Immigration Law: Judgment on the Retroactive Issuance of a Settlement Permit

The requirements for naturalisation are regulated in the Citizenship Act (StAG). According to Section 9 (1) StAG, foreign spouses or registered partners of German citizens should be naturalised under the general requirements of Section 10 (1) StAG if they have had their legal habitual residence in Germany for at least three years and the marriage or civil partnership has existed for two years. Since the reform of nationality law in 2024, it is generally no longer necessary to renounce the previous nationality, as multiple nationalities are now generally accepted. Instead, the decisive factor is that the naturalisation applicant fits into the German way of life, has not committed any significant criminal offences, can earn a living and has sufficient German language skills (B1 level or, in certain cases, A2 level, with possible exceptions such as a lack of learning ability).

This regulation also applies in accordance with § 9 Para. 2 StAG if the application for naturalisation is submitted up to one year after the death of the German spouse or partner or after the divorce has become final and the applicant lives in the same household as a custodial parent with a minor child from this marriage, provided the child already has German citizenship. Naturalisation in accordance with § 9 StAG is a discretionary naturalisation („should“ naturalisation). If there is no longer a marital partnership at the time of the decision, there may be an atypical case that allows the authorities to refuse naturalisation. This would be the case, for example, if the spouses are permanently separated and the cohabitation has therefore ended for good. Otherwise, if the requirements are met, the application for naturalisation is usually granted.

The following is a court case in which naturalisation itself was not the subject of dispute, but which was closely related to the legal residence requirements for naturalisation. In 2009, the Berlin Administrative Court had to decide on the question of whether a foreigner could claim the retroactive granting of a permanent right of residence (settlement permit) in order to close a gap in their residence status - which was particularly relevant in view of the eight years of uninterrupted residence required at the time for naturalisation.

Facts of the Case:

The plaintiff, born in 1970 and a Macedonian national, travelled to Germany in 1990 to study. In March 1995, he was sentenced to 80 daily fines for forgery of documents and intentional driving without a licence; in April 1995, he was sentenced to 200 daily fines for an offence against the Weapons Act. In March 1997, the plaintiff married a German national. As a result, he received a temporary residence permit for two years from the Frankfurt am Main Aliens Office in June 1997, which was extended for three years by the Berlin Immigration Office in March 1999. The marriage was divorced in 2001, after the couple had already separated in 2000 according to their own statements (there were different statements regarding the date of separation: May 2000 was mentioned in the divorce proceedings, later January 2001 was also claimed).

Shortly before his residence permit expired, the plaintiff applied for an extension on 25 March 2002. In a letter from a lawyer dated 5 April 2002, it was made clear that he was applying for a permanent residence permit (i.e. a settlement permit). However, the authorities rejected the application in June 2002 as there were doubts about the continued existence of the marital partnership - according to the legal situation at the time, a minimum marriage duration of two years during legal residence was required for an extension under § 19 AuslG. The plaintiff applied for interim relief against the refusal, but was unsuccessful (VG Berlin dismissed the urgent application in August 2002). The plaintiff subsequently went into hiding and evaded the authorities' grasp; the police were searching for him.

In January 2003, the plaintiff married a second German national. As a result of this new marriage, he was granted a new residence permit in June 2003 (initially for a limited period of one year, later extended several times, most recently until July 2010). After this new residence permit was issued, the parties agreed that the ongoing legal dispute regarding the rejected application for extension was settled; the interim legal protection proceedings were thus also settled.

However, the plaintiff continued to pursue the goal of having the earlier rejection of the extension from 2002 reviewed by the courts. He filed an action for a continuation of the declaratory judgement with the request to have the unlawfulness of the refusal from 2002 established, although the case had been settled in the meantime. However, this request failed because he was not deemed to have sufficient interest in a declaratory judgement - the court did not see any particular legal interest in rehabilitation or other interest worthy of protection that would justify continuing the action despite the case having been settled.

Application for a retroactive settlement permit:

A few years later, the plaintiff made a new attempt to retroactively improve his legal residency position. On 20 January 2006, he submitted an application to the Berlin Immigration Office to grant him retroactively a permanent residence permit (now settlement permit) as of 25 March 2002 - i.e. with effect from the date of his renewal application at the time. His intention was to close the gap in his possession of a residence permit that had arisen between June 2002 and June 2003. One of the reasons he gave for this was that he was living free of charge in a flat owned by his brother (and therefore had low living costs) and that he had been in the public interest due to his many years of work as an interpreter for courts and authorities. He also pointed out that if the new legislation in force since 1 January 2005 (Residence Act instead of the old Aliens Act) had been applied, a settlement permit could have been issued after three years of marriage - his first marriage had fulfilled this requirement, as it had lasted more than two years. He also hoped that a retroactive permanent status could bring him advantages in the naturalisation process, as he would then be able to provide evidence of eight years of uninterrupted residence, which was generally required for naturalisation (§ 10 StAG).

