Expulsion

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The terms expulsion or expulsion from the country denote the order by the authorities of a state that a foreign citizen present on its territory (lawfully or illegally) must leave it.

meaning

In contrast to deportation , which is an enforcement measure (compulsory evacuation) and with which the termination of residence is officially enforced, expulsion alone removes any right of residence and a re-entry ban is established. Deportations do not necessarily have to be based on expulsion, but can also be used as a means of enforcement in the case of other residence-ending measures (e.g. after the rejection of an application for a residence permit, the issuance of a request to leave the country under threat of deportation and the subsequent refusal of the foreigner to voluntarily leave the country to leave).

In colloquial speech and the media and to some extent also in international usage, the terms deportation (Engl. Expulsion ) and deportation (Engl. Deportation ) but partly used interchangeably. So defining UNHCR the concept of expulsion comprising, as the whole process of "out of the country creating a person who lawfully within the territory of a State is staying, by the government of that State."

No expulsion (although often referred to as such in colloquial language and in newspaper reports) is a state's request that a diplomat accredited to that country leave the country. Legally, there is only a diplomatic note from the respective foreign ministry in which the embassy of the country concerned is informed that a member of the diplomatic staff of the mission is persona non grata or that another member of the staff of the mission is no longer acceptable. In these cases, the sending State must either recall the person concerned or cease working for the mission. If he fails to meet his obligations within a reasonable period, the diplomat loses his diplomatic status (Art. 9 of the Vienna Convention on Diplomatic Relations ).

United Nations

According to Article 32 of the Geneva Refugee Convention , a refugee who is lawfully resident in the country may only be expelled for reasons of public security and order . The procedures in which the deportation decision is taken must be fair and equitable, and the refugee should be given a reasonable period of time to allow him or her to find another country. (UNHCR, Handbook for Parliamentarians, 2/2001)

Article 33 limits this through the principle of non-refoulement , also known as the “prohibition of deportation and refoulement ”: “None of the contracting states will in any way deport or reject a refugee beyond the borders of areas in which his life or freedom is on account of him Race, religion, nationality, membership of a certain social group or because of his political convictions would be threatened. "At the same time he makes it clear:" A refugee cannot rely on the benefit of this provision, who for serious reasons is considered a danger is to be regarded for the security of the country in which he is located or which represents a danger to the general public of this state because he has been convicted of a crime or a particularly serious offense . "

According to Article 1 Section F, the Geneva Refugee Convention - and thus also the aforementioned ban on expulsion and refoulement - does not apply to persons who have committed a crime against peace, a war crime or a crime against humanity or who have committed a serious, non-political crime outside of the country of the host country before being accepted as a refugee or who have committed acts contrary to the aims and principles of the United Nations.

Germany

In the legal system of the Federal Republic of Germany, expulsion is an ascertaining, burdensome - not an orderly - administrative act, the aim of which is to end the presence of the person concerned in the Federal Republic of Germany and to deny them re-entry and a (further) residence permit. Any residence permits that may have been issued expire through expulsion ( Section 51 (1) No. 5 of the Residence Act ).

The expulsion is directed against foreigners whose stay in the Federal Republic of Germany affects the public safety and order or other significant interests of the country. Expelled foreigners may not be granted a new residence permit; they are not allowed to re-enter the federal territory ( Section 11 subs. 1 AufenthG). However, the effects of the expulsion are to be limited ex officio in the deportation order (Section 11 subs. 2 AufenthG). The re-entry ban applies to deportations and “completed” deportations, but not in the case of a mere refusal of the application for a residence permit with subsequent voluntary compliance with the obligation to leave the country.

In the interests of legal clarity and to simplify the procedure, a non-expulsion order due to the departure or hiding of a foreigner can nevertheless be ordered; it will then be served publicly .

