Administrative Court of Stuttgart, March 29, 2012, Case No.: 11 K 4541/11
Procedure for Applying for Residence Permits
During the application process for residence permits or similar authorizations, applicants are in constant contact with the relevant immigration authority. This authority receives and processes the documents and submissions, which is also the case for applications for a residence permit for family reunification. For those with a minor German child in Germany, such a residence permit can be claimed.
In this case, the applicant sought a permanent residence permit (Niederlassungserlaubnis) after already having lawful residence in Germany and now having a minor German child. However, the application was initially denied because the applicant did not meet the requirement of having held a residence permit for spousal reunification for three years. Consequently, the applicant requested a retroactive issuance of a residence permit for family reunification. After filing a lawsuit, the Administrative Court of Stuttgart ruled in favor of the applicant and required the immigration authority to issue the permanent residence permit, as the refusal was no longer justifiable.
Facts of the Case:
The plaintiff, born in 1971, was a Bosnian-Herzegovinian national. He entered Germany in early 2006 as a contract worker and was granted a residence permit under § 18 AufenthG, which was extended several times.
Foreign Worker Has German Child and Receives Residence Permit under § 28(1) Sentence 1 No. 3 AufenthG
On April 12, 2006, he married a Croatian national living in Stuttgart and applied for a spousal reunification residence permit on May 15, 2006, which he received on June 21, 2006, under § 30 AufenthG. This permit was extended until June 10, 2009.
On September 18, 2008, the plaintiff’s wife gave birth to a child in Stuttgart, who acquired German citizenship under § 4(3) StAG. The immigration authority was informed of this during a residence permit extension procedure in May 2009. On May 19, 2009, the plaintiff was granted a residence permit valid until May 19, 2011, under § 28(1) Sentence 1 No. 3 AufenthG.
Plaintiff Subsequently Applies for a Permanent Residence Permit
On July 12, 2010, the plaintiff applied for a permanent residence permit. On July 22, 2010, the immigration authority informed him that the temporal requirements would only be met as of February 14, 2011, and recommended withdrawing the application. On September 23, 2010, the plaintiff’s legal representative responded, pointing out that the plaintiff was living in a family unit with his German child and that his request was therefore directed under § 28(2) AufenthG, which had been fulfilled.
On March 17, 2011, the immigration authority denied the application for a permanent residence permit, stating that the requirements under § 9 AufenthG had not been fully met. The „facilitated“ issuance of a permanent residence permit under § 28(2) AufenthG required that the foreign national had previously held a residence permit under § 28(1) AufenthG continuously for three years, which the plaintiff only had since May 19, 2009. Thus, the statutory period would only be fulfilled on May 19, 2012. Additionally, the plaintiff’s secured livelihood, as he was self-employed, was not sufficiently proven.
Plaintiff Argues that the Immigration Authority Failed to Provide Adequate Guidance
The plaintiff filed an objection, arguing that his daughter had been born on September 18, 2008, and that it was not his fault that he only received the residence permit under § 28(1) Sentence 1 No. 3 AufenthG on May 19, 2009. He contended that he had a legal entitlement to this permit from the child’s birth and that he could soon demonstrate a secured livelihood.
During the objection procedure, the Stuttgart Regional Administrative Authority inquired whether the objection included a request for the retroactive issuance of the residence permit under § 28(1) AufenthG from the date of the child’s birth. The lower immigration authority would then be responsible for reviewing this request.
Plaintiff Requests Retroactive Issuance of Residence Permit under § 28(1) Sentence 1 No. 3 AufenthG
Following this advice, the plaintiff applied on April 11, 2011, for the retroactive issuance of the residence permit under § 28(1) Sentence 1 No. 3 AufenthG from the date of his German child’s birth (September 18, 2008). On April 19, 2011, the immigration authority informed the plaintiff that it intended to reject this application, arguing that he had not applied for the appropriate residence permit under § 28(1) AufenthG immediately after his daughter’s birth. The retroactive issuance of another residence title was not permissible, as there was no legitimate interest. The Federal Administrative Court had only recognized such an interest if the foreigner had no title that could lead to a more permanent residence status. Since the plaintiff had a residence title under § 30 AufenthG at the relevant time, the retroactive issuance of another residence title was neither necessary nor justified. Furthermore, to prevent two different residence titles from being valid simultaneously in the past, the original title would have to be revoked, for which there was no legal basis. Therefore, only a change of purpose could be considered, which would apply only to the future, not retroactively.
Consequently, the plaintiff received an extension of the residence permit under § 28(1) Sentence 1 No. 3 AufenthG until May 18, 2014.
During the objection procedure, the plaintiff did not provide further documents to secure his livelihood. The Stuttgart Regional Administrative Authority rejected the plaintiff’s objection on November 22, 2011, as he could not prove a secured livelihood. The three-year requirement under § 28(2) AufenthG was therefore irrelevant.
