Hamburg Administrative Court, judgment of December 2, 2022, Ref. No.: 5 K 4511/21
The period of stay of the applicant in Germany required for the granting of a settlement permit pursuant to Section 26 Paragraph 4 Sentence 4 in conjunction with Section 35 Paragraph 1 Sentence 2 of the Residence Act shall, within the meaning of Section 26 Paragraph 4 Sentence 3 of the Residence Act, be credited with the time during which the applicant is already staying in the Federal territory during the asylum procedure.
In the present case, the plaintiff, born in 1998, who had already entered Germany in 2015 and applied for asylum, but was only granted a residence permit in 2018, had applied for a settlement permit. The competent authority rejected the application and did not resolve the plaintiff's objection. The plaintiff subsequently filed a lawsuit with the Hamburg Administrative Court on October 27, 2021.
Facts of the legal proceedings
The Afghan plaintiff had unsuccessfully applied for a permanent residence permit (settlement permit).
The plaintiff, born in Afghanistan in 1998, entered the Federal Republic of Germany in 2015 and filed an asylum application on July 16, 2015. After a deportation ban under Section 60 (5) of the Residence Act for persons from Afghanistan was established on September 5, 2018, the plaintiff received a residence permit under Section 25 (3) of the Residence Act on September 28, 2018. In September 2019, he began training as an automotive mechatronics technician, which he had not yet completed at the time of his application for a settlement permit.
Immigration authorities considered residence periods and insurance contributions as not fulfilled
The plaintiff does not meet the requirements for the granting of a settlement permit pursuant to Section 26 (4) in conjunction with Section 9 (2) of the Residence Act, as he cannot prove that he has paid at least 60 contributions to the statutory pension insurance scheme.
He still does not meet the requirements for the granting of a settlement permit pursuant to Section 26 (4) in conjunction with Section 35 (1) Sentence 2 of the Residence Act. Due to the reference in Section 26 (4) Sentence 4 of the Residence Act, a residence permit for humanitarian reasons, such as the plaintiff's, can also be considered a residence permit within the meaning of Section 35 (1) Sentence 2 No. 1 of the Residence Act, but this must have existed before the applicant reached the age of majority. The applicant may only be of legal age at the end of the five-year period, but not at the time the residence permit is granted. The permitted periods of residence during the ongoing asylum procedure, at the start of which the plaintiff was still a minor, are not to be taken into account. This follows from the systematic positioning of the sentences within Section 26 (4) of the Residence Act. The crediting of the periods of permission is regulated in sentence 3, while the reference to Section 35 only appears in sentence 4. This means that the crediting applies only to the cases referred to in sentences 1 and 2, but not to cases of referral. The Federal Administrative Court also follows this view in its case law (BVerwG, judgment of September 13, 2011, 1 C 17/10).
The plaintiff argued that the tolerated periods under § 55 (3) AsylG during the ongoing asylum procedure since 2015 should be credited towards the residence requirement, thereby fulfilling the requirement of § 35 (1) sentence 2 no. 1 AufenthG.
Decision of the Administrative Court of Hamburg
The court partially upheld the claim, overturning the rejection decision as formulated in the objection decision of October 5, 2021, and obliging the authority to make a new decision on the plaintiff’s application, exercising its discretion properly. There is no fixed claim under § 26 (4) in conjunction with § 9 (2) AufenthG or under § 26 (4) in conjunction with § 35 (1) sentence 1 AufenthG, but the plaintiff is entitled to a new decision under proper discretion according to § 26 (4) in conjunction with § 35 (1) sentence 2 AufenthG.
The court agreed with the authority’s view that the plaintiff did not have a claim for a permanent residence permit under § 26 (4) in conjunction with § 9 (2) AufenthG due to insufficient pension insurance contributions.
Court’s Consideration
The court found that the plaintiff met the requirements of § 26 (4) sentence 4 in conjunction with § 35 (1) sentence 2 AufenthG. Specifically, the tolerated periods during the ongoing asylum procedure should be credited towards the residence requirement, thus establishing the legal basis for the residence permit before the plaintiff reached adulthood.
The court reached this decision based on systematic considerations. The reference was not placed in sentence 4, after the crediting of tolerated periods, because it does not apply to those cases. Rather, this arrangement was made to clarify that the crediting applies not only to the cases of the reference but also to those regulated in sentences 1 and 2. If the legislator had intended for the crediting of tolerated periods not to be possible in the cases of the reference to § 35, it would have been placed in a different paragraph.
The crediting of tolerated periods is also historically justified. The purpose of the regulation is to enable minors who enter with a humanitarian residence permit to solidify their stay in the form of a permanent residence permit under the same conditions as children with a residence permit for family reasons, as stated in the explanatory notes of § 26 (4) AufenthG (BT-Dr 15/420, p. 80). Minors to whom § 35 AufenthG is directly applicable usually receive a residence permit under § 35 (1) sentence 2 no. 1 immediately upon entering Germany, so they never face the situation of entering as minors but receiving a residence permit only upon reaching adulthood. To ensure equal treatment for minors with a humanitarian residence permit, it is therefore essential to credit the tolerated periods during the asylum procedure.
Credit of Tolerated Periods from Historical and Teleological Perspectives
Finally, the crediting of tolerated periods is necessary from teleological perspectives. The reference in § 26 (4) sentence 4 AufenthG would effectively be rendered meaningless if such crediting did not occur. Minors with a humanitarian residence permit generally enter Germany without a residence permit and receive it only with a delay, thus always being disadvantaged. The plaintiff’s case does not represent an atypical situation in this respect. The disadvantage should be specifically addressed by the reference.
The defendant’s argument that this view contradicts the case law of the Federal Administrative Court is not accurate. In the aforementioned BVerwG ruling, the plaintiff lacked the requirement of § 35 (1) sentence 2 no. 1 AufenthG because he did not have a residence permit before reaching the age of majority. Instead, the issue was the continuity of at least tolerated residence in Germany. After the asylum procedure, the plaintiff was only temporarily tolerated in Germany. This aspect is the basis of the BVerwG’s decision. However, this does not apply to the case at hand, where the issuance of the plaintiff’s residence permit followed immediately after the tolerated stay during the asylum procedure.
The remaining requirements for granting a settlement permit were met, which is why the court ordered the defendant to reconsider the application at its discretion. In this regard, the court stated that this discretion must be exercised in accordance with the purpose of the authorization as outlined above. The plaintiff "overfulfills" the factual requirements of the authorization provision that allow for discretion, and in particular, the aspects in his favour must be taken into account.
Source: VG Hamburg
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