Administrative Court of Berlin, 01.09.2009, Case No.: 21 K 92.09
The requirements for naturalization are regulated in the Nationality Act (StAG). According to Section 9 StAG, spouses or civil partners of German citizens are to be naturalized under the conditions of Section 8 if they lose or renounce their previous nationality, or if a reason for accepting dual nationality under Section 12 exists, and if it is ensured that they integrate into German living conditions, unless they do not have sufficient knowledge of the German language (Section 10 (1) sentence 1 No. 6 and (4)) and do not meet an exception under Section 10 (6).
This rule also applies if the application for naturalization is made within one year after the death of the German spouse or after the final dissolution of the marriage, and the applicant has custody of a child from the marriage who already holds German citizenship.
The following judgment by the Administrative Court of Berlin clarifies that a foreigner can only claim the issuance of a residence permit for a period in the past after the application was made if they have a legitimate interest in it. The settlement permit granted to a foreigner is already the „highest“ level of residence permit under the Residence Act. Thus, further legal consolidation of their immigration status, dependent on the duration of holding a specific residence right, is no longer possible. Accordingly, there is no need for legal protection for the retroactive issuance of the residence permit from this perspective.
Facts of the Case:
Plaintiff Comes to Germany as a Student and Then Commits Crimes
The plaintiff, born in 1970, is a Macedonian national who entered Germany in 1990 for study purposes. In March and April 1995, he was convicted of forgery, intentional driving without a license, and intentional violation of the Weapons Act. In March 1997, he married a German citizen, and the Foreigners Authority of the City of Frankfurt subsequently granted him a temporary residence permit in June 1997 for two years. This permit was extended for three years by the Berlin Resident Registration Office in March 1999. The marriage was dissolved in 2001, with the divorce hearing noting that the couple had finally separated in May 2000. However, in a divorce settlement agreement, they stated that they had been living apart since May 1999. In a later court proceeding, the ex-wife claimed the separation occurred only in January 2001.
On March 25, 2002, the plaintiff applied for an extension of his residence permit. An attorney’s letter dated April 5, 2002, confirmed that he had applied for a permanent residence permit. The Foreigners Authority denied the extension request in June 2002, prompting the plaintiff to file for interim legal protection, which the Administrative Court rejected in August 2002.
Plaintiff Marries a German Citizen and Receives a Residence Permit
The plaintiff went into hiding, resulting in an arrest warrant, and unsuccessfully filed a petition. In January 2003, the plaintiff married another German citizen. In June, he was granted a one-year residence permit, which was later extended (most recently until July 2010). The parties subsequently declared the interim legal protection procedure in the appeal instance as settled, rendering the first-instance decision ineffective.
The continuation determination lawsuit against the previous denial of the residence permit failed due to a lack of determination interest.
Plaintiff Later Applies for a Permanent Residence Permit
On January 20, 2006, the plaintiff applied for the retroactive issuance of a permanent residence permit from March 25, 2002. He argued that he was living rent-free in a condominium owned by his brother.
The application was denied by the State Office for Citizens and Regulatory Affairs because the plaintiff failed to provide proof of his brother’s condominium (land register extract, maintenance costs, and other charges) as well as a certificate from a tax advisor on his net income from self-employment as an interpreter and restaurateur. The plaintiff’s appeal was dismissed by an appeal decision dated February 24, 2009, delivered to the plaintiff on February 26, 2009.
Application for Settlement Permit Denied Due to Lack of Secured Livelihood
On March 26, 2009, the plaintiff filed a lawsuit, arguing that the judgment on the continuation determination lawsuit as a procedural judgment did not prevent the retroactive issuance of the requested settlement permit and did not constitute a final rejection of the application for the extension of the residence permit. Since the new version of Section 19 of the Aliens Act applied to ongoing proceedings and a two-year marriage duration would have been sufficient, the residence permit should have been extended. The divorce judgment and hearing protocol indicated that the marriage lasted more than two years. The contrary decision in VG 6 F 32.02 was overturned in the appeal instance. His then-wife should testify that the marital community existed until May 2002. The previous rejection should therefore be withdrawn. Additionally, there was an urgent public interest in extending the residence permit due to his many years of work as a translator for the judiciary and other authorities. Otherwise, naturalization would have occurred long ago. The application for a permanent residence permit from March 25, 2002, should be inferred from the files.
Furthermore, it was unlawful to require proof from third parties, such as his brother, as this violated the data protection principle of direct collection, as criticized by the Berlin Data Protection Commissioner in his 2007 annual report (Section 4.1.5).
