Higher Administrative Court of Baden-Württemberg, Judgment of March 6, 2009 – 13 S 2080/07
To be naturalized as a German citizen, certain requirements must be met. Among these is the need to secure one’s livelihood. But what exactly does this mean? Does it refer to current support, or must this also be secured in old age, in the form of adequate retirement provision?
In this case, a naturalization applicant was denied German citizenship because her livelihood was deemed insecure due to inadequate retirement provision. After a successful initial lawsuit, the defendant appealed, but the Higher Administrative Court of Baden-Württemberg dismissed the appeal, ruling that a secured retirement provision is not a requirement for naturalization, and the applicant had met all other conditions.
Facts of the Case::
Albanian Plaintiff Seeks Naturalization
The plaintiff, born in 1957 and an Albanian national, applied for naturalization in Germany. She had been granted an unlimited residence permit by the Goslar district office on October 12, 1990. On December 4, 1998, she married a German citizen, M, who was the father of two children born in 1990 and 1992.
On April 20, 2001, the plaintiff applied for naturalization and stated that she had been employed in Germany from 1991 to 1995, 1996 to 1999, and most recently since April 10, 2000. Her latest employment was as a sales assistant in a supermarket, earning a net monthly salary of €964.86 with tax class 3 from January to March 2001. On October 1, 2001, her husband stated that he had expanded or changed his business as a freelance financial services representative and was earning income through revenue withdrawals. He planned to apply for income tax compensation at the end of 2001 but had no retirement provision, which he intended to address later through investment transactions.
District office grants the applicant assurance of naturalisation
On May 22, 2002, the Ostalbkreis district office granted the plaintiff a conditional naturalization assurance, valid until May 21, 2004, contingent upon proof of the loss of her Albanian citizenship. The assurance was given on the condition that the relevant facts and legal situation, particularly the plaintiff’s personal circumstances, remained unchanged. The Republic of Albania informed the plaintiff on September 16, 2003, that she had been released from Albanian citizenship.
The Ostalbkreis District Office later learned that the applicant had already concluded a lease agreement for a club restaurant on 17.04.2002 without informing the naturalisation authority and therefore requested the applicant to provide further evidence of her income situation, including pension provision. The applicant complied and showed, among other things, that she has a life insurance policy for which she receives an insured sum of EUR 20,000 as at 30 June 2017 and on which she pays EUR 108.95 per month. A further endowment insurance policy was taken out, from which the claimant will receive EUR 23,180 on 1 November 2022 or a guaranteed pension of EUR 106.56 per month. The amount she pays in is EUR 105 per month. The plaintiff has had voluntary health and long-term care insurance since 1 November 2002. According to the information provided by the Braunschweig State Insurance Office on 8 December 2003, the claimant had paid compulsory contributions to the statutory pension insurance scheme for 28 months, plus three months of creditable time due to unemployment.
After the district office found out about an expensive lease agreement, it rejected the naturalisation
On March 11, 2005, the Ostalbkreis district office rejected the plaintiff’s naturalization application, arguing that the applicant must be able to secure their livelihood for themselves and their dependents without relying on public assistance under the Social Code Book II or Book XII. The office considered retirement provision part of securing one’s livelihood and concluded that the plaintiff’s retirement provision, with insurance sums of €20,000 and €28,180, was insufficient. The office calculated that the plaintiff needed a minimum retirement provision of €144,000, based on a basic income requirement of €800 per month for a single person over an average retirement period of 15 years. Since the plaintiff had not acquired sufficient pension entitlements, her retirement provision was about €100,000 short.
On 1 April 2005, the applicant lodged an objection and declared that she was able to support herself permanently without claiming public benefits. Following the assurance of naturalisation, she had successfully applied to have her Albanian citizenship revoked and was now stateless. As she had only done so on the basis of the assurance of naturalisation, this resulted in her legal entitlement to naturalisation.
The Stuttgart Regional Council rejected the objection in its decision of 8 December 2005, as the applicant did not have sufficient old-age provision in accordance with § 10 StAG. The life insurance policies she had taken out were not sufficient to cover her living expenses in old age. She had no pension entitlements either in Germany or in Albania. It was also not possible to establish that her husband provided for her maintenance. Discretionary naturalisation in accordance with § 8 StAG was therefore also out of the question. The applicant could also not rely on the assurance of naturalisation given, as the relevant circumstances had changed.
