Summary of the legal situation of Mister Gaston Ebua
and of the state of his process concerning his restriction of residence (“Wohnsitzauflage”) to the city of Darmstadt, 16th of July 2007
- At this moment there are proceedings against the refusal of Mister Ebua’s request to extend his right of residence, as well as a request for temporary legal protection in the same case and a proceeding (“Untätigkeitsklage”) concerning the protest against the restriction of residence enacted by the department of aliens.
At the same time, Mister Ebua has addressed the UNHCR in Berlin. Since Mister Ebua has been recognized as a refugee, the UNHCR is responsible for him. The UNHCR has contacted the alien department, yet there has not been an answer until now.
https://thevoiceforum.org/node/565
UNHCR: Free choice of residence for refugees
Published on: Friday, 10th of August 2007
The UN Refugee Agency (UNHCR) criticizes the fact that German authorities do not allow recognized citizens and people who are not being deported for humanitarian reasons (so called “subsidiär schutzberechtigte Personen”) a free choice of their place of residence as long as they are granted public welfare. This practice, the UNHCR stated, “contradicts international and European law”.
In its statement today the UN organization stresses that these conditions imposed on refugees contravene the Geneva Convention Relating to the Status of Refugees (GCR) as well as other human rights conventions like the European Convention of Human Rights (ECHR) and the laws of the EU. These laws grant refugees a freedom of movement. According to the Geneva Refugee Convention this freedom of movement could only be restricted if the same rule would apply to all foreigners in Germany who have a similar status which is not the case now. Furthermore, according to the ECHR such restrictions are only admissible under specific conditions e.g. to protect public order, to fight crime or for reasons of health protection.
The background of this statement is a practice that is common in many German provinces: Recognized refugees and people protected from being deported are only being allowed to take residence in the province, region or administrative district in which they received their residence permit. Sometimes this right is even restricted to a specific municipality.
To justify this practice, authorities explain that they are trying to hinder an uncontrolled migration of foreign welfare recipients which would cause shifting costs in the provinces and municipalities.
The new UNHCR-expertise states that this is not a reason that justifies to apply the exceptional rules according to the ECHR. According to the European Court of Human Rights, freedom of movement can only be restricted on the base of so called “urgent social needs”. Furthermore these measures must be under restriction of commensurability.
According to the UNHCR, this means to consider how strongly the restriction of residence intervenes into the lives of people concerned with these measures. Only in exceptional cases a lifelong restriction of residence is acceptable. Furthermore, the smaller the area to which the right of residence is being restricted, the stronger the intervention into people’s freedom. It has consequences on the chance to get a job as well as on family and social aspects e.g. if people who are sick or traumatized are not being allowed to live close to family members or fellow countrymen.
Furthermore, the UNHCR doubts that these restrictions actually hinder the shifting of costs at least in a relevant degree since the local responsibility of welfare partly depends on the actual residence of the person granted welfare. Furthermore, these costs are being mainly paid by the state not by provinces or municipalities as a consequence of the Hartz IV reform.
Finally it should be considered that the so called “Finanzausgleich” between the provinces as well as the “Bund-Länder-Ausgleich” between the state and its provinces serve to compensate the remaining costs for the municipalities. As a consequence, the UNHCR statement resumes, the restrictions of the freedom of movement and its purpose are out of proportion.