The authorities rejected the application for a retroactive settlement permit by decision dated 5 September 2006. The main reason given was that the applicant had not provided sufficient proof of the necessary means of subsistence. In particular, documents relating to housing costs (e.g. an extract from the land register and details of any charges on the brother's flat) and proof of income from his self-employed work as an interpreter and restaurateur, certified by a tax consultant, were missing. The plaintiff lodged an objection, which the State Office for Citizens' and Regulatory Affairs rejected in its decision of 24 February 2009.

The plaintiff then brought an action before the Administrative Court in March 2009. He argued that the refusal from 2002 had never been definitively reviewed and did not stand in the way of his request. In particular, his first marriage had actually lasted longer than two years, so that he should have been granted an extension or unlimited licence for this reason at the time - the opposing urgent court decision from 2002 was later overturned by the Higher Administrative Court. His first wife was prepared to testify that their cohabitation had been intact until May 2002. Furthermore, the applicant argued that there was a public interest in granting him the right to stay in view of his work as an interpreter. He considered the authorities„ demand for proof of his brother's income as a flat owner to be unlawful (data protection and the principle of direct collection). The strict requirements for proof of his self-employed income - in particular the demand for a tax consultant's audit report - were also disproportionate, especially as the submission of business analyses (BWA) should now be sufficient. Overall, the plaintiff emphasised that he had always been able to support himself. He felt that the authority's refusal to retroactively grant him permanent status was unjust and wanted this to be corrected for reasons of “satisfaction".

During the legal proceedings, the authorities declared in the oral hearing that they would now - in view of the extensive evidence submitted in the meantime - grant the plaintiff a settlement permit, valid from the day of his preliminary visit (application) to the authorities in 2006. With regard to the future, the legal dispute was thus irrelevant: both sides agreed that the legal dispute was settled insofar as the granting of a settlement permit had now been achieved. However, the plaintiff maintained his more far-reaching application to have him retroactively with a settlement permit from March 2002 (alternatively from January 2006). The key question for the court was therefore whether there was a legitimate interest in subsequently „granting“ a right of residence for a period that had already ended - during which the plaintiff did not in fact have a legal residence permit.

Judgment of the Administrative Court of Berlin:

The Administrative Court dismissed the plaintiff's claim. It first determined that the legal dispute had been settled to the extent that a current settlement permit had been issued in the meantime. In all other respects - with regard to the requested retroactive effect - the action was inadmissible, as the necessary Need for legal protection is missing. According to established case law of the Federal Administrative Court (BVerwG), a foreigner needs a special interest worthy of protection for the granting of a residence permit with retroactive effect to a past period. The court did not see such an interest here. Since the introduction of the Residence Act in 2005, there has only been one standardised permanent residence title - the Settlement permit - and no further graduated increase. The Foreign Nationals Act (AuslG) used to differentiate between the permanent residence permit (obtainable after 5 years) and the residence authorisation beyond that (obtainable after 8 years or 3 years of holding a permanent residence permit). This distinction has been abandoned in favour of the one settlement permit. The settlement permit is now already the highest level of the right of residence. Longer ownership of a settlement permit does not entail any additional consolidation under residence law. Consequently, according to the court, the plaintiff could no longer gain any legal advantage from a backdated grant. In this respect, there was no continuing legitimate interest in this determination or obligation. (In support of this, the VG Berlin referred to a ruling by the BVerwG of 9 June 2009, case no. 1 C 7.08, which had confirmed these principles).

Also with regard to the Naturalisation The applicant's naturalisation, which he was seeking in the future, did not require the settlement permit to be issued retroactively. Neither discretionary naturalisation pursuant to Sections 8 and 9 StAG nor entitlement to naturalisation pursuant to Sections 10 et seq. StAG require a certain minimum period of possession of a settlement permit. In particular, an entitlement to naturalisation according to § 10 StAG requires a current permanent residence status or a specific residence permit (not, for example, just a study visa), but it is sufficient, that such a right of residence exists at the time of the decision. The required eight years of residence refer to the habitual residence itself - periods with a residence permit (as long as it is not just a short-term visa) also count towards this, regardless of whether it is temporary or permanent. A longer period of possession of the settlement permit would therefore not give the applicant any direct advantage in the naturalisation procedure.