The plaintiff appealed against the rejection and was initially upheld
The Stuttgart Administrative Court upheld the action brought against this and obliged the defendant to naturalise the plaintiff as a German citizen, cancelling the decision of the Ostalbkreis District Office of 11 March 2005 and the objection decision of the Stuttgart Regional Council of 8 December 2005. In doing so, it declared that the applicant was already entitled to naturalisation in accordance with § 9 StAG in conjunction with § 8 StAG. § 8 StAG. Therefore, the question of whether the assurance of naturalisation was already the legal basis for the applicant's claim to naturalisation, as well as the defendant's assumption that he was deceived by the applicant about the objective situation of her livelihood when the assurance was granted, was of no further significance. The fundamental requirement of sufficient provision for old age is not justified by law. § Section 8 (1) no. 4 StAG itself only states that the naturalisation applicant must be able to support themselves and their dependants. It can therefore be deduced that the naturalisation applicant must be able to satisfy their basic needs and those of their dependants over a foreseeable period of time. Whether this fulfilment occurs is made dependent on whether the applicant can manage without public transfer payments such as social assistance or unemployment benefit or benefits in accordance with SGB II or XII or housing benefit based on their own income. The guarantee of basic security could at best be equated with the fulfilment of basic needs in old age, but not their provision. Moreover, not even naturalisation under Section 10 StAG requires sufficient provision for old age. In this respect, it only requires that the applicant for naturalisation is able to support themselves and their dependants without claiming benefits under SGB II or XII. This only refers to benefits for subsistence in accordance with these codes, so that not even the current claim to basic old-age benefits excludes the entitlement to naturalisation. The conclusion that, in addition to securing a livelihood in the sense of social welfare needs, there must also be an entitlement to a pension to avoid basic security in old age cannot be drawn. In principle, no old-age provision is required under residence law either. § Section 2 (3) of the Residence Act stipulates that a foreigner's livelihood is secured if he or she can cover it, including adequate health insurance cover, without recourse to public funds. The granting of a settlement permit in accordance with § 9 Para. 2 Sentence 1 No. 3 AufenthG also requires the establishment of pension entitlements of at least 60 months of compulsory contributions (or comparable insurance claims under private law). However, naturalisation in accordance with Section 10 StAG does not require a settlement permit, but only eight years of legal residence in Germany, for which a residence permit, for example, is also sufficient.
Even if, within the framework of Section 8 (1) No. 4 StAG, sufficient old-age security were necessary, the applicant would still be entitled to naturalisation. According to Section 8 (2) StAG, the requirement of a secure livelihood (which she does not fulfil) must be waived in her case in order to avoid particular hardship. The reason for this was that the applicant was granted naturalisation on the assumption that she was able to support herself. Although this assumption was based on employment dependent on wages and subject to social security contributions, the latter did not allow for a reliable positive prognosis regarding old-age provision. Furthermore, the plaintiff had not yet established a pension entitlement because the contributions she had made were still far below the 60-month mark. The defendant did not have the freedom, when issuing the naturalisation assurance, to assume that the applicant, who was born in 1957, would have a pension entitlement exceeding the basic security requirement. In the administrative procedure that preceded this assurance of naturalisation, the conditions for a future pension entitlement were not specifically examined. The defendant was satisfied with the fact that the plaintiff had been employed under social security and thus also pension insurance law and nevertheless gave her a naturalisation assurance.
