual benefit. This coexistence has to be impaired, i.e. disturbed (not only endangered) by an refugee to justify his expulsion. The cases listed in §§ 46 and 47 are examples of what the legislator sees as such behaviour. Although the decisive factor for an expulsion is expected future behaviour (it is not meant to be a punishment for past actions), the prognosis on how the refugee may show harmful behaviour in future of course takes into account his past conduct. Continued violations of legal provisions (§ 46 Nr. 2 and 3 AuslG), consumption of illegal drugs ( § 46 Nr. 4 AuslG), a past jeopardising of public health, long-term homelessness (§ 46 Nr. 5 AuslG), receiving state welfare assistance (§ 46 Nr . 7 AuslG) or criminal acts in general are typical reasons for expulsion. The expulsion is only justified, however, if the past impairment suggests similar behaviour in future as well.

In practice the drawing of such inferences is very common. In the case of violations of the law which are not absolutely venial or narcotics offences it is an almost automatic conclusion that there is a danger of repetition. Even if there is no evidence that the individual offender will repeat his wrongdoing (special prevention), in the prevailing legal opinion also an expulsion for reasons of deterrence is admissible in the case of more serious crimes (general prevention). Therefore an expulsion is deemed admissible because and if it has a deterrent effect on other refugees in cases of drug trafficking, theft, bodily injury followed by death, other cases of homicide, unauthorised possession of firearms, arms trafficking, drunken driving, hit-and-run offences, driving without licence etc. These are only the most typical examples in which a deportation is deemed admissible unless special protection from expulsion precludes a deportation.

Since a expulsion always results in the fact that the person affected has to leave the country and that thus his entire economic and social existence in Germany is at stake, it is urgently advisable to consult a lawyer if an expulsion is imminent.

2) Compulsory and regular expulsion

While a discretionary expulsion pursuant to §§ 45 and 46 AuslG always calls for a diligent weighing of the pros and cons of an expulsion by the aliens authority, the legislator has given the aliens authorities binding rules in cases to which § 47 I AuslG applies. If the definitional elements of § 47 I AuslG apply the aliens authority has to expel the refugee. It only has to check whether § 47 I AuslG applies and, if it does, issue the expulsion order. Exceptions are only possible if the refugee enjoys special protection from expulsion (see below).

Pursuant to § 47 I AuslG an refugee must be expelled if he has been convicted finally and without right of appeal to a prison sentence or youth custody of at least three years because of one or more intentional offences or if he has been convicted to an aggregate prison sentence/youth custody of at least three years within the time span of five years or if at the time of the last final and non-appealable conviction preventive detention was ordered (§ 47 I Nr. 1 AuslG). The same applies in the case of a conviction for intentional offences against the Narcotics Act, for severe breach of the public peace, breach of the public peace in connection with prohibited gatherings or if the person affected was sentenced was given a final and non-appealable sentence to a youth custody of at least two years or a prison sentence without probation. In these cases of compulsory expulsion there is no scope for discretion for the aliens authority, it is bound by legislation to effect the expulsion.

Remember: Every final and non-appealable conviction to a sentence of three years, for narcotics offences (without probation) or, under certain circumstances, for breach of the public peace leads inevitably to an expulsion. The same is true for any conviction to youth custody of more than three years or, in the case of offences as defined in § 47 I Nr. 2 AuslG, of two years (exceptions: special protection from expulsion).

Pursuant to § 47 II AuslG is expelled as a rule if he has been given a final and non-appealable sentence to youth custody of at least two years or to a sentence without probation (§ 47 II Nr.1 AuslG), has committed a narcotics offence (§ 47 II Nr 2 AuslG) or has taken part in acts of violence out of a mass of people in connection with a prohibited or dissolved assembly (§ 47 II Nr. 3 AuslG). In the case of this regular expulsion the legislator has made a preliminary decision and thus limited the scope for discretion. Only in exceptional cases, i.e. if the matter is as different from the majority of similar cases because of specific circumstances or an untypical course of action that this specific nature of the case must be considered more important than the regular reason for expulsion which usually enjoys priority, can there be a deviation from the legal standards.

As a rule, the legal situation therefore leads to an expulsion for offences of serious and moderately serious nature.

In cases as defined in § 47 II AuslG the legislator has taken over part of the discretionary decision from the aliens authorities. The discretion of the aliens authorities is restricted insofar as - if the definitional elements of Sect. II apply – as a rule the expulsion has to be effected.

This legal situation calls for an explanation of the exceptional nature of the specific case, recommendably with the assistance of a lawyer.

3) Special protection from expulsion

The automatic effect of § 47 AuslG does not apply, or applies only in a modified way, if the person affected enjoys special protection from expulsion.

Special protection from expulsion has its foundations in § 48 AuslG, Art. 3 of the European Convention on Establishment (ECE) and EU regulations.

Persons as determined in § 48 AuslG are granted special protection from expulsion by the legislator.

Persons who

• are in possession of a document confirming the right to reside

• are in possession of an unlimited residence permit and have been born on Federal Territory or entered Germany as a minor

• are in possession of an unlimited residence permit and live in marital conjugation with one of the above specified aliens or live with a German member of their family

• are recognised as entitled to asylum or enjoys the status of a refugee within the meaning of the GCR

• is in possession of a residence permit based on § 32 a AuslG

can only be expelled for serious reasons of public safety and order, which always apply in the case of a compulsory expulsion pursuant to § 47 I AuslG.

Special protection from expulsion pursuant to § 48 II AuslG is also granted to minor refugees whose parents or custodial parent reside legitimately on Federal Territory, unless he has been given a final and non-appealable sentence for a series of rather serious, intentional offences or for one extremely serious offence.

