Germany – Higher Administrative Court Lüneburg, 12 December 2017, 13 PA 222/17
| Country of Decision: | Germany |
| Court name: | Higher Administrative Court Lüneburg |
| Date of decision: | 12-12-2017 |
| Citation: | 13 PA 222/17 |
Keywords:
| Keywords |
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Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
Usually it does not infringe the constitutional right of equality nor the UN Convention on the Rights of Persons with Disabilities, when the residence permit of a disabled foreign national is restricted on grounds of a lack of independent secured livelihood pursuant to §§ 25 (5) 1, 12 (2) 2 German Residence Act.
Facts:
The plaintiff lives in Germany since 1989. She has a legal status since 2009. Her residence permit is restricted since 2014. Since 2017 she is classified as severely disabled. To lead a self-determined life she depends on the help of others. This help could be provided by her brother. To this end she would like to move in with him but is restricted to do so by her permit of residence. The plaintiff has applied for legal aid to the Administrative Court of Oldenburg but her request has been denied. The Higher Administrative Court of Lüneburg reviewed this decision. It did not, however, decide on whether to revoke the restriction on the residence permit or not.
Decision & reasoning:
A Residence Permit on Humanitarian Grounds § 25 (5) 1 German Residence Act can be restricted pursuant to § 12 (2) 2 Residence Act. Such a Restriction can be ordered if the person concerned is receiving benefits according to SGB II or SGB XII (German social law code) or AsylbLG (Benefits for Asylum Seekers Act).
If a restriction is therefore ordered on grounds that the individual is not able to provide for an independent secured livelihood for itself, this restriction generally does not infringe the constitutional right to equality nor the UN Convention on the Rights of Persons with disabilities. Such a restriction can be ordered for disabled as well as non-disabled people regardless of their condition. This does not constitute an indirect discrimination either, as the decision depends on whether the individual depends on public benefits. But the majority of disabled people cover their subsistence from other sources than social benefits, not different from non-disabled people (although their earning capacity might be reduced more often).
Regardless, not every indirect discrimination constitutes an infraction of the right to equality, when other legal interests outweigh the rights of a person with disabilities.
Foreign nationals are not covered by the constitutional right of freedom of movement Art. 11 GG. The restriction to the residence permit does not concern the right to visit any place granted by Art. 2 (2) 2 GG. Only the general right of personality (allgemeines Persönlichkeitsrecht) is affected.
This limitation however can be justified. The restriction on the residence permit aims to prevent a financial overload of particular districts and provides for an equal distribution of the financial burden caused by the granting of social aid to aliens.
However in this particular case it seems that the interests of the plaintiff outweigh public interests, as she is in need of constant daily help and this help could be provided easily by her brother.
Generally, the UN Convention on the Rights of Persons with Disabilities does not preclude the option to order restrictions on permits of residence as Artt. 18 (1) and 19 (1) a of the Convention only demand that people with disabilities are not discriminated against compared to non-disabled people. As it was said, the restriction does not constitute a direct or indirect discrimination.
Outcome:
Legal Aid granted.
Subsequent proceedings:
The legal aid application has been denied previously by order of the Administrative Court of Oldenburg, 27. July 2017 (11 A 2881/14).
Observations/comments:
This summary has been written by Friederike Klimek, she is a doctoral candidate at the University of Cologne.
Cited National Legislation:
Other sources:
Germany – BVerwG – 15.1.2013 – 1 C 7.12
Germany – BVerfG – 3.7.2001 – 2 BvR 1022/01
Germany – BVerfG – 9.2.2001 – 1BvR 781/98
Germany – Niedersächsisches OVG – 23.2.2015 – 8 PA 13/15
Germany – No. 12.2.5.2.1 AVwV AufenthG (General administrative Regulation regarding the Residence Act)
Germany – No. 12.2.5.2.2. AVwV AufenthG
Germany – No. 12.2.5.2.4.2. Tiret 2 AVwV AufenthG