The defendant then lodged an (admissible) appeal in which he replied that the applicant lacked sufficient security in old age and in the event of incapacity or reduced earning capacity in order to be naturalised. This applied both to naturalisation under Section 10 StAG and to naturalisation under Section 9 in conjunction with Section 8 StAG. § 8 StAG. The applicant for naturalisation must be in a position to secure their livelihood for themselves and their dependants on a permanent basis. This presupposes that the applicant's livelihood is secure at the time of the naturalisation decision and is also likely to be secure in the future. Indications for the expected long-term security of livelihood are, for example, the person's previous life experience, completed vocational training, willingness to work, private or public insurance cover or sufficient personal assets. The regulation is an expression of the state's interest in naturalising only those foreigners who have also integrated themselves economically into the local social and political conditions and have thus been given a sense of belonging. The economic and social achievements of the Federal Republic of Germany include, in particular, a social safety net created by private and public insurance companies, which serves to cover certain life risks such as unemployment, illness, premature occupational disability and incapacity, old age and the need for care. As self-employed tradespeople are not integrated into the social security system by law, they are required to insure themselves against the existing life risks of premature occupational disability and incapacity for work and old age in other ways, be it through private insurance cover, voluntary membership of the statutory pension scheme or through corresponding assets that cover at least the standard requirements under social welfare law. Provision for old age is part of the necessary means of subsistence. Sufficient provision for old age can only be assumed if the pension achievable through statutory or private provision in old age or in the event of reduced earning capacity or incapacity to work would at least provide benefits in an amount corresponding to a basic security pension. This does not mean that corresponding entitlements in this amount must already exist at the time of naturalisation, but only that it can be assumed on the basis of current income and/or existing assets (e.g. residential property) that the naturalisation applicant is able and, according to a forecast, will continue to be able to make corresponding contributions for sufficient provision for old age and the consequences of a reduction in earning capacity or incapacity to work. The applicant was probably in a position to provide for her own current maintenance from her own resources, but it had not been proven that she could also provide for the maintenance of her spouse. It also appeared that the husband would not be able to support the claimant in the future. According to the applicant's employment history to date, it was not certain that sufficient old-age provision could be established for her. Like her husband, she had received social assistance for a not inconsiderable period from at least mid-1995 to July 1999. At the present time, it can be assumed that the plaintiff will have to claim public benefits such as basic security benefits in accordance with §§ 41 ff. SGB XII at the latest.
The naturalisation authority appeals against the ruling of the administrative court
The defendant requested that the judgement of the Stuttgart Administrative Court be amended and the action dismissed.
The applicant, on the other hand, defended the contested judgement and went on to say that a naturalisation applicant was not obliged to provide for every situation in life. She herself had integrated herself into the local social and economic situation in an exemplary manner. In the meantime, she had four insurance policies with a pension character. In addition to the two life insurance policies, she had a fund to which she transferred EUR 100 per month. Since 1 October 2006, she had also been paying EUR 100 per month for a unit-linked pension insurance policy, with the pension starting on 1 October 2022. She spent a total of around EUR 400 per month on her old-age provision. With a current pension insurance contribution of 19.5 %, this amount corresponds to a gross income of around EUR 2,000. She could not be expected to contribute any more than any dependent employee with a relatively low income. In addition, due to her age, she could continue to make provisions for many years to come. In addition, the current discussions about pension cuts and the standardised pension prove that pensions will no longer be secure in the future anyway. She could not be blamed for receiving social assistance from 1995 to 1999, as she had looked after her husband's children from her first marriage and was therefore unable to pursue employment subject to compulsory insurance. A burglary during a holiday trip in February/March 1994 had also led to considerable financial losses. On 30 April 2001, her employment with the supermarket was terminated due to illness, as she was no longer allowed to carry heavy objects for an extended period following an operation. After her recovery, she was given part-time employment of 100 hours per month at another supermarket. When she approached the personnel manager about a full-time position, her employment contract was terminated on 25 October 2001. She was then employed as a cashier in an amusement arcade and eventually became self-employed by leasing the club pub. In 2005, she took over her own pub and restaurant. Her annual income had developed as follows: EUR 11,548.73 in 2004, EUR 13,115 in 2005, EUR 21,116 in 2006 and EUR 18,435.85 for 2007. For 2008, only an evaluation up to and including October was available, after which she had made a profit of EUR 13,626.84 from January to October 2008. In the meantime, her marriage had broken down and she had been separated from her husband for at least three years. He was able to support himself and did not claim any maintenance from her, nor did she from him.
Judgement of the Administrative Court of Baden-Württemberg:
The Administrative Court also considered the applicant to be entitled to naturalisation.
