News
Deportations to Afghanistan: Using existing options to stay
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)