Case on the re-admission of an Iranian Ex-Mojahedin

On 18 February 2008, the 7th chamber of the Frankfurt Administrative Court ordered the Border Police Division at Frankfurt airport to grant entry to the Federal Republic of Germany.

Reasoning:

According to the court, there are serious reasons to believe that the refusal of the border police to grant the applicant access to the territory of the German Federal Republic is unlawful. The measure had been based on Section 15 (1) Residence Act in connection with Art. 13 (1) of the Schengen Borders Code, and Section 14 (1) Residence Act [which provides for the rejection of foreigners trying to enter Germany without a valid travel document and/or a valid residence title].

In this respect, the court admitted that the request for entry of the applicant was indeed not allowed under the a/m provisions since the German CTD and the residence permit presented by the applicant had expired and thus, the applicant had not been in possession of the required valid travel document. However, the court held that the refusal to grant the applicant entry to Germany must not be enforced, because such a rejection would violate Section 15 (4) 1 Residence Act (rejection at the border). According to this provision, Section 60 (1) Residence Act which basically implements the non-refoulement principle in German national law must be taken into account if a decision on rejection at the border is taken.

In this respect, the court argues that there are a number of arguments supporting the assumption that the applicant continues to be protected by the non-refoulement principle, preventing his rejection.

On the one hand, the court argues that there are serious doubts with regard to the question whether the applicant has indeed lost his asylum status by the decision of the Federal Office of 24 January 2005, since the applicant had not been granted the right to be heard and the decision was not properly delivered to the applicant. In this respect, it should be noted that German administrative procedures law allows to derive from a personal hearing and to deliver the decision by public announcement if the location of stay/residence of the applicant is unknown to the German authorities. This, however, was not the case here, since the German authorities knew where the IC was at the time of the revocation procedure. In addition, Section 10 (2) of the German Asylum Procedures Act also allows for a submission of the decision by public announcement, if otherwise the decision would have to be delivered outside Germany. This, however, requires that the applicant had been previously warned about this possibility, which would also not be the case here. In this respect, the AC Frankfurt held in particular that the respective instructions given to the applicant in his initial asylum procedure in 1999 would not continue to be valid in a subsequent (separate) procedure. Against this background, the court held that the Federal Office was obliged at least to try to reach the applicant in the Ashraf camp before deciding upon the revocation of his asylum status.

On the other hand, the court also argued that even if the revocation of status had been (formally) lawful, the applicant must not be rejected at the border, since he cannot be returned to either Iraq or Iran. With respect to Iran, the court held with reference to our statement that the applicant would face a significant risk of renewed persecution when returned to his country of origin, due to his former affiliation with the PMOI and his persisting oppositional views. Also with respect to Iraq, the court held that the applicant would not be able to avail himself of any protection or to maintain a livelihood; and thus, he would be at risk of (renewed) detention also in Iraq. Finally, the court concludes that with respect to available information on the case nothing would support the exclusion of the applicant in accordance with Section 3 (2) Asylum Procedures Act (transforming basically the exclusion grounds laid down in Art. 1 F 1951 CSR into German national law). The court in this respect is convinced that the applicant has genuinely and durably renounced violence and there is no reason to believe that the applicant would not have tried to dissociate from the PMOI already in 1999, as stated during his hearing at the Frankfurt airport on 31 January 2008, but due to fear of extended detention by the PMOI in Ashraf managed only to leave the Ashraf camp after the US-led invasion in Iraq in 2004.

The decision is final.