A young offender who grew up in Germany and lives with his parents may only be expelled in the case of an compulsory expulsion pursuant to § 47 I AuslG or a regular expulsion pursuant to § 47 II Nr. 1 + 3 AuslG.

An refugee who has filed an asylum application may only be expelled under the condition that the asylum procedure is concluded with the final and non-appealable result that he is not recognised as entitled to asylum (48 III AuslG), unless the situation is such that an expulsion would also be justified in the case of a person entitled to asylum or if prior to the issue of the expulsion an enforceable threat of deportation existed.

The circle of person favoured by § 48 AuslG can be looked up in the text of the law. The terms marital and family community which are mentioned there mean that the legislator does not aim at an actual cohabitation, but the existence of a relationship which is being maintained.

People from this favoured circle of persons may only be expelled for serious reasons of public safety and order. Whether a reason is serious or not can only be judged by weighing the total circumstances. Whether or not the reasons for expulsion as defined in §§ 46 and 47 AuslG are of substantial weight is not important, decisive is rather a negative result of the security prognosis.

That the effected offence is important for the consideration of whether to issue an expulsion order or not can be seen from a provision in § 47 III AuslG which downgrades in these cases a compulsory expulsion to a regular expulsion and a regular expulsion to a discretionary one. The expulsion of an adolescent refugee who has grown up in Germany and is in possession of a residence authorisation or an unlimited residence permit is always subject to a discretionary decision. The whole mechanism of compulsory and regular expulsions does not apply at all to minor refugees who enjoy special protection from expulsion. Besides these legal provisions the protection of legal interests is important, too. A possible violation of the constitutionally protected interests of minors and especially of asylum seekers has to be subject to careful consideration in the individual case.

Persons entitled to asylum enjoy in practice special protection from expulsion. Court rulings concerned with such cases regard their expulsion as "ultima ratio", i.e. as the last means one should consider. Their offences must be of a more severe nature than usually sufficient for an expulsion, i.e. crimes which suggest that their stay can no longer be tolerated. This is only the case if the refugee represents an actual, not only theoretical, danger. Moreover it must be obvious that the refugee will continue to jeopardize the public well-being in future as well if allowed to stay. General prevention (deterrence) must not be an influential factor in these considerations.

As long as the decision on the right to asylum has not yet been made, i.e. the person affected is still applying for asylum, he enjoys similar protection. As he has not yet an established status, pursuant to § 48 III AuslG he can only be expelled under the condition that the asylum procedure is concluded, final and non-appealable, with the rejection of his application. If however the refugee is recognised as entitled to asylum the above mentioned is applicable. If his application is rejected the special provisions do not apply any more. Up to this point however he is protected from expulsion like a person recognised to be granted asylum.

At this point mention must be made of the gradual relation between the issue of the order for expulsion (= termination of residence) on the one hand and of the enforcement (= deportation). This is important especially for persons entitled to asylum, because even if the expulsion of persons entitled to asylum is admissible in exceptional cases pursuant to § 48 AuslG, this does not necessarily lead to a deportation, since at the stage of deportation the existing impediment to deportation pursuant to § 51 AuslG must be taken into account. If and as long as it exists the deportation must not be enforced despite the legitimisation of the expulsion.

Special protection from expulsion is not only granted pursuant to § 48 AuslG. EU refugees enjoying freedom of movement may only be expelled pursuant to § 12 I 2 AufenthaltsG/EWG (law governing residence within the EU) for reasons of public order, safety or health and only because of their individual behaviour, not for reasons of general prevention. Turkish citizens enjoy a similar status due to Art. 14 ARB 1/80 if they fall under article 6 or 7 of decision 1/80. They, too, may only be deported for reasons of special prevention. This protection from expulsion cannot be integrated into the mechanisms of aliens law in such a way that it could be taken into account within the framework of § 48 AuslG. It rather exists parallel to the special protection from expulsion of § 48 AuslG. If this protection from expulsion as defined in the EU laws is left out of account the decision was not based on the entire scope for discretion which, if this mistake is not corrected during the proceedings, is enough to render the expulsion illegitimate.

Citizens of states having signed the European Agreement on Residence enjoy special protection from expulsion pursuant to Art. 3 III ENA (corresponding to special protection from expulsion pursuant to § 48 AuslG) if they have had their proper residence in Germany for at least 10 years.

Expulsion leads like deportation to a prohibition of entering the country (§ 8 II AuslG). Upon application there usually is a time limit to these consequences (§ 8 II 2 AuslG). The time limit starts with the departure from Germany.

As generally the prohibition of entering is unlimited, it is advisable to file an application for limiting the prohibition as soon as the expulsion order is issued (exception: severe crimes) if the person affected intends to return to Germany later. Otherwise there is the danger that after the passing of the usual time limit of 3 or 5 years more time is wasted with applications for limiting the prohibition of entering the country. The applications must be sent to the aliens authority which issued the expulsion or deportation order.

4) Legal Protection

An objection can be lodged against the expulsion order within one month from its issue. The objection has generally a suspensive effect, which, however, is inadmissible in certain Länder by act of Land law (cf e.g. § 38 BayVwZVG, §12 BWVwZG, § 75 I 2 HambVwVfG, § 12 HessAGVwGO, § 8 NRWVwGO). The authorities can also order immediate enforcement if a special public interest exists (§ 80 III VwGO), for which, however, specific reasons must be given. In these cases it is necessary to file an application pursuant to § 80 V VwGO with the Administrative Court for a decree or re-establishment of the suspensive effect. ® see sample form xxx

It must be noted that the suspensive effect of the objection as well as the decree that suspensive effect be re-established only precludes the enforcement, i.e. deportation, but the effectiveness of the expulsion or any other administrative act re termination of residence pursuant to § 72 II AuslG remains unaffected. Therefore the obligation to depart continues to exist, the stay in Germany becomes illegitimate. Also the restrictive effects of § 8 II AuslG comes into force. Only if in the main proceedings the administrative act terminating residence is nullified (found that it was unlawful), are these effects done away with.

