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Aliens law; information on the Hardship Commission of the State of Bavaria
In individual cases, the Hardship Commission assesses whether the application of the Aliens Act leads to an urgent personal or humanitarian hardship that justifies the foreigner's continued presence in Germany.
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Bayerisches Staatsministerium des Innern, für Sport und Integration
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Odeonsplatz 3
80539 München
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Description
The Hardship Commission can submit a hardship application to the Bavarian State Ministry of the Interior, Sport and Integration if, in its opinion, there are urgent humanitarian or personal reasons.
In accordance with Section 2 of the Hardship Commission Ordinance (HFKomV), the commission consists of nine voting members who work on a voluntary basis and are not entitled to reimbursement of expenses or loss of earnings, and a representative of the State Ministry who, subject to Section 9 HFKomV, is not entitled to vote. The commission has a chairperson who is elected by the members at the suggestion of the Bavarian State Ministry of the Interior, Sport and Integration (Section 2 (3) HFKomV).
Who is represented on the Hardship Commission?
According to § 2 Para. 1 HFKomV, the Hardship Commission consists of the following members:
- one representative each from the Catholic Church and the Evangelical Lutheran Church in Bavaria
- three representatives of the State Working Group of Independent Welfare in Bavaria
- four representatives of the municipal umbrella organizations
- one representative of the State Ministry, who is not entitled to vote, subject to Section 9 HFKomV
The members with voting rights and their deputies are appointed by the State Minister of the Interior, for Sport and Integration on the recommendation of the respective organizations.
How does the procedure work?
The Hardship Commission deals with cases that members of the Commission have brought to the meeting or that have been proposed by the Petitions Committee of the State Parliament. There is no review of previous court or authority decisions.
The commission assesses whether urgent humanitarian or personal reasons justify the foreigner's continued stay in Germany. If the commission affirms the existence of a case of hardship with a majority of two thirds of the members entitled to vote, it submits a hardship application to the Bavarian State Ministry of the Interior, Sport and Integration.
The latter then decides, without being bound by the assessment of the Hardship Commission, whether and, if so, under what conditions the foreigner will be granted a residence permit by the responsible immigration authority.
How does a case come to the Hardship Commission?
The so-called principle of self-referral applies here. According to § 3 Para. 1 HFKomV, the members of the Hardship Commission only deal with cases if
- the Committee for Petitions and Complaints of the Landtag (Petitions Committee) has proposed this
- the Hardship Commission has decided on the proposal of a voting member or
- five voting members of the Hardship Commission have requested this in writing.
The hardship procedure is therefore not an application procedure.
Foreigners or their representatives cannot request that the Hardship Commission deal with a specific individual case or make a specific decision (Section 3 (3) HFKomV, Section 23a (2) sentences 2 and 3 AufenthG). It is therefore not possible to submit applications to the office. If letters are nevertheless received by the office, they will only be made available to the members of the Commission.
The Hardship Commission can only deal with the case if a member of the Hardship Commission takes it up.
How does a meeting of the Hardship Commission work?
The chairperson sets the agenda for the meeting of the Hardship Commission.
During the non-public meeting, the cases submitted by the Petitions Committee or by the members of the Hardship Commission are discussed. Hearings of the foreigner or their lawyer do not take place (Section 7 para. 1 sentence 3 HFKomV). The Hardship Commission decides by a majority of two thirds of the votes of the members entitled to vote (at least 6 out of 9) whether urgent humanitarian or personal reasons justify the foreigner's continued stay in Germany and whether a hardship application should therefore be submitted to the Bavarian State Ministry of the Interior, Sport and Integration (Section 7 (1) and (3) HFKomV).
The members are obliged to maintain confidentiality about all cases dealt with by the Hardship Commission, including voting behavior (§ 8 HFKomV).
What criteria are relevant for a hardship case?
According to Section 23a AufenthG, in deviation from the requirements set out in the Residence Act, a foreigner who is obliged to leave the country can be granted a residence permit if the Hardship Commission has submitted a so-called hardship application.
