Münster Administrative Court, 12.06.2024, Ref.: 8 L 284/24
Background of the Case
The Administrative Court had to rule on an application aimed at restoring the suspensive effect of an action against an administrative order. The applicant had received an order in April 2024 that provided for the withdrawal of her residence permit issued under Section 104c of the German Residence Act (AufenthG). She argued that the order was unlawful and would place a disproportionate burden on her. However, the court ruled against her and confirmed the legality of the order.
Reason for the withdrawal of the residence permit
The core of the legal dispute was the cancellation of the applicant's residence permit. In the court's opinion, this residence permit had been issued unlawfully from the outset, as the applicant had failed to fulfil a mandatory criterion for its issue: a credible commitment to the free and democratic basic order of the Federal Republic of Germany.
The court stated that this commitment required not only a formal declaration, but also an actual inner attitude. Although the applicant had declared her commitment to this basic order in writing, numerous incriminating pieces of evidence - including anti-Semitic and National Socialist content in her WhatsApp status - showed that this commitment was not credible. Such content was not only an expression of a rejection of basic democratic values, but also relevant under criminal law.
Legal justification of the administrative order
The court confirmed that the administrative order fulfilled the formal requirements in accordance with Section 80 (3) of the German Code of Administrative Court Procedure (VwGO). The defendant had argued that immediate enforcement was necessary to prevent abuse of the unlawfully obtained residence status. In addition, general preventative reasons should be taken into account in order to prevent others from obtaining similar advantages through deception.
The cancellation was made on the basis of Section 48 of the Administrative Procedure Act of North Rhine-Westphalia (VwVfG NRW). According to Section 48 (1) sentence 2 VwVfG, an unlawful administrative act that has a favourable effect may be withdrawn under certain conditions. The court considered these conditions to be fulfilled, as the applicant had fraudulently obtained a right of residence to which she was not entitled.
Balancing of interests and public interest
The Administrative Court weighed up the interests of the applicant and the public interest. The decisive factor was that the residence permit had been obtained by deliberately providing false information. The court emphasised that the public interest in the withdrawal of an illegally obtained permit was particularly high, as it could otherwise lead to an erosion of the acceptance of residence regulations.
The applicant's argument that she had confessed to the incriminating content out of ignorance or misunderstanding was also rejected. Her comprehensive knowledge of the German legal and social system, proven by successful examinations and integration measures, refuted this claim.
Assessment of the commitment to the free democratic basic order
The court explained in detail that the commitment to the free and democratic basic order must not just be lip service. It requires an inner willingness to accept the fundamental principles of the German constitutional state, in particular human dignity, the principle of democracy and the rule of law. These principles had been diametrically violated by the applicant's anti-Semitic and National Socialist posts.
The court considered the explanations she provided, such as a lack of language skills or cultural differences, to be defensive allegations. It pointed out that she had taken part in several civic education programmes and completed the relevant examinations with very good results.
Threat of deportation and other consequences
In addition to the withdrawal of the residence permit, the order also contained a threat of deportation and an entry ban of 30 months. The court confirmed that these measures were lawful, as the applicant was now obliged to leave the country and there were no family ties in Germany that would prevent her from being deported. The deadline set for leaving the country and the time limit on the entry ban also met the legal requirements.
Conclusion: Strict standards in residence law
The judgement shows the strict standards that courts apply when assessing deception and the credibility of statements in residence law. Anti-Semitic and anti-democratic acts are not only contrary to the free and democratic basic order, but also justify consistent measures such as the revocation of residence permits. The decision also emphasises the importance of the public interest in the integrity of the right of residence.
Source: Higher Administrative Court of Saarland
If you need assistance with starting a business in Germany, we are happy to advise you.
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.