In the urgency motion before court it must be explained why a special interest in the immediate enforcement (deportation) does not exist. In the notification the order for immediate enforcement must be separately justified. The reasons which justify the expulsion do not always also justify the immediate enforcement. This is in practice often ignored. The consequences of a deportation which are sometimes irreparable are only justified if certain conditions apply, especially a concrete danger of repetition. Only then is an exception from the regular suspensive effect justified..

In litigation over a termination of residence an amicable settlement is often the result, especially if in the course of the proceedings it has become evident that the alleged danger of repetition is non-existent. When agreeing on a compromise § 72 II AuslG must be taken into account, i.e. either the parties must agree on a nullification of the expulsion order or a reissue of the residence authorisation with retroactive effect for the time when originally the residence was terminated by an administrative act. Otherwise there would be a gap in the time of legal residence, which could later impede or considerably delay the issue of an unlimited residence permit or a residence authorisation

IV) Obligation to leave the country

The above mentioned measures constitute the reasoning behind the obligation to leave the country (§ 42 AuslG). It arises with the making known of the administrative act, not when it has become non-appealable, or, if based on a statutory regulation, with the realization of the offence, § 72 I Hs AuslG.

A distinction must be made between the obligation to leave and its enforceability. The latter arises pursuant to § 42 II AuslG in cases of illegal entry, if no application for the issue of or the renewal of the residence authorisation is filed or with the enforceability of the administrative act which initiated the obligation to leave.

Only enforceability pursuant to § 42 III AuslG constitutes the obligation to leave. Normally a time limit must be set within which the refugee has to leave Federal Territory. If no time limit is set, the refugee must depart immediately. The length of the time limit depends on the overall situation, especially on the length of the residence so far. Normally the maximum length is 6 months, it may, however, be extended.

In practice a time period of one month is deemed appropriate, which is very short in view of possible years of residence in Germany. Considering other time limits in e.g. labour law or landlord and tenant law which must also be observed by the refugee if he has to leave, the rigidity of this practice becomes obvious. The result of such a strict practice is a flood of appeals encumbering the work of authorities and courts.

The refugee fulfils the obligation to leave by passing a German border, he is not obliged to return to his home country. When entering another EU member state, however, this applies only if he is allowed to enter and stay in this country (§ 42 IV AuslG). In order to ensure that he leaves, the refugee's passport is supposed to be taken into custody (§ 42 VI AuslG). This regulation, which, being a directory provision, is unreasonable, and a strict handling of these cases have resulted in the fact that often passports are destroyed and thus departure is delayed, because without being in official possession of a passport return is made impossible or harder to effect. If the refugee can be blamed for the disappearance of the passport he has to pay dearly: custody awaiting deportation may be the result.

If the obligation to leave is enforceable and voluntary departure not guaranteed or if for reasons of public safety and order a supervision of the departure is required, the obligation to leave is enforced by means of a deportation (§ 49 AuslG). The deportation may be suspended temporarily as provided in § 55 AuslG by the issue of a statutory temporary suspension of deportation; it is the duty of the aliens authority to implement an enforceable obligation to leave the country, i.e. to deport the person affected.

V) Deportation

Deportation is therefore the implementation by force of an obligation to leave. It is an act of judicial execution. Its preconditions are:

• The existence of an obligation to leave (see above)

• Enforceability of the obligation to leave (see above)

• The well-founded assumption that a voluntary departure before expiry of the time limit will not take place or

• The necessity to supervise the departure for reasons of public and order. These cases are listed in § 49 II AuslG.

• Normally the refugee will be threatened with deportation after expiry of a certain time limit. This usually happens in connection with the administrative act constituting the time limit for departure (e.g. expulsion). In exceptional cases (if immediate deportation is urgently called for) this warning can be done without.

• Finally there must be no impediments to deportation or prohibitions pursuant to § 49 II AuslG precluding its enforcement.

As to the question when the voluntary fulfilment of the obligation to leave is not guaranteed or a supervision of the departure is necessary, read the chapter on custody awaiting deportation.

1) Target Country

The threat of deportation must state one definite target country. If this is not the case or if the target country cannot be sufficiently identified or if a wrong country is chosen, the threat of deportation must be cancelled, thus precluding a deportation. The target country does not have to be the refugee’s home country, but not any state can be chosen, rather there must be a concrete connection (e.g. a prior stay) to the country of choice. It is deemed sufficient, however, to threaten the refugee with deportation to his home country if he conceals his state of origin. This should remain the exception. As § 50 II 2.Hs AuslG shows clearly, stating the right target country is no guarantee for the refugee that he will be deported to exactly this state. He may be deported to another state if that state agrees. This regulation is in principle legally dubious for the reason that it is impossible for the refugee to claim impediments to deportation for all states. Yet it does only little harm in practice as there is hardly any state willing to have someone from a third country deported to its territory unless there is a good reason for it (former residence or family ties).

2) Appeals

The refugee can raise an objection to or bring an action against the threat of deportation or deportation order, he can also seek preventive legal protection (also temporary relief) from an impending deportation. Since a deportation is in the prevailing opinion a measure of judicial execution , in most Länder such appeals have no suspensive effect, therefore an application pursuant to § 80 V VwGO is required. Moreover there is the option to obtain preventive legal protection pursuant to § 123 VwGO.