The admissible appeal was unsuccessful. As a result, the Administrative Court had rightly upheld the claim. The plaintiff was entitled to naturalisation as a German citizen in accordance with § 10 StAG, as she was not a German citizen at the time of the oral hearing before the Senate (BVerwG, judgement of 20.10.2005 - 5 C 8.05 -, DVBl 2006, 919, 920; VGH Bad.-Württ, judgements of 16.02.2006 - 12 S 2430/05 -and of 12.01.2005 - 13 S 2549/03 -, VBlBW 2006, 70; BayVGH, judgement of 20.11.2006 - 5 BV 04.35 -, juris Rn 24 mwN) also fulfilled the requirement of the fundamentally necessary independent means of subsistence according to § 10 para. 1 sentence 1 no. 3 StAG.
§ Section 10 (1) sentence 1 no. 3 StAG is applicable in the version of the Act on the Implementation of Residence and Asylum Directives of the European Union of 19 August 2007 (Federal Law Gazette I p. 1970). According to this regulation, §§ 8 to 14 and 40c continue to apply to naturalisation applications submitted before 30.03.2007 in the version valid before 28.08.2007, insofar as they contain more favourable provisions. The regulation that is more favourable to the naturalisation applicant is to be applied, so that a naturalisation application can be assessed partly according to the previous law and partly according to the new law (Berlit, Änderungen im Staatsangehörigkeitsrecht durch das EU-Richtlinienumsetzungsgesetz, InfAuslR 2007, 457, 466).
The content of § 10 para. 1 sentence 1 no. 3 StAG in the version valid since 28.8.2007 has not been changed compared to the previous version (valid since 1.01.2005) (Art. 5 of the Immigration Act of 30.07.2004, BGBl. I p. 950) for naturalisation applicants who - like the applicant - are over 23 years old (cf. § 10 para. 1 sentence 1 no. 3, sentence 3 StAG old version; Berlit, loc. cit., page 465). As the applicant had only applied for naturalisation on 20.04.2001, she was also not subject to the transitional provision of § 40c StAG in the version of 01.01.2005, as this only applies to naturalisation applications submitted before 16.03.1999.
According to Section 10 para. 1 sentence 1 no. 3 StAG, the foreigner must be able to support themselves and their dependent family members without claiming benefits under the Second or Twelfth Book of the German Social Code or not be responsible for claiming them. The plaintiff, who is self-employed as an innkeeper, was assessed as being able to secure her livelihood independently at present and probably also in the foreseeable future. She covered her maintenance requirements with regard to the needs of daily life from her own resources, she had voluntary health and nursing care insurance in a statutory health insurance scheme and paid contributions to a private pension scheme within the scope of what was possible and reasonable for her. No more was required for the assumption that the naturalisation applicant could cover her own living expenses; it was also irrelevant that the applicant was not insured against the risk of disability.
Livelihood within the meaning of the StAG includes everything that is necessary for a decent life
A legal definition of what constitutes a means of subsistence, which in principle must be provided for by the person themselves, cannot be found independently in nationality law. According to the general understanding of the language, however, the term includes what is necessary to lead a decent life in Germany (see Makarov/v. Mangoldt, Staatsangehörigkeitsrecht, § 86 AuslG Rn 20). This can be concretised in more detail based on the provisions of the Second and Twelfth Book of the German Social Code referred to in § 10 Para. 1 Sentence 1 No. 3 StAG. The wording that the foreigner must be able to support themselves and their dependent family members without claiming benefits under the Second or Twelfth Book of the German Social Code firstly stipulates that a claim to such benefits is generally detrimental to naturalisation. In addition, the reference to this social legislation also suggests that the general benefits provided on this basis typically form part of the minimum standard of what is needed for subsistence. Determining the need to ensure subsistence requires a comparison of the need for subsistence with the resources actually available. Since the amendment of the law on social and unemployment assistance on 1 January 2005, the determination of the need for maintenance has been based on the corresponding provisions of the Second Book of the German Social Code (SGB II) for naturalisation applicants who are able to work.
