Immigration Law: Death of the German Spouse Before the Issuance of a Residence Permit for Spousal Reunification

Administrative Court of Bayreuth, December 4, 2014, Case No.: B 4 E 14.786

This so-called „fiction effect“ is established in § 81(3) of the Residence Act (AufenthG). According to § 81(5) AufenthG, the foreign national must be issued a certificate documenting the effect of their application (fiction certificate). This fiction effect also impacts the type of application for provisional legal protection. Due to the fiction effect, a request under § 123 of the Administrative Court Procedure Code (VwGO) is not permissible; instead, a request under § 80(5) VwGO is appropriate.

This so-called fictitious effect is set out in Section 81 (3) AufenthG. In accordance with Section 81 (5) AufenthG, the foreigner must then be issued with a certificate of the effect of their application (fiction certificate).

This fictitious effect also has an impact on the selection of the type of application for interim legal protection. Due to the fictional effect, an application pursuant to Section 123 VwGO is not admissible, but rather an application pursuant to Section 80 (5) VwGO.

In this case, the applicant, a Ukrainian national, held a Schengen visa and had prospects of obtaining a residence permit for spousal reunification. However, her German husband passed away before the residence permit was issued. Despite this, the applicant sought a residence permit based on an independent right of residence under § 31 AufenthG.

Entry and Marriage of a Ukrainian National:

The applicant, born in 1964 and a Ukrainian national, entered Germany on September 15, 2013, with a Schengen visa valid until September 14, 2014. On October 1, 2013, she married a German citizen, K. After the marriage, she returned to her home country and applied for a visa for spousal reunification on November 20, 2013. The German embassy denied this application.

Legal Actions and Withdrawal:

The applicant filed a lawsuit against the denial at the Administrative Court of Berlin. During a public hearing on September 23, 2014, she withdrew the lawsuit after the representative of the Federal Republic of Germany, in agreement with the immigration authority, offered to issue a spousal reunification visa in exchange for the withdrawal. The residence permit was initially to be granted for one year, with the possibility of extension after verifying the marital relationship.

Death of the Husband During Proceedings and Visa Extensions:

On the same day, September 23, 2014, the applicant’s husband passed away. The applicant’s Schengen visa, valid until September 14, 2014, was extended twice: first until September 30, 2014, for the court hearing, and then as a national visitor/business visa until December 13, 2014, to settle the estate. Despite these extensions, the immigration authority denied her application for a residence permit on November 19, 2014, and set a deadline for her departure, threatening deportation.

Rejection of the Application:

The immigration authority justified its decision by stating that an independent right of residence under § 28(3) sentence 1 and § 31(1) sentence 1 no. 2 AufenthG requires that the foreign spouse already possesses a residence permit under § 28 AufenthG. The applicant only had a Schengen visa, which cannot substitute for a residence permit under § 28(1) sentence 1 no. 1 AufenthG. Additionally, the approval process for a spousal reunification visa with the domestic immigration authority had not been completed. The promise of a visa during the settlement did not entitle the applicant to bypass the requirement for a residence permit, nor did it establish a legitimate expectation of continued residence in Germany, as she had not yet acquired a residence right based on marriage.

Court Proceedings and Request for Provisional Legal Protection:

The applicant filed a lawsuit seeking a residence permit under § 31(1) sentence 1 no. 2 AufenthG and simultaneously requested provisional legal protection to maintain her stay until the court’s final decision, alternatively seeking a suspension of deportation. The Administrative Court of Bayreuth denied this request, stating that after the rejection of the residence permit application on November 19, 2014, a request for interim relief under § 123(1) VwGO was not admissible, but a request for suspensive effect under § 80(5) VwGO was.

Decision of the Administrative Court

The court found the request for suspensive effect of the lawsuit admissible but unfounded. The applicant’s interest in maintaining the suspensive effect did not outweigh the public interest in enforcing her departure obligation after her visa expired on December 14, 2014. The court upheld the legality of the rejection, as the requirements for a residence permit under § 28(3) sentence 1 in conjunction with § 31(1) sentence 1 no. 2 AufenthG were not met.

The applicant had no residence permit for spousal reunification, only a Schengen visa. According to the Federal Administrative Court’s case law, a residence permit under the Residence Act qualifies as a „residence permit of the spouse“ within the meaning of § 31(1) sentence 1 AufenthG only if it is granted for spousal reunification purposes. A Schengen visa or a national visitor/business visa does not meet this requirement. Therefore, the request for provisional legal protection was denied. The auxiliary request for suspension of deportation also failed, as there were no sufficient reasons to justify the impossibility of deportation.

Conclusion:

The court concluded that the legal requirements for a residence permit under § 28(3) sentence 1 in conjunction with § 31(1) sentence 1 no. 2 AufenthG were not met. An independent right of residence requires that the foreign spouse already holds a residence permit under § 28 AufenthG, which was not the case for the applicant. Consequently, the public interest in enforcing her departure obligation outweighed her private interest in remaining in Germany.

The applicant’s argument that the denial of her visa application was unlawful did not justify the issuance of a residence permit. The promise of a visa by the representative of the Federal Republic of Germany during the proceedings at the Administrative Court of Berlin did not constitute a binding guarantee of a residence permit, as it was not issued by the competent immigration authority. As a result, the request for provisional legal protection was unsuccessful, and the applicant remained obliged to leave the country.

Source: Administrative Court of Bayreuth

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