Administrative Court of Munich, April 7, 2016, Case No. M 12 K 15.3847
According to Section 51 (1) of the Residence Act (AufenthG), a residence permit expires upon the expiration of its validity, the occurrence of a dissolving condition, the withdrawal or revocation of the residence permit, the deportation of the foreigner, the notification of a deportation order under Section 58a AufenthG, if the foreigner leaves the country for a reason that is inherently non-temporary, if the foreigner has left the country and not re-entered within six months or a longer period specified by the immigration authority, or if a foreigner applies for asylum after being granted a residence permit under Sections 22, 23, or Section 25 (3) to (5) AufenthG. A visa issued for multiple entries or with a validity period of more than 90 days does not expire due to a longer absence.
A settlement permit of a foreigner who has legally resided in the Federal Republic for at least 15 years, as well as the settlement permit of their spouse living with them in a marital relationship, does not expire after a longer absence (§ 51 Abs. 2 AufenthG) if their livelihood is secured and there is no interest in expulsion under § 54 Abs. 1 Nos. 2 to 5 or Abs. 2 Nos. 5 to 7 AufenthG. To prove the continued validity of the settlement permit, the immigration authority at the place of the last habitual residence will issue a certificate upon request.
It should be noted that only short-term stays in the Federal Republic of Germany within 6 months do not contradict the relocation of the center of life to another country. Furthermore, it must be ensured that the livelihood was secured at the time of departure, as the crucial factor is the situation at the time the residence or settlement permit expires.
The following case addresses whether the plaintiff is entitled to a settlement permit despite several years of absence (residence outside the Federal Republic).
Introduction: Facts and Situation
The case concerns a dispute over the refusal to grant a settlement permit to the plaintiff, a Turkish national who had been living in Germany since 1989. The plaintiff initially entered Germany for family reunification and received a temporary residence permit, which was extended multiple times. After his first marriage ended, his residence permit was converted into an independent residence right, eventually granting him an unlimited residence permit in 1995. Subsequently, the plaintiff married again, first a Turkish national, and later a German citizen. In 2010, the plaintiff moved his center of life to Turkey and deregistered from his German residence. The central issue in the case is whether his settlement permit has expired due to these circumstances.
Relocation of the Center of Life to Turkey
In March 2010, the plaintiff applied for a refund of contributions from the German Pension Insurance, as he had moved to Turkey on February 7, 2010, and his last employment had ended in late 2005. Consequently, his contributions to the statutory pension insurance were refunded. In April 2010, the plaintiff deregistered from his German residence and returned only in December 2012, when he re-registered there. The plaintiff claimed that he had never been outside Germany for more than six months since 2010. However, his documents indicated that he primarily resided in Turkey during this time and was engaged in property management there. Additionally, he received a pension in Turkey, which secured his livelihood.
Decision Basis of the Immigration Authority
The immigration authority rejected the plaintiff’s application to transfer the settlement permit to his new Turkish passport, stating that it had expired due to his prolonged stay abroad in accordance with § 51 Abs. 1 Nos. 6 and 7 AufenthG. These provisions provide for the expiration of the settlement permit if the foreigner leaves the Federal Republic for a prolonged period without a merely temporary reason. Since the plaintiff only returned to Germany in 2012 and had apparently lived permanently in Turkey until then, the authority concluded that the settlement permit had expired.
Plaintiff’s Arguments and Defendant’s Counterarguments
The plaintiff contested the decision, arguing that his wife had an unlimited residence right in Germany and that he therefore enjoyed the protection of Article 6 of the Basic Law. To support his application, he submitted evidence of secured livelihood in the form of income statements from his wife, bank statements, land registry extracts, and rental agreements for properties in Turkey. The defendant countered that property ownership and income in Turkey were insufficient to secure livelihood in Germany. Additionally, it was unclear if and how long the joint bank assets had been available. The compensation received by the plaintiff’s wife was largely used to purchase a house in Turkey, indicating a relocation of the center of life to Turkey.
Decision of the Munich Administrative Court
The Administrative Court of Munich declared the lawsuit admissible but unfounded. The court found that the plaintiff’s settlement permit had expired because he left the Federal Republic for a reason that was not merely temporary. The departure in 2010 and the relocation of his center of life to Turkey met the requirements of § 51 Abs. 1 No. 6 AufenthG. The plaintiff had clearly demonstrated, through actions such as deregistering his German residence and buying property in Turkey, that he had made a permanent move to Turkey. The fact that his wife had given up German citizenship also supported the conclusion of a permanent relocation.
The court emphasized that the plaintiff could not invoke the privilege of § 51 Abs. 2 Sentence 1 AufenthG, which allows for the continued validity of a settlement permit despite departure if the livelihood is secured and the residence lasted at least 15 years. Although the plaintiff met the 15-year requirement, his livelihood was not secured at the time of departure in 2010. The court noted that there was insufficient evidence that the plaintiff had sufficient income at the relevant time. The rental agreements and sale of the German property concluded after the departure were irrelevant for assessing livelihood security. The Turkish pension was also inadequate for securing livelihood in Germany, as the plaintiff would need private health insurance, which would incur additional costs.
Conclusion and Implications for Similar Cases
The ruling illustrates that a settlement permit can expire if livelihood is not secured after departure and the center of life has been permanently moved abroad. Even if the plaintiff sought to obtain a settlement permit again after returning to Germany, his actions prior to departure had forfeited his claim. Particularly relevant is the timing of departure, as livelihood security must be demonstrated at that time. The ruling further clarifies that the authority must make a comprehensive prognosis about future livelihood security, with the actual circumstances at the time of departure being decisive. For similar cases, timely and thorough planning and proof of secured livelihood are crucial to prevent the loss of a settlement permit.
In this case, the plaintiff’s lawsuit was dismissed, and the decision of the immigration authority dated August 24, 2015, was upheld as lawful. The plaintiff was instructed to leave, as he no longer had a valid residence permit and his livelihood in Germany was not secured. The ruling thus demonstrates that relocating the center of life abroad can significantly affect residency status, even after a prolonged lawful stay in Germany.
Source: Munich Administrative Court
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