The living expenses of a naturalisation applicant include adequate accommodation (cf. § 22 SGB II), funds required to meet personal needs in daily life (such as food, clothing, personal hygiene, household items) and which can be determined in accordance with § 20 SGB II on the basis of the standard benefit, which is currently EUR 351 for a single person (announcement of 26 June 2008 on the amount of the standard benefit in accordance with § 20 para. 2 sentence 1 SGB II from 1 July 2008, Federal Law Gazette I p. 1102).06.2008 on the amount of the standard benefit according to § 20 para. 2 sentence 1 SGB II from 01.07.2008, BGBl. I p. 1102), and finally health and long-term care insurance. Protection against the risk of illness and long-term care is part of the social standard of the Federal Republic of Germany, which recognises the fact that illness and the need for long-term care can occur at any time, regardless of a person's physical and mental characteristics and their individual circumstances, and can be associated with high costs that the individual is regularly no longer able to cope with on their own. The particular importance of health and long-term care insurance is evident, for example, from the fact that recipients of unemployment benefit II are insured for health and long-term care by law (cf. § 5 para. 1 no. 2a SGB V); it is also expressed in the provisions of § 11 para. 2 sentence 1 nos. 2 and 3 lit. a SGB II. According to § 11 para. 2 sentence 1 no. 2 SGB II, compulsory contributions to social insurance, which includes health and long-term care insurance (Hohm/Klaus, GK-SGB II, § 11 marginal number 176), are to be deducted from income. For persons who are not required to take out statutory health insurance, § 11 Para. 2 Sentence 1 No. 3 lit. a SGB II stipulates that reasonable contributions to public or private insurance schemes for provision in the event of illness and the need for long-term care are to be deducted from income, insofar as the contributions are not subsidised in accordance with § 26 SGB II. Just because there is no express statutory provision in nationality law for the requirement to include health and long-term care provision in the cost of living in accordance with Section 10 (1) sentence 1 no. 3 StAG, and the extension to include provision for illness and long-term care is constitutive in immigration law, this does not mean that health and long-term care provision cannot be included in the cost of living (see Berlit, GK-StAR, Section 10 marginal no. 218). It is true that the Residence Act expressly contains special provisions on living expenses and health and long-term care insurance with varying scope and possibilities for waiver (cf. for example § 2 para. 3 Residence Act, § 5 para. 1 sentence 1 no. 1 Residence Act, § 9 para. 2 sentence 1 no. 2 in conjunction with § 9c sentence 1 no. 3 Residence Act). § 9c sentence 1 no. 3 AufenthG, § 28 para. 1 sentences 2 and 3 AufenthG, § 29 para. 2 AufenthG and § 68 para. 1 sentence 1 AufenthG), but these are linked to specific situations under immigration law and take into account the differentiated system of different residence purposes and titles. For this reason alone, it is not possible to draw up any binding guidelines for the definition of what constitutes the means of subsistence of a person who wishes to become a German citizen in the future. However, it can be concluded from the requirements for issuing a settlement permit that the more established the foreigner's residence is on the basis of the Residence Act, the higher the requirements for social security. It is a prerequisite for settlement that the risk of illness and the need for long-term care is covered by statutory health insurance or equivalent insurance cover (Section 9 (2) sentence 1 no. 2 in conjunction with Section 9c sentence 1 no. 3 Residence Act). The requirement of health and long-term care insurance does not result in the requirements for naturalisation under Section 10 StAG being unreasonably raised. Employees subject to social security contributions are regularly insured accordingly anyway. Furthermore, if the naturalisation applicant cannot establish their own insurance cover because they are already receiving benefits under SGB II or SGB XII or have to claim such benefits as a supplement to cover the costs of health and long-term care insurance, this is not detrimental under Section 10 para. 1 sentence 1 no. 3 StAG if the applicant is not responsible for the receipt of such benefits.
