Administrative Court of Würzburg, Judgment of January 22, 2024, Case No.: W 7 K 23.140
The following requirements must be met by a foreign national seeking the right of residence under the Opportunity Right (§ 104c AufenthG):
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- The person is currently tolerated in Germany.
- The person adheres to the free democratic basic order.
- The person has not been convicted of an intentional crime committed in Germany with a penalty exceeding 50 daily rates.
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Additionally, the foreign national must not have violated their duty to cooperate beyond a certain threshold, such as in the procurement of a passport. This was the central issue addressed by the Administrative Court of Würzburg in the case presented here.
Facts of the Case:
Plaintiff originally entered to apply for asylum
The plaintiff was a Nigerian national. He entered Germany on August 12, 2016, and applied for asylum for the second time, after having previously undergone an unsuccessful asylum process in Italy. His application was rejected as inadmissible. After his residence permit expired, the plaintiff was issued several toleration certificates, which were repeatedly extended due to a lack of identification documents.
The plaintiff eventually became the father of German children
On October 2, 2017, the plaintiff acknowledged paternity for his unborn German son. The plaintiff was listed as the father on the birth certificate, albeit with the note „Identity not verified“ due to a lack of documentation. Eventually, a second German son was born, for whom the plaintiff also acknowledged paternity prenatally on November 10, 2022. The plaintiff lives with his German partner, their two sons (both German citizens), and an older child of his partner in a shared household.
The plaintiff continued to receive tolerations
The plaintiff eventually applied for a residence permit on family grounds and due to his sustainable integration but later withdrew the application. Since January 2018, the plaintiff had also been granted permits to engage in employment. On September 1, 2021, the defendant informed the plaintiff that a new temporary work permit would only be granted if the plaintiff committed to saving a portion of his income to eventually conduct the visa process. The plaintiff did not comply with this request.
When the plaintiff was about to be deported, he applied for the Opportunity Right of Residence
On August 30, 2022, the ZAB applied for the plaintiff’s deportation. The Bavarian State Office for Asylum and Returns scheduled a flight for October 18, 2022. An attempt to detain the plaintiff at his residence failed. Due to the renewed pregnancy of his partner, the plaintiff continued to be tolerated.
On November 8, 2022, the defendant informed the plaintiff that his toleration would be extended again if he pursued the visa process from within Germany and immediately applied for prior approval from the local immigration office. The plaintiff complied with this request.
On December 30, 2022, the plaintiff’s legal representative applied for a residence permit under § 104c AufenthG, while maintaining the willingness to pursue the visa process should the requirements for the Opportunity Right not be met.
This application was rejected by the defendant on the grounds that his toleration had expired. The plaintiff subsequently filed a lawsuit.
Decision of the Administrative Court of Würzburg
The Würzburg Administrative Court recognized the plaintiff’s right to the Opportunity Right of Residence
The Administrative Court of Würzburg ruled in favor of the plaintiff, stating that the requirements for the Opportunity Right of Residence were met.
The plaintiff is currently tolerated, meets the required length of prior residence as of the cutoff date, and his violations of the duty to cooperate do not reach the intensity required to deny the residence permit under § 104c (1) Sentence 2 AufenthG, nor do they constitute an exceptional case.
Life in Nigeria is unacceptable for the nearly entirely German family
Furthermore, the family’s life could only continue in the Federal Republic of Germany. Only the plaintiff is a Nigerian citizen; his partner and their two children are German citizens.
Separation to complete the visa process is unreasonable
Thus, a prognosis must be made regarding the likely separation period to assess whether a potential temporary separation would be reasonable for the affected child.
Based on this, the predicted separation period following a deportation on March 11, 2022, would ideally have been about eight months, but it could have extended to over two years, particularly if the plaintiff had to take legal action to shorten the re-entry and residence ban. Without a reduction in the re-entry and residence ban, the separation could have lasted about three years and six months. The prediction of the maximum separation duration was therefore associated with considerable uncertainty.
With high probability, the plaintiff would have missed the birth of his second son even if he had been deported on March 11, 2022.
The pregnancies of the German wife had legal effects on residence
It is important to consider that not only a born child is relevant when assessing the reasonableness of deportation, but the pregnancy itself also has legal implications. The paternity of a foreign national living in Germany for an unborn child can create circumstances that, under the protection of family life pursuant to Art. 6 (1) of the Basic Law (GG) and the state’s duty to protect and promote the unborn child under Art. 2 (2) Sentence 1, Art. 1 (1) GG, can constitute an obstacle to deportation. In principle, it is necessary for the child’s well-being to maintain contact with both parents. Although this does not result in a general ban on deportation, it does require the immigration authority to appropriately consider the pre-family relationship in decisions to end the residence and, in particular, to assess the likelihood of the father’s return before the birth.
The minor violations of the duty to cooperate by the plaintiff do not argue against the Opportunity Right of Residence
No violations of the duty to cooperate were found that would reach the level of intensity necessary to deny the residence permit under § 104c (1) Sentence 2 AufenthG or to qualify as an exceptional case.
According to § 104c (1) Sentence 2 AufenthG, the Opportunity Residence Permit should be denied if the foreigner has repeatedly made false statements or misrepresented their identity or nationality and thereby prevented their deportation.
The court acknowledged that the plaintiff had violated his duty to cooperate in the administrative process. Communication with the authorities was repeatedly delayed, contrary to § 82 (1) Sentence 1 AufenthG. However, this behavior was not causally related to the lack of deportation, which is required for the denial of the residence permit. The birth of the plaintiff’s two children at the beginning and shortly after the end of the relevant period for the cutoff date regulation under § 104c (1) AufenthG, and the resulting legal impossibility of deportation, were the actual reasons for the non-deportation.
Thus, the plaintiff’s (unlawful) conduct did not exceed the high threshold required under § 104c (1) Sentence 2 AufenthG or in the case of omission to constitute an exceptional case that would justify denying the residence permit.
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