Immigration Law: Family Reunification with a German Child of a Rejected Asylum Seeker

Administrative Court of Augsburg, August 22, 2017, File No.: Au 1 K 16.1866

According to § 5 Abs. 1 of the Residence Act (AufenthG), the issuance of a residence permit generally requires that the livelihood is secured, the identity and, if the person is not entitled to return to another state, the nationality of the foreigner is clarified, there is no interest in deportation, the foreigner’s stay does not interfere with or jeopardize the interests of the Federal Republic of Germany for other reasons, and the passport requirement under § 3 is fulfilled. Additionally, the residence permit under § 28 Abs. 1 AufenthG is to be issued to the foreign spouse of a German national, the minor unmarried child of a German national, and the parent of a minor unmarried German child for the exercise of parental custody, provided the German national has his habitual residence in the federal territory. It is to be issued, deviating from § 5 Abs. 1 No. 1, in the cases of Sentence 1 No. 2 and 3 of § 28 AufenthG, that is, to the spouse of a German national and the minor unmarried child of a German national. Generally, it should be issued, deviating from § 5 Abs. 1 No. 1, in the cases of Sentence 1 No. 1, and it may be issued, deviating from § 5 Abs. 1 No. 1, to the non-custodial parent of a minor unmarried German child if the family unit is already residing in the federal territory.

However, according to § 10 AufenthG, it must be considered that a foreigner whose asylum application has been finally rejected or who has withdrawn their asylum application can only be issued a residence permit before departure under the provisions of Section 5 of the AufenthG, based on international, humanitarian, or political reasons.

The present judgment deals, among other things, with the requirements set out in § 10 Abs. 3 S. 3 AufenthG, particularly regarding the requirement for the general issuance grounds under § 5 AufenthG. According to § 10 Abs. 3 S. 3 AufenthG, Sentences 1 and 2 of § 10 Abs. 3 AufenthG are not applicable in the case of a claim for the issuance of a residence permit, and therefore, the residence permit can also be issued on other grounds than those of Section 5.

Facts – Plaintiff Applied for Residence Permit Due to German Son

The plaintiff, a Nigerian national born in 1980, entered Germany in 2013 and applied for asylum, which was rejected in 2016. Since early 2015, he had been in a relationship with a German national, with whom he had a son in June 2016. Paternity was recognized in January 2016, and a joint custody declaration was made. On September 19, 2016, the plaintiff applied for a residence permit due to the family relationship, which was not decided upon by the time of filing the lawsuit.

Application for Residence Permit – Plaintiff Refuses to Leave

In November 2016, the plaintiff reiterated his application for a residence permit, additionally citing humanitarian reasons. On November 16, 2016, the defendant issued a border crossing certificate and granted preliminary approval for the visa procedure. In December 2016, the plaintiff received a temporary suspension of deportation until January 2017. On December 30, 2016, the plaintiff filed a lawsuit demanding the issuance of a residence permit under § 25 Abs. 5 AufenthG, arguing that his family ties constituted a barrier to his departure. The defendant responded that there was no barrier to departure since the plaintiff could complete the visa procedure within 10 days, and his absence would not have a lasting negative impact on the child.

Amendment and Justification of the Lawsuit

In August 2017, the plaintiff amended his lawsuit, now requesting a residence permit under § 28 Abs. 1 Sentence 1 No. 3 AufenthG, or alternatively still under § 25 Abs. 5 AufenthG. He argued that the defendant had still not decided on his application, making an inactivity lawsuit under § 75 VwGO permissible. The plaintiff contended that he had a right to a residence permit due to his family ties and that completing the visa procedure was unreasonable. Furthermore, he argued that he was not obliged to return to Nigeria to complete the visa procedure due to health risks.

Court Decision: Lawsuit Dismissed as Unfounded

The Administrative Court of Augsburg found the lawsuit admissible but unfounded. While the plaintiff generally met the requirements for a residence permit under § 28 Abs. 1 Sentence 1 No. 3 AufenthG, the regulation of § 10 Abs. 3 Sentence 1 AufenthG was opposed. This provision states that a foreigner whose asylum application has been finally rejected should generally not be issued a residence permit before departure. An exception is only possible if there is a strict legal claim, which was not present in this case.

The court decided that the general requirements of § 28 Abs. 1 Sentence 1 No. 3 AufenthG were met, as the plaintiff had recognized paternity for his son and was exercising joint custody with the child’s mother. However, the court refused to issue the residence permit due to the final asylum decision and the lack of visa requirements. A residence permit cannot be issued before departure, except in exceptional cases, which were not present here.

Visa Procedure and Legal Impossibility

The plaintiff argued that completing the visa procedure was unreasonable. The court rejected this argument, stating that the plaintiff must complete the visa procedure since he entered Germany without the required visa. According to the court, § 5 Abs. 2 Sentence 1 AufenthG opposed the claim for a residence permit. An exemption from the visa requirement under § 39 AufenthV was also not applicable, as the plaintiff did not meet the criteria.

The court also rejected the plaintiff’s argument that his departure was unreasonable due to health risks in Nigeria. The Federal Office for Migration and Refugees had already determined in the asylum procedure that there were no state-specific dangers for the plaintiff in Nigeria. Other difficulties, such as vaccinations or travel costs, were deemed general inconveniences and not reasons for unreasonableness.

Summary and Conclusion – Plaintiff Must Depart and Apply Through the Embassy

The court concluded that the plaintiff had no claim to a residence permit under § 28 Abs. 1 Sentence 1 No. 3 AufenthG or § 25 Abs. 5 AufenthG. The lawsuit was dismissed as unfounded, as the plaintiff did not meet the requirements for a residence permit and needed to complete the visa procedure. The plaintiff’s arguments regarding the unreasonableness of departure and health risks in Nigeria were rejected. Therefore, the lawsuit was unsuccessful overall.

Source: Administrative Court Augsburg

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.

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