Whether pension provision is part of the livelihood within the meaning of 10 StAG must be considered individually
Whether and to what extent pension provision is also part of the livelihood according to Section 10 para. 1 sentence 1 no. 3 StAG cannot be generally determined. At the very least, an applicant for naturalisation cannot be required to provide more than what is customary and reasonable for a German national in a comparable life situation and employment situation. In the case of young naturalisation applicants, for example, who are still at school, training or studying, retirement provision is not part of their livelihood, as this has not yet been invested at such a stage of life, or at least not to any significant extent, because retirement age and thus the onset of retirement is still a long way off. However, the situation is different for a naturalisation applicant at an advanced age who will soon be drawing a pension due to their age or other reasons that justify early retirement from working life. In this case, the question of whether living expenses can be met with funds from the pension scheme will regularly have to be investigated. If the naturalisation applicant who is capable of gainful employment is in a phase of life that lies between the two aforementioned constellations, the existence of old-age provision with the statutory pension insurance or with another comparable insurance or pension institution or an insurance company is regularly part of the means of subsistence. However, at the time of naturalisation, it does not have to be certain that the benefits to be expected in the future in the event of a pension claim will actually be sufficient to secure a permanent livelihood in old age.
The establishment of a pension scheme is an essential part of the social security system in Germany and participation in it is an expression of economic integration. The importance of compulsory or optional old-age provision is also reflected in the provisions of § 11 para. 2 sentence 1 nos. 2, 3 lit. b and 4 SGB II, according to which compulsory contributions to social insurance - including contributions to statutory pension insurance - or private old-age provision appropriate in terms of reason and amount as well as specially subsidised old-age provision contributions are to be deducted from income (cf. in more detail Hohm/Klaus, GK-SGB II, § 11 para. 176, 206, 214, 242 ff.).
However, the view of the defendant, according to which at least one old-age provision must be available in which the claiming of basic security benefits is not to be expected upon reaching retirement age, could not be accepted. In particular, naturalisation applicants who - like the then 32-year-old plaintiff - only came to Germany as adults and were employed in professions with low wages subject to social security contributions, regularly had little prospect of earning an old-age pension that would in any case make them independent of tax-financed social benefits in old age, even with a regular employment history. This is because, according to the pension scheme, the later pension depends largely on the number of years of contributions and the annual income earned during working life. In the case of self-employment, which is not subject to social security contributions, the employee must also generally finance their pension exclusively from their own income. For a higher income and a correspondingly higher pension, regular gainful employment of a qualified nature and scope is required. However, naturalisation does not require a specific professional qualification or quantitative work performance, either directly or indirectly. If, at the time of the decision on the naturalisation application, everything indicates that with the existing pension provision - even with regular further development - a later (supplementary) receipt of social benefits, in particular basic security in old age according to §§ 41 ff. SGB XII, cannot be ruled out, this must nevertheless be accepted. The objection that this would result in naturalisation into the social security system contrary to the intention of the legislator (see Makarov/v. Mangoldt, loc. cit., para. 20) does not contradict this. In order to be entitled to naturalisation, a legal habitual residence in Germany for at least eight years is required. On the basis of this long-term residence, it is assumed that the naturalisation applicant has been sufficiently integrated into the legal, social and economic order of the Federal Republic of Germany, taking into account the local cultural and political values. In this respect, naturalisation should be the end of a successful integration process, also in the public interest (cf. the explanatory memorandum to the draft law on the new regulation of aliens law of 27.01.1990, BT-Drs. 11/6321, p. 47; see also BVerwG, decision of 27.10.1995 - 1 B 34.95 -, InfAuslR 1996, 54;). In this respect, the fiscal interests of the state carry less weight (HessVGH, judgement of 8 May 2006 - 12 TP 357/06 -; OVG NRW, judgement of 1 July 1997 - 25 A 3613/95 -, juris Rn 42 mwN; Jakober/Welte, Aktuelles Ausländerrecht - Erläuterungen zum Staatsangehörigkeitsgesetz Anm. 12). This can also be seen from the fact that the legislator considers the receipt of tax-financed social benefits to be harmless in the case of naturalisation if the naturalisation applicant is not responsible for this. Apart from this, even in cases where sufficient provision for old age is assumed on the basis of the current insurance history, this cannot be guaranteed due to the diverse and everyday risks of life. Similarly, a pension scheme that is currently in deficit can still achieve an income in the future through a positive development of assets that secures the needs in old age. The younger the naturalisation applicant is, the more difficult it is to make predictions about sufficient retirement provision that cannot be to the detriment of the naturalisation applicant. This is not contradicted by the fact that the requirements for old-age provision for the granting of a settlement permit may therefore be higher in individual cases than those for naturalisation. § Section 9 para. 2 sentence 1 no. 3 AufenthG did require that the foreigner applying for a settlement permit must have made compulsory or voluntary contributions to the statutory pension insurance scheme for at least 60 months or provide evidence of expenses for an entitlement to comparable benefits from an insurance or pension institution or an insurance company. However, even at the time the settlement permit is issued, it does not have to be certain that the benefits from the statutory pension insurance or from another insurance or pension scheme will actually be sufficient to cover living expenses in the future. In the context of § 9 Para. 2 No. 3 AufenthG, the legislator assumes that further contributions will be paid even after at least 60 monthly contributions have been made, but it has not made this a test programme and therefore not an eligibility requirement (Funke-Kaiser, GK-AufenthG, § 9c Rn 16 in conjunction with § 2 Rn 42.1).
