OVG Rhineland-Palatinate. Judgement of 23.09.2021, Ref.: 7 A 10337/21
If an asylum seeker applies for a residence permit before the end of their asylum procedure, this entitlement may be precluded by the so-called title issuance block. This is because according to Section 10 (1) sentence 1 of the Residence Act, asylum seekers can only be granted a residence permit before the final conclusion of the asylum procedure, except in cases of legal entitlement, with the approval of the highest state authority and only if important interests of the Federal Republic of Germany require it. The same applies to a foreigner whose asylum procedure has been concluded with a negative outcome. A residence permit can only be issued if there is a so-called strict legal entitlement.
The case discussed: Application for family reunification
In the case discussed here, the plaintiff had applied for family reunification with his German child after his asylum procedure had been concluded with a negative result. The foreigners authority had refused to issue the residence permit and the administrative court that was subsequently called upon had confirmed the decision of the foreigners authority.
Appeal to the OVG Rhineland-Palatinate
The plaintiff had filed an application for leave to appeal against this decision with the Rhineland-Palatinate Higher Administrative Court.
Judgement of the OVG Rhineland-Palatinate
The plaintiff's application for leave to appeal, with which he asserts the grounds of serious doubt (Section 124 (2) no. 1 VwGO) and particular factual and legal difficulty (Section 124 (2) no. 2 VwGO), is unsuccessful. The objections raised by the plaintiff against the contested judgement of the Administrative Court, to which the Senate's review is limited (Section 124a (5) sentence 2 VwGO), are not valid.
No serious doubts as to the correctness of the judgement
There are no serious doubts as to the correctness of the administrative court judgement (see Section 124 (2) no. 1 VwGO). Such doubts can only be assumed if fundamental legal principles or significant factual findings of the administrative court are called into question by conclusive arguments (see BVerfG, decision of 16 January 2017 - 2 BvR 2615/14 -, juris, para. 19). To this end, the appellant must explain (cf. Section 124a (4) sentence 4 VwGO) why the challenged decision is incorrect in its view. To do so, the appellant must specifically address the assumptions of the administrative court that underpin the decision and explain in detail in what respect and for what reasons these assumptions are open to serious doubt (see Seibert, in: Sodan/Ziekow, VwGO, 5th ed. 2018, Section 124a para. 206 with further references).
Court of Appeal confirms the administrative court judgement
According to these criteria, there are no serious doubts as to the correctness of the judgement of the court of first instance when measured against the plaintiff's objections. The Court of Appeal confirms that the judgement of the administrative court was correct.
Serious interest of the plaintiff in expulsion
With regard to the applicant, there is a serious interest in deportation due to criminal offences. However, there is a serious interest in deportation in the person of the applicant in accordance with § 54 Para. 2 No. 9 AufenthG, so that the regular requirement of § 5 Para. 1 No. 2 AufenthG is not fulfilled and therefore the granting of the residence permit in accordance with §§ 27, 28 Para. 1 Sentence 1 No. 3 AufenthG is at the discretion of the defendant in accordance with § 27 Para. 3 Sentence 2 AufenthG.
Weighing up the interest in expulsion
Insofar as the plaintiff is of the opinion that there is no conflicting serious interest in deportation, as the interest in deportation must take a back seat if the requirements of Section 39 sentence 1 no. 5 AufenthV are met, the plaintiff does not sufficiently demonstrate the relevance of this objection. In support of this, the applicant refers to the decision of the Düsseldorf Administrative Court of 19 November 2020 (8 K 5232/19), according to which, if the requirements of Art. 20 TFEU are met, it is not considered necessary to repeat the visa procedure and this court ultimately granted a residence permit in accordance with Section 28 AufenthG. By referring to the case law of the Düsseldorf Administrative Court, which does not explicitly contain this exception based on § 39 sentence 1 no. 5 AufenthV by the plaintiff, the plaintiff does not explain why the basic assumption of the Administrative Court that the plaintiff's sufficiently current interest in deportation can be held against him should be incorrect. The existence of the requirements of § 39 sentence 1 no. 5 AufenthV is in itself irrelevant to the question of the existence of an interest in deportation within the meaning of § 5 para. 1 no. 2 AufenthG. The plaintiff does not explain why, if the requirements of § 39 sentence 1 no. 5 AufenthV are met, not only the regular requirement of § 5 para. 2 AufenthG, but also the requirement of § 5 para. 1 no. 2 AufenthG should be waived.
