Fighting Illegal Deportation of an EU Citizen and Correctly Implementing Administrative Discretion

What to do with a rampant Italian when he has been prosecuted twice for battery and offenses against property? The competent foreigners' office did not want him to remain but BVerwG had the final say on March 20, 2008 (re 1 C 33.07).

The plaintiff Italo, born 1942, was married in 1958, is a proud father of eight, now adult, children. He entered Germany first without his family. During his sojourn he became conspicuous mainly due to battery and crimes like bribery and theft. In October 1982, he was sentenced attempted battery with the endangerment of vital organs (schwere Körperverletzung). He was sentenced to four years in prison. After doing 2/3 of his time, he was released on probation. In 1991, he was again sentenced to three months imprisonment for similar reasons. Later in 1998, he was again sentenced for a similar crime to 10 months. After serving 2/3, he was again released on probation.

After deportation, illegal entry, again deportation, and re-entry Italo applied to have his deportation withdrawn. The Landratsamt Stuttgart refused and so Italo sought legal recourse against Stuttgart in court. Stuttgart argued because of Italo's frequent and severe offences in violent crimes, special preventive measures demand his deportation. §6 FrzG-EU has been considered.

Italo wants to remain in Germany and have the deportation order withdrawn. He argues that his deportation is illegal following §48 VwVfG - BW because European law has been infringed. The obligation to withdraw arises from art. 8 ECHR. Pursuant to ruling case law of the European Court of Justice, the authorities are obliged upon ordering deportation to simultaneously check its duration. Further, when the pro and contra interests of deportation, the withdrawal of the deportation can be reasonable because a pensioner, like Italo, will only have a right to remain when the deportation is withdrawn.

The Federal Administrative Court dismissed the case. The court denied that Italo has a claim to have the deportation withdrawn. He only has the enforceable right that the office correctly implements its decision. Alone the illegality of an administrative act does not constitute a claim for withdrawal. In this case, there were no reasons to show that the office abused its discretion.

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