Administrative Court of Munich, June 22, 2017, Case No.: M 10 K 17.152
The Formerly Granted Residence Permit May Be Shortened Upon Spousal Separation
According to § 7 (2) of the Residence Act (AufenthG), the duration of a residence permit can be retroactively shortened if a key condition for its issuance, extension, or validity ceases to exist. For married couples, this might occur if the spouses separate, file for divorce, or if there was never a genuine marital relationship, such as in the case of a sham marriage.
After Spousal Separation, It Is Possible to Obtain Independent Residence Rights
Pursuant to § 31 (1) Sentence 1 No. 1 of the Residence Act (AufenthG), a spouse’s residence permit may be extended as an independent right, unrelated to family reunification, for one year if the marital relationship has legally existed in the Federal Republic of Germany for at least three years and the foreign national had a residence permit, settlement permit, or long-term residence permit – EU up to that point, unless they were unable to apply for the extension on grounds not attributable to them. The calculation of the three years is based on the actual period of the marital relationship and the issuance of the residence permit. The date of marriage is not crucial if the marital relationship was not genuinely lived out.
The following judgement deals with the question of the conditions under which a temporary residence permit can be subsequently shortened and when a claim to the granting of a residence permit pursuant to Section 31 (1) sentence 1 no. 1 AufenthG would exist.
Case Summary: Lawsuit Concerning the Retroactive Shortening of a Residence Permit and the Right to an Independent Residence Permit Post-Separation
In this case, a Serbian national challenges the retroactive shortening of his residence permit and the denial of his extension application. The claimant seeks the issuance of a residence permit under § 31 (1) of the Residence Act (AufenthG). The central issue is whether the claimant’s marriage to Mrs. V.G., on which his residence permit was based, should be classified as a sham marriage. The immigration authority and the Administrative Court of Munich considered it a sham marriage, leading to the refusal of the extension of the residence permit.
Background: Residence Permit Based on Marriage to a German National
The claimant entered Germany in May 2012 without a visa to join his then-wife, Mrs. V.G. This marriage allowed him to apply for a residence permit under § 30 AufenthG, which was granted in August 2012 for nearly one year. The permit was extended twice in subsequent years, with the last extension in 2015 valid until June 2017. The permit was based on the continued existence of the marriage between the claimant and Mrs. V.G.
In October 2015, Mrs. V.G. reported to the immigration authority that the claimant had deceitfully married her solely to obtain a residence permit. She claimed she had moved out and that the claimant was planning to marry another Serbian woman. The immigration authority reassessed the situation and suspected a sham marriage, questioning the basis of the residence permit.
Investigations by the Immigration Authority
After the claimant moved to a different district in 2015, the new immigration authority learned of Mrs. V.G.’s allegations. In September 2016, the claimant applied again for an extension of his residence permit, this time for himself, his new partner, and his son. Mrs. V.G. stated that the claimant had moved out in June 2015, remarking that he no longer needed her as he now had his own residence permit. This statement was confirmed in writing.
Given the suspected sham marriage and the findings, the immigration authority decided to retroactively shorten the claimant’s residence permit, which was initially valid until June 2017, and rejected his extension application. This decision was based on § 7 (2) Sentence 2 AufenthG, which allows the shortening of a residence permit’s duration if a significant condition for its issuance is no longer met.
Court Decision and Denial of Extension Application
By notice dated December 21, 2016, the immigration authority shortened the validity of the claimant’s residence permit to the date of the notice. The extension request was denied, and the claimant was ordered to leave the country within 30 days of the notice becoming effective, or face deportation to Serbia and a three-year re-entry ban.
The authority justified its decision by stating that the marriage to Mrs. V.G. was no longer in existence at the time of the decision. Since the marital relationship was a key condition for the residence permit, the authority deemed the retroactive shortening of the permit’s validity as proportionate and necessary. The authority also highlighted that the claimant had failed to promptly inform them of the end of the marital relationship.
Claimant’s Lawsuit and Court Proceedings
In January 2017, the claimant sued the immigration authority before the Administrative Court of Munich, seeking to overturn the notice and obtain a residence permit under § 31 (1) AufenthG. He argued that the initial permit was granted in June 2012 and the separation from Mrs. V.G. occurred after July 4, 2015. He provided a Serbian divorce decree confirming that the marriage was terminated in October 2015.
The Administrative Court of Munich conducted hearings and questioned witnesses, including Mrs. V.G.’s son and the claimant’s former landlords. The court found credible testimony from Mrs. V.G.’s son that the separation occurred in June/July 2015, convincing the court that the marital relationship had ceased by then.
Court’s Judgment: Affirmation of the Immigration Authority’s Decision
The Administrative Court of Munich upheld the immigration authority’s decision from December 21, 2016. The court concluded that the conditions for extending the residence permit under § 31 (1) AufenthG were not met because the marital relationship had lasted less than three years. The claimant could not prove that the marriage had continued beyond the relevant period, and the authority’s decision to retroactively shorten the residence permit was deemed justified. The lawsuit was dismissed, and the deportation order remained in effect.
The judgment reaffirms the immigration authority’s stance and underscores that a residence permit based on marriage can only be extended if the marital relationship continues. A sham marriage entered solely for obtaining a residence permit does not offer legal protection and may lead to denial of extension and possible deportation.
The judgement confirms the legal opinion of the Immigration Office and emphasises that a residence permit based on a marriage can only be extended if the marital partnership actually continues. A marriage of convenience that is entered into solely for the purpose of obtaining a residence permit offers no legal protection and leads to the rejection of the extension and possible deportation of the person concerned.
Source: Munich Administrative Court
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