Immigration Law: Residence Permit Expired After Prolonged Stay Abroad

Administrative Court of Ansbach, April 21, 2017, Case No. AN 5 K 16.02139

According to § 51 Abs. 1 of the Residence Act (AufenthG), a residence permit expires in the following cases:

• • • Upon the expiration of its validity period
    • Upon the occurrence of a condition that terminates it
    • Upon withdrawal of the residence permit
    • Upon revocation of the residence permit
    • Upon the expulsion of the foreign national
    • Upon the issuance of a deportation order under § 58a AufenthG
    • When the foreign national has left the country and does not re-enter within six months or a longer period specified by the immigration authority
    • When a foreign national applies for asylum after having been granted a residence permit under §§ 22, 23, or § 25 Abs. 3 to 5 AufenthG.

A visa issued for multiple entries or with a validity of more than 90 days does not expire due to a prolonged stay abroad.

Typically, a residence permit expires after six months of staying abroad.

The settlement permit of a foreign national who has legally resided in Germany for at least 15 years, as well as the settlement permit of their spouse living with them in marital community, does not expire due to prolonged absence under § 51 Abs. 2 AufenthG (§ 51 Abs. 1 Nos. 6, 7 AufenthG), provided 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 last place of habitual residence will issue a certificate upon request. not in the case of prolonged absence (§ 51 Para. 1 Nos. 6, 7 AufenthG), if their livelihood is secured and there is no interest in deportation pursuant to § 54 Para. 1 Nos. 2 to 5 or Para. 2 Nos. 5 to 7 AufenthG. To prove the continued existence of the settlement permit, the immigration authority at the place of last habitual residence will issue a certificate upon application.

This does not apply to a settlement permit that has been in existence for 15 years.

The case involves determining whether two longer periods of legal stay in Germany should be combined when calculating the 15-year period under § 51 Abs. 2 AufenthG, particularly when there is a multi-year absence between these periods. Additionally, it addresses when a departure constitutes a non-temporary reason.

Facts of the Case

The plaintiff, a Turkish national born in 1971, applied for a residence permit in Germany. He lived in Germany from 1977 to 1984 before returning to Turkey with his family in 1984. In 1998, he re-entered Germany to live with his German wife. Initially, he received a temporary residence permit, followed by a permanent one. Since 2004, he operated a restaurant in Germany. In 2006, the registration office reported that the plaintiff had been registered as separated since January 1, 2006. Starting in 2007, he was temporarily listed as “unknown” and was de-registered by the authorities. In 2016, he returned to Germany and re-registered in the city.

Investigation by the Immigration Authority

Upon his return, the immigration authority found that the plaintiff had traveled several times to Turkey between 1998 and 2010. His new passport showed only a Turkish exit stamp dated December 21, 2015. The authority requested evidence of the plaintiff’s stay in Germany during this period. The plaintiff stated that he had quit his job in 2010/2011 and had been financially supported by his parents since then. On March 17, 2016, the plaintiff applied for a certificate under § 51 Abs. 2 S. 2 AufenthG, claiming he had legally resided in Germany for over 15 years. Despite requests, he did not provide sufficient evidence of his stay.

Departure and Loss of Residency Rights

On May 18, 2016, the plaintiff submitted an employment contract valid from May 1, 2016. However, the immigration authority initiated proceedings to determine the expiration of his settlement permit. The plaintiff argued that his livelihood was secured and provided wage statements. Nevertheless, the authority determined on October 26, 2016, that the plaintiff’s settlement permit had expired under § 51 Abs. 1 Nos. 6 and 7 AufenthG, as he had left Germany for a non-temporary reason. The authority instructed him to leave Germany and threatened deportation to Turkey if he did not comply.

Lawsuit and Preliminary Injunction

On November 3, 2016, the plaintiff filed a lawsuit and requested a preliminary injunction under § 80 Abs. 5 VwGO. He argued that the conditions of § 51 Abs. 2 S. 3 AufenthG were met because he had lived legally in Germany for more than 15 years, and his livelihood was secured. The defendant requested the dismissal of the lawsuit, arguing that the plaintiff could not prove an uninterrupted 15-year stay in Germany and had again left the country in 2017 to work in the Czech Republic. The authority stated that the plaintiff’s residence permit had already expired and could not claim continued validity under § 84 Abs. 2 S. 2 AufenthG.

Court Ruling

The Administrative Court of Ansbach ruled that the lawsuit was unfounded. The court agreed with the defendant’s argument that the plaintiff’s settlement permit had expired because he had left Germany on March 17, 2010, for a non-temporary reason. The plaintiff had shifted his center of life to Turkey, as evidenced by his long absence of over five years. Additionally, he had ended his marriage with a German national in 2006, which also indicated a shift in his center of life.

No Application of § 51 Abs. 2 AufenthG

The plaintiff could not rely on § 51 Abs. 2 AufenthG as he did not meet the required 15 years of lawful residence. The court found that while the plaintiff had resided in Germany from 1977 to 1984 and from 1998 to 2010, these periods could not be combined for an uninterrupted 15-year stay. Furthermore, his livelihood was not secured at the time of his departure in 2010, and his marital relationship, which could have provided an exception, had ended in 2006. Therefore, the immigration authority’s decision was lawful, and the court dismissed the lawsuit.

Source: Administrative Court of Ansbach

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