Although proof of living expenses and loan installments must be provided, this is not necessary if no costs are incurred because a condominium is provided free of charge. There is no legal basis for requiring proof of third-party creditworthiness.
The obligation to provide evidence of his income from self-employment was also unlawful. Since 2007, the administrative guideline cited by the Foreigners Authority no longer reflected administrative practice. According to the Berlin Data Protection Commissioner’s report, administrative practice only required a tax advisor’s report if a reliable positive prognosis could not otherwise be made. The business evaluations (BWA) prepared by T- GmbH would suffice as they allow for an assessment of income.
Moreover, the requirement for a tax advisor’s report was disproportionate, as a declaration of income confirmed by the tax office or an income tax assessment would be sufficient.
The Foreigners Authority’s duty to investigate had been improperly shifted onto him, as the authority must provide additional assistance itself.
He argued that his livelihood had always been secured. Additionally, the chairman’s insinuation that the previously submitted accounting documents of T. GmbH were not credible due to his family’s ties to the company constituted discrimination and unequal treatment.
He justified this as follows:
The G. GmbH, of which he was managing director, existed only from 2002 to 2003, and before its dissolution, it founded T. GmbH. Its shares were transferred to T. GmbH. Without further evidence, it could not be assumed that the submitted accounting documents were not credible, regardless of the brother’s role as managing director.
Due to doubts about the court’s need for legal protection, the plaintiff argued that, given years of setbacks by the Foreigners Authority, he sought satisfaction and hoped for advantages in naturalization law.
Plaintiff Requests Retroactive Settlement Permit
After the defendant stated in the oral hearing that it would grant the plaintiff a settlement permit based on the newly submitted documents, which would be valid from the time of the plaintiff’s visit to the Foreigners Authority, and after the parties subsequently declared the main proceedings settled with conflicting cost applications regarding the issuance of the settlement permit from the current date, the plaintiff requested that the defendant be ordered to grant him a settlement permit retroactively from March 25, 2002, or alternatively retroactively from January 20, 2006, partially overturning the decision of the State Office for Citizens and Regulatory Affairs dated September 5, 2006, in the form of the appeal decision dated February 24, 2009. The defendant requested that the lawsuit be dismissed.
In early 2009, the plaintiff was issued a penal order for aiding and abetting the unlawful stay of a foreigner, with a fine of 30 daily rates of €25 each. The background was that in November 2007, a foreigner illegally residing in the plaintiff’s business was found. Following the plaintiff’s objection, the proceedings before the criminal court were terminated for insignificance upon payment of a fine of €1,000.
Judgment of the Administrative Court of Berlin:
The lawsuit is inadmissible because the plaintiff has no legitimate interest in a retroactive settlement permit.
The proceedings were settled insofar as the parties had declared the main proceedings settled due to the issuance of a settlement permit from the current date. Otherwise, the lawsuit was inadmissible because the plaintiff had no legitimate interest in compelling the defendant to grant the settlement permit retroactively.
However, according to consistent case law of the Federal Administrative Court, a legitimate interest is required when a foreigner seeks the issuance of a residence permit for a period in the past after the application was made.
This is the case if it could be significant for the plaintiff’s further immigration status from which date they hold a permanent residence permit. The Federal Administrative Court has referred to Section 27 of the Aliens Act in this regard.
A distinction between the permanent residence permit, namely between the permanent residence permit (§24 Aliens Act) after holding the residence permit for five years and the residence entitlement (§ 27 Aliens Act) after holding the residence permit for eight years or holding the permanent residence permit for three years, as provided for by the Residence Act, has been abandoned in favor of a unified permanent residence title, the settlement permit.
Thus, the promised settlement permit is already the „highest“ level of residence permit under the Residence Act. Further legal consolidation of the immigration status based on the duration of holding a specific residence right is no longer possible. Therefore, the corresponding need for legal protection is lacking. In this regard, reference was made to the Federal Administrative Court judgment of June 9, 2009, 1 C 7.08.
Retroactive Settlement Permit Not Necessary for Naturalization
For naturalization, retroactive issuance of the settlement permit or permanent residence permit is also not required, as neither the provisions on discretionary naturalization (§§ 8 and 9 StAG) nor the provisions on entitlement to naturalization (§§ 10 ff. StAG) require a minimum period of holding a settlement permit or permanent residence permit.
An exception is § 10 (1) sentence 1 No. 2 StAG, which, however, only requires a currently existing permanent residence right, and it is also sufficient that the applicant holds a residence permit for purposes other than those listed in §§ 16, 17, 20, 22, 23 (1), §§ 23a, 24, and 25 (3) to (5) of the Residence Act.
