Administrative Court of Bayreuth, 31.07.2017, Ref.: B 6 K 17.408
Section 6, Paragraph 3 of the Residence Act (AufenthG) requires a national visa issued prior to entry for long-term stays, which is governed by the provisions for the residence permit, EU Blue Card, ICT card, settlement permit, and permanent residence permit – EU. The duration of the stay with a national visa is credited towards subsequent residence permits.
For foreigners whose asylum applications have been finally rejected or who have withdrawn their applications, a residence permit can only be issued before departure under Sections 22-26 of the Residence Act (§ 10 Paragraph 3 Sentence 1 AufenthG). An exceptional case under § 10 Paragraph 3 Sentence 3 AufenthG requires that the foreigner entered with the required visa and provided the necessary information in the visa application. Deviations from this rule are only possible under § 5 Paragraph 2 Sentence 2 AufenthG if there is a claim to issuance or if special circumstances apply.
The Administrative Court of Bayreuth ruled that § 10 Paragraph 3 Sentence 3, Clause 1 of the Residence Act strictly requires entry with the necessary visa if an asylum application has been finally rejected. The court also clarified that an application for legal aid can still be granted retroactively after the main issue has been resolved, provided that the application was submitted in a timely and complete manner.
Facts and Procedural Background
The plaintiff applied for legal aid (PKH) and the appointment of his legal representative after filing a lawsuit for a residence permit under § 28 Paragraph 1 Sentence 1 Nos. 1 and 3 of the Residence Act, alternatively under § 25 Paragraph 5 of the Residence Act. However, the lawsuit was declared settled by mutual agreement of both parties. The Administrative Court of Bayreuth denied the legal aid application, stating that the lawsuit was unfounded and had no prospect of success.
Legal Aid: Requirements and Court’s Decision
The court determined that the requirements for granting legal aid under § 166 Paragraph 1 Sentence 1 of the Administrative Court Code (VwGO) in conjunction with § 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO) were not met because the legal pursuit had no reasonable prospect of success. In principle, legal aid can also be granted retroactively after a declaration of settlement if the application was submitted in time and the necessary documents were provided. Here, the application was ready for decision when the defendant submitted the foreigner’s file and responded to the lawsuit on June 9, 2017. However, the court decided that the lawsuit had no prospect of success.
Claim for Residence Permit under § 28 of the Residence Act
The plaintiff’s primary claim for a residence permit under § 28 Paragraph 1 Sentence 1 Nos. 1 and 3 of the Residence Act was not valid, as he did not enter with the required visa under § 6 Paragraph 3 Sentence 1 of the Residence Act. A residence permit for spousal reunification under § 28 Paragraph 1 Sentence 1 No. 1 of the Residence Act in conjunction with § 30 Paragraph 1 Sentence 1 No. 2 of the Residence Act requires basic knowledge of German, which the plaintiff did not demonstrate. Furthermore, the plaintiff did not argue that learning German was unreasonable or impossible. The requirements for a residence permit under § 28 Paragraph 1 Sentence 1 No. 3 of the Residence Act were also not met, as the plaintiff neither possessed the required visa nor was exempt from the visa requirement.
Exclusion of the Claim Due to Lack of Visa
The court explained that the plaintiff could not obtain a residence permit before departure under § 10 Paragraph 3 Sentence 1 of the Residence Act due to the final rejection of his asylum application. A claim for a residence permit under § 10 Paragraph 3 Sentence 3 of the Residence Act required that the plaintiff entered with a visa. Since this requirement was not met, a claim for a residence permit was excluded. The discretionary option under § 5 Paragraph 2 Sentence 2 of the Residence Act to waive the visa procedure did not apply, as it did not establish a claim. The reference to a temporary suspension of deportation (Duldung) under § 39 No. 5 of the Residence Ordinance (AufenthV) was also unhelpful, as the plaintiff did hold a Duldung at the time of application, but it was no longer valid at the time of the decision on June 9, 2017.
Alternative Claim: Discretionary Decision under § 25 Paragraph 5 of the Residence Act
The plaintiff’s alternative claim for a residence permit under § 25 Paragraph 5 of the Residence Act also had no prospect of success. Such a permit could only be granted if departure was legally or practically impossible and would remain so for the foreseeable future. There were no prohibitions on deportation to the target country or domestic reasons justifying the plaintiff’s stay in the country. The requirement to enter with the necessary visa was reasonable and served to assess the conditions for family reunification before entry. The court emphasized that this provision was in line with Article 6 of the Basic Law and that the duration of the visa process was deemed acceptable.
Cost Decision and End of Proceedings
After the parties mutually declared the proceedings settled on July 10, 2017, and July 18, 2017, the court discontinued the proceedings under § 92 Paragraph 3 of the Administrative Court Code. According to § 161 Paragraph 2 Sentence 1 of the Administrative Court Code, the court decided on the costs at its discretion and imposed them on the plaintiff, as his lawsuit had no prospect of success. The public interest in observing the visa process outweighed the plaintiff’s interest, as no unreasonable separation from his family was expected. Legal aid was denied because the lawsuit had no reasonable prospect of success at the time of decision.
Source: Administrative Court of Bayreuth
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