Administrative Court of Munich, 14.09.2017, Ref.: 10 ZB 17.925
Introduction – Plaintiff Challenges the Shortening of His Residence Permit
The plaintiff, a Turkish national, is challenging the shortening of his residence permit and the rejection of a new residence title by the immigration authorities. The authorities shortened his residence permit for spousal reunification and rejected an extension or reissuance after his marriage to a German citizen ended. After an unsuccessful lawsuit before the Administrative Court of Munich, the plaintiff applied for the admission of an appeal at the Bavarian Higher Administrative Court in Munich.
Facts and Initial Situation
The plaintiff held a residence permit for spousal reunification, initially valid until November 18, 2016. This permit was based on his marriage to a German citizen, which took place on May 16, 2013. However, the marriage ended in October 2015, leading the immigration authorities to shorten the validity of the residence permit to February 10, 2016, and reject an extension or reissuance. The authorities also threatened deportation if the plaintiff did not leave the country within the stipulated time.
The plaintiff filed a lawsuit against this decision, but the Administrative Court of Munich dismissed it, deeming it both inadmissible and unfounded. The court argued that the plaintiff had not filed an application for extension, so the residence permit had expired on November 18, 2016. Furthermore, the purpose of the stay had ceased to exist, as the marriage was no longer valid.
Plaintiff’s Arguments in the Appeal – Claim of Application Submission
In the appeal, the plaintiff argued that the Administrative Court wrongly assumed that he had not filed an application for extension. He asserted that the rejection of a residence right under Section 31 of the Residence Act implied such an application. Additionally, the plaintiff argued that for Turkish nationals, the previous version of Section 31, Paragraph 1, Sentence 1, No. 1 of the Residence Act, which requires a two-year marital community, still applies due to the standstill clause in Article 13 of Association Council Decision 1/80 (ARB 1/80). He claimed that this requirement was met, as his marriage had lasted more than two years.
Decision of the Higher Administrative Court
The Bavarian Higher Administrative Court ruled that while the application for the admission of the appeal was admissible, it was unfounded. The plaintiff could not demonstrate serious doubts about the correctness of the first-instance judgment, as required by Section 124, Paragraph 2, No. 1 of the Administrative Court Procedure Code (VwGO). The court found that although the plaintiff’s claim was admissible, the lawsuit was correctly dismissed.
The plaintiff did not substantively dispute that the marital community no longer existed at the time of the shortened residence permit’s expiry on February 10, 2016. As the purpose of residence under Section 28, Paragraph 1, Sentence 1, No. 1 of the Residence Act had ceased to exist, the shortening of the permit’s validity was lawful.
Examination of the Claim for an Independent Right of Residence
The Higher Administrative Court also examined whether the plaintiff could claim an independent right of residence under Section 31, Paragraph 1, Sentence 1, No. 1 of the Residence Act. However, it concluded that the plaintiff did not meet the requirements for such a right. Although the extension of the minimum duration of a marital community from two to three years is not applicable to Turkish workers due to the standstill clause, the plaintiff did not meet the requirements of the previous, more favorable version of Section 31, Paragraph 1, Sentence 1, No. 1 of the Residence Act.
For an independent right of residence, the marital community must have lawfully existed in the federal territory for at least two years. However, the plaintiff received his residence permit only on November 18, 2013. Therefore, his lawful stay began only from that date. Since the marital community ended in October 2015, the two-year duration requirement was not met. Additionally, the plaintiff’s prior temporary permits and border crossing certificates did not constitute lawful residence under Section 31 of the Residence Act.
Conclusion
As a result, the Bavarian Higher Administrative Court dismissed the application for admission of the appeal as unfounded. The plaintiff could not convincingly demonstrate serious doubts about the correctness of the first-instance judgment or a deviation from the Federal Administrative Court’s case law. Since the requirements for an independent right of residence under Section 31, Paragraph 1, Sentence 1, No. 1 of the Residence Act were not met, the dismissal of the lawsuit was lawful. Thus, the plaintiff had no entitlement to an extension of his residence permit or the issuance of a new residence title.
The Higher Administrative Court emphasized that even if an application for extension had been implicitly made, the plaintiff still did not meet the substantive requirements for a right of residence. The appeal to the standstill clause did not help the plaintiff, as the minimum requirement of a two-year lawful marital community was not fulfilled.
Source: Bavarian Higher Administrative Court
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