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.
Case Background
The 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.
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.
Decision of the Federal Administrative Court
The 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.
Legal Reasoning
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.
Conclusion
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.
Source: Federal Administrative Court
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