Aktualisiert am:
Administrative Court Munich, 09.10.2015, Case No.: M 24 K 15.3204
Issuance of residence permits is decided by the Federal Office for Migration and Refugees (BAMF) through administrative acts. An administrative act is defined under § 35 S. 1 VwVfG as any order, decision, or other sovereign measure taken by an authority to regulate an individual case in public law and intended to have an immediate legal effect externally.
Automatic Issuance of a Residence Permit to a Child Born in Germany (Even Without a Passport or Secured Livelihood)
According to § 33 S. 2 AufenthG, a child born in Germany is automatically granted a residence permit if, at the time of birth, both parents or the sole parent with custody hold a residence permit, a settlement permit, or a permanent residence permit – EU. The authority has no discretion under § 40 VwVfG, and is obliged to issue the residence permit (mandatory decision) if the conditions of § 33 S. 2 AufenthG are met. Additionally, the general requirements for issuing a permit under § 5 AufenthG, including securing a livelihood (§ 5 Abs. 1 Nr. 1 AufenthG) and fulfilling the passport requirement (§ 5 Abs. 1 Nr. 3 in conjunction with § 3 AufenthG), do not apply.
In the decision discussed below, the issue was whether there is also a binding claim under § 33 S. 2 AufenthG if the parents only have a residence permit for humanitarian reasons under § 25 Abs. 3 AufenthG.
Background of the Case
The plaintiff, a Somali national born in Germany in 2014, is the daughter of two Somali nationals who both hold residence permits under § 25 Abs. 3 AufenthG. These residence permits were granted to the parents for humanitarian reasons. The parties disputed whether the plaintiff was entitled to a residence permit under § 33 Satz 2 AufenthG. This paragraph governs the issuance of a residence permit for children born in Germany whose parents hold a residence title. An asylum application was also filed for the plaintiff on September 25, 2015, but prior to this, on February 19, 2015, her legal representative had already applied for a residence permit, citing a legal claim under § 33 Satz 2 AufenthG.
Procedural History and Application
The plaintiff’s February 2015 application for a residence permit was rejected by the defendant (BAMF) in May 2015. The BAMF referred to § 29 Abs. 3 AufenthG, which states that a minor child whose parents only hold a residence permit under § 25 Abs. 3 AufenthG can be granted a residence permit only for humanitarian or international law reasons. The plaintiff, represented by her parents, filed a lawsuit before the Administrative Court Munich, arguing that the rejection was unlawful and that the residence permit should have been granted automatically. Additionally, they argued that § 33 Satz 2 AufenthG should be considered a more specific regulation compared to § 29 AufenthG.
Positions of the Parties
The plaintiff argued that, due to her birth in Germany and her parents’ residence permits, she had a right to a residence permit under § 33 Satz 2 AufenthG. The defendant, on the other hand, requested that the lawsuit be dismissed, arguing that the plaintiff’s claim under § 33 Satz 2 AufenthG was limited by § 29 Abs. 3 AufenthG. The latter provision allows for the issuance of a residence permit to the children of those holding a residence permit under § 25 Abs. 3 AufenthG only for humanitarian or international law reasons. Therefore, the plaintiff’s application was not justified.
Admissibility and Legal Assessment of the Lawsuit
The Administrative Court Munich found the lawsuit to be admissible. It determined that the defendant’s letter from May 2015 constituted an administrative act, even though it did not contain information on legal remedies. It was therefore classified as a denial action, as the BAMF had clearly indicated that it would not grant the plaintiff a residence permit. The court also decided that it could rule in writing without an oral hearing under § 101 Abs. 2 VwGO.
Merits of the Lawsuit: Claim to Residence Permit
The court found the lawsuit to be well-founded. It concluded that the plaintiff met the requirements of § 33 Satz 2 AufenthG, as she was born in Germany and her parents held valid residence permits under § 25 Abs. 3 AufenthG at the time of her birth. § 33 Satz 2 AufenthG clearly states that the general requirements for issuing a permit under § 5 AufenthG, such as securing a livelihood or fulfilling the passport requirement, can be waived when a child is born in Germany and both parents hold a residence permit.
The court further determined that § 33 Satz 2 AufenthG is a superior and mandatory provision that establishes the plaintiff’s right to a residence permit. It ruled that the administration has no discretion in applying this provision, and the decision is fully subject to judicial review.
Relationship between § 33 Satz 2 AufenthG and § 29 Abs. 3 AufenthG
The Administrative Court Munich also examined the relationship between § 33 Satz 2 AufenthG and § 29 Abs. 3 AufenthG. The court agreed with the interpretation that § 33 Satz 2 AufenthG should be considered as lex specialis in relation to § 29 Abs. 3 AufenthG, meaning that § 33 Satz 2 AufenthG takes precedence. This provision ensures that children born in Germany whose parents both hold residence permits have a particularly strong right to residence. The court emphasized that § 29 Abs. 3 AufenthG only applies in specific exceptional cases where only a humanitarian residence title is available for the child.
The court also noted that the parents of the plaintiff, due to their residence permits, have a particularly legitimate residence status, which should be extended to the child. It would be unreasonable for a minor child born in Germany, whose parents hold residence permits, to be without a residence permit and thus be required to leave the country. For these reasons, the court found sufficient “humanitarian reasons” within the meaning of § 29 Abs. 3 Satz 1 AufenthG.
Conclusion – Plaintiff’s Right to a Residence Permit
The Administrative Court Munich concluded that the plaintiff fulfilled all the requirements for a residence permit under § 33 Satz 2 AufenthG. Since both parents hold valid residence permits under § 25 Abs. 3 AufenthG and the child was born in Germany, there is a legal entitlement to the issuance of the residence permit. The court therefore ordered the defendant to grant the plaintiff the requested residence permit.
Source: Administrative Court Munich
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