Administrative Court of Hamburg, Judgment of December 2, 2022, Az.: 5 K 4511/21
Regarding the residence required for the issuance of a permanent residence permit under § 26 (4) sentence 4 in conjunction with § 35 (1) sentence 2 of the Residence Act (AufenthG), the time spent by the applicant in Germany during the asylum procedure is credited in accordance with § 26 (4) sentence 3 AufenthG.
In this case, the plaintiff, born in 1998, who had entered Germany in 2015 and applied for asylum but only received a residence permit in 2018, applied for a permanent residence permit. The competent authority rejected the application and did not address the plaintiff’s objection. The plaintiff subsequently filed a lawsuit on October 27, 2021, with the Administrative Court of Hamburg.
Facts of the Case:
The Afghan plaintiff unsuccessfully applied for an unlimited residence title (permanent residence permit).
Born in Afghanistan in 1998, the plaintiff entered Germany in 2015 and applied for asylum on July 16, 2015. After a ban on deportation for persons from Afghanistan was established on September 5, 2018, the plaintiff received a residence permit under § 25 (3) AufenthG on September 28, 2018. In September 2019, he began an apprenticeship as a car mechanic, which he had not yet completed at the time of his application for a permanent residence permit.
Immigration Authority’s Assessment
The immigration authority found that the plaintiff did not meet the requirements for a permanent residence permit under § 26 (4) in conjunction with § 9 (2) AufenthG, as he could not prove that he had made at least 60 contributions to the statutory pension insurance.
Additionally, the plaintiff did not meet the requirements for a permanent residence permit under § 26 (4) in conjunction with § 35 (1) sentence 2 AufenthG. Although a residence permit for humanitarian reasons, such as the plaintiff’s, could be considered a residence permit according to § 35 (1) sentence 2 no. 1 AufenthG, it must have existed before reaching the age of majority. The applicant must only be of legal age at the end of the five-year period, not at the time the residence permit was issued. The tolerated periods during the ongoing asylum procedure, when the plaintiff was still a minor, could not be credited. This follows from the systematic position of the sentences within § 26 (4) AufenthG. The crediting of tolerated periods is regulated in sentence 3, while the reference to § 35 is in sentence 4. Thus, crediting applies only to the cases of sentences 1 and 2, not to the cases of the reference. The Federal Administrative Court follows this view in its case law (BVerwG, Judgment of September 13, 2011, 1 C 17/10).
The plaintiff argued that the tolerated periods under § 55 (3) AsylG during the ongoing asylum procedure since 2015 should be credited towards the residence requirement, thereby fulfilling the requirement of § 35 (1) sentence 2 no. 1 AufenthG.
Decision of the Administrative Court of Hamburg
The court partially upheld the claim, overturning the rejection decision as formulated in the objection decision of October 5, 2021, and obliging the authority to make a new decision on the plaintiff’s application, exercising its discretion properly. There is no fixed claim under § 26 (4) in conjunction with § 9 (2) AufenthG or under § 26 (4) in conjunction with § 35 (1) sentence 1 AufenthG, but the plaintiff is entitled to a new decision under proper discretion according to § 26 (4) in conjunction with § 35 (1) sentence 2 AufenthG.
The court agreed with the authority’s view that the plaintiff did not have a claim for a permanent residence permit under § 26 (4) in conjunction with § 9 (2) AufenthG due to insufficient pension insurance contributions.
Court’s Consideration
The court found that the plaintiff met the requirements of § 26 (4) sentence 4 in conjunction with § 35 (1) sentence 2 AufenthG. Specifically, the tolerated periods during the ongoing asylum procedure should be credited towards the residence requirement, thus establishing the legal basis for the residence permit before the plaintiff reached adulthood.
The court reached this decision based on systematic considerations. The reference was not placed in sentence 4, after the crediting of tolerated periods, because it does not apply to those cases. Rather, this arrangement was made to clarify that the crediting applies not only to the cases of the reference but also to those regulated in sentences 1 and 2. If the legislator had intended for the crediting of tolerated periods not to be possible in the cases of the reference to § 35, it would have been placed in a different paragraph.
The crediting of tolerated periods is also historically justified. The purpose of the regulation is to enable minors who enter with a humanitarian residence permit to solidify their stay in the form of a permanent residence permit under the same conditions as children with a residence permit for family reasons, as stated in the explanatory notes of § 26 (4) AufenthG (BT-Dr 15/420, p. 80). Minors to whom § 35 AufenthG is directly applicable usually receive a residence permit under § 35 (1) sentence 2 no. 1 immediately upon entering Germany, so they never face the situation of entering as minors but receiving a residence permit only upon reaching adulthood. To ensure equal treatment for minors with a humanitarian residence permit, it is therefore essential to credit the tolerated periods during the asylum procedure.
Credit of Tolerated Periods from Historical and Teleological Perspectives
Finally, the crediting of tolerated periods is necessary from teleological perspectives. The reference in § 26 (4) sentence 4 AufenthG would effectively be rendered meaningless if such crediting did not occur. Minors with a humanitarian residence permit generally enter Germany without a residence permit and receive it only with a delay, thus always being disadvantaged. The plaintiff’s case does not represent an atypical situation in this respect. The disadvantage should be specifically addressed by the reference.
The defendant’s argument that this view contradicts the case law of the Federal Administrative Court is not accurate. In the aforementioned BVerwG ruling, the plaintiff lacked the requirement of § 35 (1) sentence 2 no. 1 AufenthG because he did not have a residence permit before reaching the age of majority. Instead, the issue was the continuity of at least tolerated residence in Germany. After the asylum procedure, the plaintiff was only temporarily tolerated in Germany. This aspect is the basis of the BVerwG’s decision. However, this does not apply to the case at hand, where the issuance of the plaintiff’s residence permit followed immediately after the tolerated stay during the asylum procedure.
The other requirements for issuing a permanent residence permit were met, which is why the court ordered the defendant to redecide on the application based on proper discretion. The court stated that discretion should be exercised according to the purpose of the authorization. The plaintiff „over-fulfills“ the conditions for discretion under the authorization norm, and the factors favoring the plaintiff should be taken into account.
Source: VG Hamburg
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