Higher Administrative Court of Baden-Württemberg, Decision from April 9, 2019, Case No.: 11 S 2868/18
In § 25b Residence Act Section 25b of the Residence Act (AufenthG) stipulates that persons with tolerated status who have been residing in Germany for a longer period may be granted a residence permit under certain conditions, provided they have sustainably integrated into the society and living conditions in Germany. The law stipulates that people with a tolerated stay permit who have been in Germany for a longer period of time will receive a residence permit under certain conditions if they have integrated into the local society and living conditions in the long term.
The requirements stated in Section 25b AufenthG are as follows:
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- The foreigner must have resided continuously in the federal territory for at least eight years, or for at least six years if they live in a household with a minor unmarried child, with tolerated status, permission, or a residence permit.
- The foreigner must adhere to the free and democratic basic order of the Federal Republic of Germany and possess basic knowledge of the legal and social order as well as the living conditions in the federal territory.
- The foreigner must predominantly secure their livelihood through employment, or based on their previous education, training, income, and family situation, it must be expected that they will be able to secure their livelihood as per Section 2 (3), with the receipt of housing benefit being permissible.
- The foreigner must possess sufficient oral German language skills at level A2 of the Common European Framework of Reference for Languages.
- For children of school age, actual school attendance must be proven.
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Even if these requirements are met, the granting of a residence permit must be denied if the foreigner has prevented or delayed the termination of their stay by intentionally providing false information, by deception regarding their identity or nationality, or by failing to fulfill reasonable requirements for cooperation in the removal of obstacles to departure.
In the case discussed here, the foreigner’s application for a residence permit under Section 25b AufenthG was denied because the immigration authority assumed that the applicant from Cameroon had not done everything reasonably possible to eliminate the obstacle to departure, which was the lack of a return document. The Administrative Court initially agreed with this view and dismissed the applicant’s lawsuit. The applicant then appealed to the Higher Administrative Court of Baden-Württemberg.
Introduction: Rejection of the Appeal
The Higher Administrative Court of Baden-Württemberg (VGH) ruled that the application for the appeal was admissible but unfounded. The appeal was not allowed due to serious doubts about the correctness of the judgment under Section 124 (2) No. 1 of the Administrative Court Procedures Act (VwGO). Serious doubts exist when the correctness of the contested judgment requires further examination based on the points raised by the applicant, and the appeal appears likely to succeed. The purpose of the admission procedure is not to preempt the appeal process but to ensure that the administrative court has correctly decided the case.
Substantiation Requirements in the Admission Procedure
The applicant must substantiate why there are serious doubts. A case-specific justification is required, allowing the appeal court to assess the admission question without extensive investigations. The level of substantiation depends on the detail of the reasoning in the challenged decision. In the present case, the applicant did not demonstrate serious doubts about the correctness of the contested judgment.
Examination of the Applicant’s Cooperation Obligations
The applicant argued that the administrative court wrongly assumed the denial ground under Section 25b (2) No. 1 AufenthG, as he had no influence over the non-issuance of a passport by the Cameroonian embassy. However, the court found that the applicant failed to demonstrate that he had made sufficient and reasonable efforts to obtain a passport. The passport obligation under Section 3 (1) AufenthG is a regular requirement, and the applicant is required to take all necessary measures to fulfill their obligation to leave the country. Doubts about the possibility of obtaining a passport are the applicant’s responsibility.
Denial Norm and Burden of Proof
Section 25b (2) No. 1 AufenthG ties into the cooperation obligations of the foreigner that fall within their sphere of influence. The foreigner must prove that they have fulfilled these obligations in a reasonable manner. Only when these obligations are met does the immigration authority bear the burden of proof that further cooperation measures are necessary. In the applicant’s case, there was no comprehensible explanation of his efforts to obtain a passport since 2014.
Integration Requirements of Section 25b AufenthG
The VGH found that the applicant did not meet the requirements for sustainable integration under Section 25b AufenthG. In particular, he has not secured his livelihood independently for many years. The fact that his employment was prohibited due to unmet cooperation obligations also falls under his responsibility. Even if the applicant does not fulfill the exclusion criterion of Section 25b (2) No. 1 3rd alternative AufenthG, his previous behavior in passport procurement is to be negatively considered.
Conclusion: No Successful Integration
The Senate could not see any successful integration of the applicant. Given the applicant’s behavior in obtaining a passport and the failure to meet the integration requirements under Section 25b AufenthG, the appeal was not to be allowed. The respondent was also not obliged to waive the passport requirement as a regular issuance prerequisite under Section 5 (1) No. 4 AufenthG.
Source: Higher Administrative Court of Baden-Württemberg
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