The case concerns an Iranian applicant who was convicted of a particularly serious crime, and his refugee status was revoked by a decision of the Federal Office for Migration and Refugees (BAMF) of 25 July 2018, but the BAMF noted that there was a ban on deportation based on Section 60 (5) of the Residence Act jointly with Article 3 of the ECHR because of continuous persecution of supports of PDKI in Iran. On appeal, the Tübingen Regional Administrative Council (Regierungspräsidium) ordered by decision of 12 December 2019 the expulsion of the applicant from Germany, a threat of deportation and a 8 years entry ban. The applicant submitted an onward appeal and the Higher Administrative Court of Baden-Württemberg considered the appeal as partially admissible regarding the expulsion but rejected as unfounded with respect to the threat of deportation and the eight-year entry and residence ban.

The Higher Administrative Court stated that a third-country national for whom the BAMF has determined that deportation is prohibited under Section 60 (5) of the Residence Act in conjunction with Article 3 of the ECHR may be expelled on general preventive grounds pursuant to Section 53 (1) of the Residence Act, precisely when the continuous stay of a foreigner who has committed a criminal offense can pose a danger to public safety. The unlawfulness of the threat of deportation and the entry and residence ban had no influence on the lawfulness of the expulsion. However, the court considered that the threat of deportation issued by the Tübingen Regional Administrative Council (Regierungspräsidium) as well as the eight-year ban on entry and residence ordered were unlawful and violated the applicant’s rights, as the threat of deportation fails to serve its purpose if it is clear from the outset that enforcement of the obligation to leave the country is impossible for an unforeseeable period of time.

Furthermore, the court argued that the threat of deportation, which constitutes a return decision within the meaning of Directive 2008/115/EC (Return Directive), violates Article 5 of the Directive if it names as a country of destination a state for which a ban on deportation exists pursuant to the principle of non-refoulement. The Higher Administrative Court referred to the CJEU clarifications in the the judgment  X v Staatssecretaris van Justitie en Veiligheid, C-69/21, ECLI:EU:C:2022:913, 22 November 2022 and also the judgment TQ v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid), C-441/19, ECLI:EU:C:2021:9, 14 January 2021 to state that according to Article 5 of the Return Directive Member States are obliged to examine all the reasons mentioned there at all stages of the procedure and not only after the return decision has been issued.