Administrative Court of Munich, October 12, 2017, Case No.: M 12 K 17.728
According to § 26 Abs. 3 S. 1 of the Residence Act (AufenthG), a foreign national who holds a residence permit under § 25 Abs. 1 or 2 S. 1, first alternative AufenthG, is eligible for a settlement permit if they have held it for five years. This period includes the time spent in the asylum process. Other requirements include securing livelihood, sufficient German language skills, and the absence of reasons related to public safety or order. Additionally, the requirements of § 9 Abs. 2 S. 1 Nos. 4 to 6, 8, and 9 AufenthG must be met. Furthermore, a settlement permit can be granted under § 26 Abs. 4 AufenthG if the conditions of § 9 Abs. 2 S. 1 AufenthG are fulfilled and the foreign national holds a residence permit.
This case concerns the resumption of proceedings for the granting of a residence permit, a settlement permit and an EU permanent residence permit.
Case Background
The plaintiff, a Nigerian national, entered Germany at the end of June 2002 and applied for asylum in September 2003. This application was rejected by the Federal Office for Migration and Refugees (hereinafter: Federal Office) on September 16, 2003, with a deportation warning. After the rejection, the plaintiff was granted a tolerance permit on February 10, 2004, which was regularly extended.
In May 2010, the plaintiff filed another asylum application and simultaneously requested the determination of a ban on deportation. This application was also rejected by the Federal Office on August 21, 2010. However, a judgment from the Bavarian Administrative Court in Munich on January 14, 2011, required the Federal Office to recognize that the plaintiff met the conditions for a ban on deportation under § 60 Abs. 7 of the Residence Act (AufenthG). This was implemented through a decision on March 24, 2011.
Residence Permit and Its Extension
In May 2011, the plaintiff applied for a residence permit. This was granted on June 30, 2011, under § 25 Abs. 3 AufenthG for one year, with the condition that he must cooperate in obtaining a passport. From June 19, 2011, he also received a fiction of residence under § 81 Abs. 4 AufenthG. On October 14, 2013, the plaintiff was informed that a residence permit for one year would be issued to him as a replacement for his ID, provided he submitted a biometric passport photo and a current social welfare notice. At that time, the plaintiff did not yet possess a national passport.
On February 13, 2014, the plaintiff visited the immigration authority, accompanied by a woman who did not introduce herself. The plaintiff initially agreed to the issuance of an electronic residence title as a replacement for his ID. However, when presented with a control sheet stating the residence period and the note „ID replacement,“ he refused to provide his fingerprints. Instead, he complained about his immigration status, and his companion demanded a German passport on his behalf.
Application for Settlement Permit and Rejection
On February 18, 2014, the plaintiff applied for a settlement permit and a long-term residence permit-EU. In a letter dated March 19, 2014, the defendant informed him that the conditions were not met. The application was officially rejected on September 3, 2014.
A note dated August 19, 2014, documents that the plaintiff again visited the authority and stated that his fiction certificate would soon expire. The authority informed him that he could still receive a residence permit under § 25 Abs. 3 AufenthG as a replacement for his ID but again rejected his applications for a settlement permit and long-term residence permit-EU. The plaintiff insisted on receiving a settlement permit and refused to accept the ID replacement.
Reopening of the Proceedings and New Lawsuit
In October 2014, the plaintiff filed a lawsuit against the decision of September 3, 2014, requesting its annulment. The authority requested the plaintiff on February 24, 2014, to submit various documents, including a national passport, income statements, and proof of 60 months of mandatory pension insurance contributions.
In March 2016, the plaintiff stated that he could not provide the required documents and thus considered them unnecessary. Nevertheless, he submitted a language proficiency certificate and proof of completion of an orientation course „in good faith.“ On May 19, 2016, the Bavarian Administrative Court in Munich dismissed the plaintiff’s lawsuit.
In October 2016, the plaintiff again applied for a settlement permit and a long-term residence permit-EU. This application was not further processed by the authority.
Court Decision: Rationale for Dismissal
The Administrative Court of Munich ruled that the plaintiff’s lawsuit was admissible but unfounded. The plaintiff was not entitled to the reopening of the proceedings under Art. 51 Abs. 1 BayVwVfG. The court stated that a settlement permit under § 26 Abs. 4 AufenthG requires five years of possession of a residence permit, which the plaintiff did not have. Furthermore, the plaintiff’s livelihood was not secured as he continued to receive public benefits under SGB II.
The conditions for a long-term residence permit-EU were also not met. According to § 9a Abs. 2 AufenthG, the applicant must also have held a residence permit for five years and be able to secure their livelihood. These conditions were also not met by the plaintiff.
Conclusion and Judgment
The Administrative Court of Munich concluded that the rejection of the plaintiff’s applications was lawful. Neither the conditions for a settlement permit nor for a long-term residence permit-EU were met. The plaintiff’s lawsuit was therefore unfounded, and the court dismissed it. The reopening of the proceedings was not justified as no new facts or evidence were presented that would have allowed for a different decision.
Source: Munich Administrative Court
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