German Immigration law: For the entitlement to a permanent residence permit, the plaintiff must be in possession of a temporary residence permit

Administrative Court of Ansbach, Judgment of October 11, 2023, Case No.: AN 5 K 23.1110 Overview of the Case

Overview of the case

This case involves a Kenyan national (plaintiff) who sought the issuance of a permanent residence permit, or alternatively, an extension of his temporary residence permit or the issuance of a new residence permit. After unsuccessful asylum proceedings and a temporary suspension of deportation, the plaintiff was granted a temporary residence permit under Section 25(5) of the Residence Act in 2012 to exercise his right to access his daughter. This residence permit was regularly extended, most recently until January 4, 2021. Subsequently, the plaintiff applied for an extension of his residence permit and for the issuance of a permanent residence permit, both of which were denied. The plaintiff filed a lawsuit against the denial, which was dismissed by the Administrative Court. The plaintiff then applied for leave to appeal this judgment.

Legal Basis and Rejection of the Appeal Application

The court rejected the application for leave to appeal, as the reasons presented by the plaintiff did not raise serious doubts about the correctness of the first-instance decision. It was determined that the legal requirements for the issuance of a permanent residence permit were not met because the plaintiff did not hold a valid residence permit at the relevant time, nor was there a claim for the extension of the residence permit.

The court emphasized that holding a residence permit at some point in time is insufficient for the issuance of a permanent residence permit. The decisive factor is the possession of a residence permit at the time of the last oral hearing or judicial decision in the court of fact. Since the plaintiff did not possess a valid residence permit at that time, there was no entitlement to a permanent residence permit.

Examination of the Permanent Residence Permit and Fictional Certificate

The plaintiff argued that he had held a residence permit under Section 25(5) of the Residence Act for an extended period and was therefore entitled to a permanent residence permit. However, the court pointed out that periods during which the plaintiff only held a fictional certificate could not be counted toward the time required for the permanent residence permit, especially if the extension or renewal of the residence permit was ultimately denied.

The court further stated that the plaintiff had no claim to an extension of his residence permit at the time of the judicial decision, as no legal or factual impossibility of departure had been demonstrated. Since the plaintiff’s daughter had turned 18 on November 7, 2023, there was no longer a protected family unit that would have justified the plaintiff’s continued stay.

Entitlement to a Residence Permit under Section 25b of the Residence Act

The plaintiff also asserted a claim to a residence permit under Section 25b(1) of the Residence Act, which the court also rejected. It was determined that the plaintiff did not hold either a formal suspension of deportation or a residence permit under Section 104c of the Residence Act at the relevant time. His deportation was not legally hindered concerning his daughter, as she had since reached adulthood.

The court emphasized that Section 25b of the Residence Act is intended to grant a residence permit to foreigners who would otherwise remain temporarily tolerated under certain conditions. However, this was not the case for the plaintiff, who could not claim any material reasons for a suspension of deportation after the expiration of his residence permit.

Special Legal or Factual Difficulties

The plaintiff argued that the case presented special legal difficulties as no supreme court decision had yet been made in this context. The court disagreed, stating that the case law of the Federal Administrative Court was clear and did not require clarification. For the issuance of a permanent residence permit, the time of the last oral hearing in the court of fact is decisive, and it is not sufficient that the plaintiff held a residence permit for the required period at some point.

Consultation Obligations of the Immigration Office

The plaintiff argued that the immigration office had a duty to examine and advise on all possible grounds for a residence permit, particularly regarding the possibility of issuing a permanent residence permit. However, the court clarified that even in the case of a hypothetical breach of duty, there would be no entitlement to a permanent residence permit if the statutory requirements for issuance were not met.

The court emphasized that there is no legal basis for placing a foreigner in a better material position as if they had been properly advised. This would ultimately result in an unlawful advantage.

Conclusion and Summary

The court denied the application for leave to appeal and upheld the Administrative Court’s decision. At the relevant time of the last oral hearing or judicial decision, the plaintiff did not meet the requirements for a permanent residence permit under Section 26(4) of the Residence Act or a residence permit under Section 25b of the Residence Act. The plaintiff’s arguments, such as the fictional effect of his residence permit and a possible breach of duty by the immigration office, did not establish an entitlement to a residence permit. The plaintiff was therefore ordered to bear the costs of the appeal proceedings.