Germany - Administrative Court of Gelsenkirchen, 31 January 2013, 8 K 3538/12

Facts:

The Applicant, who was born in 1987, comes from Syria. He arrived in the country as an asylum seeker in 2002. He was assigned to the town of H. for the duration of the asylum procedure and received social benefits. After the competent asylum authorities had granted him subsidiary protection from deportation according to Article 15 (b) of the Qualification Directive, the Applicant received a residence permit featuring the following ‘constraint’: ‘residence only to be granted in H’ (limitation of residence / compulsory residence). The Applicant requested that this limitation of residence be removed. This request was refused on the grounds that it is in the public interest to distribute foreign recipients of social benefits (of which the Applicant is one) between different towns. Reference was made to a corresponding decree by the German region of North Rhine Westphalia.  

Decision & reasoning:

The appeal was well-founded. Compulsory residence is not consistent with European law, which takes precedence.

Clause 12 (1) p. 2 of the Residence Act authorises the competent authorities to append constraints to residence permits, in particular with reference to the limitation of residence.

In general, there can be no legal objection to maintaining the original location-specific allocation for the purpose of an equal distribution of the financial burden stemming from public benefits for subsistence which is incurred by foreign nationals with residence permits on international legal, humanitarian or political grounds. If the foreign national (as in the case of the Applicant) has been granted protection from deportation by the asylum authorities according to clause 60 (2) of the Residence Act and is therefore to be considered eligible for subsidiary protection according to Article 18, 15 (b) of the Qualification Directive, the limitation of residence amounts to a limitation of the free movement of persons according to Article 32 of the Qualification Directive. According to the latter, the free movement of persons who have been granted subsidiary protection status is guaranteed under the same conditions and limitations as those applying to other third country nationals who reside legally on the territory of the Member State. In this context, the Applicant may apply for a residence permit without a limitation of residence as, according to clause 12 (1) (1) of the Residence Act, the residence permit is issued for the federal territory; a corresponding limitation will only be authorised in exceptional circumstances. 

Article 32 of the Qualification Directive is directly applicable in the case at issue. As an element of secondary European law, the directive in principle requires implementation by the Member States. This implementation has been enacted by the Residence Act but remains incomplete with respect to Article 32 of the Qualification Directive. If the implementation deadline (1 October 2006 according to Article 38 (1) of the Qualification Directive) has expired without implementation having been carried out, the non-implemented part of the directive may claim validity in the Member State provided that it is to produce a beneficial effect for the target group in the Member State. Article 32 of the Qualification Directive is to be taken into account in this context even without formal implementation in domestic law. It takes precedence over the contradictory domestic law in terms of application. Therefore, within the scope of application of Article 32 of the Qualification Directive, recourse to the authority of clause 12 (2) (2) of the Residence Act does not apply. Clause 12 (2) (2) of the Residence Act therefore cannot be applied to individuals eligible for subsidiary protection on account of Article 32 of the Qualification Directive. Moreover, the residence requirement is not consistent with Article 28 (1) of the Qualification Directive. According to this provision, the necessary social benefits are to be granted as for nationals of the Member State (as also stated in the Qualification Directive). This rules out the possibility of limiting the free movement of individuals eligible for subsidiary protection on the grounds of social benefits. 

Against this background, it is clear that the prohibition of the limitation of free movement for this category of people cannot be brought about by administrative regulations whose aim is to control the discretionary power of the authorities within the scope of application of clause 12 (2) (2) of the Residence Act and to which the Respondent authority referred in its decision. 

Outcome:

The claim was successful. The limitation of residence appended to the Applicant’s residence permit was removed. 

Subsequent proceedings:

Unknown.

Observations/comments:

Different responses have been provided by jurisprudence to the question as to whether the limitation of residence for individuals benefiting from subsidiary protection and social benefits according to the Qualification Directive is consistent with Article 32 and Article 28 of the Qualification Directive. As is the case of the Administrative Court of Gelsenkirchen, the Administrative Court of Regensburg (decision of 13.12.2012 – RO 9 K 12.1670 -, asyl.net M20445) and the Administrative Court of Meiningen (decision of 20.11.2012 – 2 K 349/12 Me -, asyl.net M20501) also consider that a limitation of this kind is not authorised. By contrast, other Administrative Courts have decided that the Qualification Directive does not contradict the limitation of residence (see VG Hannover, decision of 09.04.2013 – 2 A 4072/12 -, asyl.net M20805 and Administrative Court of Münster, decision of 18.04.2013 – 8 K 295/13 – asyl.net M20755). 

No jurisprudence has been issued to date by appeal courts as far as can be ascertained. The decision of the Bavarian Administrative Court in Munich (decision of 09.05.2011 – 19 B 10.2384 -, asyl.net M20791) is not applicable to this case as the individual eligible for subsidiary protection had received protection according to national law on account of his illness. The application of the Qualification Directive was therefore not relevant in that case.