Administrative Court of Munich, August 2, 2018, Case No.: M 12 K 18.3
For individuals who do not come from the EU and are not nationals of a visa-exempt country, a visa is required to stay in Germany. The embassies and consulates (foreign missions) of the Federal Republic of Germany are responsible for issuing visas, § 71 paragraph 2 of the Residence Act (AufenthG). The foreign mission responsible is the one in whose jurisdiction the applicant has their usual place of residence. The foreign mission of the Schengen state, where the sole or main destination lies, is substantively responsible. The visa application must generally be submitted in person at the foreign mission in the applicant’s place of residence with all required documents.
Since April 5, 2010, Regulation (EC) No. 810/2009 of the European Parliament and Council of July 13, 2009, on a Community Visa Code (Visa Code) has served as the directly applicable European legal basis in all Schengen states for issuing visas for transit through the Schengen area or for short stays in the Schengen area of up to 90 days within 180 days. There is no general entitlement to a Schengen visa. The plausibility and traceability of the travel purpose in Germany, the financing of living and travel expenses from one’s assets or income, the willingness of the visa holder to leave the Schengen area before the visa expires, and the provision of travel health insurance valid for the entire Schengen area and duration of stay with a minimum coverage of €30,000 must be positively established by the foreign mission for each visa applicant. A visa for a planned longer stay in the Federal Republic of Germany must generally be applied for at the responsible foreign mission before entering the country.
If the third-country national enters with the intention of staying permanently and thus not for a maximum of 90 days within 180 days in Germany, the entry and stay without a national visa are not lawful according to Article 21 paragraph 1 of the Schengen Implementation Convention (SDÜ). Exceptions to the visa requirement must be interpreted narrowly. This means that the exception for a statutory entitlement to the desired residence permit must result from the typified legal provision, and exceptional cases must be disregarded.
Introduction and Facts
The plaintiff, a Vietnamese national, entered the Federal Republic of Germany in October 2017 and married a fellow Vietnamese national in the same month. After the marriage, he left Germany and returned in November 2017. Subsequently, he applied for a residence permit, citing the marriage as the main reason. Despite fulfilling all the requirements for the issuance of a residence permit under § 30 paragraph 1 No. 3 lit. d of the Residence Act (AufenthG), § 39 No. 6 of the Residence Ordinance (AufenthV), the application was denied.
Lawsuit and Dispute Points
The plaintiff then filed a complaint with the Bavarian Administrative Court in Munich. The dispute centred on whether a visa procedure was required before the residence permit could be issued. The plaintiff argued that Section 5 (2) No. 1 AufenthG was not applicable due to special provisions such as Section 39 No. 6 AufenthV. However, the defendant, the competent immigration authority, pointed out that there was no strict legal entitlement to the issue of a residence permit, as there were doubts as to whether the applicant could secure a livelihood and sufficient living space. In addition, an interest in deportation was asserted due to the unauthorised entry without the required national visa.
Decision of the Munich Administrative Court
The plaintiff then filed a lawsuit with the Bavarian Administrative Court in Munich. The main point of contention was whether a visa procedure was necessary before issuing the residence permit. The plaintiff argued that § 5 paragraph 2 No. 1 of the Residence Act was not applicable due to specific provisions like § 39 No. 6 of the Residence Ordinance. The defendant, the responsible immigration authority, argued that there was no strict legal entitlement to a residence permit, as there were doubts regarding the plaintiff’s ability to secure his livelihood and provide adequate housing. Additionally, the defendant claimed that there was a deportation interest due to the plaintiff’s illegal entry without the required national visa.
Decision of the Administrative Court of Munich
The Administrative Court of Munich ruled that the plaintiff was not entitled to a residence permit under § 30 paragraph 1 sentence 1 of the Residence Act. The claim failed due to § 5 paragraph 2 sentence 1 of the Residence Act, which requires entry with the necessary visa. A deportation interest under § 5 paragraph 1 No. 2 of the Residence Act was present because the plaintiff had entered without the required national visa.
Visa Requirement and Legal Assessment
Under § 4 paragraph 1 of the Residence Act, the plaintiff generally needs a residence title for entry. For long-term stays, a national visa is required under § 6 paragraph 3 sentence 1 of the Residence Act, which must be issued before entry. Since the plaintiff entered without a national visa, his stay was deemed unlawful. The regulations in the Schengen Border Code (SGK) and the Schengen Implementation Convention (SDÜ) indicate that a national visa procedure is necessary when entering with the intention of staying permanently.
Conclusion
The court clarified that the plaintiff entered illegally without a national visa and thus had no entitlement to a residence permit. The strict requirements for exceptions to the visa requirement were not met, as the deportation interest prevailed, and the purpose of the national visa procedure, namely effectively managing immigration, must not be undermined. Therefore, the lawsuit was dismissed.
Source: Munich Administrative Court
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