3) Statutory Temporary Suspension of Deportation

If the preconditions for a deportation apply, the aliens authority is obliged to enforce the deportation as soon as possible. The deportation may only be suspended as provided in § 55 AuslG by means of the issue of a statutory temporary suspension of deportation.

Pursuant to § 55 II AuslG an refugee shall be granted a statutory temporary suspension of deportation if the deportation

• is impossible for legal or factual reasons or

• is supposed to be suspended pursuant to § 53 VI AuslG or § 54 AuslG.

A deportation is legally impossible if impediments to deportation pursuant to §§ 51, 52 or 53 Ausl exist. An actual impossibility exists e.g. if the person affected is unable to travel or if necessary return documents are not available. If legal impediments to deportation exist or if the deportation has been suspended pursuant to § 53 VI AuslG or § 54 AuslG the issue of a residence authorisation from the beginning instead of a statutory temporary suspension of deportation may be appropriate to the matter under the condition that the impediments to deportation are not only temporary, which will usually be the case.

§ 55 III AuslG makes possible the issuing of a statutory temporary suspension of deportation by way of a discretionary decision as long as the alien is not yet obliged without right of appeal to leave or if urgent humanitarian or personal reasons or if important public interests require a temporary continuation of the refugee’s stay in Germany.

No objection is admissible against the refusal to grant a statutory temporary suspension of deportation (§ 71 III AuslG). Instead an action must be brought (obliging the authority to grant the statutory temporary suspension of deportation) and, in order to attain real legal protection, also an application pursuant to § 123 VwGO must be filed.

P Impediments to Deportation and Reasons for the Issue of a Statutory Temporary Suspension of Deportation

A deportation – but not the warning thereof – is inadmissible if impediments to deportation or reasons for the issue of a statutory temporary suspension of deportation exist pursuant to §§ 51 and 53 to 55 AuslG exist (§ 50 III AuslG).

With regard to the financial preconditions for the elements of §§ 51 and 53 AuslG please see "Material Refugee Law".

To what extent reasons for the issue of a statutory temporary suspension of deportation pursuant to § 55 AuslG count on their own if additionally reasons pursuant to § 53 exist is not clear. § 55 II AuslG demands that the deportation be impossible for legal or factual reasons. Legal reasons may either be constitutional norms or conflicts with other legal interests which are not covered by § 53 AuslG. Factual impediments to deportation (and therefore reasons for the issue of a statutory temporary suspension of deportation) include illness and other reasons which are to do with the refugee himself, but also the absence of a passport, closed airports, or the impossibility to find a country prepared to receive the refugee. In the case of persons who stay on German territory without adequate documents many countries refuse to receive the refugee, arguing that the foreigner’s citizenship or even previous residence in that alleged state of origin cannot be proven or is not credible. This is obviously an unpleasant situation for the aliens authorities: An existing obligation to leave the country cannot be enforced. Yet a lot more unpleasant is the situation for the person affected. He may end up in custody awaiting deportation. Apart from cases in which the maximum length of custody awaiting deportation was as a consequence exhausted, many refugees complain that subsequently they had to live in Germany only with a statutory temporary suspension of deportation and that in this way this the legalisation of their stay and thus their integration was refused.

Pursuant to § 55 III AuslG a statutory temporary suspension of deportation may be granted as long as the refugee is not obliged without right of appeal to leave or if urgent humanitarian, personal or important public interests require that he stay on Federal Territory.

This is a provision subject to a discretionary decision. If the obligation to leave is not yet res judicata, there is wide scope for discretion.

If however the obligation to leave is unappealable, "urgent humanitarian or personal reasons" or "important public interests" must "require" any further stay. This strange formulation remains vague, but it is obvious that the legislator wishes a strict handling of these matters. As the brunt of impediments to deportation which have their reason abroad are laid down in § 53 AuslG, § 55 III AuslG is first and foremost concerned with reasons which arise in Germany. This can be an illness as well as the cure it requires, finishing a educational phase, the cost of which has been borne to a large extent by the state, or the termination of a project or work which is of special interest to the public or other reasons which constitute special hardship.

The already limited discretion is reduced even further (§ 55 IV AuslG) for the case that the admissibility of the deportation is already res judicata. In this case the statutory temporary suspension of deportation may only be granted if a deportation is impossible or is to be suspended pursuant to § 55 IV by a general regulation. The provision of § 54 IV 2 AuslG which determines that the granting of a statutory temporary suspension of deportation for reasons as laid down in § 53 VI a AuslG shall only be admissible if this act of granting was reserved in the threat of deportation, is in practice not relevant. This provision is unclear and systematically pointless and is therefore in practice ignored. The point is that if the existence of impediments to deportation pursuant to § 53 VI a AuslG is confirmed, then a deportation is inadmissible anyway for legal reasons and therefore a statutory temporary suspension of deportation must be issued pursuant to § 55 II AuslG. Therefore this provision is only important if the Federal Office or the aliens authority originally concerned with the case come to the conclusion that on the one hand the definitional elements pursuant to § 53 VI 1 AuslG apply, i.e. a considerable danger for life, health and liberty, but that on the other hand the legal consequence which would regularly result, i.e. a prohibition of deportation, is not urgently called for. Only in this extremely theoretical case could a decision as described above be made.

