Lüneburg Higher Administrative Court, 08.11.2017, Case No.: 8 LB 59/17
According to Section 4 (3) StAG, a child born to foreign parents acquires German citizenship by birth in Germany if one parent has had their lawful habitual residence in the country for eight years and holds an unlimited right of residence or, as a Swiss citizen or their family member, holds a residence permit based on the Agreement on the Free Movement of Persons between the European Community and Switzerland (BGBl. 2001 II p. 810).
The acquisition of German citizenship is recorded in the birth register where the child’s birth is registered.
A legitimate interest in the retroactive issuance of a settlement permit can also exist to enable the child to acquire German citizenship. This is because the issuance of a settlement permit is a necessary prerequisite for such acquisition.
The Lüneburg Higher Administrative Court clarified in the following ruling that the retroactive issuance of a settlement permit fulfills the requirement of Section 4 (3) No. 2 StAG in cases where neither parent held an unlimited right of residence at the time of the child’s birth. The court also noted that the scope of administrative decisions must be determined by interpretation, and general statements about what is implied by the issuance of a residence title regarding the period of validity and potential rejection of other periods are not possible.
Introduction and Facts
The plaintiff, a Syrian national, sought the retroactive issuance of a settlement permit. He entered Germany in 1996 and applied for asylum. In 1999, the Hanover Administrative Court determined that the conditions of Section 51 (1) AuslG were met, and from that point on, the plaintiff continuously held residence permits, later receiving a residence permit under Section 25 (2) AufenthG. On October 7, 2009, he was finally granted a settlement permit. In 2011, the plaintiff applied for naturalization for himself and his son, but he withdrew the application after the naturalization authority refused to include his son, arguing that a long-term lawful residence in Germany would only exist after eight years, i.e., from July 2017. On April 26, 2013, the plaintiff applied for the retroactive issuance of the settlement permit from the date of the application, which the defendant rejected by decision dated December 16, 2013.
Rejection by the Defendant and First-Instance Judgment
The defendant argued that the plaintiff had suffered no disadvantage due to the failure to inform him in time about the possibility of a settlement permit. There was no legitimate interest in retroactive issuance because the plaintiff already held a settlement permit, and his family community was sufficiently protected by his wife and children’s residence permits. Reopening the case was ruled out due to the lack of a legitimate interest and grounds for reopening.
The Hanover Administrative Court dismissed the lawsuit on February 3, 2016, citing the lack of a need for legal protection. The court found no legitimate interest in the plaintiff’s residence status, employment, or use of public funds. The court followed the defendant’s reasoning that the plaintiff had not suffered a legal disadvantage due to the failure to inform him. A claim for restitution is not recognized in administrative law, and no disadvantage arose for the plaintiff due to the processing time.
Appeal Proceedings and Plaintiff’s Argument
The plaintiff appealed against the judgment, arguing that the retroactive issuance of the settlement permit would improve his legal position, particularly regarding possible naturalization if his son were to become a German citizen. The linkage of his legal position with that of his son stemmed from Article 6 GG. He argued that the defendant should have informed him in May 2008 that he was entitled to a settlement permit. This duty should have been fulfilled ex officio.
Decision of the Lüneburg Higher Administrative Court
The Lüneburg Higher Administrative Court ruled in favor of the plaintiff and overturned the first-instance judgment. The appeal was admissible and well-founded because the plaintiff had a legitimate interest in the retroactive issuance of the settlement permit. This interest did not stem from improving his own legal position but from that of his son. A retroactive issuance would have resulted in the son acquiring German citizenship by birth under Section 4 (3) StAG. The court emphasized that the plaintiff’s legitimate interest was not negated by his son’s lawful residence permit from 2017, as acquiring citizenship by birth and later naturalization are not equivalent.
Legal Reasoning and Interpretation
The court found that the issuance of the settlement permit on October 7, 2009, did not imply a rejection for the prior period. The plaintiff’s application for the earliest possible issuance was to be interpreted as seeking retroactive validity. The defendant had seen no need to examine retroactive issuance as it was not informed of the significance of the settlement permit for the son’s citizenship. Therefore, it was assumed that the defendant had not rejected retroactive issuance.
Claim for Retroactive Issuance
The plaintiff met the requirements of Section 26 (3) AufenthG, as he had held a residence permit under Section 25 (2) AufenthG for more than three years, and the Federal Office’s negative certificate was present. The defendant should have refrained from applying general issuance obstacles, and there were no indications of obstacles during the period from June 5 to October 6, 2009.
Conclusion and Judgment
The Higher Administrative Court overturned the Hanover Administrative Court’s judgment and ordered the defendant to grant the plaintiff a settlement permit for the period from June 5, 2009, to October 6, 2009. The plaintiff had a legitimate interest in the retroactive issuance, particularly due to the citizenship issue concerning his son. The plaintiff’s appeal was therefore successful.
Source: Lüneburg Higher Administrative Court
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