According to Section 23a para. 2 sentence 4 AufenthG, such a hardship application can only be submitted by the Hardship Commission if it determines that urgent humanitarian or personal reasons justify the foreigner's continued presence in the federal territory.
The regulation should only apply in exceptional cases in which the enforcement of the right of residence would lead to hardship not foreseen by the legislator. The case must stand out positively from cases with a comparable overall situation under residence law in order to justify a hardship application.
In view of the variety of conceivable life circumstances, it is difficult to describe typical case groups, as the law is based on individual hardship. As a rule, the prerequisites are many years of residence, good integration and the ability of the foreigner to support themselves independently. This often involves families with children who were born or grew up here and went to school.
The hardship procedure is not a continuation of an asylum procedure by other means. Therefore, the pending termination of residence after an unsuccessful asylum procedure alone is not sufficient to establish the urgent humanitarian or personal reasons required for a hardship application. Rather, the existing obligation to leave the country is a prerequisite for a hardship case to be examined at all.
The following grounds for exclusion are regulated in Section 5 sentence 2 nos. 1 to 7 HFKomV:
- Obvious abuse of rights
- Failure to comply with the passport requirement
- criminal offense
- Indications that the foreigner could pose a threat to internal security
- lack of concrete prospect of securing a livelihood
- Previous referral to the Hardship Commission
- exclusively reasons relevant to the asylum procedure
What is a hardship application?
If the Hardship Commission decides by a majority of two thirds of the votes of the members entitled to vote that urgent humanitarian or personal reasons justify the foreigner's continued stay in Germany and that a case of hardship therefore exists, a so-called hardship application is submitted to the Bavarian State Ministry of the Interior, for Sport and Integration.
The State Ministry then decides whether the request will be granted. The State Ministry is not bound by the Commission's assessment. If the Ministry of State also affirms the existence of a case of hardship, it will order that a residence permit be issued in accordance with Section 23a (1) sentence 1 AufenthG.
Is there a right to a hardship procedure?
No. A case will only be dealt with by the Commission if members of the Hardship Commission or the Petitions Committee of the Landtag propose this (see above "How does a case come to the Hardship Commission?"). This so-called right of self-referral is an essential feature of the Hardship Commission. The hardship case procedure is not an application procedure (Section 3 (3) HFKomV, Section 23a (2) sentences 2 and 3 AufenthG).
Is there a right of appeal against the decision of the Hardship Commission or the Ministry of State?
No. There is no right for the Hardship Commission to deal with a case, nor is there any right of appeal against the decisions of the Commission or the Bavarian State Ministry of the Interior, for Sport and Integration.
Will the termination of residence be stopped as long as the hardship case procedure is ongoing?
No. A foreigner can therefore not demand that measures to terminate residence be suspended because the Hardship Commission is or will be dealing with their request (§ 4 HFKomV). The hardship procedure has no suspensive effect.
What is the task of the Hardship Commission's office?
In particular, the office prepares the meetings of the Hardship Commission and informs the authorities involved.
The office is located in the Bavarian State Ministry of the Interior, for Sport and Integration.
What is the relationship between the hardship procedure and the petition procedure at the Landtag?
The petition procedure takes precedence. If a case was or is already pending in the Committee for Petitions and Complaints of the State Parliament (Petitions Committee), the Hardship Commission can only deal with it if the Petitions Committee expressly proposes this (Section 3 (2) HFKomV).
The Petitions Committee can always be called upon, even if the Hardship Commission has already dealt with the case.
Further information on the Hardship Commission, its current members and the office can be found on the website of the Bavarian State Ministry of the Interior, for Sport and Integration (see "Further links").
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HärtefallkommissionInformationen des Bayerischen Staatsministeriums des Innern, für Sport und Integration
Status: 20.09.2024
Editorially responsible for prodecure description: Bayerisches Staatsministerium des Innern, für Sport und Integration
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