Aktualisiert am:
Stuttgart Administrative Court, November 4, 2015, Case No.: 11 K 2263/15
Case Background
The plaintiff, born in 1992 in Kremenchug, Ukraine, entered Germany in 1998 as a child with his parents as a quota refugee and received a permanent residence permit, which is now continued as a settlement permit under Section 23(2) of the Residence Act (AufenthG). The plaintiff never had his own passport but was entered in his mother’s passport upon entry. After entering Germany, the plaintiff lost his Ukrainian citizenship under a decree by the Ukrainian president. Despite an assurance of naturalization by the German authorities, this was not carried out due to several criminal convictions of the plaintiff.
Application for Issuance of a Substitute Identity Document
In 2014, the plaintiff applied for the issuance of a substitute identity document to certify his settlement permit. However, this application was rejected by the competent immigration authority, as was the subsequent objection. The plaintiff then filed a lawsuit, arguing that it was unreasonable for him to apply for a Ukrainian passport, as this would require reacquiring Ukrainian citizenship. He emphasized that he had no personal or cultural ties to Ukraine.
Court’s Reasoning
The court ruled in favor of the plaintiff, stating that the rejection of the issuance of a substitute identity document was unlawful. The plaintiff was entitled to the requested substitute document under Section 48(2) of the Residence Act in conjunction with Section 55(1) No. 1 of the Residence Ordinance (AufenthV). These provisions stipulate that a substitute identity document can be issued if a foreign national does not have a recognized passport and cannot reasonably obtain one, but holds a residence permit.
Reasonableness of Obtaining a Passport
The court argued that it was unreasonable for the plaintiff to apply for a Ukrainian passport, as this would require reacquiring Ukrainian citizenship. The obligation of a foreign national to cooperate under Section 48(2) of the Residence Act does not extend to applying for a nationality that the foreign national does not possess. Rather, the foreign national is only required to make serious efforts to obtain a passport or substitute document, which in this case does not include applying for a new nationality.
The court emphasized that the reasonableness criterion in Section 48(2) of the Residence Act and Section 55(1) No. 1 of the Residence Ordinance is intended to prevent negligence or convenience on the part of the foreign national, but cannot be used to compel them to apply for a nationality they have already relinquished. Such an obligation would overextend the scope of the Residence Act and would be incompatible with its purpose in immigration control.
Comparison with Previous Case Law
The court clarified that previous decisions by the Federal Administrative Court were based on different legal grounds and were therefore not applicable to the present case. In particular, the cases decided by the Federal Administrative Court involved different legal and factual circumstances that were not comparable to the plaintiff’s situation.
Conclusion
The ruling establishes that the plaintiff has a right to the issuance of a substitute identity document without having to first apply for reacquisition of Ukrainian citizenship. This was deemed both legally and factually unreasonable. The court therefore overturned the authority’s decision and the objection notice, and ordered the authority to issue the requested certificate to the plaintiff.
This judgment highlights that the obligation of a foreign national to cooperate in obtaining a passport cannot be interpreted so broadly as to compel them to apply for a nationality they have already given up, especially when the foreign national no longer has relevant ties to the country in question.
Important Notice: This content has been prepared to the best of our knowledge and belief. However, due to the complexity and constant changes in the subject matter, liability and warranty must be excluded.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.
Lawyers in Cologne advise and represent clients nationwide in immigration law.
