Termination of residence / Obligation to leave the country
As a general principle, every person who is not a EU citizen requires a permit to stay in Germany. The person is obliged to leave the country if the residence permit expires after a certain period or if it ends due to a negative decision on granting or renewing a residence title, or if, for example, an asylum application has been finally rejected.
This does not always imply that a person also immediately leaves or is entitled to immediately leave the country. Sometimes there are actual or legal obstacles, for example, if documents are missing, if a person is unable to board because of maternity protection, if there is no airport in the country of origin, or for other reasons. In such cases, the deportation will be temporarily suspended. This does not amount to a residence title. It merely certifies that, although the person is obliged to leave, the deportation cannot be presently enforced.
Deportation refers to the execution of the obli-gation to leave. That is, deportation is in each instance preceded by a decision on terminating or discontinuing residence. Moreover, the per-son is at first required to voluntarily leave the country and thereby to comply with the obli-gation to leave. It is not until the person neg-lects to do so that authorities can prepare and enforce compulsory deportation.
Whereas deportation refers to authorities enforcing the termination of residence, expul-sion solely lays down the revocation of the resi-dence title along with a re-entry ban.
A person will be expelled if it has been determined that the person’s residence in the Federal Republic of Germany compromises public safety and order or other compelling government interests. This is assumed if the person has been substantially or repeatedly involved in criminal acts, particularly in offences against the Narcotics Act or against the right to sexual self-determination.
In any case, the government agency or, in the event of an appeal against the decision, a court has to consider, in each individual case, whether the state’s concern with having the person deported outweighs the person’s wish to stay. In this regard, the person’s ‘rootedness’ in Germany and their residence status are of special importance.
A person who has been expelled is not neces-sarily required to leave the country or rather will not necessarily be deported. If, for example, re-fugee status has been recognised and if it has been determined that the person is threatened with torture or other human rights violations in their country of origin, the state will, as a rule, abstain from deportation, even if the person has become liable to prosecution in Germany. In this case, however, a residence permit will not be granted. Such a person’s deportation will more often be considered as permanently suspended.
During the asylum procedure, the Federal Refugee Office will ascertain for each “asylum application” (application for protection), in descending order:
- whether the applicant is entitled to asylum according to article 16a of the German Constitution
- whether the applicant shall be recognised as a refugee according to the Geneva Refugee Convention (section 3, Asylum Act)
- whether the applicant shall be granted subsidiary protection (section 4, Asylum Act)
- or whether there exist other prohibitions of deportation concerning the applicant’s country of origin (section 60, subsection 5, and section 7, sentence 1, Residence Act).
The concept of international protection is derived from European Refugee Law. It subsumes both refugee protection and subsidiary protection under the category of international protection.