Administrative Court of Mainz, June 22, 2016, Case No.: 4 L 552/16.MZ 4 L 552/16.MZ
In addition to the specific requirements for obtaining a residence permit, every applicant must also meet the general requirements, as stipulated in § 5 of the Residence Act (AufenthG). The general requirements include:
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- The applicant possesses a valid passport or passport substitute.
- The applicant entered the country with the correct visa.
- The applicant’s livelihood is secured.
- The applicant’s identity and nationality are established.
- There is no ground for expulsion against the applicant.
- The applicant’s stay does not impair or endanger the interests of the Federal Republic of Germany.
- There is no entry or residence ban against the applicant.
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The most important and often contentious requirement is the applicant’s ability to secure their livelihood. This condition is met if the applicant can cover their living expenses, including adequate health insurance, without relying on public funds.
In the case before the Administrative Court of Mainz, the court had to decide in an expedited procedure whether the deportation of a foreign family, which had lived in Germany for years without working, was lawful.
Background of the Case Family Had Not Worked for Years
This case involved a three-member family, consisting of a father with Bosnian-Herzegovinian citizenship, a mother with Georgian citizenship, and their four-year-old son, born in Germany, who also held Bosnian-Herzegovinian citizenship. The family had lived in Germany for several years, with the father residing for almost ten years and the mother for almost six years. Despite their long stay, neither parent had engaged in employment and instead lived on state benefits.
The immigration authority rejected the family’s applications to extend their residence permits and threatened them with deportation to their respective countries of origin or any other state willing to accept them. The family then filed an urgent application with the Administrative Court of Mainz. To support their application, the father presented a job offer for full-time employment with a gross monthly income of €2,000, while the mother presented a job offer for a €450 mini-job.
Decision of the Immigration Authority – Family to Be Deported
The immigration authority’s rejection of the residence permits was primarily based on the family’s continued dependence on public funds. The authority argued that the requirement for securing livelihood under § 5(1) no. 1 of the Residence Act (AufenthG) was not met. The family filed an urgent application, claiming that they could now support themselves. They also pointed out that the family members held different citizenships, which they believed justified their stay in Germany.
Judgment of the Administrative Court of Mainz
The Administrative Court of Mainz dismissed the family’s urgent application. The court found that the family had no entitlement to the issuance or extension of a residence permit, as the general requirement of securing their livelihood was not met. The court emphasized that securing livelihood must be guaranteed on a long-term basis, which was not the case here. The family’s income had been entirely dependent on state benefits, and the job offers presented were deemed insufficient to ensure long-term financial independence.
Doubts About the Seriousness of the Job Offers – Employment Efforts Only After Deportation Decision
The court also noted that the parents’ attempts to find employment were made only after the deportation process had begun and were therefore seen as motivated by the proceedings. The father had spent almost ten years in Germany without ever engaging in employment, despite having no health or age-related limitations. The mother, too, had not worked since her arrival in 2010. These circumstances led the court to question the seriousness of the job offers presented.
Review of the General Requirement
The securing of livelihood is a mandatory requirement for the issuance or extension of a residence permit under German law. This requirement can only be waived in exceptional cases, such as when atypical circumstances exist or higher-ranking legal interests, such as family life under Article 6 of the Basic Law (GG) or Article 8 of the European Convention on Human Rights (ECHR), are at risk. However, the court found that no such atypical circumstances were present in this case. Neither Article 6 GG nor Article 8 ECHR grants an immediate right to residence in Germany if maintaining the family unit is possible in the parents‘ countries of origin.
The court noted that both Bosnia-Herzegovina and Georgia were fundamentally willing to accept the other parent and the child. There were no obstacles to the family’s joint departure to either of these countries. Therefore, the court saw no reason to waive the requirement for securing livelihood.
Assessment of the Family Unit
The court also examined whether the rights to family life under Article 6 GG and Article 8 ECHR could justify an exception to the livelihood requirement. However, it concluded that the family unit could be maintained in the parents‘ countries of origin. The court particularly emphasized that neither the father nor the mother had grown up in Germany and therefore had not developed deep roots in the country. The four-year-old child, too, had not established deep connections in Germany that would make returning to the parents‘ countries of origin unreasonable.
The court clarified that while Article 6 GG and Article 8 ECHR protect family life, they do not grant a right to residence in Germany if maintaining the family unit abroad is reasonable. Since both Bosnia-Herzegovina and Georgia would allow the family to stay together, the court found no reason to prevent deportation.
Conclusion of the Court – Family Must Leave
The Administrative Court of Mainz dismissed the family’s urgent application and confirmed the legality of the deportation orders. The court found that neither the securing of livelihood on a long-term basis nor any special circumstances justified an exception to this requirement. The examination of the family unit showed that it could be maintained in the parents‘ countries of origin, so there was no violation of Article 6 GG or Article 8 ECHR. The deportation orders were also deemed lawful, as they met legal requirements and the family could continue living together abroad.
This case highlights the strict requirements of German immigration law, particularly regarding the securing of livelihood, and the limited possibilities for exceptions in individual cases.
Source: Administrative Court of Mainz
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