Federal Administrative Court, September 13, 2011, Case No.: 1 C 17.10
According to Section 26(4) of the Residence Act (AufenthG), a foreigner who has held a residence permit for humanitarian reasons for seven years may be granted a permanent residence permit (Niederlassungserlaubnis) if the general conditions for issuing a permanent residence permit as stipulated in Section 9 of the Residence Act are met.
The seven-year period also includes the time spent in the asylum procedure preceding the issuance of the residence permit (Section 26(4), sentence 3, Residence Act).
According to Section 26.4.7 of the General Administrative Regulation of the Residence Act, the foreigner’s authority may consider the following criteria in exercising its discretion:
Duration of residence in Germany
Integration into the living conditions of the Federal Republic of Germany
Continuation of the purpose of stay or the protection reasons justifying the issuance of the residence permit.
In the case mentioned above, the Federal Administrative Court had to decide whether the duration of a prior asylum procedure should be considered when granting a permanent residence permit for humanitarian reasons, even if the stay was tolerated (Duldung) for a longer period between the conclusion of the asylum procedure and the first issuance of a residence permit.
FactsThe plaintiff, an Ethiopian national, entered Germany in 1996 at the age of 16 without his parents.
After a failed asylum procedure, his stay was merely tolerated from May 2005 onwards. In March 2007, he was finally granted a temporary residence permit for humanitarian reasons. He then applied for a permanent residence permit, including the duration of his asylum procedure, pursuant to Section 26(4) of the Residence Act (AufenthG). However, the responsible foreigner’s authority rejected this application, prompting the plaintiff to file a lawsuit with the Administrative Court.
After a failed asylum procedure, his stay was merely tolerated from May 2005 onwards. In March 2007, he was finally granted a temporary residence permit for humanitarian reasons. He then applied for a permanent residence permit, including the duration of his asylum procedure, pursuant to Section 26(4) of the Residence Act (AufenthG). However, the responsible foreigner’s authority rejected this application, prompting the plaintiff to file a lawsuit with the Administrative Court.
Decision of the Administrative Court and the Higher Administrative Court of Hesse
The Administrative Court obliged the foreigner’s authority to reassess the application. However, the Higher Administrative Court of Hesse dismissed the lawsuit on appeal. The court’s reasoning was based on its interpretation of Section 26(4) of the Residence Act, which, according to the court, requires that the foreigner has held a residence permit for humanitarian reasons for seven uninterrupted years. The court held that the duration of the asylum procedure could not be counted towards this period, as more than a year had passed between the conclusion of the asylum procedure and the issuance of the residence permit, during which the plaintiff’s stay was only tolerated.
Source: Federal Administrative CourtSource: Federal Administrative CourtThe Federal Administrative Court disagreed with the Higher Administrative Court of Hesse and overturned its decision. According to Section 26(4) of the Residence Act, a foreigner may be granted a permanent residence permit at the discretion of the authorities if, in addition to meeting other integration requirements, they have held a residence permit for humanitarian reasons for seven years. The Federal Administrative Court clarified that the duration of the asylum procedure must be counted towards this seven-year period, even if the stay was initially only tolerated after the asylum procedure concluded. A temporal connection between the conclusion of the asylum procedure and the issuance of the residence permit is not required.
The Federal Administrative Court referred to its earlier case law concerning the predecessor regulation in the 1990 Aliens Act, where the inclusion of the asylum time in the seven-year period was standard practice. A different interpretation would largely undermine the provision. Although the legislator has since restructured humanitarian residence rights, a seamless transition from a failed asylum procedure to a humanitarian residence permit is often not feasible. Counting the asylum time towards the period does not conflict with the discretionary power of the foreigner’s authority, which may still require that the foreigner holds a humanitarian residence permit for a certain period before granting a permanent residence permit.
This also applies - contrary to the opinion of the Court of Appeal - if the foreigner was initially granted a tolerated stay after the conclusion of the asylum procedure, because the crediting regulation does not require a temporal connection between the conclusion of the asylum procedure and the granting of the residence permit.
This is also in line with the Senate's case law on the predecessor provision in Section 35 of the Aliens Act 1990. Any other interpretation would render the provision largely meaningless.
Although the legislator has now reorganised humanitarian residence rights, a seamless transition from an unsuccessful asylum procedure to a humanitarian residence permit is still not possible in many cases.
However, the fact that the duration of the asylum procedure is counted towards the seven-year period, as stipulated by law, does not prevent the foreigners authority, when exercising its discretion, from demanding that the foreigner has held a humanitarian residence permit for at least a certain period of time before being granted a settlement permit.
The Federal Administrative Court’s ruling strengthens the rights of asylum seekers by clarifying that the duration of an asylum procedure must be considered when granting a permanent residence permit. This decision ensures that the statutory inclusion of the asylum period is not circumvented by administrative hurdles, supporting a coherent and fair integration policy.
In addition, when exercising discretion, the reasons for which the stay was initially only tolerated after the asylum procedure was completed must be taken into account and whether this allows conclusions to be drawn about the integration of the foreigner.
Source: Federal Administrative Court
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One Response
Ladies and Gentlemen,
My parents are of Lebanese origin and have been living in Germany since 1990.
From 1990-1995 she had a residence permit.
From 1995-2007 they were in possession of a tolerated stay.
They were granted a residence permit under 104a in 2007, which was unfortunately cancelled in March 2012 due to a lack of
securing your livelihood. You were in receipt of Harz 4.
We then wrote to the hardship committee and described our case. They then made the recommendation
grant the family a residence permit in accordance with 23a.
The city of Bocholt followed suit and granted the family a residence permit in Oct. 2012.
My father has been in full-time employment since March 2012.
My concern:
About 1 month ago I went to the immigration office and asked about the requirements for my parents for a
settlement permit.
The clerk told me that the time requirement of 7 years would not apply to my father.
When I drew his attention to the fact that the periods of the residence permit are also counted,
he then said to me that because the family's residence status was interrupted, i.e. March 2012 - Oct 2012, it had lapsed.
Do we have a chance of obtaining a settlement permit from the legal situation if all other requirements are met.7
In other words, work, language, etc.?
Yours sincerely
The Merhi family