Legal position until December 31, 2015

In terms of expulsion technology, a distinction has so far been made between actual or compulsory expulsion (Section 53 AufenthG old version), standard expulsion (Section 54 AufenthG old version) and discretionary deportation (Section 55 AufenthG old version). ). If there was an actual expulsion, the expulsion had to be ordered by the immigration authorities. In the case of the regular expulsion, it was necessary to check whether there was an atypical exceptional case which, as an exception, precluded expulsion. In the discretionary designation, however, a comprehensive weighing of interests was carried out, which was open-ended.

If foreigners had special protection against deportation (e.g. according to Section 56 AufenthG, old version), they were only allowed to be expelled for serious reasons of public safety and order. In these cases, the type of expulsion to be used in individual cases was often weakened by one level: For example, an actual expulsion became a standard expulsion (Section 56 subs. 1 sentences 4 and 5 AufenthG old version).

Legal position since January 1, 2016

The right to deportation was fundamentally reorganized with effect from January 1, 2016. In place of the previous three types of expulsion (actual or compulsory, regular and discretionary expulsion), according to the new Section 53 of the Residence Act, expulsion is the result of a weighing of the interests of expulsion (now new Section 54 of the Residence Act) and taking into account all the circumstances of the individual case Interests in remaining (now new Section 55 AufenthG) occurred . A formal special protection against deportation , as in § 56 AufenthG a. F. still listed, no longer exists; Such aspects will be taken into account in future in the interest of staying.

With this change, the legislature reacted to the highest court case law on the requirements of higher-ranking law, in particular the right to respect for private and family life according to Art. 8 of the European Convention on Human Rights (ECHR), which in the past required expulsion based on the mandatory, rule-based or no longer permitted discretionary identification schemes. According to the official justification for the government draft, the requirements of discretionary designation have already been used as a basis for a large number of expulsions in the past. The new regulation is now intended to help eliminate legal uncertainties.

For EEA and EU citizens, different rules still apply, see section "European Economic Area and European Union" .

Turkish nationals who are entitled to a right of residence under the Association Council Decision No. 1/80 (ARB 1/80) may only be expelled in accordance with Art. 14 ARB 1/80. There is no formal loss assessment procedure for them, as is the case with EEA citizens. However, as with EEA citizens, expulsion may only be issued for Turkish citizens with ARB 1/80 status if it poses an actual and sufficiently serious risk that affects a basic interest of society. This guideline given by the European Court of Justice can now be found expressly in the new Section 53 subs. 3 AufenthG.

Further changes

On March 17, 2016, the law published the day before in the Federal Law Gazette on the simplified expulsion of criminal foreigners and the extended exclusion of refugee recognition for criminal asylum seekers of March 11, 2016 came into force. This right of amendment changed § 53 , § 54 and § 60 AufenthG as well as § 3 , § 8 , § 26 , § 30 , § 73 and § 75 of the Asylum Act (AsylG). With this change in the law, a foreigner can, if he has committed one or more deliberate crimes against life, physical integrity, sexual self-determination, property or because of resistance against law enforcement officers, provided that these crimes are violent or threatened with danger to life or death Life or cunning, has been legally sentenced to imprisonment or a youth penalty, regardless of whether the sentence is suspended, can be expelled more easily. Asylum seekers may be denied recognition as refugees more quickly than before.

The founding of the law of the grand coalition referred to the requirements of social peace in Germany and the acceptance of the local population for the admission of those in need of protection and for legal immigration; Events like the one on New Year's Eve 2015/2016 also fueled resentment towards foreigners and asylum seekers. In a statement on the draft, the German Lawyers' Association critically noted that although the protection status could be denied, a (chain) tolerance would take the place of the residence permit due to international and constitutional requirements .

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In the course of the tightening of the sexual criminal law passed by the Bundestag on July 7, 2016 , the changes made with the law to facilitate the expulsion of criminal foreigners and the extended exclusion of refugee recognition for criminal asylum seekers were again adapted.

Switzerland

See also: Aliens Act (Switzerland) .

