Immigration Law: A Polish residence permit does not entitle the spouse of a Ukrainian national to family reunification in Germany.

Administrative Court of Stuttgart, 07.05.2014, Case No.: 5 K 4470/13

Foreign nationals often attempt to enter Germany without a visa or with a visa from another EU country, intending to apply for a German residence permit once inside the country.

If the relevant authorities become aware of this, deportation is likely, as foreign nationals generally require a residence permit to enter and stay in Germany. To avoid deportation, the foreign national may try to prevent it by obtaining an interim order.

According to § 123 (1) of the Administrative Court Procedure Code (VwGO), the court can issue an interim order even before a lawsuit is filed if there is a risk that a change in the existing situation could prevent or significantly hinder the realization of a right of the applicant, or if an order is necessary to establish a provisional situation in relation to a disputed legal relationship to avert significant disadvantages or for other reasons.

However, the applicant needs to demonstrate both a claim and a justification for such an order.

In the above-mentioned ruling, the Administrative Court of Stuttgart had to decide whether the deportation of a Ukrainian man, who had entered Germany with a Polish residence permit to join his German wife, should be suspended through interim legal protection.

Facts of the Case:

The applicant entered Germany from Ukraine without a national visa to be with his German wife.

The applicant, a Ukrainian national, was married to a German citizen. To be with his wife, the applicant entered Germany without a valid German national visa and applied for a residence permit. Despite this application, the applicant, who only held a Polish residence permit, was to be deported from Germany shortly. To avoid deportation, the applicant sought to have an interim order issued, establishing a fictitious effect.

The applicant sought to have the court establish that his stay should be considered legal until the immigration authority made a decision on his residence permit application, as per § 81 (3) Sentence 1 of the Residence Act (AufenthG).

Alternatively, the applicant requested an interim order preventing the respondent from taking any deportation measures.

Decision of the Administrative Court of Stuttgart:

The Administrative Court of Stuttgart ruled that both requests were unsuccessful as they were unfounded.

According to the court, the applicant’s primary request, when interpreted appropriately, aimed to have the court temporarily establish, under § 123 (1) VwGO, that his stay in Germany was legal until the immigration authority decided on his residence permit application submitted on November 6, 2013.

No Material Right for the Applicant:

The court found that the applicant lacked a claim for an order. Such a claim would only exist if the right to be secured or regulated by the order under § 123 VwGO existed materially. However, the applicant failed to demonstrate a situation where his stay would be considered legal until a decision on his residence permit application was made.

Applicant Entered Without the Required Visa:

The applicant lacked the required visa for his stay. According to § 4 (1) Sentence 1 of the Residence Act, foreign nationals generally require a residence permit to enter and stay in Germany.

For long-term stays, a visa for Germany (national visa) is required, which must be obtained before entry (§ 6 (3) Sentence 1 of the Residence Act). The applicant’s stay was considered a long-term stay under § 6 (3) Sentence 1 of the Residence Act, as it involved applying for a residence permit and the associated long-term stay in Germany. The applicant did not have the required national visa as stipulated by §§ 4, 6 (3) Sentence 1 of the Residence Act.

Polish Residence Permit Does Not Grant a Right of Residence in Germany:

The applicant’s stay in Germany was not lawful based on his Polish residence permit.

While under Article 21 of the Schengen Implementation Agreement (SDÜ), third-country nationals holding a valid residence permit issued by one of the Member States can generally move freely within the territory of other Member States for up to 90 days within a 180-day period, this does not apply to the applicant’s stay in Germany.

The court found that Article 21 SDÜ does not grant the right to a stay planned as a long-term residence from the outset, but only to a stay of up to 90 days.

Applicant’s Secondary Request for Toleration Also Unsuccessful:

Auxiliary application for toleration also fails:

This request was unfounded as the applicant failed to demonstrate a claim. Such a claim could only arise under §§ 60, 60a of the Residence Act. However, based on the applicant’s statements and other evidence, the conditions of these provisions were not met. This also applied to the applicant’s marriage to a German citizen.

It should be noted that neither Article 6 of the Basic Law (GG) nor Article 8 of the European Convention on Human Rights (ECHR) generally grant a right of residence in Germany and that it is generally consistent with the right to marriage and family life to require the establishment of marital cohabitation to be contingent on the application for a visa from abroad.

Source: Administrative Court Stuttgart

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