Aktualisiert am:
Administrative Court Augsburg, Judgment of January 18, 2023, Case No.: Au 6 K 22.2179
If you are the spouse of an EU citizen, you can, of course, live together in Germany if certain conditions are met. Among other requirements, you must be able to support yourselves and have health insurance.
After five years, you also have the opportunity to obtain a permanent residence card, which entitles you to live and work in Germany indefinitely. However, what happens if your European spouse leaves Germany alone or you get divorced? The Administrative Court of Augsburg had to deal with such a case.
Case Background:
Indian Husband Moved to Germany to Join His Romanian Wife
The Indian plaintiff was the spouse of a Romanian national who initially lived in Germany but then left the country on January 31, 2021.
The plaintiff joined his wife in Germany on May 22, 2017, and received a residence card for family members of EU citizens on May 24, 2017, valid until May 23, 2022. On August 17, 2017, the plaintiff moved to the jurisdiction of the defendant. According to health insurance records, the plaintiff was employed from October 1, 2018, to September 1, 2020, as well as from May 25, 2020, to July 3, 2020, and again from September 14, 2020, until the date of confirmation by the pension insurance on January 10, 2022.
Wife Was Employed Only Briefly in Germany and Then Left, Later Divorced
On April 25, 2022, the plaintiff applied to the defendant for the issuance of a permanent residence card, stating that he had been living separately from his wife since 2021.
In May 2022, the plaintiff divorced his Romanian wife.
Foreigners’ Authority Denied Permanent Residence Card and Requested the Plaintiff to Leave the Country
By letter dated October 31, 2022, the defendant denied the issuance of the residence card and requested the plaintiff to leave Germany. The decision was based on the fact that the wife had not been employed in Germany since the plaintiff’s arrival in 2017 and, therefore, did not have the right to free movement after six months at the latest.
Although the plaintiff himself was employed from October 1, 2017, his wife, as a non-employed EU citizen, was neither covered by health insurance through the plaintiff nor otherwise independently insured. She only had insurance coverage from August 5, 2015, to October 5, 2016. Therefore, as a non-employed EU citizen, she did not have sufficient health insurance or financial resources under Section 2(2) No. 5 in conjunction with Section 4 FreizügG/EU, and was no longer entitled to free movement. Since the plaintiff accompanied or joined his wife, but she was no longer entitled to free movement, the plaintiff only had a derived right of entry and residence for the first six months after his arrival, from May 22, 2017, to November 22, 2017.
Thus, the plaintiff did not acquire a permanent right of residence under Section 4a FreizügG/EU. Instead, he only had the right to stay in Germany for the first six months after his arrival. Moreover, with the departure of his wife on January 31, 2021, the marital cohabitation was permanently dissolved, and the EU law connection for living together (joining or accompanying an EU citizen) was severed.
Plaintiff Filed a Lawsuit Against the Rejection Decision at the Augsburg Administrative Court
The plaintiff filed a lawsuit against the rejection decision at the Administrative Court of Augsburg.
Judgment of the Augsburg Administrative Court:
The Administrative Court Confirmed the Decision of the Foreigners’ Authority
The Administrative Court of Augsburg agreed with the Foreigners’ Authority and ruled that the plaintiff was rightly denied the residence card and that the revocation of his previous residence rights was lawful.
Legal Basis for the Decision
Under Section 5(4) Sentence 1 FreizügG/EU, the loss of the right under Section 2(1) FreizügG/EU can be determined if the conditions of this right cease to exist or are not met within five years of establishing permanent lawful residence in Germany; Section 4a(6) FreizügG/EU applies accordingly (Section 5(4) Sentence 2 FreizügG/EU).
A loss determination can be made not only if the right to free movement initially existed and later ceased but also if the conditions for the right under Section 2(1) FreizügG/EU were never met (see BayVGH, judgment of July 18, 2017 – 10 B 17.339 – juris para. 24). The five-year period refers to the acquisition of a permanent right of residence after a lawful uninterrupted stay of five years in Germany. The possibility of determining the loss of the right to free movement under Section 5(4) FreizügG/EU would thus expire with the establishment of a permanent right of residence (see BVerwG, judgment of July 16, 2015 – 1 C 22/14 – NVwZ-RR 2015, 910 juris para. 16).
Loss of Free Movement Due to Unemployment
According to the court, the Romanian wife’s derived right to free movement had already expired because she only worked from August 5, 2015, to October 5, 2016, and lost her right to free movement due to unemployment.
Although EU citizens are entitled to free movement regardless of employment status or other economic activity under Section 2(2) No. 5 in conjunction with Section 4 Sentence 1 FreizügG/EU, they must have sufficient health insurance and financial resources.
Since the wife did not have sufficient health insurance or the required financial resources at the time of the plaintiff’s entry, she was not entitled to free movement under Section 2(2) No. 5 in conjunction with Section 4 Sentence 1 FreizügG/EU at the time of his entry.
Loss of Free Movement Due to Divorce and Wife’s Departure
Finally, the plaintiff also did not acquire a continuing right of residence after divorcing the EU citizen under Section 3(4) FreizügG/EU. Although the marriage lasted more than three years, with at least one year in Germany, the wife was no longer entitled to free movement from October 5, 2016, or at the latest before one year of marital life in Germany, so her cohabitation with the plaintiff—understood as the simultaneous, not necessarily joint, living of both spouses in Germany (see CJEU, judgment of July 16, 2015 – C-218/14 – NVwZ 2015, 1431/1432 para. 54 ff.; BVerwG, judgment of March 28, 2019 – 1 C 9.18 – InfAuslR 2019, 277 ff.)—did not convey a derived legal status as a family member of a spouse entitled to free movement.
Moreover, she had already left Germany on January 31, 2021, more than a year before the divorce petition was served on February 21, 2022, and certainly before the divorce was finalized. The divorce petition was therefore not filed within a reasonable period after the departure of the EU citizen (see CJEU, judgment of September 2, 2021 – C-930/19 – NVwZ-RR 2022, 66 ff. paras. 30, 44).
Consideration of the Plaintiff’s Personal Situation
The defendant considered the duration of the plaintiff’s stay in Germany, his family and economic situation, his social and cultural integration in Germany, and the extent of his ties when making the loss determination and appropriately weighted them. In particular, the defendant adequately considered the plaintiff’s stay in Germany and his economic but otherwise not particularly protected personal ties. There were no significant changes to this discretionary reasoning in the court proceedings.
Proportionality of the Loss Determination
The determination of the loss of the plaintiff’s right to free movement was also not disproportionate concerning Article 6 of the Basic Law and Article 8 of the European Convention on Human Rights (ECHR).
Under international law, a state has the right to regulate the entry of foreigners into its territory and their stay. The European Convention on Human Rights does not guarantee any foreigner the right to enter or stay in a specific country. The Member States are entitled to expel a foreigner convicted of crimes to fulfill their task of ensuring public order. This requires that the termination of the stay is legally provided, i.e., based on a legal provision recognizable to the affected person, and is necessary in a democratic society, i.e., justified by a pressing social need and proportionate in the individual case.
For the plaintiff, the scope of protection under Article 8 of the ECHR regarding his private life, as the totality of social ties between settled foreigners and the society in which they live, was opened, as the plaintiff, who was largely without ties in Germany, had been registered with a residence in Germany since May 22, 2017, had continuously stayed in Germany, and had thus made the center of his life here for more than five years. However, family life no longer existed since the couple’s separation.
Source: Administrative Court Augsburg
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