Administrative Court Munich, 22.02.2017, Case No.: M 9 K 16.1135
Marriage generally entitles one to obtain a residence permit
Many clients ask what happens to their residence permit after divorce or separation. It is also particularly important to know when you have to notify the foreigners authority of the separation in order to avoid legal disadvantages. According to § 28 para. 1 sentence 1 no. 1 AufenthG, the foreign spouse of a German citizen must be granted a residence permit if the German citizen has his or her habitual residence in Germany. A further requirement is that the spouse can communicate easily in German and is of legal age. A further essential requirement of § 28 para. 1 sentence 1 no. 1 AufenthG is that the marriage actually exists and is practised, i.e. that the spouses live together in a joint household.
What happens to the residence permit after separation?
After a separation, authorities often check the requirements for the extension of the residence permit after separation or the continued existence of a right of residence after divorce. In this case, the foreigners authority decides whether an independent residence permit is possible after divorce. But what does immigration law regulate when spouses separate? The period of validity of the residence permit can be subsequently shortened in accordance with § 7 Para. 2 S. 1 AufenthG if an essential prerequisite for issuing, extending or determining the period of validity has ceased to exist. This is the case, for example, if the spouses separate (and this does not just mean divorce). If the foreigners authority becomes aware of the separation, it is normally obliged to withdraw the residence permit from the spouse who has joined them or to shorten the period of validity of the residence permit.
In the court proceedings described below, the plaintiff took legal action against such a shortening of the period of validity and sought the granting of a residence permit on the grounds of cohabitation or a residence permit independent of marriage (independent right of residence, Section 31 Residence Act). Such cases show how complex the issue of divorce and residence permits for foreigners is. Early counselling helps to secure the right of residence after divorce in good time.
Facts of the Case:
Separated Turkish husband sues against the shortening of his residence permit
The plaintiff is a Turkish citizen who filed the lawsuit against the shortening of the validity of the residence permit granted to him for the purpose of marriage with a German citizen.
The plaintiff entered the Federal Republic of Germany in 2008 and applied for asylum. This was rejected by decision of the Federal Office for Migration and Refugees (BAMF) on 15.02.2010. The rejection was confirmed by decision of the Bavarian Administrative Court (VGH) on 18.03.2013.
On 16.05.2013, he married his wife, S., and lived with her in her apartment. The plaintiff then applied for a residence permit for family reunification, which he was granted on 19.11.2013 with an expiration date of 18.11.2014. This was then extended twice, most recently until 18.11.2016 due to the existence of a marital relationship.
In 2014, the plaintiff completed a literacy course and worked as a plasterer from 10.08.2015 to 10.12.2015. He did not pursue any other employment during the marriage. The couple lived off Mrs. S.’s income and benefits under the SGB. After the separation, the husband lived with his brother.
After the separation, the husband lived with his brother.
On 02.11.2015, the plaintiff registered at his brother’s apartment because the couple had separated in May 2015 (according to a statement to the Jobcenter), on 17.10.2015 (according to a statement to the police), or on 02.11.2015 (according to official records).
The plaintiff failed to submit an application for an extension of the residence permit, which was limited until 18 November 2016, or an application for a new residence permit independent of marriage. Many of those affected do not realise that an extension of the residence permit after separation or an independent residence permit after divorce is only granted upon application. Without an application, you often lose your residence permit after divorce unintentionally.
The immigration authority subsequently shortened the validity of the residence permit.
The judgement underlines how important it is to act in good time in the event of a divorce. Only those who remain active can safeguard their possible right to stay after divorce. By decision dated 2 February 2016, the defendant subsequently shortened the period of validity of the residence permit to 10 February 2016 (No. 1). The extension of the residence permit in accordance with Section 31 AufenthG or the granting of a new residence permit for other reasons was rejected (No. 2). The applicant was ordered to leave the federal territory within thirty days of the enforceability of the decision (No. 3). In the event of culpable and significant failure to comply with the departure deadline, a threat was made that an entry and residence ban could be imposed for a period of up to one year (No. 4). In the event of failure to leave the country on time, deportation to Turkey or another country willing or obliged to take back the person concerned was threatened (No. 5).
Husband sues against the administrative decision and the threatened deportation
The plaintiff filed a lawsuit against this decision, requesting the annulment of the decision of 02.02.2016 and the granting/extension of the residence permit.
He argued that the shortening of the validity period of the residence permit issued for the purpose of the marital relationship was unlawful because the marital relationship was resumed after a short time. The plaintiff stated that he was again living in the shared apartment and was working again as a plasterer.
The defendant argued that no application for an extension or a new residence permit had been submitted.
Judgment of the Administrative Court Munich
Court rules that the lawsuit is already inadmissible as the husband had not filed a prior application
The lawsuit was unsuccessful. It was already inadmissible because the plaintiff had not applied for an extension or a new residence permit. Therefore, the shortening was irrelevant as the residence permit had expired regularly on 18.11.2016 at the latest. The plaintiff had not submitted an application; this was particularly underlined by the fact that he only signed the application handed to him by the defendant at the end of the oral hearing.
The lawsuit was also unfounded, as the plaintiff no longer fulfilled the purpose of stay
Furthermore, the lawsuit was also unfounded. The plaintiff had no right to a residence permit because he had not lived in a marital relationship since October 2015. As a result, the conditions for the shortening under § 7 Abs. 2 Satz 2 in conjunction with § 28 Abs. 1 Satz 1 Nr. 1 AufenthG were met. For the granting of an independent residence permit, as explained, there was no corresponding application. Since a residence permit under § 7 Abs. 1 Satz 2 AufenthG is always granted for a specific purpose, the different types of residence permits are independent regulatory matters (BVerwG, Judgment of 09.05.2009 – 1 C 11.08). Therefore, an application to the competent authority is necessary if an independent right of residence under § 31 AufenthG is sought instead of a residence right under § 28 AufenthG.
Regardless, it should also be noted that the plaintiff has now been employed for seventeen months, i.e., since 07.02.2016. The residence permit had expired on 18.11.2016, and therefore before the expiration of the one-year period of regular employment, Article 6 para. 1, first indent, ARB 1/80.
Therefore, the lawsuit was dismissed.
Source: Munich Administrative Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. The content of this article has been compiled to the best of our knowledge and belief. However, the complexity and constant changes in the subject matter make it necessary to exclude liability and warranty. If you have any questions regarding residence permits after divorce, extension of residence permits after separation or residence permits after divorce, lawyer Helmer Tieben in Cologne will provide you with competent and individual advice.
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