Deutsch:
-UNHCR: Freie Wahl des Wohnsitzes für Flüchtlinge
Veröffentlicht am: Freitag, 10. August 2007
-Interview mit Gaston Ebua zur Wohnsitzauflage
Radio Dreyeckland, Freiburg 102,3 MHz 17.07.2007
Zusammenfassung des aufenthaltsrechtlichen Situation von Herrn Gaston Ebua und dem Stand des Verfahrens bezüglich seine Wohnsitzauflage für die Stadt Darmstadt, 16.07.2007
„Zugleich hat sich Herr Ebua an den UNHCR in Berlin gewandt. Alt anerkannter Flüchtling ist der UNHCR für Herrn Ebua zuständig. Der UNHCR hat sich in der Angelegenheit von Herrn Ebua an die Ausländerbehörde gewandt, eine Antwort ist noch eingetroffen.“ ..... Antonia v.d. Behrens Rechtsanwältin, Berlin https://thevoiceforum.org/node/554
UNHCR: Freie Wahl des Wohnsitzes für Flüchtlinge
Veröffentlicht am: Freitag, 10. August 2007
Das UN-Flüchtlingskommissariat (UNHCR) kritisiert die Praxis deutscher Behörden, anerkannten Flüchtlingen und Personen, die aus menschen-rechtlichen Gründen vor Abschiebung geschützt werden (sog. subsidiär schutzberechtigte Personen), keine freie Wahl des Wohnsitzes zu ermöglichen, wenn sie öffentliche Sozialleistungen beziehen. Diese Maßnahme sei "unvereinbar mit dem Völker- und Europarecht". http://www.thevoiceforum.org/node/553
http://www.unhcr.de/aktuell/einzelansicht/article/31/unhcr-fordert-freie-wahl-des-wohnsitzes-fuer-fluechtlinge.html
Interview mit Gaston Ebua zur Wohnsitzauflage
Radio Dreyeckland, Freiburg 102,3 MHz 17.07.2007
Interview mit Gaston Ebua, der in Berlin lebt und eine Wohnsitzauflage für Darmstadt hat. Die Berliner Ausländerbehörde weigert sich seit Jahren, ein Gerichtsurteil aus Darmstadt anzuerkennen, das ihm erlaubt, in Berlin zu wohnen. Mittlerweile haben seine Papiere die Gültigkeit verloren... Gaston Ebua, anerkannter Flüchtling aus Kamerun spricht über seine Situation und die Forderungen der Gruppe The VOICE Africa and Refugee Forum.
RADIO Radio Dreyeckland, Freiburg http://www.freie-radios.net/portal/content.php?id=18084
RADIO Radio Dreyeckland, Freiburg
Information in English and Deutsch:
+ On Gaston court process and protest
English:
-German state and the Border Police monitor and control Gaston Ebua’s movement
http://www.thevoiceforum.org/gaston-border
-Gaston's Legal Battle from London against German Authorities on Residential Restriction on UN Travel Document: http://www.thevoiceforum.org/gaston-damlon
German: - Gaston’s Rechtstreit.. / Gaston vs City of Darmstadt
http://www.thevoiceforum.org/gaston-Rechtstreit
Police Brutalilty and Racist Controls
Court acquits Gaston Ebua in Potsdam.
Dubious court process against Gaston Ebua in Potsdam 16.01.2007 https://thevoiceforum.org/gaston-potsdam18.01.2007
Freispruch für Gaston
Fragwürdiger Prozeß am Amtsgericht Potsdam gegen Gaston Ebua am 16.01.2007 https://thevoiceforum.org/gaston_potsdamn2007
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Summary of the legal situation of Mister Gaston Ebua and of the state of his process concerning his restriction of residence (“Wohnsitzauflage”) to the city of Darmstadt, 16th of July 2007
In 2000, the „Bundesamt für die Anerkennung ausländischer Flüchtlinge“ has recognized Mister Ebua as a refugee according to § 51 Abs. 1 AuslG. He was at first given the right of residence restricted to Jena; this restriction of residence was cancelled later.
Mister Ebua then moved to Darmstadt. When his right of residence was extended on the 14th of August 2002, his residence was restricted to Darmstadt because Mister Ebua received welfare aid.
Mister Ebua protested against this restriction of residence. When this did not have any consequences he instituted proceedings. Since the restriction of residence was not ordered to be immediately proceeded, this action had a dilatory effect. For this reason, Mister Ebua moved to Berlin in 2003 where he applied for welfare aid which was granted. During this stay in Berlin and during these proceedings, his right of residence expired and was extended for two years by the aliens department in Berlin on the 12th of August 2004. The files document that this was not administrative assistance for the city of Darmstadt, the aliens department of Berlin decided due to its own responsibility.
