Crook’s Wish to Remain in order to Maintain Family Relationship with German Child

Article 6 of the GG determines the constitutional protection on family unity Nothing else is true, when it comes to families consisting of one or only foreigners. The OVG Hamburg had to decide a case on May 15, 2006 (re 4 Bs 129/06) where an otherwise deportable foreign citizen a father with a criminal record wants to remain in Germany to be able to raise his child together with its German citizen mother.

The applicant, from Burkina Faso, entered Germany in early 2000. His application for asylum was denied as evidently being without grounds in February of the same year. Since he lacked proper traveling documents, his continued sojourn was tolerated thereafter. Since August 2002 he has been living to together with a German citizen and their common child. After the new residency Act came into force in January 2005, he applied for a residence permit on the grounds of family reunion. His application was denied, and he was ordered deported back to his country of origin.

Generally, the safeguarding society protection of Germany against further criminal acts by deportation of the criminal can outweigh protection of family unity. Since his entry into Germany, the applicant has continuously committed crimes involving in violence and narcotics. The highest single criminal sentence was for two years and three months. The administrative office for foreigners had already considered these facts as sufficient to assume that future criminal activity was very likely. The positive social prognosis of the penal court was not regard is. Considering the negative social prognosis of potential repeat crimes in future, the issue of protection of family unity was outweighed in favor of deportation.

But the Superior Administrative Court of Hamburg decided the deportation could be set aside on account of a social prognosis made pursuant to §60a II AufenthG. The court said that by considering the immigration office’s negative social prognosis contradicts the rules of applying discretion in decision making. An administrative agency like the immigration office is bound by decisions of the penal court when it considers whether a person convicted of a crime will cease further future criminal activity. Pursuant to §56 Strafgesetzbuch (= Penal Code), probation may only be granted if it seems likely that the convict will take the sentence as a warning and will refrain from future crimes without influence of penal authorities. The main question however is whether the deportation ordered was founded upon law, especially so because of the constitutional protection of family unity. Both legal arguments need to be weighed and balanced. The applicant was living together with his fiancé since 2002. After the birth of their joint child, he intensively took care of their common child. He also took care of his finance’s other child from a previous relationship. Since his last conviction, he has not been sentenced again. If the applicant were to be deported, his fate would be uncertain – even though Guinea meanwhile has promised to grant him entry. The uncertainties of his identity also have not yet been totally clarified. Since the common child has a dark skin color, it would need its black parent to support it in developing an identity in society.

In accordance with these facts, the Superior Administrative Court of Hamburg considered these circumstances as giving priority to the family rights of the applicant. However, if the immigration office has objective grounds that the positive social prognosis predictions to not commit any future criminal acts were wrong, then the- agency could again order a deportation. Until such time, his family is to be protected against the severe and presumably irreparable effects of his deportation.





Published on the old CMS: 2007/Jan/9
Read on the old CMS till November 2008: 146 reads