It should, however, be a matter-of-course that impediments to deportation which have newly arisen should always be taken into account. Unfortunately in practice the authorities often hide behind judgements which have already been passed and argue that such previous decisions have to be enforced. This is wrong. The authorities have to check at every stage of the procedure whether impediments to deportation exist and is, because of to its responsibility to the constitution, prohibited from enforcing even a non-appealable decision if there is the danger of an infringement of basic rights. There have been repeated decisions by the Federal Administrative Court and by the Federal Constitutional Court, which found that it would contradict the principle of human dignity, the highest value of our legal order, if German authorities participated in the treatment of an refugee which is against human rights by transferring him by force to a country in which he is threatened with exactly the same treatment violating human rights. This highest constitutional principle conflicts in certain cases with the principle of not acting against cases already decided on. So what is to be done if the Federal Office or a court found that impediments to deportation pursuant to §§ 51 and 53 AuslG do not exist but this decision is simply wrong? The very question will rile many dogmatists because the prevailing opinion teaches that the continuance of previous decisions can only be broken under the strict condition that reasons for resumption exist. Or, in tavern talk: "There must be an end to all that discussion some time."

The principle of continuance is certainly a very important legal interest because the law can fulfil its functions if at one point there is an end to all the discussion and all the persons concerned accept the decision of the judge. Yet a legal interest even more important is life and freedom from bodily harm. In other words: the principle of respect for human dignity prevails over formal provisions, one of which is also the principle of continuance.

If this legal interest is acutely under threat from a deportation, Art. 2 I GG prevails over the principle of continuance. In these cases the reason for issuing a statutory temporary suspension of deportation can be derived directly from the constitution. This reason prevents the imminent danger of a violation of human rights through a deportation at least for the time until the state of affairs is clarified and the possibility of a resumption of proceedings is examined, usually by the Federal Office.

The issue of a statutory temporary suspension of deportation does not mean that the obligation to leave has been eliminated or that the threat of deportation has become irrelevant. If the refugee has been in possession of a statutory temporary suspension of deportation for more than a year, the deportation must be announced one month in advance, however (§ 56 III AuslG).

In principle a statutory temporary suspension of deportation is always limited, but the time limit ought not be longer than a year. In practice the maximum duration of a statutory temporary suspension of deportation is half a year. It is by act of law limited to the territory of the respective Land and may be subject to further conditions. A re-entry is impossible since an obligation to leave existed.

In practice there have been several deviations from these provisions in the past. Civil-war refugees from Bosnia Herzegovina, Croatia and Kosovo were at times allowed to depart in order to meet their families; they were given a certificate to make re-entry possible. This way of dealing with the refugees (actually against the law) shows the bad conscience caused by the failure to grant a residence title for exceptional purposes which would have been the only appropriate response. But do not count on this practice. People who leave Germany with a statutory temporary suspension of deportation should not expect to be able to re-enter Germany!

Q Custody awaiting Deportation

Custody awaiting deportation as regulated in § 57 AuslG is one of the most depressing chapters of German aliens law. Custody awaiting deportation means being under arrest without having committed a crime. A conviction under criminal law is not a prerequisite. Custody awaiting deportation is nothing but a means of force in order to guarantee the uncomplicated enforcement of deportations. Judgements ordering custody awaiting deportation are passed much too fast, too easily and too often in Germany. Some aliens authorities and central deportation institutions do not make enough effort to urge the refugee to fulfil his obligation to leave on his own, but believe on the contrary that it would be right to safeguard the effecting of the departure through a surprising arrest of the refugee. There are also several judges who impose custody awaiting deportation without thoroughly examining the preconditions. In many Länder the conditions of imprisonment do not come up to the minimum standards of human right and of a state governed by law. Although the purpose of the custody – safeguarding the deportation – does not justify the usual restrictions such as censure of correspondence, limited number of visitors and restricted contact to the outside world, subjecting the refugee to the rigid laws of the detention centres and being imprisoned with other criminals, they still are usual practice. The comprehensive social care which would be required is rarely guaranteed. Not least because of these conditions there have been several refugees who died in the past while in custody awaiting deportation.

The duration of the imprisonment is often too long. The principle of speedy procedure is not sufficiently paid attention to. Often custody awaiting deportation is ordered or extended although it is absolutely unclear whether and when the deportation can be effected. The maximum duration of custody awaiting deportation in the form of preventive detention of 18 months is scandalous, also the regular duration of 6 months is way too long.

Effective legal protection is seldom guaranteed. Many refugees are not represented by a lawyer and not sufficiently informed. Often cases re custody awaiting deportation are not dealt with the appropriate care and urgency by the detention judge. The protection by means of legal remedies is often devoid of meaning because before the end of custody no decisions are passed on complaints and because for an extension of custody awaiting deportation a new stage of appeal has to be commenced.

The imprisonment of children and teenagers, elderly and ill persons, pregnant or nursing mothers is not covered by the purpose of the detention.

All this has been criticised for years, but the situation has not yet been remedied. Therefore the demand for an end to the prison-like conditions refugees are subject to while in custody awaiting deportation and a drastic reduction of the admissible maximum duration of a temporary detention to guarantee that deportation takes place must stay on the agenda. It is up to any person giving support to refugees to work towards the abolition of this disgraceful situation by never ceasing to criticise the faults of the system.

I) Overview

1) Legal preconditions

The legal preconditions for custody awaiting deportation are determined in § 57 AuslG.

Pursuant to § 57 I AuslG preparatory custody is admissible if a deportation is being prepared but cannot yet be decided on and if the deportation would be made considerably harder without the refugee’s arrest. An existing obligation to leave is no precondition in this case, but:

• impossibility of immediate deportation

• frustration or complication of the deportation unless order of arrest

• the requirement of deportation

• the possibility and admissibility of a deportation

The detention judge must confirm that these preconditions apply before a warrant for arrest can be issued. He has, however, no influence on the discretionary decision of the aliens authority.