The Federal Police order expulsion against foreigners who endanger the internal or external security of Switzerland.

A deportation may be ordered if a person without a residence permit can be a deadline that was set to leave the pass, or if a legal education or removal order exists for persons in custody.

On July 10, 2007, the Swiss People's Party launched a federal popular initiative “for the deportation of criminal foreigners (deportation initiative)” , which aims to simplify the deportation of foreigners.

In addition to the subject of deportation, the term expulsion is also used in Switzerland against recalcitrant tenants who oppose termination of the tenancy or who want to rent an apartment or house. Leaving business premises without vacating it. In this case, one finds after due warning eviction of the rental place, possibly even by summoning the police.

European Economic Area and European Union

EEA citizens who are entitled to free movement and their family members (also from third countries ) may in principle only be deported from Germany in the future after the loss of their right to free movement has been conclusively established ( Section 11 (2) of the Free Movement Act [FreizügG / EU]); In addition, the application of the expulsion regulations of the Residence Act is initially excluded for this group of people (Section 11 (1) FreizügG / EU). Measures to terminate residence may only be taken against an EU foreigner in accordance with Section 6 FreizügG / EU.

In the following, the term “expulsion” is used in the sense of EU law, where - in contrast to the term expulsion in the German Residence Act - it is a collective term under which any measure to terminate one's stay is included. EU citizens who have already lived in another EU state for five or more years and are integrated there are not simply "expelled" to their country of origin even if they have committed a criminal offense. According to a ruling by the European Court of Justice in April 2018, in view of the permanent right of residence obtained after five years, “deportation” is only permissible for “serious reasons of public order or security”. After ten years it is only possible for “imperative reasons of public safety”. (For information on the protection of EU citizens against measures to terminate their stay in the EU provided for in European law, see: Protection against expulsion based on Directive 2004/38 / EC .)

See also

literature

Web links

Individual evidence

  1. ↑ General administrative regulation for the Residence Act, 5.5.4.1.1. General administrative regulation of the federal government, printed matter 669/09. Federal Council, July 27, 2009, accessed on August 27, 2017 .
  2. ↑ Comparison of the old and new versions of Section 53 AufenthG.
  3. ↑ Comparison of the old and new versions of Section 54 of the Residence Act.
  4. ↑ Comparison of the old and new versions of Section 55 AufenthG.
  5. ↑ Comparison of the old and new versions of Section 56 AufenthG.
  6. ↑ Bundestag printed paper 18/4097 ( PDF ); Pp. 23, 29 and 49, accessed January 6, 2016.
  7. ↑ BGBl. 2016 I p. 394, 395
  8. ↑ BT-Drs. 18/7537 (PDF; 232 kB), accessed on August 25, 2019.
  9. ^ Opinion of the German Lawyers' Association by the Committee on Foreigners and Asylum Law on the draft of a law to facilitate the expulsion of criminal foreigners and the extended exclusion of refugee recognition for criminal asylum seekers (as of January 25, 2016). In: Opinion No .: 10/2016. German Lawyers' Association, February 2016, accessed June 8, 2016 .
  10. ↑ Annett Meiritz: Debate in the Bundestag: Four Findings on the New Sexual Criminal Law . In: Spiegel Online . July 7, 2016, accessed January 7, 2017 .
  11. ↑ SR 142.20 Federal Act on Foreign Nationals , Art. 68
  12. ↑ SR 142.20 Federal Act on Foreign Nationals , Art. 69
  13. ↑ Federal Popular Initiative for the 'Deportation of Criminal Foreigners (Deportation Initiative)' , Swiss Federal Chancellery. Regardless of the title “Deportation Initiative”, the text of the initiative concerns the loss of the right of residence (ie expulsion) and not the actual deportation.
  14. ↑ EU citizens who have committed criminal offenses cannot simply be expelled. In: time online. April 17, 2018, accessed September 24, 2018 .