Plaintiff Files Lawsuit Against the Denial of Permanent Residence Permit
On December 22, 2011, the plaintiff filed a lawsuit with the Administrative Court, arguing that he met the time requirements of § 28(2) AufenthG for the issuance of a permanent residence permit. He maintained that § 28(2) AufenthG did not require three years of holding a residence permit and that the previously held residence permit under § 30 AufenthG also counted as a family reunification title. He also referred to the pending retroactive issuance procedure under § 28(1) AufenthG. During the court proceedings, the plaintiff submitted his income tax return for 2009 and financial evaluations from his tax advisor for 2010 and 2011.
In preparation for the hearing, the immigration authority stated that the time requirements for a permanent residence permit under § 28(2) AufenthG had not yet been met and that the secured livelihood still needed to be verified.
During the hearing on March 29, 2012, the plaintiff expanded his claim to include the retroactive issuance of his residence permit under § 28(1) AufenthG, setting the date three years before the hearing.
Judgment of the Administrative Court Stuttgart:
Plaintiff Entitled to Reopening of the Case
The court ruled that the claim was admissible. The request to reopen the closed procedure for the initial issuance of a residence permit under § 28(1) AufenthG and to retroactively grant this permit from March 28, 2009, was also justified. The plaintiff had a right to a proper discretionary decision on reopening the procedure under § 51(5) LVwVfG in conjunction with §§ 48 and 49 LVwVfG (so-called „reopening in the broader sense“).
According to Federal Administrative Court case law, the authority may reopen a completed administrative procedure at its discretion and make a new substantive decision (reopening in the broader sense), even if the conditions under § 51(1) to (3) LVwVfG are not met. This discretionary reopening has its legal basis in § 51(5) LVwVfG in conjunction with §§ 48 and 49 LVwVfG.
In this case, the court found that the plaintiff’s request for reopening and retroactive issuance of the residence permit was legally justified, and the authority had failed to fulfill its duty to guide and inform the plaintiff properly. The immigration authority was obliged to inform the plaintiff about the possibility of applying for a residence permit under § 28(1) AufenthG after the birth of his child and should have guided him through the process.
At this second stage, the authority is not limited to the options for cancelling the administrative act standardised in Section 48 (1) sentence 1 LVwVfG and Section 49 (1) LVwVfG. ex tunc ("from then on") or ex nunc ("from now on"), but it has to decide whether the administrative act should be withdrawn, confirmed by way of a second decision or amended (see BVerwG, judgement of 07.09.1999 loc. cit.).
The authority's power to reopen an administrative procedure that has been legally concluded on a discretionary basis corresponds to a - judicially enforceable (cf. Art. 19 para. 4 GG) - right of the person concerned to the error-free exercise of discretion (cf. BVerfG, decision of 27 September 2007 - 2 BvR 1613/07 -, InfAuslR 2008, 94; BVerwG, judgement of 21 March 2000 loc. cit.).
In the present case, the defendant had not yet finally exercised its discretion to reopen the case in accordance with Section 51 (5) LVwVfG in conjunction with Sections 48 and 49 LVwVfG. §§ Sections 48 and 49 LVwVfG had not yet finally exercised its discretion. It had merely informed the plaintiff in a letter dated 19 April 2011 that it intended to reject this application. However, the defendant's explanations as to why it was opposed to a reopening, i.e. a positive decision at the first stage of the discretionary decision incumbent upon it, did not stand up to legal scrutiny.
The assumption that the request asserted by way of reopening was inadmissible, which is why a negative decision was already made at the first stage, was not a factor to be taken into account in the present case. The retroactive granting of the plaintiff's first residence permit in accordance with § 28 Para. 1 AufenthG was permissible here without further ado, in particular there was an interest worthy of protection. The defendant's assumption that the Federal Administrative Court had only recognised such an interest worthy of protection to the extent that a foreigner had no title at all that could have led to a consolidation of residence was in no way correct. The corresponding decision of 9 June 2009 (-1 C 7/08 -, cited in ) states:
Foreigners can only demand retroactive granting of a residence permit if there is an interest worthy of protection
"According to the case law of the Senate, a foreigner can only claim the granting of a residence title for a period in the past after the application has been made if he has an interest worthy of protection. This applies regardless of whether the residence permit has already been issued for a later date or not. In this sense, the Senate has assumed an interest worthy of protection if the point in time from which the foreigner holds the desired residence title can be relevant for his or her future residence status (judgments of 27 January 2009 - BVerwG 1 C 40.07 - DVBl 2009, 650 and of 29 September 1998 - BVerwG 1 C 14.97 - Buchholz 402.240 § 24 AuslG 1990 No. 3 with further references)."
