Aktualisiert am:
Administrative Court Greifswald, August 1, 2023, Case No.: 2 A 404/23 HGW
The court in this case needed to determine whether the plaintiff, who was not in Ukraine at the crucial time of his family’s flight, nonetheless has a claim to a residence permit. In particular, it was necessary to examine the extent to which the protection of marriage and family under Article 6(1) of the Basic Law (Grundgesetz, GG) and the right to respect for family life under Article 8 of the European Convention on Human Rights (ECHR) must be considered in the context of the provisions of Section 24 of the Residence Act (AufenthG) and Council Implementing Decision (EU) 2022/382.
Facts of the Case
The plaintiff is a Pakistani national. He is the father of his son A., born on April 14, 2018, in Austria. The mother of the child is the witness D., who has been married to the plaintiff since 2017, holds Ukrainian citizenship, and has a residence permit in Germany. The family has lived together in various European countries since 2017. Initially, they were based in Austria, but due to political and legal developments in the region, they were forced to relocate several times.
In 2018, the plaintiff was deported from Austria to Pakistan, although his family continued to live in Europe. The plaintiff re-entered Europe in the summer of 2022, this time traveling through Greece to Germany. At this time, witness D. and her son had fled to Germany due to the Russian invasion of Ukraine after February 24, 2022. This situation, where different family members sought protection in different countries at different times, led to complex legal challenges.
Procedural History
The plaintiff applied for a residence permit on humanitarian grounds, arguing that his family unit in Germany must be protected. However, the defendant, the responsible immigration authority, rejected this application in a decision dated October 11, 2022. This rejection came after the plaintiff was heard regarding the reasons for his application. The plaintiff subsequently filed an objection against this decision on October 28, 2022. The objection was dismissed on February 7, 2023, with an objection decision.
The plaintiff then filed a lawsuit with the Administrative Court on March 10, 2023. In his lawsuit, he argued that he lives in a family unit in Germany with his wife, their common son A., and a pre-marital son E. The plaintiff argued that he is entitled to a residence permit under Section 24 of the Residence Act in conjunction with the Council Implementing Decision (EU) 2022/382 of March 4, 2022, as he is part of the family that fled from Ukraine to Germany due to the Russian invasion.
Applications and Defense
The plaintiff requested that the defendant be ordered, under the annulment of the decision dated October 11, 2022, as amended by the objection decision dated February 7, 2023, to grant him a residence permit under Section 24 of the Residence Act.
The defendant requested the dismissal of the lawsuit. It defended the contested decision and denied that the plaintiff and witness D. live together in a marital union in Germany. The defendant argued that the plaintiff could not prove that he actually lived in a family unit with witness D. and her children. Additionally, it was argued that the plaintiff does not meet the requirements for a residence permit under Section 24 of the Residence Act, as he was not in Ukraine before February 24, 2022.
The court took evidence on the plaintiff’s claim that he lives in a family unit with Ms. D. in Germany by hearing Ms. D. as a witness. The witness confirmed in her testimony that she has lived with the plaintiff and their common children in an apartment on Holstenstraße in A-Stadt since the plaintiff entered Germany. The chamber found the witness’s testimony to be credible and considered the family unit to be proven.
Reasons for the Court’s Decision
The lawsuit is successful. The plaintiff is entitled to a residence permit under Section 24 of the Residence Act in conjunction with the Council Implementing Decision (EU) 2022/382 of March 4, 2022.
Under Section 24(1) of the Residence Act, a foreigner who is granted temporary protection under a decision of the Council of the European Union pursuant to Directive 2001/55/EC shall be issued a residence permit for the duration of the temporary protection if they have declared their willingness to be admitted to the federal territory. In the present case, the Council Implementing Decision (EU) 2022/382 of March 4, 2022, which regulates the situation of displaced persons from Ukraine, is decisive.
The plaintiff’s entitlement arises from Article 2(1)(c) of the Council Implementing Decision (EU) 2022/382. According to this provision, family members of persons who were displaced from Ukraine as a result of the military invasion by Russian forces on or after February 24, 2022, are also entitled to temporary protection. It is not necessary for the plaintiff himself to have been displaced from Ukraine on or after February 24, 2022; what is decisive is that his family fled from Ukraine at that time and he now lives in a family unit with them.
Interpretation and Argumentation
The chamber is convinced that the wording of the Council Implementing Decision (EU) 2022/382 does not explicitly exclude the plaintiff from the right to protection. Rather, the purpose of the regulation is to prioritize the protection of family unity. According to Article 2(1)(c) of the Decision, protection applies to family members who are part of a family that was already present and residing in Ukraine before February 24, 2022. A narrow interpretation that limits protection only to persons who themselves fled from Ukraine would contradict the aim of protecting the family unit.
The systematic interpretation of the Council Implementing Decision also leads to the conclusion that the family unit should be protected, regardless of whether all family members lived in Ukraine at the time of the flight. The regulation aims to prevent family members from being separated and acquiring different legal statuses, which would be contrary to the human rights principles that guarantee the protection of marriage and family.
The chamber clarifies that the actual lived family connection is decisive, and not formal legal aspects. This is also confirmed by the case law of the Federal Constitutional Court and the European Court of Human Rights, which emphasize in similar cases that the right to respect for family life protects the actual family unit and does not rely solely on formal criteria.
Outcome of the Evidence Gathering
The chamber is convinced after the taking of evidence that the plaintiff lives in a family unit with witness D. and their common son. The witness’s statements were detailed and consistent, and they were supported by objective facts. The living situation on Holstenstraße, the linguistic development of the son, who could communicate with the interpreter in Urdu, and the fact that the plaintiff, despite not being officially registered at the new apartment, actually lives there, support the credibility of the statements.
The defendant’s objection that language barriers within the family could hinder cohabitation was refuted by the actual circumstances. The chamber therefore assumes that the family unit does indeed exist and that the plaintiff is entitled to a residence permit under Section 24 of the Residence Act.
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