30.07.2018
Image
Demonstration in Berlin against deportations to Afghanistan. Foto: IPPNW / flickr, CC BY-NC-SA 2.0

At the beginning of July Interior Minister Seehofer bragged about the 69 men deported to Kabul . 51 alone had lived in Bavaria, the federal state that makes extensive use of the supposed new deportation possibilities. Potentially concerned Afghans should urgently analyze their prospects of permanent or temporary residence (»Bleibeperspektive«).

On 3rd July several well-inte­gra­ted Afghans, who have been living in Ger­ma­ny for many years, were flown to Kabul. This is the result of a new depor­ta­ti­on poli­cy: Sin­ce the appearan­ce of the new inter­nal report on Afgha­ni­stan by the Ger­man For­eign Minis­try and the sub­se­quent announ­ce­ment by the Ger­man government gene­ral­ly allo­wing depor­ta­ti­ons to Afgha­ni­stan again, espe­ci­al­ly the Bava­ri­an government has star­ted to imple­ment this new prac­tice. So far, male Afghan asyl­um see­kers could only be retur­ned if they have been con­vic­ted of cri­mes or are con­s­i­de­red to be »dan­ge­rous« suspects (»Gefähr­der«). They could also be sent back if they refu­se to coope­ra­te with immi­gra­ti­on aut­ho­ri­ties to cla­ri­fy their iden­ti­ties (»Iden­ti­täts­ver­wei­ge­rer«). Now the Bava­ri­an government expan­ded the pos­si­bi­li­ties of depor­ta­ti­on to Afgha­ni­stan – alt­hough it is an area of war and ongo­ing con­flict. Also Sach­sen does not restrict their prac­tice any­mo­re. It is unclear how other federal sta­tes will be reac­ting. The case of an unla­w­ful­ly depor­ted man from Meck­len­burg-Vor­pom­mern, who now is to be flown back to Ger­ma­ny, for examp­le, see­min­gly does not fall in one of the three men­tio­ned cate­go­ries.

The­re­fo­re it is of utmost impor­t­an­ce to ana­ly­ze and exhaust poten­ti­al pro­s­pects of per­ma­nent or tem­pora­ry resi­dence in Ger­ma­ny. The­re are several judi­ci­al and huma­ni­ta­ri­an pos­si­bi­li­ties in asyl­um and migra­ti­on laws. Afghan natio­nals, who – despi­te unsuc­cess­ful asyl­um app­li­ca­ti­ons – have been living in Ger­ma­ny for some time under tem­pora­ry sus­pen­si­on of depor­ta­ti­on (»Dul­dung«), should check their legal situa­ti­on with the help of a refu­gee advice cen­ter or legal aid advi­sor, and cla­ri­fy if they might be eli­gi­ble to be gran­ted the right to remain on grounds other than the right to asyl­um.

Employ­ment alo­ne does not pro­tect from depor­ta­ti­on. Yet, a job helps pro­ving suc­cess­ful inte­gra­ti­on and does have an impact on cases of hardship and a pos­si­ble resi­dence per­mit.

Pos­si­bi­li­ties to stay: appren­ti­ce­ship, the right to remain and cases of hardship

Appren­ti­ce­ship: During the trai­ning peri­od of an appren­ti­ce­ship, depor­ta­ti­on can be sus­pen­ded under cer­tain cir­cum­s­tan­ces. Con­se­quent­ly, for the ent­i­re dura­ti­on of the appren­ti­ce­ship a tem­pora­ry sus­pen­si­on of depor­ta­ti­on can be arran­ged (para­graph 60a, sec­tion 2, Resi­dence Act). The rules regar­ding this opti­on are imple­men­ted dif­fer­ent­ly in the Ger­man federal sta­tes. After com­ple­ting the appren­ti­ce­ship, it is pos­si­ble to obtain a resi­dence per­mit for two more years accord­ing to para­graph 18a, sec­tion 1a, Resi­dence Act (so-cal­led »3+2« rule).

Employ­ment alo­ne does not pro­tect from depor­ta­ti­on. Yet, a job helps pro­ving suc­cess­ful inte­gra­ti­on and does have an impact on cases of hardship and a pos­si­ble resi­dence per­mit.

The right to remain after lon­ger dura­ti­ons of stay: If minors bet­ween 14 and 20 years-old have been living in Ger­ma­ny and suc­cess­ful­ly atten­ding school for 4 years, they can nor­mal­ly recei­ve a resi­dence per­mit accord­ing to para­graph 25a, Resi­dence Act. For per­sons older than 21, a peri­od of resi­dence of 6 to 8 years can be suf­fi­ci­ent for a per­ma­nent right to remain (para­graph 25b, Resi­dence Act), if they can pro­ve (par­ti­al) means of sub­sis­tence.