Strict legal entitlement and interpretation under EU law
The further justification that the interest in deportation must take a back seat when examining the claim under Section 28 (1) sentence 1 no. 3 AufenthG if the requirements of Art. 20 TFEU are met, as otherwise, in the case of the plaintiff, a residence permit would only be considered after the criminal warrant has been cancelled, which would contradict Art. 8 ECHR and Art. 6 GG, does not cast doubt on the findings of the Administrative Court. The plaintiff refers, albeit not explicitly at this point, to the case law of the Düsseldorf Administrative Court. According to this court, if the foreigner has a right of residence under Art. 20 TFEU, the granting of a national residence permit may not be opposed by general preventive expulsion interests. In the scope of application of Art. 20 TFEU, the principles developed by the Court of Justice of the European Union in the context of the restriction of the right of residence under Art. 20 TFEU for public order and security within the meaning of Union law are to be applied to Section 5 para. 1 no. 2 AufenthG in conformity with Union law (see VG Düsseldorf, judgment of 19 November 2020 - 8 K 5232/19 -, juris, para. 25).
Objection of unreasonableness due to the pandemic
Firstly, the objection that the residence permit was refused for years until it was cancelled is not valid, as neither the block on issuing the permit nor the interest in deportation can be held against the plaintiff when he leaves the country and re-enters legally. Due to the interest in expulsion, there is no strict legal entitlement to the residence permit.
Furthermore, the Senate does not agree with the plaintiff's view. Irrespective of the question of whether the requirements of Art. 20 TFEU are met here, there is - assuming this is the case - no room and no necessity for an interpretation of Section 5 (1) No. 2 AufenthG in conformity with EU law when issuing a national residence permit. If the requirements of Art. 20 TFEU are met, the interpretation in conformity with Community law advocated by the plaintiff leads to a waiver of the regular granting requirement of Sec. 5 para. 1 no. 2 AufenthG and also of the visa requirement and thus ultimately of the block on the granting of a title under Sec. 10 para. 3 sentence 1 AufenthG, as this is intended to establish a legal entitlement within the meaning of Sec. 10 para. 3 sentence 3 AufenthG.
The reasons already set out in the Senate's decision of 13 January 2021 (7 D 11208/20.OVG) - cited by the plaintiff - speak against this legal opinion and also apply here. A possible sui generis right of residence under EU law under Art. 20 TFEU to secure the right of residence in the EU of children dependent on the third-country national is not a national legal entitlement. Such a legal entitlement results in a residence title of its own kind, but not a national residence title in accordance with Section 28 AufenthG with the restrictions and possibilities of consolidation resulting from national law (see BVerwG, judgement of 12 July 2018 - 1 C 16/17 -, BVerwGE 162, 349 = juris, para. 28; decision of the Senate of 13 January 2021 - 7 D 11208/20 -, juris, para. 24). A waiver of the regular requirements for the granting of national residence permits by way of interpretation under EU law contradicts the independent and different character of these residence rights. As a result, it would eliminate the subsidiarity of the entitlement under EU law in comparison to national residence regulations and - contrary to the clear case law of the Federal Administrative Court - transform it into a national legal entitlement.
Accordingly, the Federal Administrative Court has denied a claim to the granting of a national residence permit on the basis of the existence of a current general preventive interest in expulsion pursuant to Section 5 (1) No. 2 Residence Act despite a possible right of residence under EU law pursuant to Art. 20 TFEU (see BVerwG, judgement of 12 July 2018 - 1 C 16/17 -, BVerwGE 162, 349 = juris, para. 28). It did not assume that the interest in deportation would be overridden against the background of Art. 20 TFEU.
Art. 6 GG and Art. 8 ECHR also do not lead to a strict legal claim. The plaintiff's other statements, which are understood in his favour to mean that he is asserting an atypical case with his argument that the values of Art. 6 GG and Art. 8 ECHR were not sufficiently taken into account, do not lead to success, as there is no strict legal entitlement within the meaning of Section 10 (3) sentence 3 Residence Act in this case either (see BVerwG, judgement of 12 July 2018 - 1 C 16/17 -, BVerwGE 162, 349 = juris, para. 27).
Insofar as the plaintiff objects with regard to the alternative application that the considerations of the Administrative Court regarding the visa procedure and its duration are irrelevant, the Senate does not agree. Insofar as he argues that he understands the Senate's statements in the aforementioned decision of 13 January 2021 to mean that the provisions on the visa procedure under Section 39 AufenthV are not applicable to the application of Article 20 TFEU and that no visa procedure under Section 5 (2) AufenthG is necessary, but that it arises automatically at birth and must be certified accordingly, this statement cannot be inferred from the cited decision of the Senate. Rather, this decision of the Senate concerned the question of whether a claim based on Art. 20 TFEU can be a strict legal claim within the meaning of Section 39 sentence 1 no. 2 AufenthV.
