Federal Administrative Court, December 10, 2014, Case No.: BVerwG 1 C 15.14
In the case of family reunification of spouses with German nationals, the applicant must meet not only the specific requirements for the requested residence permit according to § 28 (1) sentence 1 no. 1 in conjunction with § 30 AufenthG but also the general issuance requirements applicable to all residence permits as stipulated in § 5 (1) AufenthG.
According to § 5 (1) AufenthG, the foreigner’s livelihood must be secured, and their identity must be clarified. Additionally, there must be no grounds for expulsion, and the presence of the foreigner must not impair or endanger the interests of the Federal Republic of Germany. The foreigner must also comply with the passport requirement.
Moreover, under § 5 (2) AufenthG, the issuance of a residence permit, a settlement permit, or a permit for permanent residence – EU requires that the foreigner has entered with the required visa and that the information relevant for the issuance was already provided in the visa application.
The first requirement of § 5 (2) AufenthG often leads to misunderstandings. For instance, if a spouse has entered Germany with a Schengen visa, they may be required by the immigration authorities to leave the country and complete the visa process in their home country.
In the case discussed here by the Federal Administrative Court, the question was raised at all levels of the judiciary whether a Turkish national, who had previously been found in Germany illegally and had entered Germany again without a visa, still had a claim to a residence permit without having to leave the country to complete the proper visa procedure.
Initial Situation: Illegal Stay and Expulsion
The plaintiff, a Turkish national, was found in Hamburg in December 2002 without a valid residence permit. He was provisionally arrested and expelled in February 2003 due to his illegal stay. According to his own statements, he then returned to Turkey. In April 2011, the plaintiff reported again to the immigration office in Hamburg and applied for a residence permit to marry his German fiancée. He stated that he had re-entered Germany illegally in March 2010, this time with the help of a smuggler, to seek work.
Toleration and Marriage Despite Illegal Entry
After his renewed illegal entry, the immigration office issued the plaintiff a toleration in April 2011, which was extended several times. In August 2011, the plaintiff married his fiancée, a German citizen. Despite the marriage, the plaintiff appealed against his earlier expulsion from 2003. The immigration office informed him that the expulsion order from 2003 was considered not to have been issued, as proper service had not been made and was no longer intended.
In August 2011, the plaintiff was sentenced by the Hamburg District Court to a fine of 60 daily rates for illegal entry and illegal stay from March 2010 to April 2011. By decision dated September 1, 2011, the immigration office rejected the plaintiff’s application for a residence permit under both § 28 (1) sentence 1 no. 1 AufenthG and § 25 (5) AufenthG. The plaintiff’s appeal against this decision was also rejected.
Lawsuit at the Administrative Court:
An Initial Success for the Plaintiff
The plaintiff filed a lawsuit against the refusal of the residence permit at the Administrative Court. The Administrative Court ruled in favor of the plaintiff and ordered the immigration office to grant him a residence permit under § 28 (1) sentence 1 no. 1 AufenthG. However, the authority appealed the decision at the Higher Administrative Court.
Decision of the Higher Administrative Court:
Re-examination Taking into Account the Legal Opinion
By judgment dated April 10, 2014, the Higher Administrative Court modified the Administrative Court’s decision. It ordered the immigration office to re-examine the plaintiff’s application for a residence permit under § 28 (1) sentence 1 no. 1 AufenthG, taking into account the court’s legal opinion. The Higher Administrative Court argued that the plaintiff met not only the specific requirements for the issuance of a residence permit under § 28 (1) sentence 1 no. 1 in conjunction with § 30 AufenthG but also the general issuance requirements under § 5 (1) AufenthG.
Legal Assessment: Exception to the Visa Requirement and Grounds for Expulsion
The court stated that although there were grounds for expulsion under § 55 (2) no. 2 AufenthG due to the plaintiff’s illegal entry and subsequent illegal stay, an exception to the rule applied here because the plaintiff was living in a marital partnership with a German citizen and the grounds for expulsion were solely based on the illegal entry and violation of immigration regulations. In such a case, it was not necessary to refuse the residence permit to avert threats to public security. The Higher Administrative Court emphasized that the risk of future violations of entry regulations was generally ruled out for a married foreigner living in a stable marital partnership with a German citizen.
The issuance of the residence permit was not hindered by the fact that the plaintiff had entered without the required visa. Although he did not meet the requirement under § 5 (2) sentence 1 no. 1 AufenthG, the conditions for waiving this requirement under § 5 (2) sentence 2 AufenthG were met. The immigration office had not exercised its discretion properly in the challenged decisions, which is why it was ordered to reconsider the application, taking into account the court’s legal opinion.
Appeal to the Federal Administrative Court and Final Judgment
The immigration office appealed to the Federal Administrative Court. However, the Federal Administrative Court did not follow the Higher Administrative Court’s reasoning and ruled that the lower courts should have dismissed the lawsuit. It held that the plaintiff had no claim to a residence permit because he had entered without the required visa. An exception to the visa requirement is only possible in exceptional cases where there is a strict legal entitlement to the residence title, which was not the case here.
The Federal Administrative Court overturned the lower courts’ judgments and dismissed the lawsuit. It emphasized that the visa procedure is an important tool for controlling immigration and should not be circumvented by illegal entry. The plaintiff’s marital partnership with a German citizen could not be considered sufficient grounds for an exception to the visa requirement, as the plaintiff had created grounds for expulsion through his illegal entry and stay, which still existed.
Source: Federal Administrative Court
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