Higher Administrative Court of Münster, Decision of April 13, 2023, Case No.: 18 A 157/23
Contrary to the view of the Higher Administrative Court of Lower Saxony (decision of May 17, 2022, 13 ME 113/22), the standard requirement under § 5 para. 1 no. 2 AufenthG cannot be generally waived when significant deportation interests under § 54 para. 2 AufenthG are countered by particularly significant residence interests under § 55 para. 1 AufenthG.
Case Description and Dismissal of the Claim
In this case, the plaintiff unsuccessfully sued for a residence permit under § 28 para. 1 sentence 1 no. 3 AufenthG. The court dismissed the claim on the grounds that the plaintiff did not meet the general requirement under § 5 para. 1 no. 2 AufenthG, but instead had a particularly significant deportation interest under § 54 para. 1 no. 1 AufenthG. The plaintiff then filed an application with the Higher Administrative Court of Münster for leave to appeal. He argued that the decision of the Higher Administrative Court of Lower Saxony from May 17, 2022, 13 ME 113/22, had not been adequately considered. In his case, atypical circumstances existed, as the deportation interests were countered by significant residence interests, especially with regard to Article 6 of the Basic Law (GG). Based on this decision, he argued that the requirement under § 5 para. 1 no. 2 AufenthG should be waived. The court rejected this application with its decision of April 13, 2023, case no.: 18 A 157/23.
Reasons for the Court’s Decision
The court rejected the application for leave to appeal. It found that there were neither serious doubts about the correctness of the contested judgment nor factual or legal difficulties in the case.
Comparison of Circumstances and Balancing of Interests
First, the circumstances of the plaintiff were not comparable to those underlying the decision of the Higher Administrative Court of Lower Saxony. In that case, particularly significant residence interests were weighed against significant deportation interests. In the present case, however, the plaintiff’s interests are outweighed by particularly significant deportation interests. Therefore, there was no atypical case here.
Higher Administrative Court of North Rhine-Westphalia and Legislative Clarification
Additionally, the Higher Administrative Court of North Rhine-Westphalia does not agree with the view of the Higher Administrative Court of Lower Saxony, in that it does not generally consider the requirement under § 5 para. 1 no. 2 AufenthG to be dispensable in such situations. Instead, a balancing of all interests is always necessary.
This is especially true regarding a balancing concerning Article 6 GG, which could also be addressed by granting the plaintiff a suspension of deportation (Duldung). While the avoidance of chain suspensions of deportation should be aimed for, this goal does not take precedence over all other concerns but must be included in the overall balance. Furthermore, the legislature has made clear with the introduction of § 104c AufenthG that it is still intended that persons with a long-term suspension of deportation, who have deportation interests due to criminal offenses, should not receive a residence permit, thereby indicating that this is not an atypical situation.
Source: Higher Administrative Court of Münster