EU-Alien Expelled as Serious Endangerment

In spite of the general belief to the contrary, EU-citizens are also subject to expulsion – even though the requirements are much higher than for third-country aliens. In the case of VG Trier (March 21, 2007, re 5 K 391/06.TR), a European had been sentenced sexual misuse of entrusted minors in 20 cases, which were committed over a four-year period.

On March 8, 2004 a citizen of Luxembourg received a temporary residence permit. (N.B. until 2005, also Europeans first needed to simply register and not apply for a temporary permit!). Later the Foreigners Office was informed that the plaintiff had been sentenced to three years imprisonment for abuse of “entrusted minors” in twenty cases. German law considers the sexual abuse of minors entrusted to the care of adults as so serious that the special section §174 StGB was entered into the Penal Code. The plaintiff had been released from prison in January 2007.

The Foreigners Office ordered the plaintiff’s expulsion with the prohibition of reentry limited for 15 years to be fulfilled within one week after being released from prison. The office argued he fulfills the rule of §47 I no. 1 AuslG (now invalid and replaced by §53 no. 1 AufenthG) because he had been sentenced for three years for several crimes. In consideration of the existing danger of a repeated offense his presence in Germany cannot be tolerated.

The plaintiff, however, argued §47 AuslG is not applicable because this rule contradicts European law. As a European, he may not be expelled. Especially, a ruling by the European Court of Justice of April 29, 2004 (re C-482/01 and C-493/01) hinders his expulsion. This ruling states that a penal judgment alone cannot give grounds for an expulsion. The office is to wait how his behavior in prison develops and the social prognosis afterwards.

The prison’s psychological service instructed the Foreigners Office that a  positive tendency for a crime-free life cannot be seen, and an overall prognosis cannot be given. In this opinion, the psychological service explained that during trial and imprisonment, the plaintiff always denied his sexual attacks. A decline into the crime scene is not likely. Since the plaintiff has not come to grips with the illegal act, he sees no reason for a therapy. Therefore, it is to be suspected that the possibility of a relapse exists. Regardless of that, there were no complaints about his conduct in prison. The plaintiff is interested in long-term contacts; he is maintains a relationship to his girlfriend. After and due to the change of law in 2005 during his imprisonment, the Foreigners Office obtained another opinion of the psychological service in prison. The result was practically the same as before.

After being released from prison, the Foreigners Office insisted that the plaintiff leave the country. Nevertheless, having returned to his job as a truck driver for a Luxembourg company, he then filed a case in court to fight for his stay. His legal arguments remain. One positive aspect needs to be stressed - he voluntarily served his time. He is planning to wed his German fiancée. Along with this, the: “Führungsaufsicht bears mentioning”. According to §68 StGB, certain crimes, like sexual abuse of entrusted minors, is ex officio subject to a special supervision along with probation. Since the motives and relevant details of the committed crime have not been cleared due to the plaintiff’s silence in this matter, there is no room for positive social prognosis. This prognosis is to predict if the wrongdoer will relapse in the same crimes again.

The VG Trier dismissed the case. The defendant correctly assumed a danger for Germany’s public order, health, and safety. §6 I Freizügigkeitsgesetz (= Act on the Freedom of Movement of Union Citizens) allows European citizens to be expelled from a member state whenever they become a danger for public order, safety, or health. However, pursuant to §6 II 1 of this act, a sentencing alone is not a sufficient argument that a European forfeits all his rights. Furthermore, it is required that due to the person’s behavior, an actual and severe danger exists which impacts on the basic interests of the society.

In as much as the plaintiff argues that art. 28 of Directive 2004/38/EG only allows a European to be expelled for serious offenses of public order and safety, his arguments are not persuasive because these grounds exist here. Furthermore, the question if the basic interests of a country are touched or not can only be answered by weighing the facts of the case against the European right of Freedom of Movement. A reasonable possibility of an endangerment of the country’s basic interests is required. In other words, how great is the possibility that the country’s basic interests will be endangered? How does the wrongdoer endanger them? As the BVerfG decided (November 8, 2006, re 2 BvR 578/02), solely the fact that the plaintiff denies his participation cannot be held against him. The court considered the evidence of an expert opinion by a psychologist on the plaintiff’s social prognosis. Since this convicted person not only denied his participation but also refuses a therapy, refuses to acknowledge the crime even though the parents of the abused children confronted him with his acts from the start. All this shows that he has not faced the true hard facts of his acts. Therefore, to the conviction of the court, a great possibility exists that under the right circumstances, the plaintiff will again sexually misuse minors. This argumentation stands even though no evident inclination to the sexual misuse of minors can be seen. He has shown good conduct in prison. He was not tempted in prison and in his neighborhood, with his German fiancée, there are no children. Being engaged to a German and having no certain date for marriage does not open the constitutional protection of the family as per art. 6 GG. The protection of minors from sexual assaults by an adult is sufficient reason to revoke the European right of Freedom of Movement.




Published on the old CMS: 2007/8/27
Read on the old CMS till November 2008: 1,314 reads