Validity of Deportations following Old Residency Law

The new residency law came into effect on January 1st, 2005. Some persons have argued that enacted deportations lost their grounds with the abrogation of the old law. Every legal administrative act needs its legitimacy in the law (so far unquestioned) and if the law has been abrogated so also the administrative act of a deportation – so the arguments. The OVG Hamburg cleared this discussion on March 22, 2005 (re 3 Bf 294/04).

Enacted and unappeasable deportations have not lost their effect because the old law has been annulled. These administrative acts have been legally enacted and the effect remains. Usually, the deportation is combined with the prohibition of re-entering Germany for a certain period. In addition, this prohibition does not loose its effect with the new law.

Now, the new law will govern when and to what conditions the prohibition of reentering may be shortened or annulled. So, even if you have obtained the usually enforceable right to enter Germany (typically through marriage to a German or EU citizen) does not mean that you really now may come in again; i.e. in spite of your expulsion. §11 AufenthG now forbids that persons expelled and after deportation have received the right to enter again. In other words, deported means deported. Period. Nevertheless, this rule is not without exception. You can apply for limitation of this prohibition. After some time, which is a matter or discretion, the prohibition will be actually annulled.

Just because you have obtained the usually enforceable right to enter Germany, the prohibition of entering will not automatically be canceled. What will happen if you do not apply? Nothing. The prohibition will remain in force.


Published on the old CMS: 2006/8/2
Read on the old CMS till November 2008: 4,863 reads