The case concerned an Iraqi national of Arab ethnicity who applied for asylum in Germany. He was issued a national deportation ban by the BAMF with decision of 26 July 2000, which was revoked on 10 May 2007. The applicant’s appeal against the decision of revocation before the Regional Administrative Court of Augsburg was unsuccessful. The onward appeal before the Bavarian Higher Administrative Court was dismissed by decision of 19 July 2018 and the appeal against the non-admission of the revision was rejected by decision of the Federal Administrative Court on 5 November 2018. On 25 November 2020, the Bavarian State Office for Asylum and Returns imposed an entry and residence ban limited to a period of 20 years. The appeal against this ban before the Augsburg Administrative Court was dismissed by judgement of 16 November 2021.

On 25 August 2023, the applicant submitted a subsequent application for asylum and argued that he had been in Germany for 23 years, he was married and had three minor children. On 4 September 2023, the BAMF rejected the subsequent application as manifestly unfounded in accordance with Section 30 of the Asylum Act and ordered the deportation of the applicant. On 13 September 2023, the applicant appealed against the decision and lodged an urgent application to order suspensive effect before the Regional Administrative Court of Augsburg. He argued that his participation in an assassination attempt on the former Iraqi president 20 years ago may give rise to a well-founded fear of persecution upon return to Iraq. Given the facts of the case, a closer examination of the application by the BAMF was required.

The Regional Administrative Court of Augsburg found that there were serious doubts on the legality of the rejection as manifestly unfounded pursuant to Section 30 of the Asylum Act because it could not be precluded that the Iraqi state's interest in persecution could still exist even after a period of 20 years. The Regional Administrative Court of Augsburg further argued that as the threat of deportation constituted a return decision within the meaning of the Return Directive, the best interests of the child and family ties had to be sufficiently considered pursuant to Article 5(a) and (b) of the Return Directive. The court referred to CJEU Federal Republic of Germany v G.S., C-484/22, ECLI:EU:C:2023:122, 15 February 2023 and held that Article 5(a) of the Return Directive could not be interpreted narrowly, because it was intended to guarantee the fundamental rights of a child pursuant to Article 24 of the EU Charter. As a result, the Regional Administrative Court of Augsburg found that the best interests of the child cannot only be taken into account in cases in which the deportation threat was directed against the child itself, but also in cases in which the deportation threat is directed against a parent to which the child had a personal relationship.

As in the present case a personal relationship between the applicant and his three minor children could be assumed, there were significant concerns under EU law on the legality of the threat of deportation. Based on the above, the Administrative Court of Augsburg decided that there were serious doubts as to the legality of the threat of deportation and concluded that the order of suspensive effect was therefore justified.