The regular maximum length of preparatory custody is 6 weeks (§ 57 I 2 AuslG) and may only be exceeded in exceptional cases.

§ 57 II AuslG regulates the preconditions of preventive custody. These are an existing obligation to leave and the danger of frustration of deportation. Another natural precondition is that the deportation can be implemented and is admissible.

Pursuant to § 57 II 1 Nr. 1 AuslG an refugee under the obligation to leave must be taken into preventive custody if "he is obliged to leave the country as a result of illegal entry and this can be enforced". If in the meantime a right to stay has emerged (first asylum application pursuant to § 55 AsylVfG or § 69 AuslG) sentence No.1 is no longer applicable. The assumption that the refugee will evade deportation can be proven wrong pursuant to § 57 II 3 AuslG. This will normally be the case if the reasons for the refugee’s flight were understandable.

Pursuant to § 57 II 1 Nr. 2 AuslG preventive custody must be ordered if the time limit for departure has expired and the refugee has changed address without informing the refugee authorities.

§ 57 II 1 Nr. 3 AuslG regulates cases of conscious and intentional frustration of an announced deportation.

§ 57 II 1 Nr. 4+5 contains general clauses. Precondition is that the refugee must already have evaded deportation and that the assumption based on the facts exists that he will do so. A mere refusal to leave voluntarily or lack of co-operation in obtaining necessary return documents do not justify this assumption on their own.

A special form of short-term preventive custody is regulated in § 57 II 2 AuslG. The way it is worded suggests that the only precondition is the expiry of a time limit for departure and the certainty that deportation can be effected within the next two weeks. This provision which is applied mostly in cases of collective deportation or other cases where the deportation requires a considerable amount of organisation, is very doubtful from a constitutional point of view. Its interpretation must therefore be very narrow, the principle of proportionality must be observed.

2) Duration of Custody

Pursuant to § 57 II 4 AuslG preventive custody is inadmissible if it is clear that the deportation cannot be implemented for reasons the refugee is not responsible for within the next three months. This provision applies especially if the supposed country of origin refuses to issue necessary documents.

Pursuant to § 57 III AuslG preventive custody is in regular cases limited to 6 months. It can be extended to 18 months if the refugee frustrates his deportation (§ 57 III 2 AuslG).

The following easily understandable scheme is taken from the very recommendable brochure "Anmerkungen zum Recht der Abschiebungshaft" by the legal department of the Diakonisches Werk der Evangelischen Kirche by Lothar Hinz and Gerhard Reith, which was already included in the previous edition.

II) Preparatory Custody

Precondition for preparatory custody pursuant to § 57 I AuslG is that an expulsion order has not yet been issued, but that its issuing is adequately certain and that a decision cannot be immediately taken since further investigations or a hearing of the refugee are still necessary.

If the aliens authority presents this to the detention judge in an understandable manner, he is not permitted to examine the matter any further. He is only supposed to check whether the six-week maximum length of custody is adhered to and whether a deportation would really be made substantially more complicated or be frustrated without taking the refugee into custody. Neither is the detention judge supposed to examine whether the measure intended by the aliens authority is legitimate, i.e. the question whether impediments to deportation under asylum law or other factors (e.g. the threat of death penalty) represent an obstacle to the deportation. All these factors are only supposed to be of any weight in the proceedings under aliens law or, if need be, before the administrative courts. This fact alone shows clearly the shortcomings in the system of legal protection. The law demands that the judge should close his eyes before relevant facts; it demands a second process of law!

The detention judge is, however, supposed to determine whether a deportation would be made substantially more complicated or be frustrated without custody. When doing so, he must consider that reasons which justify a deportation do on their own not suffice to justify detention.

Detention is not necessary if a deportation is impossible within the maximum amount of time preparatory custody is permitted to last for legal or factual reasons. It is inadmissible when the alien authority had enough time to issue the intended expulsion order, but did not use this time to carry out the necessary investigations or hearings.

III) Preventive custody

Preventive custody pursuant to § 57 II AuslG has two preconditions: one the one hand the existence of an obligation to leave and on the other the danger that the deportation may be frustrated. The principle of proportionality must always be taken into account. This means, as the Federal Constitutional Court has emphasized (BverfG of 13/07/94, 2 BvL 12/93 and 2 BvL 45/93), that the mere existence of the fact that the definitional elements of § 57 II AuslG are fulfilled is not sufficient reason for preventive custody to be ordered. Even if the preconditions apply it must be examined in each individual case whether the refugee really was about to evade deportation.

1) § 57 II 1 Nr. 1 AuslG

Pursuant to § 57 II 1 Nr. 1 AuslG an refugee shall be taken into preventive custody if he entered the country illegally and therefore has an enforceable obligation to leave. This provision does not constitute a danger for refugees filing the first asylum application because as a result of a first application they acquire a temporary right to stay. It is a different matter with refugees filing a follow-up application as a follow-up application does not result in a temporary right to stay as long as the Federal Office or a court decides to carry out follow-up proceedings.

The refugee should therefore take into account that some alien authorities demand custody awaiting deportation for follow-up applicants. It is equally important to make it absolutely clear to the aliens authority that the conditions for a follow-up asylum procedure exist in order to avoid the threatened deportation. Also in this case the requirement of custody awaiting deportation (and the possibility of a deportation) must be examined and the principle of proportionality must be taken into consideration.

2) § 57 II 1 Nr. 2 AuslG

Pursuant to § 57 II 1 Nr. 2 AuslG the refugee runs a risk to be deported if the time limit in which he was to leave has expired and the refugee has changed his place of abode without informing the aliens authority of his new address. If the refugee was, however, correctly registered (i.e. if he has informed the registry office (Einwohnermeldeamt), but not the aliens authority), then custody is inadmissible because it is not required (the refugee did not attempt to evade deportation).