Securing a livelihood does not include protection against all conceivable life risks
Whether insurance against occupational disability or incapacity to work must also be in place in addition to retirement provision could be left open in the present case. Even taking into account what is customary for German nationals, securing a livelihood does not cover all conceivable life risks. The plaintiff was not insured against reduced earning capacity or disability through the statutory pension insurance scheme. However, she could at best be considered to cover this risk through private insurance if a special risk arising from the specific gainful employment becomes apparent, the insurance of which is reasonably required due to the special circumstances of the individual case. However, her activity as a caterer did not provide any indications of this.
Based on the aforementioned principles, the plaintiff was currently and presumably also in the future able to support herself. The applicant also did not have to pay for her husband's maintenance, as they had been living separately for several years and each of them covered their maintenance needs through their own gainful employment. Apart from this, this would not prevent the applicant's application for naturalisation. If only family members receive benefits under SGB II or SGX II, the requirement under Section 10 para. 1 sentence 1 no. 3 StAG is only not fulfilled if they are entitled to maintenance from the foreigner. This maintenance claim must also be enforceable in the specific individual case. Pursuant to Section 1602 BGB, this is ruled out if the family member is able to support themselves or is only unable to do so because they do not (sufficiently) fulfil their earning obligations under maintenance law; the same applies to maintenance claims in the event of separation or post-marital maintenance (Berlit, GK-StAG, Section 10 para. 226).
At the time, the plaintiff was neither receiving benefits in accordance with SGB II or SGB XII nor was she entitled to such benefits. The claimant had voluntary health and long-term care insurance and, with a current income of around EUR 1,400 per month, paid around EUR 400 into a total of four different insurance policies intended for her retirement provision (a life insurance policy, an endowment policy, a unit-linked pension insurance policy and an investment fund). Taking into account, to the detriment of the plaintiff, that she had suspended payments to the two life insurance policies for one year in 2008 (as stated by her) because she needed the money for business investments and therefore the amount paid out will be reduced, she will probably have almost EUR 80,000 at her disposal after she reaches the age of 65. It could not be held against her that the pension provision did not already exist in this form at the start of her self-employment, as it is not unusual for self-employed people in particular to gradually build up their pension provision in line with the development of their business. This is primarily due to the fact that the latter must be financed exclusively by the self-employed. The defendant's assumption that the plaintiff's pension scheme was in any case in deficit could also not be accepted without further ado. At the time, the plaintiff was not able to make any higher expenditure for her pension provision in view of the amount of income from her business, but she still had more than 14 years until she reached the general retirement age of 65 years and 11 months in her case (see § 41 para. 2 SGB XII on the entitlement to benefits with regard to basic security in old age from this age limit). During this time, positive development opportunities could arise in financial terms, and self-employed tradespeople are also often employed beyond the general retirement age.
