The Hardship Commission may, if in its opinion there are urgent humanitarian or personal reasons, submit a request for a hardship case to the Bavarian State Ministry of the Interior, for Sports and Integration.
Pursuant to Section 2 of the Hardship Commission Ordinance (HFKomV), the Commission consists of nine voting members who serve in an honorary capacity and are not entitled to reimbursement of expenses or loss of earnings, and one 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 on the recommendation of the Bavarian State Ministry of the Interior, for Sports and Integration (§ 2 para. 3 HFKomV).
Who is represented in 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 Organizations in Bavaria
- four representatives of the municipal umbrella organizations
- one representative of the State Ministry, who, subject to § 9 HFKomV, is not entitled to vote.
The voting members and their deputies are appointed by the State Minister of the Interior, for Sports and Integration on the proposal of the respective organizations.
How does the procedure work?
The Hardship Commission deals with cases brought to the meeting by members of the Commission or proposed by the Petitions Committee of the State Parliament. No review of previous court or authority decisions takes place in this process.
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 voting members, it submits a request for a case of hardship to the Bavarian State Ministry of the Interior, Sports and Integration.
This 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 competent foreigners authority.
How does a case get 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 this is required by
- the Committee for Petitions and Complaints of the Landtag (Petitions Committee) has proposed it
- 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 case 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 (§ 3 para. 3 HFKomV, § 23a para. 2 sentences 2 and 3 AufenthG). It is therefore not possible to submit applications to the office. Should letters nevertheless be received by the office, they will only be made available to the members of the commission.
Only if a member of the hardship commission takes up this case can the hardship commission deal with it.
How does a meeting of the Hardship Commission proceed?
The chairman sets the agenda for the meeting of the Hardship Commission.
During the non-public session, the cases submitted by the Petitions Committee or by the members of the Hardship Commission are discussed. Hearings of the foreigner or his lawyer do not take place (§ 7 para. 1 sentence 3 HFKomV). The Hardship Commission shall decide 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 the Federal territory and whether a request for a hardship case shall therefore be submitted to the Bavarian State Ministry of the Interior, for Sport and Integration (Section 7 (1) and (3) HFKomV).
The members are obliged to maintain secrecy about all cases dealt with by the Hardship Commission, including voting behavior (§ 8 HFKomV).
Which criteria are relevant for a case of hardship?
According to § 23a AufenthG, in deviation from the requirements set out in the Residence Act, a residence permit can be granted to a foreigner who is subject to an enforceable obligation to leave the country if the Hardship Commission has submitted a so-called hardship case request.
According to § 23a para. 2 sentence 4 AufenthG, such a hardship case request 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 a hardship not foreseen by the legislator. The case must stand out positively from cases with a comparable overall residence situation in order to be able to justify a request for hardship.
In view of the variety of conceivable circumstances, it is difficult to describe typical groups of cases, because the law focuses on individual hardships. As a rule, the prerequisites are long-term residence, good integration and the foreigner's ability to earn a living on his or her own. Often it is about families with children who were born or grew up here and went to school.
The hardship case 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 case request. Rather, the existing obligation to leave the country is a prerequisite for a case of hardship to be examined at all.
The following grounds for exclusion are regulated in § 5 sentence 2 nos. 1 to 7 HFKomV:
- Obvious abuse of rights
- Failure to comply with the passport obligation
- delinquency
- indications that the foreigner could pose a threat to internal security
- the lack of a concrete prospect of securing a livelihood
- previous referral to the Hardship Commission
- reasons exclusively relevant to the asylum procedure
What is a hardship case request?
If the Hardship Commission decides by a majority of two-thirds of the votes of the voting members that urgent humanitarian or personal reasons justify a further stay of the foreigner in the federal territory and thus a case of hardship exists, a so-called hardship request is submitted to the Bavarian State Ministry of the Interior, for Sports and Integration.
The State Ministry then decides whether the request will be followed. The State Ministry is not bound by the Commission's assessment. If the State Ministry also affirms the existence of a case of hardship, it orders that a residence permit be issued in accordance with Section 23a (1) sentence 1 of the Residence Act.
Is there an entitlement to the implementation of a hardship case procedure?
No. A case is only dealt with by the Commission if members of the Hardship Commission or the Petitions Committee of the Landtag propose it (see above "How does a case get 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 (§ 3 para. 3 HFKomV, § 23a para. 2 sentences 2 and 3 AufenthG).
Are there any legal remedies 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 legal remedy against the decisions of the Commission or the Bavarian State Ministry of the Interior, Sports and Integration.
Is the termination of residence stopped as long as the hardship case procedure is ongoing?
No. Therefore, a foreigner cannot demand that residence-terminating measures be suspended because the Hardship Commission is or will be dealing with his or her request (§ 4 HFKomV). The hardship case procedure has no suspensive effect.
What is the task of the office of the Hardship Commission?
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 Sports and Integration.
What is the relationship between the hardship case procedure and the petition procedure at the Landtag?
The priority of the petition procedure applies. If a case was or is already pending in the Committee for Petitions and Complaints of the Landtag (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, Sports and Integration (see "Further links").
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