Administrative Court of Munich, 23.02.2017, Case No.: M 10 K 16.5371
According to § 31 Abs. 1 S. 1 No. 1 of the Residence Act (AufenthG), the residence permit of a spouse will be extended for one year as an independent residence right, irrespective of the family reunification purpose, in the event of the dissolution of the marital community if the marital community has existed lawfully in Germany for at least three years and the foreign national was in possession of a residence permit, settlement permit, or permanent residence permit – EU until then, unless he was unable to apply for the extension in due time for reasons not attributable to him.
This regulation provides the possibility of obtaining a spouse-independent residence permit, but only under the specified criteria. Thus, the marital community must have existed for at least three years. The relevant period for the calculation is the time during which the partnership was actually lived. This means that the spouses must have lived together in one household, be under the protection of Article 6 (1) of the Basic Law (GG), and not yet fulfill the requirements for a separation year (§ 1567 BGB).
In the present judgment, the plaintiff seeks a residence permit under § 31 Abs. 1 S. 1 No. 1 AufenthG following the separation from his partner, with the dispute centered around when the declaration of separation occurred.
Facts of the Case:
Immigration Authority Denies Extension of Residence Permit to Thai Plaintiff
The plaintiff seeks an extension of his residence permit.
The plaintiff is a Thai national who entered Germany on March 6, 2013, with a visa valid until June 3, 2013, for the purpose of establishing a partnership, and officially entered Germany on March 22, 2013. On April 30, 2013, the plaintiff applied for a residence permit based on a partnership in Germany. He was granted a residence permit for the period from April 30, 2013, to April 11, 2015, under § 30 AufenthG. This was subsequently extended due to the partnership until June 30, 2016.
Partner Informs Immigration Authority of Separation
On March 4, 2016, the plaintiff’s partner sent an email to the defendant indicating that the partnership was broken and he had permanently separated from the plaintiff. On April 21, 2016, the plaintiff and his partner personally applied for a further extension of the residence permit, with the partner again emphasizing the breakdown. The defendant then initially issued a fictitious certificate to the plaintiff under § 81 Abs. 4 AufenthG.
In an email dated June 1, 2016, the plaintiff stated that he only learned about the email from his partner when applying for the extension of the residence permit. They continued to live under one roof and, due to problems in the partnership, he had already scheduled an appointment with a couples therapist.
Plaintiff Considered the Relationship Ongoing and Requested the Permit
During a joint personal meeting with the defendant on August 11, 2016, the partner declared in writing that the partnership no longer existed and the final separation had occurred on March 3, 2016. The plaintiff, however, stated in writing that the partnership was ongoing and that there were merely normal issues and differences within the relationship.
The plaintiff confirmed that he was currently unemployed and had been registered as seeking employment with the Federal Employment Agency since August 2016.
By decision dated October 21, 2016, the defendant rejected the plaintiff’s application for an extension of the residence permit of April 21, 2016 (No. 1). The plaintiff was instructed to leave Germany by November 30, 2016 (No. 2). Should he exceed the deadline significantly and culpably, an entry and residence ban for up to one year for Germany and the Schengen States could be imposed (No. 3). If the plaintiff did not leave within the deadline, he would be deported to Thailand. Deportation could also occur to another country where the plaintiff may enter or which is obliged to take him back (No. 4).
Immigration Authority Considered the Relationship Too Short for Extension
The defendant reasoned that, following the dissolution of the marital community, the conditions for the plaintiff’s residence rights under § 31 Abs. 1 AufenthG had ceased to exist. In particular, the marital community between the plaintiff and his spouse had not existed lawfully in Germany for at least three years. A case of special hardship under § 31 Abs. 2 Sentence 2 AufenthG was not considered.
The plaintiff filed a lawsuit on November 28, 2016, through his legal representative, requesting the cancellation of the decision and the extension of the residence permit by the defendant. He justified the lawsuit by stating that no application for the dissolution of the partnership had been filed to date and that they still lived together. His partner suffered from a narcissistic personality disorder and attempted to control him compulsively, which had led to tensions in their relationship and the statements made to the defendant.
Judgment of the Administrative Court Munich
Court Supports the Plaintiff’s Position
The lawsuit was admissible and well-founded. The defendant’s decision of October 21, 2016, was unlawful and violated the plaintiff’s rights (§ 113 Abs. 5 S. 1 VwGO). The plaintiff had a right to the extension of his residence permit until June 30, 2017, for family reasons.
According to the court’s view, the marital community of the plaintiff with his partner did not exist, so the requirements of §§ 27 Abs. 1, 28 Abs. 1 No. 1 AufenthG were not met.
Plaintiff Has Independent Residence Right Under § 31 Abs. 1 AufenthG
However, the right to extend the residence permit derives from § 31 Abs. 1 S. 1 No. 1 AufenthG, which states that the residence permit of the spouse in the event of the dissolution of the marital community will be extended for one year as an independent residence right, irrespective of the purpose of family reunification, if the marital community has existed lawfully in Germany for at least three years and the foreign national was in possession of a residence permit, settlement permit, or permanent residence permit – EU until then.
The court was convinced that the marital community had existed lawfully in Germany for more than three years.
The partnership was established on March 22, 2013, and according to the partner’s statements, the separation occurred on March 3, 2016. Considering this separation date, the three-year marital community period would not have been reached.
The fact that the separation did not occur on March 3, 2016, but only on April 21, 2016, results from the oral statements of the plaintiff and his partner to the court. The partner had only expressed the desire for separation to the plaintiff and again to the defendant on April 21, 2016. Prior to that, there had simply been a „silence“ between the two.
The Affected Partner Must Also Be Aware of the Separation
Since the marital home was retained, the intention to separate must be outwardly recognizable, and the affected partner must also be informed of this explicit intention to separate. „Silence“ between the partners is not sufficient.
Thus, the court assumes that the separation, which was recognizable both outwardly and to the plaintiff himself, only occurred on April 21, 2016. This means that the three-year marital community period with lawful residence was achieved.
The plaintiff thus has a right to an extension of his residence permit for one year until June 30, 2017. The defendant’s decision was to be revoked.
Source: Munich Administrative Court
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