If the taxes to be paid on the income and the expenses for insurance are deducted from the plaintiff's income, she would still have sufficient financial means at her disposal to finance her everyday needs. This was also undisputed between the parties involved. The plaintiff had a suitable flat whose costs were already covered by the rent she had to pay. Furthermore, she still had a monthly income which, even after deducting other amounts specified in § 11 Para. 2 SGB II (if they were relevant at all), was still above the standard benefit for securing subsistence in accordance with § 20 SGB II of currently EUR 351 for single persons. It could therefore also be left open whether, when determining the income of a naturalisation applicant that is required to secure their livelihood, all contributions listed in § 11 Para. 2 SGB II would have to be deducted from the earned income (according to VG Oldenburg, judgement of 25 February 2009 - 11 A 1907/07 -, juris Rn 20, taking into account the income required to secure their livelihood within the meaning of § 11 Para. 2 SGB II). 2 (3) AufenthG in the judgement of the Federal Administrative Court of 26 August 2008 - 1 C 32.07 -, NVwZ 2009, 248).
Ultimately, a forecast decision is decisive
A certain degree of sustainability was required to determine whether the applicant's livelihood was secured without the use of benefits under the Second or Twelfth Book of the German Social Code. A prognosis must be made as to whether the naturalisation applicant is likely to be able to secure their livelihood from their own income in the long term (Senate decision of 10.02.2009 - 13 S 3074/08 - and of 02.04.2008 - 13 S 171/08 -; Berlit, GK-StAR, § 10 para. 230 f.; see also VG Berlin, judgement of 16.08.2005 - 2 A 99.04 -, juris; VG Braunschweig, judgement of 15.07.2003 - 5 A 89/03 -, juris; on the comparable situation in aliens law: BVerwG, decision of 13.10.1983 - 1 B 115/83 -, NVwZ 1984, 381; decision of the Senate of 13.03.2008 - 13 S 2524/07 -). Whether the applicant's livelihood is secured through their own employment depends both on their previous employment history and their current professional situation. However, no exaggerated requirements should be placed on the prognostic assessment of future economic independence, both with regard to the forecast period and the certainty of the forecast. If someone has a long-term, secure employment relationship, it can generally be assumed that this will continue in the future. The general risks of the labour market or the relatively higher labour market risk of foreigners alone do not preclude a positive forecast (see Berlit, GK-StAR, § 10 para. 232).
Measured against these requirements, the plaintiff was likely to be able to earn her own living in the future, including provisions for illness, care and old age. Since mid-2002, she has earned her living through self-employment in the catering industry. From summer 2002 she leased a pub, from mid-2004 she took over another pub, now with its own licence, and in 2006 a (now closed) pizzeria was added. The plaintiff counteracted this closure by operating a dance club a few days a week. All of the businesses she ran were not conspicuous under regulatory law and had previously provided her with sufficient income. In the two years prior to her self-employment in May 2002, the plaintiff had been employed in a way that had also secured her an independent livelihood, as can be seen from the pay slips submitted. As a saleswoman and cashier, she earned a monthly net income of slightly above or below EUR 1,000. She changed jobs three times during this period for health reasons. Due to an operation, she was unable to lift heavy objects for a long period of time - which is a regular occurrence when working in a supermarket. Her employment history over the last eight years - this period is likely to be decisive according to the case law of the Federal Administrative Court (judgement of 19 February 2009 - 5 C 22.08 -) - proved that the claimant had always earned her living independently. The plaintiff's now self-employed activity as a restaurateur was not to be given less weight than employment subject to social security contributions. Even if the entire period since her arrival in Germany were to be considered, nothing else would result. Apart from a period of social assistance between 1995 and July 1999, which the plaintiff explained as being due to the care of her husband's sons from her first marriage, born in 1990 and 1992, and which was now ten years ago, the plaintiff had secured her livelihood independently since her arrival in Germany in 1990 and had endeavoured in every situation in life to stand on her own two feet financially as far as possible.
Plaintiff had basically fulfilled its financial obligations
Moreover, it was not apparent that she would no longer be able to secure her livelihood in the foreseeable future or even in the near future. Only once, in 2008, had the plaintiff not paid any amounts for the two life insurance policies because, according to her statements, she had needed the money for business investments. This was a one-off event that did not call into question the seriousness of her pension provision. Moreover, such short-term suspensions are not atypical for self-employed persons who have to finance their pension provision exclusively themselves. A general economic risk, which could result in a decline in income in the catering industry, particularly in the current economic situation, was not sufficient to prevent the forecast of a secure livelihood in the future.
Source: Administrative Court of Baden Würtemmberg
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