Custody awaiting deportation pursuant to § 57 II 1 Nr. 2 AuslG is also inadmissible if the refugee is in the custody of the authorities or if the aliens authority knows the place anyway where he stays.

3) § 57 II 1 Nr. 3 AuslG

Pursuant to § 57 II 1 Nr. 3 AuslG custody awaiting deportation shall be ordered if the refugee evaded his deportation without being imprisoned before, i.e. if he was not at the arranged place at the arranged time and if he was responsible for his absence in a blameworthy manner. Illness or other important reasons which hindered the refugee from coming are not regarded as blameworthy.

4) § 57 II 1 Nr. 4 AuslG

§ 57 II 1 Nr. 4 AuslG is a general clause which provides that custody is admissible if the refugee "evaded his deportation in any other way". In this case – just as in the case of § 57 II 1 Nr. 5 AuslG (another general clause) – there must be a well-founded suspicion based on definite facts that the refugee intends to evade deportation. The abstract possibility of evasion, an expired time limit, the fact that the refugee refuses to leave voluntarily or does not co-operate in obtaining a passport or documents necessary for return all do not suffice per se to justify custody. Also the fact that the refugee makes use of all possible legal options in order to prevent his deportation, e.g. by involving the administrative court, filing a follow-up or lodging petitions, does not justify the suspicion that the refugee will evade deportation.

What does justify custody, however, is hiding or destroying documents required for departure, church asylum, repeated leaving of the Kreis or Land where he/She is required to stay, especially if connected with temporary disappearance, and the lack of any ties to or in Germany, especially if the person in question committed criminal offences. What is decisive is the consideration of all circumstances plus the actual individual conduct.

If a refugee is already in custody and files an asylum application, the asylum application and the permission to reside thus obtained in principle (§ 55 I AuslG) does not hinder the order for or the continuation of custody awaiting deportation (§ 14 IV AsylVfG). Custody awaiting deportation ends, however, at the latest four weeks after the asylum application is submitted to the Federal Office or with the delivery of the decision of the Federal Office, unless the application was rejected as irrelevant or manifestly unfounded. This regulation is to prevent criminals and persons who were expelled from evading their deportation at the end of their stay by filing an asylum application and thus enforcing a further stay.

Pursuant to § 14 IV 2 AsylVfG the refugee must immediately be given a chance to contact a legal advisor of his choice if an order for custody awaiting deportation has been issued. Pursuant to § 71 VIII AsylVfG a follow-up asylum application does not stand in the way of the order for custody awaiting deportation. It ends, however, with a positive decision of the BAFI or a court on the carrying out of a follow-up asylum procedure. Of course also in this case all the preconditions for custody awaiting deportation must apply.

5) § 57 II 2 AuslG (short-term preventive custody)

§ 57 II 2 AuslG determines the preconditions for shirt-term custody. The refugee may be taken into preventive custody for no longer than two weeks if a time limit for departure has expired and a deportation can be enforced within two weeks with no legal or actual impediments standing in its way. There must not be any reasons for a statutory temporary suspension of deportation, the necessary travel documents must either be already available or there must be a guarantee that they will be made available within two weeks, the target country must be prepared to admit the refugee and a deportation must actually be enforceable. Only if these preconditions are fulfilled and the principle of proportionality does not stand in the way of the deportation is it admissible to order short-term custody as defined in § 57 II 2 AuslG. This provision is mainly made use of in the case of collective deportations in certain countries (e.g. Vietnam). If in the district of an aliens authority short-term preventive custody is ordered it is advisable to stay continuously in contact with the refugees authority in order to find out whether collective deportation is being prepared and whether the refugee in question is "on the list". This is the only way to avoid unpleasant surprises.

IV) Legal Remedies

Custody awaiting deportation is ordered by the detention judge.

The refugee must be given a fair hearing before the decision on custody is reached. If this is should not be the case, this omission cannot be balanced out by a hearing afterwards. A relative of the refugee or a person in whom he has confidence must be immediately informed about the judge’s decision(Art. 104 IV GG, § 6 II FEVG). It is possible to lodge a special appeal (subject to a time limit) to the judge’s decision, i.e. the issue of a warrant of arrest ® see sample form 10

The special appeal must be delivered to the competent Amtsgericht within two weeks after issue of the warrant of arrest. In the special appeal all the arguments against issuing the warrant of arrest must be presented.

The Landgericht decides on the special appeal. It must under certain circumstances grant the refugee a new hearing, especially if he complains that he was not heard completely and properly. Of course an interpreter must be present during the personal hearing if the refugee does not speak sufficiently good German.

If the Landgericht passes a negative decision, in principle a further immediate appeal is admissible. Within the framework of this appeal not the facts of the individual case, but only the correct application of the law is subject to examination. Often one even has to turn to the Higher Regional Court (Oberlandesgericht) to finally receive a just decision.

The problem here, however, is that the Landgericht or Higher Regional Court often do not pass their judgement early enough (or cannot do so for the files are not immediately available). Since custody awaiting deportation is imposed only as short-term detention in most of the cases, which then is extended again and again, the Higher Regional Courts often do not come to a decision before the main proceedings are long since over, from a legal point of view.

R Delivery – Reinstatement

Every decision, e.g. the notification of the Federal Office for the Recognition of Foreign Refugees, but also important stages of the proceedings must be made known to the person affected in a specific formal way. For administrative acts, i.e. directions by the State with external effects, but also for decisions on a refugee’s status, i.e. rejection or refusal of protection under asylum law, formal delivery is provided for. If delivery was not effected properly, then the administrative act has no effect.

