Federal Administrative Tribunal, Judgment of 28 May 1991, BVerwG 1 C 20.89
Constitution of the Federal Republic of Germany
Article 25 Public International Law
The general rules of public international law constitute an integral part of the federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory.
Direct resolution of a dispute on the basis of international law
Unemployed migrant worker/ Order to return in his country of origin/ Criteria for determining the direct applicability of treaty provisions/ Meaning of the term “admitted on a permanent basis” in the sense of Article 8 of ILO Convention No. 97/ Direct applicability of Article 8 of ILO Convention No. 97/ Direct resolution of a dispute on the basis of international law
The plaintiff, a foreign citizen worked in Germany from 1968 until he became unemployed in 1981. He was holding a permanent residence permit but since 1984 had not been in the possession of a work permit. The plaintiff had been drawing social assistance payments since 1985. In his application to the Federal Administrative Court, he challenged the subsequent limitation of his permanent resident status and order to return in his country of origin, invoking Convention No. 97. Article 8(1) of the Convention provides that:
“A migrant for employment who has been admitted on a permanent basis and the members of his family who have been authorized to accompany or join him shall not be returned to their territory of origin or the territory from which they emigrated because the migrant is unable to follow his occupation by reason of illness contracted or injury sustained subsequent to entry, unless the person concerned so desires or an international agreement to which the Member is a party so provides.”
The Court confirmed previous case law in which it held that provisions of international treaties become directly applicable if the wording, objective and content are appropriate and sufficiently determined to take legal effect without further legislative action. This was the case with Article 8 of Convention No. 97. The plaintiff could therefore claim individual rights under Article 8.
The Federal Administrative Court held that the subsequent limitation of the plaintiffs residence permit was not contrary to Convention No. 97 because, according to the interpretation of the Court, a migrant worker can only be considered as “admitted on a permanent basis” within the meaning of Article 8, if he or she has been granted permanent residence status as well as a permanent work permit.2
2 It has to be highlighted that the Court interpretation is not in conformity with the position of the ILO Committee of Experts on the Application of Conventions and Recommendations, as expressed in a direct request addressed to Germany in 2001: “The Committee wishes to revert to its former direct request and recall the explanation provided for in paragraph 458 of its General Survey of 1980 on migrant workers, according to which a permanent admission is exclusively connected to a status of permanent residence, whereas the Government states that (at least before the entry into force of the 1990 Aliens Act) under national law the status of a permanent admission presupposed both the possession of a permanent residence permit as well as a permanent work permit.”