Munich Administrative Court, 18 March 2019, Ref. M 27 K 17.5631
If a (non-EU) foreign national wants to live permanently in Germany, he must demonstrate his integration. The most important criterion for this is that he possesses sufficient German language skills. For a settlement permit, the language level B1 is required. Compared to the only temporary residence permit, it grants a permanent right of residence. All this is regulated in the Residence Act (AufenthG). Now if a foreigner has already lived in Germany for 20 years, one could initially assume sufficient integration and the acquisition of adequate German skills due to the long period of time. The question arises whether proof is even necessary in such cases.
In the following judgment, the Administrative Court of Munich (VG München) makes it clear that even after a long-term stay in Germany, proof of adequate German language skills is required.
Facts of the court case:
The plaintiff is a Malaysian national and demands the issuance of a settlement permit.
In the present case, the parties are disputing the granting of a settlement permit. The plaintiff is a Malaysian national, the defendant is a foreigner’s authority.
The woman married a German in 1997 and first came to Germany in 1999. Subsequently, she was issued several temporary residence permits. In the meantime, she also stayed in Malaysia for several years at a time. Due to an administrative error, no language proof was required from her when applying for residence permits; later, this was waived out of leniency. From 2013 onwards, however, she was informed that she now had to attend an integration course and provide proof of her language skills. The plaintiff did not comply with this request.
After 20 years of residence in Germany, the plaintiff still did not have sufficient German language skills.
In 2016, she filed an application for a settlement permit without submitting the required certificates about attending an integration course and her language skills (language level B1). She argued that she was sufficiently integrated. Moreover, due to her lack of education, it was impossible for her to learn the German language. In addition, she could „communicate with a few words“ and in English. Furthermore, she had been married to a German for 20 years.
The authority rejected the application for a settlement permit pursuant to § 28 II AufenthG, as the plaintiff was unable to provide proof of her language skills at level B1. Nor could an exception be made, for example due to illness or disability. The plaintiff’s claim that it was personally impossible for her to learn the German language could not be considered by the authority due to lack of evidence (e.g. a medical certificate). Her current age of 54 years was also irrelevant, as the principle of lifelong learning applies in a highly developed industrial country. Furthermore, it does not constitute a particular hardship to require a foreigner to learn the German language.
The plaintiff filed a lawsuit against the rejection of the settlement permit.
The woman appealed against the rejection and applied for the rejection to be cancelled and for the foreigners authority to be obliged to issue a settlement permit.
In addition to the arguments already made in the administrative procedure, she argued that she did not have to provide proof of language and integration due to the principles of legitimate expectations. She had never had to submit such proof and had relied on this also applying in the future.
The immigration authority requested that the lawsuit be dismissed. It referred again to the requests to attend an integration course and to submit proof of language skills. The plaintiff had done neither, nor had she demonstrated her level of integration through language skills in the personal hearings. Rather, she had not even been able to communicate in a simple way.
Judgment of the Administrative Court Munich
The Administrative Court of Munich dismissed the lawsuit, as it did not recognize any claim by the plaintiff to the issuance of a settlement permit under § 28 I 1 No. 1 AufenthG.
The Administrative Court confirmed that all requirements, including language skills, had to be met.
First, the court listed the requirements of § 28 II 1 AufenthG, namely three years of possession of a residence permit, a family living community with a German in Germany, and adequate knowledge of the German language. It also stated that all these requirements must be met.
The court affirmed the presence of most of the requirements, but denied the existence of the required language skills. The plaintiff had not proven these either through a language certificate or otherwise.
No hardship case was apparent or presented.
Nor does a hardship case within the meaning of § 28 II 2 in conjunction with § 9 II 1 No. 7, sentence 2 AufenthG exist, as neither illness nor disability has been demonstrated. Her age of over 50 years and her alleged poor education do not fall under this regulation either.
Possible claims under § 28 II 2 in conjunction with § 9 II 2 AufenthG, § 28 II 2 in conjunction with § 9 II 5 AufenthG and § 9 II 1 AufenthG also fail due to the lack of language skills and the missing proof of attending an integration course.
A possible claim under § 204 II 1 AufenthG fails due to the plaintiff’s stays in Malaysia of up to seven years.
The court also did not accept the plaintiff’s argument that she had a claim based on the principles of legitimate expectations. A settlement permit is a qualitatively different residence title that is not comparable to a simple residence permit. Furthermore, the immigration authority had informed the plaintiff at least twelve times of the necessity to submit proof of language skills and participation in an integration course.
Since these proofs were lacking for the existence of the claim, the court dismissed the lawsuit.
Source: VG München
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