With this understanding, the plaintiff also fails to recognise the difference between a national residence permit and the right of residence under EU law, which is also set out in the decision of the Senate cited above. Since - as already explained - the latter is a sui generis right of residence and not a national residence title, it goes without saying that the standard conditions for granting a residence permit under Section 5 AufenthG do not apply. However, this does not mean that the third-country national is automatically entitled to the issue of a corresponding certificate in accordance with Section 4 (2) sentence 2 AufenthG upon the birth of the EU citizen based on Art. 20 TFEU. Rather, the eligibility requirements developed in the case law of the European Court of Justice must be met. Incidentally, with regard to the question of the claim asserted here in the alternative - as the Administrative Court correctly examined - the reasonableness of catching up on the visa procedure is relevant in terms of whether this requirement would lead to a de facto compulsion for the applicant's daughter to leave the territory of the Union.
Therefore, contrary to the plaintiff's opinion, the statements made by the Administrative Court in this regard are relevant, which the plaintiff does not substantiatedly question. In the opinion of the Administrative Court, the plaintiff is not entitled to certification of a right of residence under Art. 20 TFEU in accordance with § 4 Para. 2 Sentence 2 AufenthG, as he is not entitled to a right of residence under Art. 20 TFEU. This right presupposes that the Union citizen, in this case the applicant's daughter, would be de facto forced to leave the territory of the Union due to a relationship of dependence existing between him and the third-country national without the secure residence of the third-country national in the Member State and would thus be denied the actual enjoyment of the core of his rights as a Union citizen. Such a case does not exist, as it is reasonable to expect the applicant, also taking into account Article 8 ECHR, to complete the visa procedure which is in principle necessary for family reunification under the national provisions. Although there is a special relationship of dependency between the applicant and his daughter with German nationality, the separation period for catching up on the visa procedure is not to be considered unreasonably long when all the circumstances of the individual case are taken into account, as according to information from the embassy, the minimum time for processing a visa procedure for family reunification is around 2 - 3 weeks and all preparatory steps can be taken from Germany.
The mere indication that, due to the COVID-19 pandemic, it is not certain when a corresponding trip will be possible, that this could take over a year and that the period cannot be estimated, is not suitable in this generalisation to cast doubt on the assumption of the administrative court, which refers to current information from the embassy in I. It has not been demonstrated or recognisable that it would be impossible to carry out a visa procedure for an unforeseeable period of time due to the pandemic situation. Furthermore, the assumption that the applicant can initiate the necessary steps from Germany and only has to travel to I. on a certain date in order to obtain the visa remains undisputed. The fact that, contrary to the information provided by the competent embassy, a longer and unreasonable absence of the plaintiff would have to be assumed under these premises is not demonstrated by the plaintiff, even taking into account the current situation. The mere lack of a binding assurance by the embassy does not call this assumption into question. The objection that there is a risk of a longer processing time for the issuing of the visa due to the previous conviction is also an aspect that may be relevant in the preliminary examinations. However, the Administrative Court assumes a reasonable absence of 2 to 3 weeks if all preparatory steps have been taken and therefore this aspect has also been examined from Germany.
Contrary to the assumption in the application for authorisation, there are also no particular factual or legal difficulties in the case (Section 124 Para. 2 No. 2 VwGO). A case presents particular factual or legal difficulties if the appellant's attacks give rise to justified doubts as to the correctness of the first-instance decision, which cannot be easily clarified in the admission procedure, but instead require an appeal procedure to be conducted (Seibert, in Sodan/Ziekow, VwGO, 5th ed. 2018, Section 124 para. 106).
Insofar as the plaintiff refers to his comments on the ground for admissibility of serious doubts to justify particular factual or legal difficulties and takes the view that the relationship between Article 20 TFEU in connection with Section 28 Residence Act has not yet been conclusively clarified in case law, such particular difficulties do not exist - as can be seen from the statements under 1. The objection that the recognising Senate has also not yet conclusively decided on the requirements of Art. 20 TFEU does not hold water. These have been sufficiently clarified in the case law (see ECJ, judgment of 8 May 2018 - C-82/16 -, juris, para. 51 with further references) and were referred to by the ruling Senate in its decision of 13 January 2021. Furthermore, in the opinion of the Senate, as already set out in the order of 13 January 2021, the relationship between the national right of residence and the right of residence under EU law is also clear from the case law of the Federal Administrative Court. Apart from that, the plaintiff does not present any further need for clarification for the present proceedings.
Source: OVG Rhineland-Palatinate
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