Immigration Law: Serbian national seeks a residence permit for work as a drywall installer.

VGH Munich, Decision of 06.11.2023 – 10 CS 23.1074

Background of the Case: Application for Restorative Effect of the Lawsuit

The appellant seeks to restore the suspensive effect of his lawsuit filed with the administrative court. His lawsuit challenges the respondent’s decision to deny him a residence permit. Specifically, the appellant is seeking a residence permit for either self-employment or dependent employment.

The administrative court had rejected the original application, ruling that the appellant was not entitled to such a permit. The court determined that the appellant lacked the fundamental prerequisites, such as a prior application with the immigration authorities, which is required for the issuance of a residence permit. Another obstacle was the appellant’s multiple criminal offenses. His convictions for driving without a license and forgery of documents led the court to view him as someone who had deliberately and repeatedly violated German law. These offenses, according to § 5(1) No. 2 in conjunction with § 54(1) No. 9 of the Residence Act (Aufenthaltsgesetz), are grounds for denying a residence permit.

Additionally, the court found that the appellant could not provide evidence of dependent employment nor was there any obstacle to his return to his home country, Serbia. Based on these findings, the administrative court concluded that the application for a residence permit was unlikely to succeed and dismissed the request for suspensive effect.

Appellant’s Arguments: Rehabilitation and Absence of Recidivism Risk

The appellant appealed this decision, presenting several arguments to support his case. He emphasized that he had always sought a residence permit for employment and claimed that the legal consequences of his actions had never been clearly explained to him by the authorities. He further argued that he no longer posed a threat to public safety and order, as he was undergoing traffic psychological therapy. Since May 2023, he had been attending regular sessions to understand his mistakes and comply with the law in the future. He also highlighted that he had signed a training contract with a driving school in May 2023, which could be seen as evidence that he had learned from his offenses.

The appellant further argued that his criminal offenses were due to ignorance and naivety. He believed his Serbian driver’s license was still valid and assumed the respondent would permit him to work independently. He was not informed by the authorities that he was not allowed to engage in self-employment without official authorization. Additionally, he had lived in Germany for almost seven years, supported himself, and integrated into society. Therefore, terminating his stay would be disproportionate and infringe on his right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR).

Court Decision: Continuing Interest in Expulsion

The Higher Administrative Court rejected the appellant’s appeal and upheld the administrative court’s decision. The court ruled that the appellant had no entitlement to a residence permit due to his repeated violations of the law. Under § 54(2) No. 9 of the Residence Act, there is a serious interest in expulsion when a person has repeatedly and intentionally violated the legal order. In the appellant’s case, this was established through his convictions for driving without a license and document forgery. The court was particularly critical of the fact that the appellant continued to drive without a license even after his first conviction and had even presented a forged Croatian driver’s license.

The appellant’s argument that he acted out of naivety and was now undergoing therapy did not persuade the court. It noted that his offenses could not be considered isolated incidents, as he continued to commit crimes even after his first conviction. Moreover, the risk of him committing similar offenses again remained, especially since he still did not possess a valid driver’s license.

Another decisive factor was the appellant’s unauthorized self-employment since April 2021, which constituted a significant violation of the Residence Act’s provisions. The appellant could not claim ignorance of the consequences of his actions, as he had been explicitly prohibited from engaging in self-employment without authorization.

No Entitlement to Toleration or Humanitarian Residence Permit

The appellant’s attempt to claim a right to a humanitarian residence permit or toleration (Duldung) also failed. The court found that the requirements for a residence permit under § 25(5) of the Residence Act were not met, as there was no obstacle to his departure. While the appellant argued that he was rooted in Germany due to his long-term residence and integration, the court pointed out that he had spent most of his life in Serbia and had only lived in Germany for seven years. A return to Serbia was deemed reasonable, especially since he had social and familial ties there. Additionally, no existential hardship in Serbia was apparent.

In conclusion, the Higher Administrative Court determined that neither the requirements for a residence permit nor for toleration were met. The appellant failed to present any compelling reasons that would make his case exceptional or deviate from the norm. Consequently, the administrative court’s decision remained unchanged, and the application for suspensive effect was dismissed.

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