Administrative Court of Stuttgart, June 12, 2019, Case No. 8 K 19641/17
If a well-integrated foreign minor is granted a residence permit in Germany, their parents can also apply for one. This is due to the parents‘ legitimate interest in living together with their child. Therefore, Section 25a (2) of the Residence Act (AufenthG) grants parents the right to a residence permit, provided they can support themselves financially. However, the legislator has stipulated that this does not apply to parents who have committed criminal offenses. Additionally, the child must be a minor. It may happen that only one parent has committed a crime, while the other has not. Should both parents then be denied a residence permit, or only the one who is guilty? And does the requirement for the child to be a minor apply at the time of the application or the decision? This is relevant as such proceedings often take a long time.
In the following ruling, the Administrative Court of Stuttgart clarifies that a foreigner does not have to be held accountable for the criminal behavior of their spouse. Furthermore, the court explains that it is sufficient for the child to be a minor at the time the application for a residence permit is submitted, rather than at the time of the decision.
Background and Case Details
The plaintiffs, a Turkish couple, were in a legal dispute with the foreigner’s office regarding the issuance of a residence permit. They had lived in Germany for decades and, after moving to Turkey in 2011, returned to Germany without a visa. Upon their return, the mother was arrested for outstanding prison sentences, which she served until May 2012. In 2013, the foreigner’s office declared that their residence permit had expired. The couple filed a lawsuit against this decision.
Application for Residence Permit and Legal Dispute
In 2014, they applied for a residence permit for themselves and their children under Article 8 (1) of the European Convention on Human Rights (ECHR) and for a work permit. The authority rejected the application. Later, the children received temporary residence permits under Section 25a of the Residence Act, while the parents‘ application was again rejected. The father argued that he should not be held accountable for his wife’s criminal offenses and that he could support himself through work.
Decision of the Administrative Court of Stuttgart:
The Administrative Court of Stuttgart ruled in favor of the father. The court found that he was entitled to a residence permit under Section 25a (2) of the Residence Act. The court argued that the 19-year-old son was considered a minor since the relevant time was the date of application. Additionally, the father’s livelihood was secured through his employment. The court further decided that the father should not be held accountable for his wife’s crimes, as Section 25a (3) of the Residence Act only applies to the foreigner who committed the crime.
Rejection of the Mother’s Claim
The mother’s claim for a residence permit was dismissed. The court ruled that due to her criminal offenses, she was not entitled to a residence permit under Section 25a (2) of the Residence Act. Additionally, a residence permit under Sections 25b or 25 (5) of the Residence Act was also denied. The court emphasized that Section 25a (3) of the Residence Act explicitly excludes the issuance of a residence permit to foreigners who have committed crimes.
Court’s Reasoning on the Application of the Law
The court noted that Section 25a (2) of the Residence Act does not exclude the father’s claim, as there is no provision to attribute the wife’s crimes to him. There is no provision for such attribution in the legislation, nor is it mentioned in the legislative materials. Furthermore, granting the father a residence permit would not allow the mother to derive any residency rights, as this would not be consistent with the legal provisions.
Conclusion and Ruling
The Administrative Court of Stuttgart ordered the foreigner’s office to grant the father a residence permit under Section 25a (2) of the Residence Act, while the mother’s claim was rejected. The father fulfilled all the requirements for a residence permit, whereas the mother was not eligible due to her criminal record. The ruling underscores the differentiation between spouses and the strict application of legal requirements.
Source: Administrative Court of Stuttgart
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