Contrary to the plaintiff’s assumption, the exercise of discretion under § 9 (1) StAG does not require a minimum period of holding a settlement permit or permanent residence permit. The binding administrative regulations only require a residence in Germany of generally three years (No. 9.1.2.1 VwV-StAG), which may also be shorter in exceptional cases (No. 9.1.2.2 VwV-StAG).
The legitimate interest is also not established by the plaintiff’s desire to fill the immigration law „gap“ between June 2002, the time of the Foreigners Authority’s rejection decision and thus the expiration of the residence permit fiction, and June 2003, the time of the reissuance of a residence permit in connection with the plaintiff’s new marriage, to prove the generally required eight-year uninterrupted residence for entitlement to naturalization.
The retroactive issuance is clearly excluded in this regard, as the plaintiff fulfilled grounds for expulsion until April 13, 2005, which would have mandatorily prevented the issuance of a permanent residence permit under § 24 (1) No. 6 Aliens Act.
In March 1995, he was sentenced for forgery and intentional driving without a license to a fine of 80 daily rates, and on April 13, 1995, he was sentenced for intentional violation of the Weapons Act to a fine of 200 daily rates. Expungement eligibility was only achieved on April 13, 2005, as the expungement period for the latter conviction was ten years (§ 46 (1) No. 2 letter b BZRG).
Therefore, it is irrelevant whether an application for a permanent residence permit from March 25, 2002, is on file. It was first referred to in the attorney’s letter received by the Foreigners Authority on April 8, 2002, which referenced such a non-existent application. Even if such an application existed, it would have been resolved with the „new“ application in January 2006.
In a civil court procedure regarding official liability, the determination of an entitlement to retroactive issuance of a settlement permit or permanent residence permit would only be treated as a preliminary issue, not necessary.
Rehabilitation Interest Is Not a Legitimate Interest Either
The plaintiff’s anticipated satisfaction also does not constitute a legitimate interest. A rehabilitation interest in the context of a continuation determination lawsuit is not present, as there are no ongoing adverse effects of discriminatory measures.
The plaintiff is not entitled to a retroactive issuance of a permanent residence permit. The above-mentioned obstacles to issuance existed until April 13, 2005. Additionally, the necessary proof of livelihood security was initially lacking, as the couple’s net income was insufficient. Until December 31, 2006, the plaintiff was a voluntary member of a company health insurance fund, paying a monthly contribution of €287.57.
Adding the then-standard benefit for the couple of €622 resulted in a subsistence requirement (excluding rent) of €909.57. According to the 2005 income tax assessment, the gross total income was €19,996 (€9,648 from the plaintiff’s self-employment, €5,078 from the wife’s self-employment, and €5,270 from the wife’s employment), amounting to a monthly income of €1,666. After deducting exemptions totaling €480 (approximately €240 each for the plaintiff and his wife) and taxes and social security contributions of around €300, a net monthly income of only €886 was available for 2005.
The gross total income in 2006 was €13,762, or around €1,147 per month. After deducting exemptions totaling €440, a net monthly income of €707 remained for 2006.
Other documents could not prove the livelihood security either, as the last submitted BWAs – for the months January to May 2007 – showed a net income of €5,156 for the plaintiff and €1,596 for his wife, resulting in a monthly net income of €1,350 for the couple. After deductions, €790 in creditable income remained, which would not suffice to cover the couple’s subsistence needs. This was €624 (until June 2008) or €632 (from July 2008), plus the insurance contributions of €131 and the consumption-dependent costs of the apartment (electricity, water, gas).
Ultimately, the BWAs were also not sufficiently informative, as sufficiently meaningful documents are required for income from self-employment, with the income tax assessment being the decisive proof. A provisional income-expenditure statement is not sufficient. The same applies to a business evaluation. Such meaningful documents were only submitted with letters dated June 30, 2009, and July 30, 2009.
Therefore, a decision on the immigration law effect of the crime committed by the plaintiff in November 2007 (aiding and abetting the unlawful stay of a foreigner), which constitutes a ground for expulsion within the meaning of § 55 (2) No. 2 Residence Act, can be left open.
Moreover, it was unnecessary to examine whether the plaintiff had no entitlement to a temporary extension of his residence permit under § 19 (1) No. 1 Aliens Act because, according to the statements of the 6th Chamber of the Administrative Court in its decision of August 30, 2002 – VG 6 F 32.02 – there was a lack of an uninterrupted two-year marital community with his then-wife, and no reduction of the discretion granted under § 85 Residence Act was apparent.
In light of all this, the lawsuit was dismissed.
Source: Administrative Court of Berlin
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