Introduction
The case concerns the lawsuit of a 35-year-old woman, the daughter of a Turkish worker, who has lived in Germany since 1990. She sought the issuance of an unlimited settlement permit, arguing that she was entitled to a permanent right of residence in Germany under Article 1/80 of the EEC/Turkey Association Council Decision (ARB 1/80). The competent foreigner’s authority rejected the application, reasoning that the plaintiff’s family relied primarily on public funds to sustain themselves. The plaintiff was also unsuccessful before the administrative courts. Ultimately, the Federal Administrative Court ruled on the matter, confirming the lower courts‘ decisions but simultaneously recognizing that the plaintiff’s right of permanent residence must be visibly documented.
The Right of Permanent Residence under ARB 1/80
According to Article 7, second indent, of Decision No. 1/80 of the EEC/Turkey Association Council, the plaintiff, as the daughter of a Turkish worker, has acquired a permanent right of residence in Germany. This right is subject to very strict conditions and can only be lost under exceptional circumstances. In practice, this meant that the plaintiff held a near-unlimited right of residence, which was regularly extended over the years. Despite this right, the plaintiff applied for an unlimited settlement permit to have her right of residence permanently and clearly documented.
Decision of the Foreigners Authority and Administrative Courts
The foreigner’s authority denied the application for an unlimited settlement permit, arguing that the plaintiff’s family relied predominantly on public assistance. Under current German law, this is a reason to deny an unlimited settlement permit. The plaintiff filed a lawsuit against this decision, but both the Administrative Court and the Higher Administrative Court dismissed her case. The courts agreed with the foreigner’s authority that economic dependence on state benefits was an obstacle to obtaining a permanent residency status.
Decision of the Federal Administrative Court
The Federal Administrative Court confirmed the decisions of the lower courts but went beyond their ruling. It acknowledged that the plaintiff’s desire to have her permanent right of residence clearly and permanently documented was justified. The BVerwG ruled that the current practice of issuing a limited residence permit under Section 4(5) of the Residence Act (AufenthG) did not meet the requirements of association law. A residence permit that certifies a permanent right of residence under Article 7, second indent, ARB 1/80 must have a validity of at least five years and must clearly indicate that it is based on a right of permanent residence under association law.
Conclusion
The ruling of the Federal Administrative Court is of great significance for Turkish nationals who hold a right of permanent residence in Germany under the Association Agreement. It ensures that this right is not only recognized in practice but also clearly and permanently documented in legal transactions. The decision thus contributes to legal certainty and strengthens the position of those affected vis-à-vis authorities and other institutions. At the same time, the ruling highlights the limitations of German immigration authorities when it comes to implementing European association law.
