Administrative Court of Munich, Decision of April 2, 2020, File No.: 10 ZB 19.1552
In the field of immigration law, which is part of administrative law, if a negative judgment is rendered, there is still the possibility to file an application for admission of an appeal, which is decided by the Higher Administrative Court.
In the present case, the plaintiff filed an application for the admission of an appeal, which was deemed admissible but rejected as unfounded because the grounds for admission presented by the plaintiff were insufficient. Serious doubts about the correctness of the contested judgment (§ 124 Abs. 2 No. 1 VwGO) as well as a fundamental significance of the legal issue (§ 124 Abs. 2 No. 3 VwGO) or a divergence (§ 124 Abs. 2 No. 4 VwGO) could not be established.
Facts of the Case:
The Administrative Court of Munich had denied the plaintiff’s claim for the issuance of a residence permit (regardless of the purpose of stay), as he was not eligible for a residence permit under § 11 Abs. 1 AufenthG, and there was also a deportation interest under § 5 Abs. 1 No. 2 AufenthG.
On November 30, 2011, an oral hearing took place, during which the plaintiff withdrew his lawsuit. As a result, he was deported by a decision of July 18, 2011, which became final on November 30, 2011. The plaintiff has not yet left the country, which is why the three-year ban on entry and stay set in No. 3 of the decision of July 18, 2011, has not yet expired.
The oral hearing on November 30, 2011, did not result in anything different, during which a probationary tolerance was agreed upon with a probationary period of five years.
A condition for this tolerance was, among other things, „proof of lawfulness“ (No. 1). The defendant had granted the probationary tolerance only on the condition that all criminally relevant proceedings were known to them, including any pending criminal proceedings or actions not yet detected by the prosecuting authorities.
Criminal Convictions of the Plaintiff
The plaintiff, however, concealed that from September 30, 2009, to March 31, 2011, he had issued a total of 122 false invoices and thus unlawfully obtained between €30,000 and €35,000. The corresponding criminal investigations were initiated during the agreed five-year probationary period on May 12, 2014. The criminal judgment of the Augsburg Regional Court, in which the plaintiff was convicted of forgery in 18 cases and sentenced to a total prison term of one year and eleven months, was not issued until June 14, 2017, i.e., after the probationary period had expired. The Administrative Court of Munich ruled that the criminal judgment issued after the probationary period did not play a role in this context. The plaintiff argued that he had met the requirement of No. 1 because the crimes were not discovered by the Administrative Court at the time of the agreement on probationary tolerance and he had no obligation to disclose them. Additionally, he had not committed any further crimes after the conclusion of the agreement.
Another condition for the probationary tolerance agreed upon in the oral hearing of November 30, 2011, was „freedom from debt to the public authorities“ (No. 4).
Tax Debts of the Plaintiff in the Amount of €200,000:
The Augsburg Regional Court established with its criminal judgment of June 14, 2017, that the plaintiff had tax debts amounting to €200,000. The Administrative Court of Munich therefore ruled that there was another reason for refusal under § 5 Abs. 1 No. 2 AufenthG, according to which no deportation interest should exist. However, since the plaintiff had been sentenced to a prison term of one year and eleven months, a serious deportation interest according to § 54 Abs. 2 No. 1 AufenthG was present. Due to his repeated crimes, there was also the danger that he would commit further offenses and uncover additional sources of criminal relevance. There is currently a criminal investigation against his wife and him for terrorism financing and money laundering. There was no atypical exceptional case that would require a departure from the regular granting requirements. The plaintiff’s family situation (wife and four minor children) had been sufficiently considered with his tolerance under § 60a AufenthG, also taking into account Article 6 GG and Article 8 ECHR.
The plaintiff argued against the Administrative Court that he was unaware of the tax debts of €200,000 as the tax authorities had not yet approached him and no significant documents were available.
Judgment of the Administrative Court of Munich:
Judgment of the Administrative Court of Munich:
The Administrative Court of Munich ruled that the lawsuit was admissible but unfounded.
To admit an appeal, there must be serious doubts about the correctness of the judgment in the sense of § 124 Abs. 2 No. 1 VwGO. This is the case if the plaintiff had questioned a single significant legal statement or an important factual finding of the first court with persuasive counterarguments (BVerfG, B.v. 10.9.2009 – 1 BvR 814/09 – juris Rn. 11; B.v. 9.6.2016 – 1 BvR 2453/12 – juris Rn. 16; B.v. 8.5.2019 – 2 BvR 657/19 – juris Rn. 33).
