Federal Administrative Court, 19.04.2011, Case Number 1 C 2.10
In order to stay in Germany, foreigners generally need a residence permit unless a right of residence exists through EU law or due to the Association Agreement between the European Economic Community and Turkey.
Since 01.01.2005, the term „residence permit“ has been used as an umbrella term for visas, temporary residence permits, settlement permits, or the EU long-term residence permit.
A. Visa
To enter Germany, third-country nationals generally need a visa.
According to Section 71(2) of the Residence Act, the embassies and consulates (foreign representations) of the Federal Republic of Germany are responsible for issuing visas.
Jurisdiction for visa issuance lies with the foreign representation where the applicant has their habitual residence or domicile.
The foreign representation of the Schengen state that is the sole or main destination of the trip is substantively responsible.
Certain countries’ nationals benefit from travel facilitation. For instance, EU citizens, as well as nationals of Iceland, Liechtenstein, Norway, Switzerland, the USA, Australia, Israel, Japan, Canada, and New Zealand, can enter without a visa regardless of the duration and purpose of their stay, even if they intend to stay permanently in Germany.
Citizens of other „third countries“ always need a visa regardless of the duration or purpose of their stay.
Visas for tourist or visit stays are generally issued as so-called „Schengen visas“ according to the provisions of the Schengen Implementation Agreement.
B. Temporary Residence Permit
To stay longer in Germany, third-country nationals need a temporary residence permit after entering the country.
The temporary residence permit is a time-limited residence title (generally for one year) and is issued for purposes specified in the Residence Act (e.g., study, training, research, employment, self-employment, or family reunification).
C. Settlement Permit
The settlement permit is an unlimited residence title and entitles the holder to permanent residence in Germany. To obtain a settlement permit, the applicant must have a secure livelihood, adequate living space, have held a temporary residence permit for five years, be free of criminal offenses, have sufficient German language skills, and have basic knowledge of the legal and social order and living conditions in Germany.
D. EU Long-Term Residence Permit
A new residence title is the EU long-term residence permit, introduced with the law implementing EU directives on immigration and asylum law.
Unlike the settlement permit, the EU long-term residence permit allows the holder to move within the EU.
The holder has a legal right to take up long-term residence and even employment in another EU member state.
The Federal Administrative Court’s Decision
Facts of the Case:
The plaintiff had first married a Pakistani and then a German wife.
The plaintiff, a Pakistani national, married a Pakistani and then a German wife. He has six children, three with his current wife living in Pakistan and three with German women.
The plaintiff first entered Germany in November 1977 and unsuccessfully applied for asylum. He returned to Pakistan in March 1982 and married his current wife in August 1982 according to Islamic rites.
In September 1986, the German Embassy in Islamabad issued him a visa for family reunification after he claimed, using a document from the „Orthodox Church of Pakistan,“ to have married a German citizen in August 1986 in Pakistan. He did not disclose his prior marriage in Pakistan.
He had not declared his previous marriage in Pakistan.
In 1986, he entered Germany and initially received a limited residence permit, which became unlimited in 1989.
After the divorce, the plaintiff married another German woman.
After divorcing, the plaintiff married another German woman, but the marriage ended in 1991
In 1994, he married another German woman in Denmark.
In 1998, the plaintiff was naturalized after being released from Pakistani citizenship.
The 1994 marriage also ended in divorce in 2000. Based on this marriage, the plaintiff was naturalized.
The plaintiff was naturalised on the basis of his marriage to the German national.
In 2001, the plaintiff’s wife in Pakistan applied for a visa for herself and her children to join the plaintiff in Germany. This led German authorities to discover the marriage in Pakistan and that the „Orthodox Church of Pakistan“ had never existed.
Consequently, the city revoked the plaintiff’s naturalization with retroactive effect.
The city revoked the naturalisation after becoming aware of the Pakistani wife.
As a result, the defendant revoked the plaintiff's naturalisation with effect for the past.
The action brought against this was finally dismissed.
The plaintiff’s subsequent application for a residence permit was initially granted with a temporary permit in 2006 for exercising custody over his German daughter. However, his request to reinstate his previous residence permit (now settlement permit) was denied.
The Federal Administrative Court ruled that the previous settlement permit had lost its validity and did not revive after the revocation of the plaintiff’s naturalization.
The court upheld that the residence permit had been resolved by the naturalization and did not revive after the revocation of naturalization. Furthermore, the plaintiff did not meet the requirements for a new settlement permit.
According to the meaning and purpose of the provision, it could not be revived. He could not be granted a new settlement permit either, as he had neither been in possession of a residence permit for five years nor was his livelihood secured.
The foreigners authority rejected this because the requirements were not met.
In the action brought against this, the plaintiff sought a declaration that the residence permit issued to him in 1994 continued to apply as a permanent residence permit, or alternatively requested that the defendant be obliged to issue a (new) permanent residence permit.
The administrative court initially upheld the action for a declaratory judgement, but the higher administrative court overturned the judgement challenged on appeal.
The plaintiff's appeal before the Federal Administrative Court is directed against this.
Decision of the Federal Administrative Court
The BVerwG ruled that the previous settlement permit had lost its validity.
The BVerwG followed the opinion of the OVG and ruled that the residence permit granted to the plaintiff had lost its validity due to his naturalisation, was not revived and the plaintiff was not entitled to a new settlement permit.
In the opinion of the BVerwG, the residence permit previously granted to the plaintiff pursuant to § 43 para. 2 VwVfG had otherwise expired with the acquisition of German citizenship through the naturalisation of the plaintiff in 1998 and had not been revived with effect for the past by the revocation of the naturalisation.
The requirements for a new settlement permit were not met.
The applicant's request for a new settlement permit was also rightly rejected, as the necessary requirements were not met, neither with regard to § 27 AuslG 1990 nor with regard to § 38 AufenthG.
The plaintiff was also not entitled to a settlement permit pursuant to Section 9 of the Residence Act, as he had not held a residence permit for five years, since he had not held a residence permit during the period in which his naturalisation was revoked.
Source: Source: Federal Administrative CourtSource: Federal Administrative Court
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