DELJIJAJ v. GERMANY
Inadmissible
Antonio Pastor Ridruejo
The applicant is a citizen of the Federal Republic of Yugoslavia, belonging to the Muslim Kosovo-Albanian community. She was born in 1976 in Rezalle and is living in Regensburg. She is represented before the Court by Mr Franz Auer, a lawyer practising in Regensburg. The respondent Government were represented by their Agents, Mrs H. Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice, at the initial stage of the proceedings, and subsequently by Mr K. Stoltenberg, Ministerialdirigent, also of the Federal Ministry of Justice. On 20 November 1994 the applicant left her country in the company of her mother and her five brothers and sisters, born in 1974, 1979, 1981, 1982 and 1984, respectively. They arrived in the Federal Republic of Germany on 25 November 1994 and applied for political asylum. When interviewed on 30 November 1994 before the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), the applicant stated that, although she had encountered no particular problems with the police or other public authorities, she had left her country with her mother with a view to joining her father who on 17 June 1993 was granted political refugee status in Germany. She did not wish to be left on her own in Yugoslavia. On 12 April 1995 the Federal Office for Refugees granted the applicant's mother and her four minor brothers and sisters asylum. Her sister of full age was granted a residence permit on account of her marriage in Germany. In a separate decision of the same date, the Federal Office for Refugees refused the applicant's request for asylum and requested her to leave the Federal Republic of Germany within a month's time. The Federal Office found that the applicant had not established a real risk of persecution, if she were to return to her country. The Federal Office added that it could not consider humanitarian or personal grounds or questions arising in connection with Article 6 of the Basic Law (Grundgesetz) protecting marriage and family life, the exclusive competence in dealing with these matters being with the authorities in charge of matters concerning aliens (Ausländerbehörde). On 25 April 1995 the applicant lodged an appeal against this decision. She submitted that her father had been granted the status of political refugee. It would be unsafe for her to return to Yugoslavia having regard to the established political persecution of her father. She had left her country because as a member of the Albanian community in Kosovo she was subjected to group persecution. Moreover, her expulsion would be in breach of her right to respect for her family life as guaranteed by Article 8 of the Convention. On 12 January 1996 the Regensburg Administrative Court (Bayerisches Verwaltungsgericht Regensburg) dismissed the appeal. The Administrative Court found that the Kosovo Albanians were not a persecuted group and that the applicant had not established a real and substantial fear of persecution in Yugoslavia. Furthermore, a decision rejecting the application for asylum would not, in the court's view, violate Article 8 of the Convention. Under the relevant rules of the Aliens Act (Ausländergesetz), the applicant could not be granted family asylum since, at the time of introducing her request for asylum, the applicant was more than 18 years old and therefore did not qualify for admission as a dependent child. It was not contrary to the concept of the protection of family life to refuse children, who had reached the age of majority, the right to stay with their relatives in Germany, unless specific circumstances justified an exception to the 18-year age limit. According to the Administrative Court, the applicant had not established the existence of any such circumstances and in particular had not shown that she was in any way dependent on her family in Germany. The Administrative Court noted also that the applicant's uncle lived in Kosovo and that she seemed to be on good terms with him. The applicant's understandable wish to stay with her family in Germany did not constitute a legal obstacle to her intended expulsion. Finally, the Administrative Court pointed out that the administrative authorities in charge of matters concerning aliens could suspend the intended expulsion for humanitarian or personal reasons and issue the applicant a provisional residence permit (Duldung). By a judgment of 18 November 1996 the Bavarian Court of Appeal (Bayerischer Verwaltungsgerichtshof) refused to grant the applicant leave to appeal and dismissed her request for legal aid on the ground that her appeal had no sufficient prospects of success. In June 1998 the applicant thereupon applied with the Regensburg District Authority (Landratsamt) for a decision that the intended expulsion be prohibited under Section 53(4) of the Aliens Act, taken together with Article 8 of the Convention. In ensuing correspondence with the applicant’s representative, the District Authority, in a letter dated 3 September 1998, stated that the applicant had meanwhile been granted a provisional residence permit on account of the critical situation in Kosovo. Having regard to the applicant’s petition with the European Commission of Human Rights, no decision would be taken as long as these proceedings were pending. Since 23 February 2000 the applicant’s provisional residence permit has not been prolonged. She has been ordered to leave the territory of the Federal Republic of Germany and she has been issued travel documents. The time-limit for leaving Germany voluntarily has been regularly prolonged. On 1 July 2000 the applicant’s son A. was born out of wedlock. The child’s natural father is the applicant’s fiancé, who had been granted the status of a recognised refugee and, according to the applicant, does not possess the papers necessary for their marriage. Persons entitled to asylum (Article 16a(1) of the Basic Law) enjoy legal status pursuant to the Geneva Convention on Refugees and are issued with an unlimited residence permit (section 68 of the Asylum Procedure Act). Section 51 of the Aliens Act prohibits the deportation of aliens to a State where they would face political persecution. Aliens granted protection against deportation under this provision enjoy legal status under the Geneva Convention but are merely issued with limited residence for exceptional purposes. If an asylum claim for protection against political persecution does not meet the necessary requirements under Article 16a(1) of the Basic Law or section 51(1) of the Aliens Act, the Federal Office is obliged to examine whether an applicant faces a serious risk of treatment contrary to Article 3 of the Convention if he were returned. Section 53(4) of the Aliens Act prohibits expulsion in such circumstances. If the preconditions for the application of section 53(4) are not met, protection may be granted under section 53(6) of the Aliens Act, which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life, personal integrity or liberty of an alien. Persons afforded protection under this provision are granted temporary permission to remain for periods of three months, renewable by the authorities. The administrative authorities in charge of matters concerning aliens have to examine under Section 55 whether an expulsion has to be suspended for legal or factual reasons or for humanitarian or personal reasons.