In the case to be decided there, the Federal Administrative Court had only refused the (subsequent) retroactive granting of a residence permit because this could no longer have any effect under residence law, as the plaintiff there had already acquired a permanent right of residence. In the present case, however, the plaintiff was precisely seeking the retroactive initial granting of his residence permit in accordance with § 28 Para. 1 AufenthG in order to subsequently obtain a permanent right of residence in accordance with § 28 Para. 2 AufenthG. Since the defendant required the plaintiff to hold the residence permit for three years in accordance with § 28 Para. 1 AufenthG before he could be granted a permanent residence permit in accordance with § 28 Para. 2 AufenthG, the plaintiff's legitimate interest within the meaning of the case law of the Federal Administrative Court was obvious.
The second point raised by the defendant could not justify the refusal to reopen the proceedings either. On this point, the defendant had stated that the title originally issued - in this case the one under Section 30 AufenthG - had to be cancelled with effect for the relevant period so that two different residence titles did not exist at the same time in the past, although there was no legal basis for this. This is because the defendant itself stated in its letter dated 19 April 2011 that in the event of such a change of purpose, the residence title initially issued must expire or be waived. However, such a declaration is always implied in an application for a change of purpose or change of title. The defendant did not handle the change from a valid residence permit to a settlement permit any differently.
Since the application deadline of Section 51 (3) LVwVfG does not apply to a reopening pursuant to Section 51 (5) LVwVfG (see BVerwG, judgement of 22 October 2009, loc. cit.), there was nothing to prevent a positive exercise of the right to reopen for legal reasons.
Foreigners authority had breached its duty to provide counselling
The defendant decided to lawfully reopen the procedure for the initial granting of the residence permit in accordance with § 28 Para. 1 AufenthG, as it had itself violated a law, the "correction" of which was now required here. After the birth of his daughter in September 2009, the plaintiff had not made an appointment with the foreigners authority and had not applied for a corresponding residence permit in accordance with § 28 Para. 1 AufenthG, but the defendant was also subject to the provisions of the LVwVfG in foreigners law proceedings. According to § 25 para. 1, the authority should request the submission of declarations, the filing of applications or the correction of declarations or applications if these have obviously only been omitted by mistake or out of ignorance or have been submitted or filed incorrectly. As an expression of the state's duty of care and welfare arising from the principle of the rule of law in conjunction with the principle of the welfare state, the duty to instruct does not require a prior enquiry; rather, it must be fulfilled by the authority ex officio (VGH Ba.-Wü., decision of 20 June 2006 - 1 S 1136/05 -, cited in ; see also P. Stelkens/Kallerhoff in: Stelkens et al , VwVfG, 6th ed. 2001, § 25 para. 30, 34).
As a consequence of the case law of the Federal Administrative Court (judgement of 09.06.2009, loc. cit.), this means that a foreigners authority must always point out the possibility of applying for a retroactive residence permit if it recognises that a) the relevant requirements have already been met in the past and b) a favourable effect is possible for the person concerned with regard to a future right of permanent residence. This is the case in cases of a residence permit pursuant to Section 28 (1) AufenthG as well as when a previously tolerated foreigner now fulfils the requirements for the granting of a residence permit. Finally, this applies in cases where a foreigner with a previously "uncertain" residence status (Section 16 Residence Act; au pair) obtains a higher status, for example through marriage. The extent to which a residence permit should actually be granted retroactively is a question of the individual case. Both the time of the application and, for example, proof of the relevant requirements as well as basic constitutional decisions (Art. 6 para. 1 GG) must be taken into account.
Plaintiff had an interest worthy of protection in the resumption
As a result, the defendant was not only obliged to reopen the procedure for the initial granting of the residence permit in accordance with § 28 Para. 1 AufenthG, but also, as requested by the plaintiff, to issue such a permit from 28 March 2009. This is because the plaintiff's legitimate interest extended back to that date, as this now enabled him to obtain a settlement permit in accordance with § 28 Para. 2 AufenthG. On the basis of the documents submitted in May 2009, the defendant was able to recognise that there was a claim under § 28 Para. 1 S. 1 No. 3 AufenthG due to the German child born in 2008. In this case, the plaintiff's residence title should have been converted from Section 30 AufenthG to Section 28 (1) AufenthG at that time - with retroactive effect. The plaintiff could now claim this legal consequence.
Consequently, the plaintiff was also entitled to a settlement permit in accordance with Section 28 (2) of the Residence Act, which meant that this part of the claim was also justified. The inspection of the documents submitted by the plaintiff and his wife showed to the court's conviction (§ 108 VwGO) that - in the sense of the required prognosis decision - a secure livelihood could be assumed. The plaintiff was hard-working and diligent, and his business had generated increasing income since it was founded. In addition, the family had his wife's earned income and, during the relevant periods, child-raising allowance at their disposal. The family also owned residential property with a sustainable burden.
Source: Administrative Court Stuttgart
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