When extending Mister Ebua’s right of residence, the aliens department of Berlin once again restricted his right of residence to the city of Darmstadt; Mister Ebua protested against this new restriction of residence dating from the 12th of August 2004. There has not been any decision concerning this protest yet. For this reason Mister Ebua instituted proceedings (“Untätigkeitsklage”) at the administration court in Berlin.
Some time later the aliens department of Berlin gave Mister Ebua the permission to leave the federal territory of Germany for more than six months to do studies in London.
Although the aliens department of Berlin had extended Mister Ebua’s right of residence, this extension was not registered in the AZR (“Ausländerzentralregister”) – regardless of a number of requests. As a consequence, Mister Ebua was arrested twice at the airport Berlin Schönefeld (on May 31st 2005 and on October 10th 2005) because the extension of his right of residence was not listed in the AZR. After a number of formal complaints, the extension was registered in the AZR as late as spring 2006.
During Mister Ebua’s stay in London the oral hearings of his proceedings in Darmstadt concerning the legality of the restriction of residence enacted by the city of Darmstadt took place. As in letters before, the judge stated that in his understanding these proceedings were no longer necessary since Berlin had extended Mister Ebua’s right of residence in its own responsibility and had granted him welfare aid so that it now was responsible. The restriction of residence enacted by the aliens department of Berlin, he stated, probably was unlawful, in any case it could not be part of the proceedings concerning the prior restriction of residence.
Thus, during the hearing on March 1st 2005 Mister Ebua and the aliens department of Darmstadt both declared the proceedings to be finished and Mister Ebua changed his action into a “Fortsetzungsfeststellklage”.
In its decision on March 15th 2005, the administration court in Darmstadt stated that the proceedings concerning the restriction of residence were finished so that the “Fortsetzungsfeststellklage” was admissible but causeless since the restriction of residence had been lawful.
Mister Ebua appealed against this judgement at the VGH Kassel, but this appeal was rejected on August 17th 2006. As a consequence of this, the decision made by the administration court in Darmstadt was declared lawful. Mister Ebua then made a constitutional complaint against the decision made by the VGH Kassel. There has not been any decision about this complaint yet.
During the proceedings concerning Mister Ebua’s appeal the aliens department of Darmstadt still claimed that the earlier restriction of residence was no longer effective, and that it was Berlin that was responsible. The aliens department in Berlin did not make any precise statement about this responsibility. In proceedings concerning the question of responsibility opened by Mister Ebua on March 9th 2006, the aliens department of Berlin took up the position that the aliens department of Darmstadt was responsible for Mister Ebua. The aliens department of Berlin argued that it was lawful for Mister Ebua to move to Berlin during the dilatory effect of his proceedings against the restriction of residence but that now that these proceedings were effectively finished Darmstadt was once again responsible since the restriction of residence was not void. The restriction of residence was effective, it argued, as long as it was not explicitly voided due to § 44 Abs. 66 AuslG. (or respective rules in the AufenthG). Since the restriction of residence was not void the declaration of the proceedings being finished (“Erledigterklärung”) was a “mistake” which did not have any effect on the fact that the restriction of residence was still effective for Mister Ebua. The city of Darmstadt decided to share this view on June 14th 2006 although it held the opposite view as well during the proceedings at the administration court in Darmstadt as at the VGH Kassel.
