Saxon Higher Administrative Court, 26.09.2017, Case No.: 3 D 49/17
According to Section 28 (2) of the Residence Act (AufenthG), a foreigner is generally entitled to a settlement permit upon application if they have held a residence permit for three years, the family community with the German citizen continues in the federal territory, there is no expulsion interest, and they have sufficient knowledge of the German language.
A serious expulsion interest under Section 54 of the Residence Act exists if a foreigner:
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- Has been sentenced to at least one year of imprisonment for one or more intentional crimes.
- Has committed crimes against life, physical integrity, sexual self-determination, property, or against law enforcement officers, especially if these were committed with violence, threats, or deceit.
- Has repeatedly committed property crimes, even without the use of violence, where a juvenile sentence of at least one year was imposed.
- Has committed crimes under the Narcotics Act, particularly in connection with heroin or cocaine, and avoids the necessary rehabilitation.
- Immorally prevents another person from participating in life in Germany or coerces a person into marriage.
- Has committed a serious offense under the Civil Status Act, particularly involving minors or through false statements during security questioning.
- Has provided false or incomplete information in a Schengen State to obtain a residence permit or visa or has failed to comply with legal measures despite being informed of the consequences.
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These expulsion grounds apply only under specific conditions, such as an explicit notice of the legal consequences.
In the following decision, the Saxon Higher Administrative Court ruled that if the nature and frequency of the offenses committed clearly indicate that there is an expulsion interest, a decision denying legal aid cannot be considered obviously contrary to law or a decision containing gross procedural injustice that would warrant revision through a reconsideration.
Facts of the Case:
Husband of a German National Applied for Settlement Permit
The plaintiff applied for a settlement permit under Section 28 (2) sentence 1 AufenthG, but the defendant only granted him a residence permit under Section 28 (1) sentence 1 No. 3 AufenthG by decision dated February 25, 2015, as confirmed by the objection decision of the Saxon Directorate on September 18, 2015.
After the Immigration Authority Only Issued a Residence Permit, the Husband Filed a Lawsuit and Applied for Legal Aid
The plaintiff pursued his claim for a settlement permit through his lawsuit. He also applied for legal aid, which the Administrative Court denied due to the lack of prospects for success, arguing that his lawsuit had no chance of success.
The court reasoned that the issuance of a settlement permit under Section 28 (2) sentence 1 AufenthG was precluded by an expulsion interest.
The Senate agreed with the reasons given in the contested decision, stating that in the legal aid proceedings, it could remain open whether the plaintiff’s convictions by the Annaberg District Court on April 23, 2009—20 daily fines of €15 for theft—and on May 31, 2013—135 daily fines of €20 for embezzlement in two cases—each constituted more than a „minor“ violation of legal provisions under Section 54 (2) No. 9 AufenthG and were capable of establishing a serious expulsion interest.
The Administrative Court Initially Denied Legal Aid Due to the Plaintiff’s Criminal Offenses
It was assumed that these legal violations could no longer be considered „isolated,“ as both convictions involved property offenses (theft, embezzlement) and the total of three convicted offenses occurred within a period of less than four years.
The plaintiff argued that the legal aid proceedings should not have determined whether there was an actual expulsion interest precluding the issuance of the settlement permit. Due to the constitutional requirement to ensure equal access to justice for the needy, this question should have been reserved for the main proceedings.
In the legal aid proceedings, the complexity of determining whether there was more than an isolated violation under Section 54 (2) No. 9 AufenthG meant that this question could not be answered. The same applied to the weighing of individual expulsion criteria and the decision as to whether the denial required a balancing of interests.
Decision of the Saxon Higher Administrative Court:
The Higher Administrative Court Also Denied Legal Aid
The admissible reconsideration request was unsuccessful. The reasons presented in the reconsideration request did not justify altering the contested decision.
The reconsideration request was admissible. Although since the introduction of the hearing complaint under Section 152a VwGO, the reconsideration request, which is not provided for by law, is generally considered inadmissible, in exceptional cases, the amendment of an unappealable decision by reconsideration is possible if the court is authorized to amend its previous decision under the applicable legal provisions and the reconsideration request prompts such a review.
This is possible with formally final decisions on the denial of legal aid, as legal aid applications can be repeatedly submitted, and a reconsideration request can act as a new application prompting a review of initially denied legal aid.
For an unappealable decision to be amended through a reconsideration request, the decision must obviously contradict the law or contain gross procedural injustice. This requires serious violations of fundamental rights or the absence of any legal basis.
Due to the Plaintiff’s Criminal Offenses, There Was an Expulsion Interest
However, the reconsideration request was unfounded because the plaintiff’s arguments did not indicate that the Senate’s decision of August 1, 2017, which he sought to have amended, obviously contradicted the law or contained gross procedural injustice. Moreover, there was no basis under which the plaintiff could claim legal aid under Section 166 (1) sentence 1 VwGO in conjunction with Section 114 (1) sentence 1 ZPO for his lawsuit before the Administrative Court Chemnitz in case 5 K 1814/15.
Given the nature and frequency of the offenses committed, there was no doubt that an expulsion interest existed. In any case, there was a lack of „isolated“ legal violations under Section 54 (2) No. 9 AufenthG, even if they were considered minor.
The question of weighing expulsion criteria was irrelevant because Section 28 (2) sentence 1 AufenthG does not require that the foreigner cannot be deported, but only that there is no expulsion interest.
Therefore, the plaintiff’s request was unfounded.
Source: Saxon Higher Administrative Court
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