In cases of hardship, it might be worth app­ly­ing to the Com­mis­si­on for Cases of Hardship at the federal sta­te level.

Com­mis­si­on for Cases of Hardship: In cases of hardship, it might be worth app­ly­ing to the Com­mis­si­on for Cases of Hardship at the federal sta­te level. They exist in every federal sta­te and the respec­tive refu­gee coun­cils are hap­py to inform about the pro­ce­du­re. Suc­cess­ful inte­gra­ti­on and employ­ment may have a posi­ti­ve influ­ence on cases of hardship.

Medi­cal obsta­cles to the return: Hig­her requi­re­ments

The fate of the 23-year old depor­tee, who com­mit­ted sui­ci­de in Kabul, demons­tra­ted the dra­ma­tic con­se­quen­ces of a fail­u­re to reco­gni­ze medi­cal obsta­cles to the return. The­re is a gene­ral assump­ti­on that medi­cal obsta­cles nor­mal­ly do not stand in the way of depor­ta­ti­ons. Thus, it is of utmost impor­t­an­ce to ask ear­ly enough for the necessa­ry docu­ments in cases of ill­nes­ses, espe­ci­al­ly in regard to men­tal health. A so-cal­led »qua­li­fied doctor’s cer­ti­fi­ca­te« (Ger­man: »qua­li­fi­zier­te ärzt­li­che Beschei­ni­gung« accord­ing to para­graph 60a, sec­tion 2c, Resi­dence Act) is requi­red.

Fur­ther­mo­re, a chan­ge of the living situa­ti­on, such as mar­ry­ing a per­son with resi­dence per­mit or the birth of a child, might – in indi­vi­du­al cases – have a posi­ti­ve impact on a pos­si­ble stay in Ger­ma­ny.

The inter­nal report on Afgha­ni­stan by the Ger­man For­eign Minis­try offers new insights that might be used as pro­of.

Sub­se­quent app­li­ca­ti­on for inter­na­tio­nal pro­tec­tion

A fur­t­her app­li­ca­ti­on for inter­na­tio­nal pro­tec­tion made after a final deci­si­on has been taken on a pre­vious app­li­ca­ti­on, inclu­ding cases whe­re the app­li­cant has expli­cit­ly with­drawn their app­li­ca­ti­on and cases whe­re the deter­mi­ning aut­ho­ri­ty has rejec­ted an app­li­ca­ti­on, is pos­si­ble – if the­re are new grounds for inter­na­tio­nal pro­tec­tion.  The secu­ri­ty situa­ti­on in Afgha­ni­stan is con­stant­ly dete­rio­ra­ting – accord­ing to the UN Afgha­ni­stan has reached record high cau­sa­li­ty rates being inflic­ted on the Afghan civi­li­an popu­la­ti­on with 1.962 deaths in the first half-year of 2018.

The befo­re men­tio­ned inter­nal report on Afgha­ni­stan by the Ger­man For­eign Minis­try offers new insights that might be used as pro­of. This also app­lies to Afghans who were not born or rai­sed in Afgha­ni­stan, becau­se – for ins­tan­ce – they had flown to Iran as a child. Yet, when using the report it is important to indi­vi­dual­ly refer to the situa­ti­on descri­bed and exp­lain the indi­vi­du­al con­se­quen­ces of the chan­ges in Afgha­ni­stan.

Don’t give up!

In case of a nega­ti­ve noti­ce issued by the Federal Office for Migra­ti­on and Refu­gees, Afghan asyl­um see­kers should be par­ti­cu­lar­ly atten­ti­ve. Appeals are avail­ab­le to tho­se con­cer­ned and they can take court action against the deci­si­on of the Federal Office. And Afghans are very often suc­cess­ful with their appeal: More than 60 per­cent of tho­se who take legal action against their nega­ti­ve noti­ce win their case, so the noti­ce is rescin­ded and the Federal Office is obli­ged to pro­vi­de pro­tec­tion.

Some courts pre­fer to care­ful­ly eva­lua­te cur­rent fin­dings, for examp­le the hig­her admi­nis­tra­ti­ve court in Baden-Würt­tem­berg, which will not deci­de about the pro­tec­tion sta­tus of young Afghans until the fin­dings of the Euro­pean Asyl­um Sup­port Office (EASO) have been tho­rough­ly ana­ly­zed.

Reviewing one’s indi­vi­du­al case is defi­ni­te­ly worth the effort and should be done as soon as pos­si­ble.

(beb, trans­la­ti­on: tz)