Therefore the question of effective delivery is a crucial one.

In practice, however, questions concerning delivery are only of importance if effective delivery or any other form of formal delivery is contested. If the effectiveness of delivery cannot be determined in a incontestable manner, the administrative act is repeated and thus the defect is remedied. The time limit starts running anew.

Proceedings regarding the effectiveness of a delivery are usually complicated and the assistance of a lawyer is advisable. For this reason, and because errors in delivery have decreased considerably since the numbers of asylum seekers became high, a detailed explanation should be dispensable. So this chapter will only deal with advice for "first aid" , i.e. with what is to do if a time limit seems to have been missed. In this case the most urgent piece of advice is to contact immediately, that is, on the same day, a reliable lawyer. Just in case it should be impossible to contact a lawyer in time: an appeal as determined in the instructions of the refugee's right to appeal immediately should be lodged irrespective of the question whether the deadline has been missed or not. At the same time, however, an application for reinstatement in the status quo ante. As it is presumably hard to determine whether the time limit has been missed or whether the delivery has been effected properly, it is advisable to always file an application for reinstatement of the status quo ante as a precaution (such an application must be filed within a time period of two weeks from the removal of the impediments. The time limits starts running on the day on which the person affected learns in some way or other that a negative decision or administrative act exists. Usually the refugee learns this from the aliens authority (e.g. if he wants to renew his permission to reside and then – to his surprise – learns that the refugees authority refuses to renew the permission to reside with the information that the asylum procedure was long since over.)

In sample form 6 such a "precautionary" application for reinstatement in the status quo ante is included. This, of course, must be altered if we are not dealing with a notification of rejection by the Federal Office, but with some other administrative act.

Therefore it is sufficient if:

1. the appeal which has been missed is lodged afterwards

2. an application for reinstatement in the status quo ante is filed

3. it is reasonably claimed that the refugee only learned about the decision on a certain day (taking into account the two-week deadline) and if it can be explained in short sentences that it was not the refugee’s fault that he did not learn about the notification.

It is sufficient if it can be proven that he actually resided at the registered address and was not away on holiday for a rather long time period. The facts which explain that the missing of the deadline was not the refugee’s fault have to be submitted within the time limit for the application for reinstatement of the status quo ante. The mere application for reinstatement in the status quo ante is not sufficient. But one should be careful if the state of affairs is not yet entirely clear and if one does not know the situation according to the files. If it should become clear afterwards that the claim that the refugee resided under the stated address was untrue, not only the application for reinstatement in the status quo ante will be turned down, but also the credibility of the refugee as a whole will be considerably shaken.

The reasons for reinstatement must be made credible. This can be done by the submission of certificates (e.g. registration at the registry office), a written statement by a witness, or by an affidavit made by a witness or the refugee himself. An affidavit must be true, otherwise the person making it is rendering himself liable to prosecution.

As some refugees or their friends tend to make such affidavits due to wrong-headed solidarity, ingenuousness or without having thoroughly considered or checked the matter, one urgent piece of advice should be heeded: An affidavit should only be made if you know the exact state of affairs after having inspected the files, so that you have the same amount of information the court has. Otherwise the refugee even might stumble into criminal proceedings because of a false affidavit.

How easy it is to end up in criminal proceedings can be seen from the following example: a witness had declared that his next-door neighbour had lived in his room in a collective accommodation during the three weeks in question. Later it turned out that the accommodation supervisor had notified the authorities that the refugee no longer lived in the collective accommodation because he once failed to fetch his packet of food and he had not seen the refugee for several days. Criminal proceedings against the witness were the consequence. He was only acquitted because he merely intended to explain in his rather general statement that his neighbour had not been away for a longer time period but basically had stayed in the accommodation. Only because the supervisor was not able to rule out that the refugee had lived in the collective accommodation and simply did not feel like fetching his rations of food and that the supervisor had simply not seen him because he was out looking for a job – which could be partially proven through documents – was the witness acquitted. The result could, however, just as well have been a conviction.

If the asylum seeker had via his lawyer inspected the files, he could have concentrated on the critical points from the beginning and could have tried to invalidate them. Naturally this presupposes an application for reinstatement in the status quo ante for the reason that the time limit had been missed without this having been the refugee's fault. This is exactly the point which must be made credible. Negligence or indifference (also on the part of persons providing support or of the lawyer) are regarded as the faults of the refugee.

This example shows clearly how important it is to make sure of representation by a qualified lawyer in such cases.

Recommendations for further reading

Out of the multitude of literature and journals on the topic of asylum and aliens law mention should be made of some of the most important ones:

Georg Classen, Menschenwürde mit Rabatt – Das Asylbewerberleistungsgesetz und was wir dagegen tun können, von Loeper Literaturverlag, Karlsruhe

Ralph Göbel-Zimmermann, Asyl- und Flüchtlingsrecht, Beck Verlag, München

Handbuch der Asylarbeit, von Loeper Literaturverlag, Karlsruhe

Kanein/ Renner, Ausländerrecht, Beck Verlag, München

Reinhard Marx, Kommentar zum AsylVfG, Luchterhand Verlag, Neuwied

Markus H. Müller, Rechtsprobleme beim "Kirchenasyl", Nomos Verlag, Baden-Baden

Woge e.V./ Institut für soziale Arbeit e.V., Handbuch der sozialen Arbeit mit Kinderflüchtlingen, Votum Verlag, Münster

Informationsbrief Ausländerrecht, Luchterhand Verlag, Neuwied