Administrative Court Munich, 22.02.2017, Case No.: M 9 K 16.1135
Marriage generally entitles one to obtain a residence permit
According to § 28 Abs. 1 S. 1 Nr. 1 AufenthG, the foreign spouse of a German citizen is to be granted a residence permit if the German citizen has their habitual residence within the Federal Republic of Germany. Another prerequisite is that the spouse can communicate in German at a basic level and is of legal age. A further essential requirement of § 28 Abs. 1 S. 1 Nr. 1 AufenthG is that the marriage must actually exist and be practiced, meaning that the spouses must live together in a marital household.
What happens to the residence permit after separation?
But what does immigration law regulate if the spouses separate? The validity period of the residence permit may be subsequently shortened under § 7 Abs. 2 S. 1 AufenthG if a significant condition for the issuance, extension, or determination of the validity period ceases to exist. This is the case, for example, when the spouses separate (and this does not only mean divorce). If the immigration authority becomes aware of the separation, it is usually obliged to revoke the residence permit granted to the immigrated spouse or to shorten the validity period of the residence permit.
In the following court case, the plaintiff sued against such a shortening of the validity period and sought the issuance of a residence permit due to a marital relationship or an independent residence permit (independent right of residence, § 31 AufenthG).
Facts of the Case:
Separated Turkish husband sues against the shortening of his residence permit
The plaintiff is a Turkish citizen who filed the lawsuit against the shortening of the validity of the residence permit granted to him for the purpose of marriage with a German citizen.
The plaintiff entered the Federal Republic of Germany in 2008 and applied for asylum. This was rejected by decision of the Federal Office for Migration and Refugees (BAMF) on 15.02.2010. The rejection was confirmed by decision of the Bavarian Administrative Court (VGH) on 18.03.2013.
On 16.05.2013, he married his wife, S., and lived with her in her apartment. The plaintiff then applied for a residence permit for family reunification, which he was granted on 19.11.2013 with an expiration date of 18.11.2014. This was then extended twice, most recently until 18.11.2016 due to the existence of a marital relationship.
In 2014, the plaintiff completed a literacy course and worked as a plasterer from 10.08.2015 to 10.12.2015. He did not pursue any other employment during the marriage. The couple lived off Mrs. S.’s income and benefits under the SGB. After the separation, the husband lived with his brother.
After the separation, the husband lived with his brother.
On 02.11.2015, the plaintiff registered at his brother’s apartment because the couple had separated in May 2015 (according to a statement to the Jobcenter), on 17.10.2015 (according to a statement to the police), or on 02.11.2015 (according to official records).
The plaintiff failed to apply for an extension of the residence permit, which was limited until 18.11.2016, or to apply for a new independent residence permit.
The immigration authority subsequently shortened the validity of the residence permit.
By decision of 02.02.2016, the defendant shortened the validity period of the residence permit retroactively to 10.02.2016 (Item 1). The extension of the residence permit under § 31 AufenthG or the issuance of a new residence permit for other reasons was refused (Item 2). The plaintiff was ordered to leave the federal territory within thirty days of the decision becoming enforceable (Item 3). In case of a culpable and significant overstay of the departure deadline, a re-entry and residence ban for up to one year was threatened (Item 4). If the plaintiff failed to leave the country on time, deportation to Turkey or another state willing or obliged to accept him was threatened (Item 5).
Husband sues against the administrative decision and the threatened deportation
The plaintiff filed a lawsuit against this decision, requesting the annulment of the decision of 02.02.2016 and the granting/extension of the residence permit.
He argued that the shortening of the validity period of the residence permit issued for the purpose of the marital relationship was unlawful because the marital relationship was resumed after a short time. The plaintiff stated that he was again living in the shared apartment and was working again as a plasterer.
The defendant argued that no application for an extension or a new residence permit had been submitted.
Judgment of the Administrative Court Munich
Court rules that the lawsuit is already inadmissible as the husband had not filed a prior application
The lawsuit was unsuccessful. It was already inadmissible because the plaintiff had not applied for an extension or a new residence permit. Therefore, the shortening was irrelevant as the residence permit had expired regularly on 18.11.2016 at the latest. The plaintiff had not submitted an application; this was particularly underlined by the fact that he only signed the application handed to him by the defendant at the end of the oral hearing.
The lawsuit was also unfounded, as the plaintiff no longer fulfilled the purpose of stay
Furthermore, the lawsuit was also unfounded. The plaintiff had no right to a residence permit because he had not lived in a marital relationship since October 2015. As a result, the conditions for the shortening under § 7 Abs. 2 Satz 2 in conjunction with § 28 Abs. 1 Satz 1 Nr. 1 AufenthG were met. For the granting of an independent residence permit, as explained, there was no corresponding application. Since a residence permit under § 7 Abs. 1 Satz 2 AufenthG is always granted for a specific purpose, the different types of residence permits are independent regulatory matters (BVerwG, Judgment of 09.05.2009 – 1 C 11.08). Therefore, an application to the competent authority is necessary if an independent right of residence under § 31 AufenthG is sought instead of a residence right under § 28 AufenthG.
Regardless, it should also be noted that the plaintiff has now been employed for seventeen months, i.e., since 07.02.2016. The residence permit had expired on 18.11.2016, and therefore before the expiration of the one-year period of regular employment, Article 6 para. 1, first indent, ARB 1/80.
Therefore, the lawsuit was dismissed.
Source: Munich Administrative Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, please feel free to call us at 0221 - 80187670 or send us an email to info@mth-partner.de
Lawyers in Cologne advise and represent clients nationwide in immigration law.