However, the Administrative Court of Munich ruled that this was not the case, as the plaintiff had not questioned the core assumption of the Administrative Court, that the issuance of a residence permit was obstructed by the final deportation order of the defendant dated July 18, 2011, with persuasive counterarguments. The representative of the defendant had only stated in the oral hearing before the Administrative Court on November 30, 2011: “The defendant is willing, against the withdrawal of the lawsuit and under the following additional conditions, to grant the plaintiff repeatedly (for each year) probationary tolerances, which also permit employment, for a period of five years: … (The conditions No. 1 to 4 follow, which the plaintiff must prove before each extension of the tolerance).” No further regulation or assurance regarding the deportation order and the issuance of a residence permit had been made according to the clear and unambiguous wording of this statement. The VGH Munich further stated that even if one were to interpret the procedural declaration of the defendant of November 30, 2011, in accordance with §§ 133, 157 BGB to mean that it would not adhere to its deportation order after the expiration of the probationary period of five years under the four conditions mentioned in the declaration, this would not result in a claim for the issuance of a residence permit. The VGH Munich thus reaffirmed the decision of the Administrative Court that the plaintiff had not fulfilled either the requirement of No. 1 “proof of lawfulness (intentional crimes)” or No. 4 “proof of freedom from debt to the public authorities.”
According to the Court, the Plaintiff Did Not Provide Proof of Lawfulness:
The plaintiff had not provided proof of lawfulness as he was convicted by the Augsburg Regional Court on June 14, 2017, which became final on June 22, 2017, for forgery to a prison sentence of one year and eleven months (suspended with a probationary period of four years). Regardless of whether the plaintiff should have indicated these then-not-yet-charged crimes (forgeries) due to their possible relevance for a probationary tolerance at the time of the agreement in the oral hearing before the Administrative Court on November 30, 2011, it was ultimately decisive that the plaintiff was again convicted of intentional crimes after the agreement. It was also irrelevant that the plaintiff had committed the crimes before the oral hearing on November 30, 2011, and the corresponding procedural declarations of the parties. The VGH ruled that the Administrative Court was right in pointing out that in a “probationary tolerance,” where the authority suspends the execution of the deportation connected with an expulsion for a fixed period under certain conditions to give the affected person the opportunity for probation and thus a basis for further (legal) stay, it is crucial that no further deportation reasons or interests (cf. § 54 AufenthG) exist or arise. The criminal judgment of the Augsburg Regional Court of June 14, 2017, was exactly the case in this respect.
According to the VGH Munich, the Administrative Court’s view that the requirement of „proof of freedom from debt to the public authorities“ under No. 4 was not met, was also legally unobjectionable. The plaintiff’s objection that he was “unaware” of the tax debts of €200,000 mentioned in the criminal judgment of June 14, 2017, and that the tax authorities had not yet “approached” him, thus denying these debts, overlooked his proof obligation established in this requirement.
Ban on Issuing a Residence Permit:
Since in this case the ban on issuing a permit under § 11 Abs. 1 AufenthG was already applicable, it was no longer relevant to decide whether the deportation interest indicated by the criminal conviction of June 14, 2017 (§ 54 Abs. 2 No. 1 AufenthG) still existed and whether there might be an atypical case requiring an exception from this regular granting requirement (§ 5 Abs. 1 No. 2 AufenthG).
Another reason to admit an appeal is the fundamental legal significance (§ 124 Abs. 2 No. 3 VwGO).
The presentation of the fundamental significance of the legal issue requires that there is a specific, yet case-overarching legal or factual question that is significant for the decision of the Administrative Court, whose pending clarification by a higher court in the appeal process is expected and seems necessary for maintaining the consistency of the case law or for a significant development of the law. Accordingly, the presentation (§ 124a Abs. 4 Sentence 4 VwGO) of fundamental significance requires that a concrete legal or factual question be formulated and shown why the question is significant for the consistency of the case law or the development of the law; furthermore, it must be demonstrated what the general, beyond the individual case, significance of this question is (cf. BayVGH, B.v. 8.2.2019 – 10 ZB 18.1768 – Rn. 11; B.v. 14.2.2019 – 10 ZB 18.1967 – juris Rn. 10; Happ in Eyermann, VwGO, 15th ed. 2019, § 124a Rn. 72).
Plaintiff’s Admission Application Was Insufficient:
The admission application did not meet these requirements, as it did not demonstrate that the question of the binding effect of an agreement concerning lawfulness in the present case had fundamental legal significance due to the lack of higher court decisions. Even the formulation of the question aimed at the case-specific interpretation of a procedural declaration. No further clarification need was shown.
The requirements for the presentation of a divergence (§ 124 Abs. 2 No. 4 VwGO) were also not met by the grounds for admission. This requires that a substantively determined, legally or factually significant statement that supports the contested decision is identified, which deviates from a similarly significant statement established in the case law of a higher court using the same legal provision (cf. Happ in Eyermann, VwGO, 15th ed. 2019, § 124a Rn. 73 m.w.N.). The divergent statements must be compared so that the deviation is evident (stRspr, cf. BayVGH, B.v. 22.3.2019 – 10 ZB 18.2598 – juris Rn. 18; B.v. 18.4.2019 – 10 ZB 18.2660 – juris Rn. 9 m.w.N.). This was missing here.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, please feel free to call us at 0221 - 80187670 or send us an email at or send an email to info@mth-partner.de info@mth-partner.de
Lawyers in Cologne advise and represent clients nationwide in immigration law.