The applicant argued that he wanted to close the gap between June 2002 (rejection/termination of the fictitious effect of his application) and June 2003 (new AE granted due to second marriage) with the retroactive authorisation in order to be able to demonstrate an uninterrupted eight-year residence. However, the court argued that even if If a retroactive permit were to be considered, the applicant would not have fulfilled the requirements for a permanent permit in the period 2002/2003. Until April 2005, there were compelling reasons for refusing his status: his convictions in 1995 constituted grounds for deportation under the old law, which fundamentally ruled out the granting of a permit until the ten-year period had expired (i.e. until April 2005). In addition, he was only able to provide full proof that his livelihood was secure from around 2007 onwards - prior to this, his income was in some cases below the necessary requirements and maintenance needs. In other words: In the period for which he wanted retroactive status, he would not have been able to obtain it anyway for material reasons. In this respect, the request to fill the „residence gap“ was clearly unfounded.

Finally, the court also rejected other interests asserted by the plaintiff as not worthy of protection. A Interest in rehabilitation for the past was not recognised due to the lack of continuing discriminatory consequences. The plaintiff's need for personal satisfaction or for possible advantages in an official liability suit (damages against the state) was also not sufficient to justify such a retrospective administrative act. Now that a current settlement permit had been issued, from a legal perspective there was no longer any onerous situation that needed to be corrected or established.

The judgement made it clear that German residence law generally leaves no room for residence titles to be issued retroactively for completed periods of time solely for reasons of dealing with the past or upgrading status. As soon as the highest status is reached, legal „saturation“ occurs - additional years in this status no longer have any legal effect of their own, either for the right of residence itself or for naturalisation.

Source: Berlin Administrative Court (judgement of 01.09.2009 - 21 K 92.09)

Higher Administrative Court of North Rhine-Westphalia, 25/09/2025, Ref.: 19 E 359/25

In 2025, the legal situation in citizenship law developed further. In particular, the Act on the Modernisation of Citizenship Law came into force on 27 June 2024, which generally allows naturalisation after just five years (instead of eight years previously) and permits multiple citizenship. In practice, this reform led to a sharp increase in naturalisation applications, which overstretched the capacities of some naturalisation authorities. Against this backdrop, the Higher Administrative Court of North Rhine-Westphalia (OVG) issued a recent decision that is important for naturalisation applicants.

An overload of authorities is no justification for delays:

In its decision of 25 September 2025, the OVG NRW ruled that a lack of staff or a work overload at an authority are not sufficient reasons to excessively prolong a naturalisation procedure. In the specific case, an applicant had submitted a complete naturalisation application in February 2024. However, the competent authority (in this case, the naturalisation office of a district in North Rhine-Westphalia) did not process the application promptly and referred to a considerable work overload. The administrative court of first instance in Arnsberg showed understanding for the authority and initially suspended the court proceedings until the end of 2025 to give the authority time to process the application. The applicant appealed against this - with success before the OVG.

The Higher Administrative Court clarified that the Entitlement to speedy procedural treatment in nationality law must not be undermined by a permanent processing backlog. Section 75 of the Administrative Court Code (VwGO) is decisive: This provision states that an applicant can bring a so-called action for failure to act if a decision is not made on their application within three months without sufficient reason. Despite the 2024 naturalisation reform, the legislator has not created a special regulation that would extend this deadline for naturalisation procedures. This means that the following also applies to citizenship law Three-month deadline. After this period has expired, the applicant can in principle go to court unless there is „sufficient cause“ for further delay.

The authority argued that the exceptional workload constituted such a reason. The OVG rejected this argument: Internal administrative difficulties Such as chronic staff shortages, backlogs accumulated over years or organisational deficiencies cannot be blamed on the citizen. Only in truly exceptional cases - such as a short-term, temporary flood of applications immediately after a change in the law - may a certain delay be excusable. However, if the overload persists (as in this case, where the authority did not promise any improvement in the foreseeable future), it is a structural problem. Such a structural deficit must be solved by the administration itself through organisational measures or an increase in staff. Individual citizens have the right to have their application decided within a reasonable period of time.

The OVG NRW succinctly formulated that permanent bottlenecks not a legal problem of the applicant, but of the authority were. The judges overturned the decision of the Arnsberg Administrative Court and obliged the authorities to continue with the naturalisation procedure for the plaintiff without delay. With this decision, the court is strengthening the rights of those seeking naturalisation: Despite high demand for naturalisation as a result of the reform, procedures may not be postponed arbitrarily. The administration cannot invoke overload in order to circumvent statutory deadlines. Rather, the clock starts to run when the application for naturalisation is received - not from a later personal interview, as the authorities wrongly believed - and legal action can be taken after three months of inactivity.

For naturalisation applicants, this current case law means that they can claim their right to a decision in case of doubt. Particularly in light of the modernisation of citizenship law and the growing number of applications, the OVG emphasises the importance of effective and timely legal protection. The state must provide the necessary resources to process citizens' legitimate concerns within a reasonable period of time - individuals must not become victims of an overload situation.

Source: NRW Higher Administrative Court (decision of 25/09/2025 - 19 E 359/25)

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