OMWENYEKE v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mr Sunday E. Omwenyeke, is a Nigerian national who was born in 1965 and lives in Bremen. He was represented before the Court by Ms N. Mole, a lawyer working for the AIRE (Advice on Individual Rights in Europe) Centre in London. On 22 June 1998 the applicant entered Germany and requested asylum. On 12 October 1998 the Federal Office for Refugees rejected his asylum request and declared that there was no prohibition on deporting him because he did not face political persecution in Nigeria. The applicant brought an action in the Hannover Administrative Court seeking to have this decision quashed. On 29 October 1998 the applicant, who had been issued with a provisional residence permit (Aufenthaltsgestattung, see 'Relevant domestic law' below), was directed to reside and remain within the city of Wolfsburg pending the decision on his asylum request. Between 12 November 1998 and 11 January 2000 the Wolfsburg Aliens Office granted the applicant leave to quit the city of Wolfsburg on six occasions in order to attend conferences for refugees and on one occasion to meet a lawyer. In April 2000 the applicant left the city of Wolfsburg in order to help in preparations for and to attend another congress for refugees, despite the fact that the Aliens Office had refused him permission to leave the city. The applicant left Wolfsburg on three further occasions without having requested authorisation to do so. On 6 February 2001 the Wolfsburg District Court discontinued the criminal proceedings instituted against the applicant for repeated disregard of a territorial restriction of residence, since it considered the applicant's offence to be of a minor nature. On 3 May 2001 the applicant was again stopped by the police outside the Wolfsburg city limits; again, he had not requested and obtained the necessary authorisation. On 16 July 2001 the applicant was granted a residence permit (Aufenthaltserlaubnis) following his marriage to a German national and was thus no longer subject to restrictions on his movements. On 9 October 2003 the Bremen District Court convicted the applicant of repeated disregard of a territorial restriction of residence in view of his residence outside Wolfsburg in 2000 and on 3 May 2001, and ordered him to pay a fine of 112.50 euros (EUR). The Bremen District Court conceded that the application of section 56 § 1 of the Asylum Procedure Act (see 'Relevant domestic law' below) led to hardships for asylum seekers in many cases. Nevertheless, contrary to the applicant's view, that provision was compatible with the Basic Law. This had been confirmed by the Federal Constitutional Court, in particular, in its decision dated 10 April 1997. The legislator had restricted the right to free development of one's personality, guaranteed by Article 2 § 1 of the Basic Law in a proportionate manner. The impugned provision was intended to accelerate the treatment of asylum requests by securing the asylum seekers' availability, and to distribute between the Länder and cities the tasks and costs incurred by taking in asylum seekers. There was no milder, equally effective means to secure the achievement of the aims pursued by the provision. In particular, the option of restricting merely longer absences from the assigned district and authorising shorter absences without prior permission could not be controlled in practice and would entail considerable administrative expense. Given that section 57 § 1 of the Asylum Procedure Act (see 'Relevant domestic law' below) allowed for exceptions from the restriction of residence, that restriction was not disproportionate. Likewise, it was not disproportionate to enforce the restriction by means of criminal law (section 85 no. 2 of the Asylum Procedure Act). The District Court further found that the territorial restriction of residence pursuant to section 56 § 1 of the Asylum Procedure Act did not contravene any provisions of public international law. Both Article 26 of the Geneva Convention relating to the Status of Refugees and Article 12 § 1 of the International Covenant on Civil and Political Rights (ICCPR; see 'Relevant domestic and public international law' below) granted freedom of movement only to refugees who were lawfully on the territory of the Contracting State. This was only the case where an asylum seeker was recognised by a final decision as a person being persecuted for political reasons. The applicant had resided lawfully in Germany only since 16 July 2001, when he was granted a residence permit following his marriage to a German national. On 13 February 2004 the Bremen Regional Court dismissed the applicant's appeal. It found that the appeal, which had been lodged in accordance with the formal requirements and time-limit laid down in the Code of Criminal Procedure, was manifestly ill-founded and therefore inadmissible. Endorsing the reasons given by the District Court, the Regional Court confirmed that the applicable provisions of the Asylum Procedure Act complied with the provisions of the Basic Law and of public international law. On 27 May 2004 the Federal Constitutional Court declined to consider the applicant's constitutional complaint (file no. 2 BvR 554/04). The Federal Constitutional Court found that the complaint had no prospects of success. In so far as the applicant considered sections 56 and 85 no. 2 of the Asylum Procedure Act to be unconstitutional, he had not sufficiently substantiated his complaint. He had failed to address the reasons given in the Federal Constitutional Court's decision of 10 April 1997 in which it had found that the impugned provisions complied with the Basic Law. In so far as the applicant contested the application of the impugned provisions to his case, his submissions were inconsistent. He now claimed to have travelled for the benefit of a refugee organisation on 3 May 2001, a fact which he had failed to mention in the proceedings before the criminal courts. The decision was served on the applicant's counsel on 11 June 2004. The Asylum Procedure Act (Asylverfahrensgesetz) lays down the rules which are applicable to foreigners who seek asylum on account of political persecution or who seek protection from deportation to a country where their life or freedom would be at risk. Under section 55 § 1 of the Asylum Procedure Act, a foreigner who requests asylum is permitted to reside on the Federal Territory while the relevant asylum proceedings are pending (provisional residence permit – Aufenthaltsgestattung). He or she is not entitled to reside in a particular Land or place. Section 56 § 1 of the Asylum Procedure Act provides that the provisional residence permit is territorially restricted to the district of the Aliens Office in which the institution responsible for reception of the foreigner is located. Under section 58 § 1 of the Asylum Procedure Act, the Aliens Office may grant a foreigner who is not or is no longer obliged to live in a reception centre authorisation to leave temporarily the district for which his or her provisional residence permit is valid or, generally, to reside in a neighbouring district. Leave must be granted if there is a pressing public interest or compelling grounds to do so, or if a refusal to grant leave would entail an undue hardship. Section 58 § 2 stipulates that leave is to be granted to facilitate appointments with representatives, with the United Nations High Commissioner for Refugees and with organisations providing care for refugees. Under section 58 § 3, a foreigner does not require permission to keep appointments with authorities and courts where his or her appearance in person is necessary. Section 85 no. 2 of the Asylum Procedure Act provides that anyone who repeatedly contravenes a restriction of residence imposed under section 56 § 1 shall be sentenced to a term of imprisonment not exceeding one year, or to a fine. The relevant provision of the United Nations Geneva Convention relating to the Status of Refugees, adopted on 28 July 1951, reads: Article 26. Freedom of movement “Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances.” Article 12 § 1 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966, provides: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”