Remaining for Nursing Despite Deportation

Normally, when you are supposed to leave the country, whimpering will not help. But what if you can only be nursed by relatives in Germany?

Art. 6 GG stipulates the fundamental protection of the family – disregarding any citizenship. The authorities are to have this in mind while deciding upon applications. How is the circumstance to be treated if a person is unappeasably obligated to leave Germany but needs nursing and this nursing can only be preformed by relatives living in Germany?

Plaintiff is a Turkish family with Kurdish nationality. The wife has three children from a previous marriage. They applied for asylum without success and afterwards applied for a residence permit based on humanitarian reasons (§25 IV, V AufenthG). The foreigners office denied the requests and so did the courts in all instances.

The wife argued that the father of children permanently living in Germany needs to have contact to his offspring now to be expelled. She was legally arguing with Art. 6  GG. This provision of the constitution orders the state to protect the family. In relation to foreigners seeking residence, this means that the authorities have to consider the relationship to family members legally sojourning in Germany when using discretion. So in case of an upcoming deportation, the constitution can so give you a reason not be deported. “Protection of the family” will only be hindrance for expulsion if after balancing the public interest of your expulsion with your family needs these family rights prevail. Since the father of the children only visited them irregularly, there is no prevalence of the family rights.

The wife afterwards tried to argue with post traumatic stress deficiency. Legally, she is arguing with §25 IV AufenhG. This provision reads that a foreigner can receive a residence permit for humanitarian reasons as long as urgent humanitarian or personal reasons or significant public interest require his sojourn in Germany for an interim period. She was not capable of traveling because she could not survive if she were brought back to her home country. She had tried to commit suicide. She is dependant upon the care of her adult sister and this was to be proven by medical certificates. She needs to be monitored to orderly take her medicine, take care of her household and minor children. The plaintiff has not the physical and psychical ability to do so because she is suffering under listlessness. No third person would be able to accomplish these tasks.

The OVG Saarland partially answered this question on March 27, 2006 (re 2 Q 45/05). It is generally assumable that the protection of the family can under very strict rules and only very exceptional circumstances outweigh the immigration policies of the country on the foreigner’s departure. However, the court could not decide so in this case because the plaintiffs could not prove their arguments. The physician’s reports did not hold what they promised. The “official physician (= Amtsarzt)” did not acknowledge the incapability to travel. The court found that these grounds were evidently not present. She argued no sickness that could not also be treated in Turkey. However, practice shows that expulsions of persons having the tendency to commit suicide, done under the supervision of a physician, show that after return their stress faded away. The pending deportation to Turkey is the only reason for her tendency for suicide and will be “cured” at the latest after she has returned. The immigration office promised that upon expulsion she would be accompanied by a physician. Therefore, this could not give grounds for a permanent hindrance of expulsion.

§42 AsylVerfG also did not help the plaintiffs to remain in Germany. Normally, former asylum candidates can argue with hindrances in the country they are deported to (§60 VII 7 AufenhG). The worsening of a sickness due to the circumstance that the non-German does not regularly take his medicine cannot outweigh the public interest. Such sick foreigners that need regular medications during deportation can be accompanied by a physician.

Under very exceptional circumstances will such an exception be possible. The denied candidate will have to need nursing and it can only be done by adult family members or only by adult family members living in Germany. The court expressly left the question open under exactly which circumstances nursing an adult unappeasably subject to deportation will be a hindrance to the foreigner’s duty to leave.

This case shows once more, it is not the morality that counts but the true hard facts. These facts must also be proven to the satisfaction of the judge.




Published on the old CMS: 2006/12/21
Read on the old CMS till November 2008: 1,083 reads