Saxon Higher Administrative Court, 20.12.2017, Ref.: 3 A 779/17
According to Section 48, Paragraph 1 of the Administrative Procedure Act (VwVfG), a residence permit obtained through false statements can be revoked, even after it has become final, either entirely or partially with effect for the future or for the past.
Section 48, Paragraph 2 VwVfG generally guarantees the beneficiary protection against revocation. However, this protection is forfeited if the beneficiary obtained the administrative act through fraudulent misrepresentation, threats, or bribery, or if they made statements that were materially incorrect or incomplete, or if they knew or grossly negligently failed to know of the illegality of the administrative act.
In this case, the Saxon Higher Administrative Court had to decide on an application for the admission of an appeal, which was intended to challenge the dismissal of a claim against the revocation of a residence permit. The court also considered whether a procedural violation existed due to the failure to read out a witness protocol, despite an agreement to waive it, and concluded that a formal evidence request regarding the reading of the protocol would have been necessary to establish a procedural violation.
Facts of the Case:
The plaintiff, a Vietnamese national, entered Germany in 2001 and married a German citizen in 2002. Based on this marriage, he received a residence permit, which was extended several times. However, the marriage was dissolved in 2010. In 2014, the immigration authorities revoked the residence permit retroactively and rejected applications for a settlement permit and an extension of the residence permit. A deportation order was also issued. The plaintiff’s objection remained undecided, and his application for interim legal protection was rejected in 2017. The plaintiff was apparently deported to his home country.
First Instance – Administrative Court Judgment
The Administrative Court dismissed the plaintiff’s claim against the 2014 decision. It found that the residence permit granted to the plaintiff was unlawful from the beginning because the plaintiff and his former wife had never lived together in a marital relationship. This finding was based on comprehensive evidence, including statements from the wife and an informative interview with the plaintiff. The revocation of the residence permit was legally sound, as the one-year deadline under Section 48 VwVfG had expired only in 2013. The plaintiff was not entitled to protection of legitimate expectations, as he had obtained the residence permits through false statements, thereby fulfilling the exclusion criteria under Section 48, Paragraph 2 VwVfG.
Second Instance – Saxon Higher Administrative Court Judgment
The plaintiff applied for the admission of an appeal against the Administrative Court’s judgment, but the Saxon Higher Administrative Court denied the application. A successful application for admission of an appeal requires serious doubts about the correctness of the Administrative Court’s judgment or particular legal difficulties. However, the court found no such doubts. The appeal was not to be admitted, as the findings of fact and evaluation of evidence by the Administrative Court could not be questioned. There were no indications of a procedural error that would justify an appeal.
Legitimate Expectation and Discretionary Power
The plaintiff argued that he could not have expected the authorities to act dishonestly and that he was therefore entitled to protection of legitimate expectations. He also claimed that the authorities had exercised their discretion incorrectly. However, the court rejected these arguments, finding that the plaintiff had always known that the conditions for issuing the residence permit were not met. The marital relationship on which the residence permit was based never existed, and the plaintiff had obtained the residence permits through false statements.
Procedural Errors and Evidence Evaluation
The plaintiff contended that the Administrative Court had not gathered all necessary evidence to prove the sham marriage, particularly by not conducting a renewed examination of his wife. The Higher Administrative Court countered that the plaintiff and his former wife had mutually agreed to waive the examination, so no procedural error occurred. The plaintiff had not filed a formal evidence request for the examination, and there was no indication that the court should have insisted on a renewed examination of the wife. The Administrative Court’s decision was thus based on a comprehensive evidentiary foundation.
Reasons for the Higher Administrative Court’s Decision
The Higher Administrative Court determined that the Administrative Court had correctly established the essential facts. There were no new findings that could cast doubt on the correctness of the Administrative Court’s judgment. The plaintiff neither substantiated procedural errors nor sufficiently challenged the factual findings of the Administrative Court. Additionally, the principle of orality and directness of evidence was not violated, as the parties had mutually waived the renewed examination of the wife.
Summary – False Statements Preclude Legitimate Expectation
The Higher Administrative Court rejected the plaintiff’s application for the admission of an appeal. The court confirmed that the plaintiff’s residence permit was unlawful from the beginning, as the marriage on which it was based never existed. The plaintiff’s attempt to invoke protection of legitimate expectations failed because he had knowingly made false statements. The court found no procedural errors or legal difficulties that would have justified the admission of an appeal.
Source: Saxon Higher Administrative Court
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