Immigration Law: Spousal Reunion When Residing in Germany on a Schengen Visa and Marriage in Denmark

Federal Administrative Court, November 16, 2010, Case No.: 1 C 17.09

Many third-country nationals take advantage of the opportunity to travel from Germany to Denmark with a Schengen visa and marry a German citizen there.

Reasons for this include the simpler marriage procedures in Denmark compared to Germany (e.g., Denmark does not require or recognizes legalization that Germany does) or the ability to get an appointment quickly or even on a Saturday in Denmark. All-inclusive trips to Denmark for a wedding ceremony are also offered.

Once back in Germany, the third-country national then tries to obtain a residence permit for spousal reunification from the local immigration authority.

The problem, however, is that granting a residence permit for spousal reunification generally requires that the foreign national entered Germany with the necessary visa (i.e., a national visa or marriage visa, not a Schengen visa). This is regulated under Section 5 (2) No. 1 of the Residence Act (AufenthG).

 

An exemption from this requirement only arises if the conditions for entitlement to a residence permit were established only after the last entry into Germany (which cannot be the case with a marriage in Denmark, as the entitlement arose at the time of marriage in Denmark, i.e., before the last entry into Germany).

Nevertheless, it is still possible to obtain a residence permit without the third-country national having to leave the country first, as the decision of the immigration authority is an exercise of discretion.

A discretionary decision is only lawful if the authority actually exercises its discretion before making the decision. This means that the immigration authority must at least consider whether it is reasonable or unreasonable for the third-country national to undergo the visa procedure.

If it fails to do so or ignores such unreasonable aspects, the authority’s decision is subject to judicial review.

The aforementioned ruling by the Federal Administrative Court is a landmark decision concerning the issuance of a residence permit for spousal reunification for third-country nationals who entered Germany on a Schengen visa.

Facts of the Court Case

Plaintiff Entered Germany on a Schengen Visa

The plaintiff, a Belarusian national, entered Germany in early 2007 with a Schengen visa for visit purposes.

In her visa application, the plaintiff had stated that she intended to visit Germany only. However, she married a German national in Denmark in September 2007, returned to Germany from Denmark, and applied for a residence permit for spousal reunification in Germany.

Marriage in Denmark and Application for Residence Permit

The immigration authority denied the application and threatened the plaintiff with deportation because she had entered Germany without the required national visa (marriage visa).

Although a holder of a valid Schengen visa may apply for a residence permit within Germany if the conditions for entitlement to a residence permit arise after entry (§ 39 No. 3 of the Residence Regulation – AufenthVO)

this was not the case for the plaintiff as the marriage occurred before the last entry from Denmark.

It was also not possible to refrain from carrying out the visa procedure (marriage visa) on a discretionary basis in the present case (Section 5 (2) sentence 2 of the Residence Act - AufenthG).

Administrative Court Orders Issuance of Residence Permit

The initially seized administrative court followed the plaintiff’s view and granted the claim.

Court of Appeal, however, confirms the rejection decision

However, the Higher Administrative Court of Berlin-Brandenburg confirmed the immigration authority’s denial, ruling that the denial was lawful. The plaintiff appealed to the Federal Administrative Court.

Judgment of the Federal Administrative Court

The Court of Appeal also confirms the view of the immigration authority

The Federal Administrative Court’s 1st Senate upheld the decision of the Higher Administrative Court of Berlin-Brandenburg and reasoned as follows:

The plaintiff could not apply for a residence permit for spousal reunification from within Germany under the special provision in the Residence Regulation. This is because, regardless of the dispute over the term „entry,“ she did not meet the conditions for entitlement to such a residence permit under § 39 No. 3 AufenthVO.

The plaintiff had indicated at the time of application that she only intended to enter for visit purposes, even though she originally intended to stay permanently in Germany.

According to the findings in the appeal judgement, when applying for the Schengen visa, she had stated that she only wanted to enter the country for visiting purposes, although she wanted to stay in Germany permanently from the outset.

Since she had been informed about the consequences of providing false information, she had committed a deportation ground (§ 55 (2) No. 1 AufenthG). Thus, the issuance of the residence permit was at the discretion of the authority, making the special provision of the Residence Regulation inapplicable.

This also aligns with the purpose of the provision, which is to benefit those foreign nationals who made correct statements in the Schengen visa procedure and whose purpose of stay changed only due to new circumstances arising after entry.

If a residence permit is issued, there would be no consequences for circumventing the national visa procedure

Otherwise, bypassing the national visa procedure would render this process a key immigration control tool ineffective. For the same reasons, the conditions to waive the visa requirement under § 5 (2) Sentence 2 AufenthG were not met.

According to the Higher Administrative Court’s findings, there were also no exceptional circumstances making it unreasonable for the plaintiff to temporarily leave Germany and complete the visa procedure from abroad.

Union law did not preclude referral to the visa procedure. The German spouse of the plaintiff had not made substantial use of his freedom of movement by making a short trip to Denmark for the marriage.

Thus, the principles developed by the Court of Justice of the European Union did not apply, which would otherwise prevent the requirement of a national visa for the spouse’s reunification upon the return of the Union citizen from another EU Member State to their home state.

Source: Federal Administrative Court

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