Before the end of his right of residence in August 2006, Mister Ebua requested an extension of his right of residence at the aliens department of Berlin. The aliens department declared that it would not extend his right of residence since it was not responsible. Thus, Mister Ebua demanded temporary legal protection at the administration court in Berlin for a “Fiktionsbescheinigung” as well as the extension of his right of residence since he wanted to continue his studies in London and hat to apply again at the university until September. The earlier restriction of residence enacted by the city of Darmstadt was void, he argued, so that consequently there could be no responsibility on the side of the city of Darmstadt. So the responsibility would be in Berlin, where Mister Ebua permanently resided. In any case, the restriction of residence was explicitly or consequently void by a representative of the aliens department of Darmstadt so that it was unlawful that the aliens department of Darmstadt at first called the proceedings finished and then changed its opinion one year later to claim the opposite. Finally, Mister Ebua argued that even if the earlier restriction of residence was still effective for him the department of aliens in Berlin was still responsible for his case since it hat permanently granted him welfare aid since 2003 and because he had centred his life and work in Berlin. It was not reasonable, he argued, to make him give up this centre; his factual attachment to Berlin was stronger than the attachment to Darmstadt as set by the restriction of residence.
Finally, Mister Ebua tried to reach a settlement with the aliens department of Berlin offering that he would try to have his friends support him so that he would no longer depend on welfare aid so that the argument brought up by the aliens department of Berlin that his depending on welfare would be an obstacle in voiding the restriction of residence was invalidated. Nevertheless this proposition was refused by the aliens department which thus demonstrated that it was not only concerned about Mister Ebua’s welfare aid.
There was no decision about Mister Ebua’s temporary legal protection before the date when he had to personally reapply at the university in London. After that, the administrative court more or less overtly proposed that the aliens department should reject an extension of Mister Ebua’s right of residence so that the “Fiktionswirkung” of his request would also be void. Mister Ebua then demanded to recuse the judge which was rejected. As proposed by the administration court, the aliens department of Berlin rejected Mister Ebua’s request claiming not to be responsible. As a consequence, its “Fiktionswirkung” was void. At the same time the aliens department pointed out to Mister Ebua that it was illegal for him to stay in federal territory without the right of residence (“Aufenthaltstitel”). Mister Ebua argued that this was only illegal if he was explicitly obliged to leave which he was not because of his being recognized as a refugee. There was no answer to this legal protest.
Mister Ebua then instituted proceedings against the fact that the extension of his right of residence had been rejected.
The request of temporary legal protection was rejected for formal reasons. Mister Ebua was only granted a “Fiktionsbescheinigung” for the time the aliens department had not yet decided about his request to extend his right of residence. There was a new request for temporary legal protection but the administration court has not yet decided about it.
Parallel to the proceedings in Berlin, Mister Ebua opened a “Feststellungsklage” at the administration court in Darmstadt and requested temporary legal protection to assert that the city of Darmstadt was not responsible for Mister Ebua. As at the administration court in Berlin, he argued that the restriction of residence was void and that in any case it had been explicitly or consequently void by the aliens department of Darmstadt. Furthermore, Mister Ebua explained that he was in need of legal protection since the city of Darmstadt had explicitly demanded that he should move to Darmstadt again. Temporary legal protection was refused because of an alleged lack of necessity of legal protection (“Rechtsschutzbedürfnis”); a complaint at the VGH Kassel did not stop this refusal.
Since 2003 Mister Ebua has constantly been granted welfare aid or ALG II in Berlin. Berlin has been listed as the responsible administration in the AZR since 2006, and this entry has not been changed until now.
At this moment there are proceedings against the refusal of Mister Ebua’s request to extend his right of residence, as well as a request for temporary legal protection in the same case and a proceeding (“Untätigkeitsklage”) concerning the protest against the restriction of residence enacted by the department of aliens.
At the same time, Mister Ebua has addressed the UNHCR in Berlin. Since Mister Ebua has been recognized as a refugee, the UNHCR is responsible for him. The UNHCR has contacted the alien department, yet there has not been an answer until now.
Antonia v.d. Behrens
Lawyer
Karl-Marx-Straße 30
12043 Berlin
Tel: 030/62987720
Fax: 030/62987725
www.behrens-boehlo.de
buero@behrens-boehlo.de