The court determined the appellant has the right to be granted tolerated stay due to factual impossible deportation, according to § 55 II Act on Foreigners (old version), regardless of his unclear identity.
Act on Foreigners (AuslG) §§ 8 I Nr. 4, 30 III, 39 I, 40, 41 I, 55 I, II, 66 I 1 (old version, current version (07/2020): § 60a II Residence Act (AufenthG));
Act on Passports (PassG) § 6 III 2
According to the appellant, he was born in 1975 and has Bhutanese nationality. He entered Germany as an asylum seeker without identity documents in 1995. The Federal Office for Recognition of Foreign Refugees rejected his application for recognition, denied the legal prerequisites of §§ 51 II, 53 Act on Foreigners (old version) and issued a deportation order to Bhutan. The German embassy in New-Delhi approached the Bhutanese government in order to arrange the deportation, but the Bhutanese government rejected to issue travel documents for the appellant arguing he had Nepalese nationality instead. The appellant was granted temporary toleration for the duration of the legal actions. The extension of the appellant’s toleration was then rejected due to his unverified country of origin.
The appellant solely argued that his deportation was factually impossible. He did not claim legal impossibility to be deported.
According to the appeal ruling, the appellant had a right for temporary toleration because of factual impossible deportation pursuant to § 55 II Alt. 2 Act on Foreigners (old version), but this claim of temporary toleration was not enforceable due to his unclear identity. This finding was overruled by the Federal Administrative Court on the following grounds:
- According to § 55 II Alt. 2 Act on Foreigners (old version), it is irrelevant if the appellant is responsible for the fact that the deportation is not possible due to his unclear identity. In accordance with the wording of the norm, it is only relevant to determine if deportation is impossible, there are no further requirements. The Act on Foreigners (old version) assumes that a foreigner who is obliged to leave the country is being either deported or tolerated. According to § 30 III Act on Foreigners (old version), only the issuance of a residence permit depends on whether the foreigner is responsible for obstacles preventing deportation. The requirements in regard to a residence permit are more strict due to the fact that a residence permit – unlike tolerated stay - eliminates the obligation to leave the country. According to § 8 I No 4 Act on Foreigners (old version), the residence permit is denied in case the foreigners' identity is unclear and he/she has no right to return to another country. The Act on Foreigners (old version) does not contain a similar rule in regard to toleration.
- The claim for toleration is not prevented by unlawful exercise of rights. Issuance of toleration is a formal reaction to an enforcement obstacle prescribed by law regardless of any application by the foreigner.
- § 41 I Act on Foreigners (old version) does not oppose the issuance of toleration in case of unclear identity. According to this provision, the measures required to clarify the identity or nationality of the foreigner are to be taken by the authority in case of doubts about the person or nationality of the foreigner.
- General principles of the passport law are not applicable to this case even though § 41 I Act on Foreigners (old version) is equivalent to § 6 III 2 Act on Passports in regard to identification measures. However, the issuance of toleration is not equivalent to the issuance of identity documents. A toleration as such is not corresponding to any identification statements.
- The immigration authority has to assess if deportation is possible as well as a feasible timeframe. If a foreigner cannot be deported due to unclear identity the authority has to evaluate when the obstacle will be overcome. If deportation is not possible without delay toleration has to be issued. The issuance of toleration is not opposed by not yet competed or failed identification measures.
The appeal was successful. The Federal Administrative Court overruled the prior decision taken by the Court of Appeal.
BVerwGE 105, 232 = NVwZ 1998, 297