Administrative Court of Stuttgart, 19.10.2017, Case No.: 9 K 6090/15
According to Section 4, paragraph 1, sentence 2, No. 1 of the Residence Act (AufenthG), a residence title can be issued as a visa, residence permit, EU Blue Card, ICT card, mobile ICT card, settlement permit, or a permit for permanent residence – EU. A residence title is issued upon application according to Section 81, paragraph 1 of the Residence Act. Section 81 regulates the effect of applying for a residence title for foreigners both with and without a residence permit. According to Section 81, paragraph 3, a foreigner without a residence title is deemed to have legal status if an application has been submitted. Section 81, paragraph 4 extends the residence permit until a decision by the authority is made, but not for Schengen visas (Section 6, paragraph 1 of the Residence Act). Schengen visas only entitle the holder to short stays. According to Section 81, paragraph 5, a foreigner is issued a certificate (fictional certificate) under these conditions.
The Case: Plaintiff’s Entry and Residence Status
The plaintiff, an Afghan national, has been married to an Afghan national since February 17, 2015. She is recognized as a refugee in Germany and lives there with a residence permit according to Section 25, paragraph 2 of the Residence Act. The couple has two children, born on February 6, 2014, and October 10, 2015, in Germany. The plaintiff originally lived in Afghanistan but traveled several times with visitor visas to Germany to visit his family. Most recently, he entered Germany on November 23, 2015, using a Schengen visa issued by the Spanish Embassy, which was valid until December 17, 2015, arriving directly from Kabul to Frankfurt am Main.
On November 26, 2015, the plaintiff, through his legal representative, applied for a residence permit under Section 30 in conjunction with Section 29, paragraph 2, sentence 1 of the Residence Act, alternatively under Section 36 of the Residence Act. In addition, he sought a fictional certificate under Section 81, paragraph 3 of the Residence Act, arguing that his stay in Germany was lawful due to his entry with a valid Schengen visa on November 23, 2015.
Response of the Foreigners‘ Authority and Planned Measures
The responsible foreigners‘ authority initially did not decide on the plaintiff’s application but informed him in a letter dated December 11, 2015, that it intended to annul the Schengen visa issued by the Spanish Embassy. Furthermore, the authority stated that it intended to reject the applications for a residence permit, a fictional certificate, and the approval to take up employment. It indicated that the plaintiff would be required to leave the country under threat of deportation.
The authority explained that it had already denied family reunification in the past, as the plaintiff’s wife and child were receiving benefits from the Jobcenter. Additionally, the authority stated that the visa issued by the Spanish Embassy should be annulled under Article 34, paragraph 1, sentence 1 of Regulation (EC) No. 810/2009, as the plaintiff knew that he could not obtain a visa for family reunification. The authority argued that the visa had been obtained through fraudulent misrepresentation, as the plaintiff had entered Germany directly from Kabul via Frankfurt am Main on November 23, 2015, using the visa issued by the Spanish Embassy, and had only applied for a long-term stay in Germany after his entry. Therefore, there was no entitlement to the issuance of a residence permit.
Objection and Lawsuit of the Plaintiff
The plaintiff objected to this decision on December 15, 2015, arguing that the Spanish visa was still valid as it had not been revoked. He also stated that he had been issued visas by various European countries, including Germany, for business reasons, which had allowed him to visit his wife and children. The plaintiff further argued that the rejection of his application would deprive his wife of her husband and his children of their father, jeopardizing the family’s unity and livelihood.
On December 23, 2015, the plaintiff filed a lawsuit with the Administrative Court, requesting that the defendant be ordered to issue a fictional certificate retroactively from November 27, 2015, under Section 81, paragraph 5 in conjunction with paragraph 3, sentence 1 of the Residence Act, which would allow his stay to be considered legal until a decision by the foreigners‘ authority was made. He argued that Section 81, paragraph 4 of the Residence Act did not apply to Schengen visas issued by other member states. Since the Spanish visa was necessary for business purposes, he argued that its annulment was not justified.
Foreigners‘ Authority’s Argument and Legal Basis
The defendant requested the dismissal of the lawsuit, arguing that the issuance of a fictional certificate was not possible, as the plaintiff had entered the country with a Spanish Schengen visa. The continued validity under Section 81, paragraph 4, sentence 1 of the Residence Act does not apply to Schengen visas under Section 81, paragraph 4, sentence 2 of the Residence Act. Therefore, there was no entitlement to the issuance of a residence permit, as the plaintiff was not without a residence title in the country and did not meet the requirements for a fictional certificate.
According to Section 81, paragraph 5 in conjunction with paragraph 3, sentence 1 of the Residence Act, a foreigner receives a fictional certificate if they are legally present in the country at the time of application, without already possessing a residence title. However, the plaintiff had a valid Schengen visa at the time of application, which is considered a residence title under Section 4, paragraph 1, sentence 2, No. 1 of the Residence Act.
Decision of the Administrative Court of Stuttgart
The Administrative Court of Stuttgart ruled that the lawsuit was unfounded. The court determined that the plaintiff was not entitled to a fictional certificate because he was legally residing in the country and possessed a valid residence title, in the form of a Schengen visa, at the time of the application. Therefore, the plaintiff was not eligible to receive a fictional certificate under Section 81, paragraph 3, sentence 1 of the Residence Act, as this is intended for foreigners without a residence title.
The court emphasized that Schengen visas do not have the effect of extending residence status under Section 81, paragraph 4, sentence 2 of the Residence Act. The legislature has explicitly excluded Schengen visas issued by other member states from the scope of this provision. Therefore, the plaintiff could not benefit from a fictional certificate, as the law explicitly excludes this effect for Schengen visas.
Conclusion and Dismissal of the Lawsuit
In conclusion, the court found that the provisions of Section 81, paragraph 3 of the Residence Act did not apply to the plaintiff’s case, as he possessed a residence title in the form of a Schengen visa at the time of his application. An analogous application of Section 81, paragraph 3 of the Residence Act was also not possible, as the wording of the regulation is clear and explicitly excludes Schengen visas from this effect. Even under European law, there was no basis for a different assessment, as Schengen visas do not have an effect beyond their period of validity.
The lawsuit was therefore dismissed as unfounded. The plaintiff was not entitled to a retroactive issuance of a fictional certificate, as he already had a residence title at the time of his application, and the legal requirements for a fictional certificate were not met.
Source: Administrative Court Stuttgart
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, please feel free to call us at 0221 - 80187670 or send us an email to info@mth-partner.de
Lawyers in Cologne advise and represent clients nationwide in immigration law.