Sick, but not sick enough? The bridge to § 60 (5) AufenthG

An illness need not be life-threatening to prevent a deportation. It is enough that it leaves the person unable to secure a minimum subsistence in the country of origin. In a series of Venezuelan cases over the past years, the Saxon administrative courts have developed a distinctive line that addresses precisely this constellation. Those who do not know it lose cases that should be won.

1. The problem

In daily practice we encounter two clusters of cases. In the first, the illness is severe and acute. Here, where medical certificates are reliable and treatment in the destination country is not assured, the Federal Office issues a prohibition of removal under § 60 (7) sentence 1 of the Residence Act. In the second cluster the illness is less dramatic, but chronic: controlled by medication or therapy, manageable day-to-day in Germany, yet limiting enough to exclude heavy physical work permanently. In this second cluster the Federal Office routinely rejects. The reason: § 60 (7) sentence 3 of the Residence Act, since the Asylum Package II, requires a life-threatening or serious illness that would worsen substantially as a result of deportation. Those who are chronically ill but stable fall through the grid.

It is precisely here that the protection gap arises with which we work almost daily. The clients are too ill to perform physically demanding informal sector work in Venezuela. But they are not ill enough for § 60 (7). To resign at this point is to lose the case. To frame the case under a different provision is to win it.

2. The bridge: § 60 (5) AufenthG in conjunction with Article 3 ECHR

The legal answer lies in § 60 (5) of the Residence Act. The provision forbids a deportation where the European Convention on Human Rights renders the measure impermissible. The decisive article is Article 3 ECHR – the prohibition of inhuman or degrading treatment. Settled case law of the European Court of Human Rights and the Federal Administrative Court extends this prohibition to poor humanitarian conditions in the destination state where the person cannot secure a livelihood, find shelter or obtain basic medical care.

The decisive lever: § 60 (5) does not ask whether the illness will deteriorate. It asks whether the person, in their current state of health, can on return perform work sufficient to secure subsistence. This is not the prognostic test of § 60 (7). It is a status test. Anyone who is chronically ill, limited in their capacity to work and lacks a viable family network in the country of origin faces destitution. Destitution constitutes treatment within the meaning of Article 3 ECHR. The deportation is then unlawful.

3. What the Saxon administrative courts have made of this bridge

The Saxon administrative courts have built a systematic line from this bridge. The starting point is a baseline assumption: a healthy person capable of working can, despite the well-known economic crisis, secure a minimum livelihood in Venezuela – with difficulty. The corollary: once the premise of work capacity collapses, the positive subsistence forecast collapses with it.

The courts then examine whether the person concerned exhibits several risk-increasing features which, taken together, exclude self-sufficiency. These features include the illness-driven limitation of work capacity, ongoing medication costs exceeding available income, support obligations for children, the absence of a sustainable family network, and individual factors such as age, psychological fragility or the lack of professional qualification. What matters is not any single feature but the overall assessment.

In several proceedings over the past years, Saxon administrative courts have issued prohibitions of removal under § 60 (5) AufenthG on this basis – including in cases in which § 60 (7) AufenthG was expressly denied. The constellations ranged from chronic physical illnesses with reduced work capacity, through stable psychiatric conditions below the threshold of suicidality, to family situations with minor children and no viable home network. The case law exists. It is simply not used with sufficient resolve.

4. § 60a (2c) AufenthG does not apply here

Anyone who has run a § 60 (7) AufenthG case knows § 60a (2c) AufenthG. That provision demands a qualified medical certificate with diagnosis, ICD-10 classification, severity, therapy, medication and prognostic consequences. Failing those requirements means failing in court.

For § 60 (5) AufenthG, this does not apply. That is the second central claim of this article. § 60 (7) sentence 2 expressly refers to § 60a (2c). § 60 (5) does not. A direct application fails on the wording of the provision; an analogous application is foreclosed because the destitution case law was known to the legislator when § 60a (2c) was enacted and no cross-reference was nevertheless inserted.

In practice, this means: § 60 (5) AufenthG proceedings are governed by the general rules of administrative procedure. The duty of inquiry and the free evaluation of evidence. The court is not bound to a formalised qualified medical certificate. It may rely on a range of other forms of evidence. The standard is not lower – but it is different. And it opens up space that § 60 (7) does not.

5. What this means for your case

Anyone with a chronic illness that is controlled in Germany by medication or therapy should, before a deportation, have two questions clarified. First: what would be the consequences of suspending or substituting medication on return to the country of origin? Second, and the decisive one here: how does the illness affect work capacity? If the illness excludes heavy physical work and only such work is in fact available in the destination state, the bridge is built.

Whether it will carry weight in the individual case depends on a carefully prepared file. Which pieces of evidence are decisive, in what order they have to be introduced, and how the economic dimension of the illness is reflected in the brief – that is mandate work, not a do-it-yourself blueprint.

6. Conclusion

The gap between § 60 (7) and a humane asylum practice is real. It can also be bridged – but only if one knows the bridge. The Saxon administrative courts have shown that a systematically argued § 60 (5) case can succeed where § 60 (7) fails.

If you or someone you know has received an unfavourable Federal Office decision and suffers from a chronic illness that does not reach the threshold of § 60 (7): have the file reviewed. Sometimes the bridge carries weight where the main road does not.

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