Administrative Court of Hannover, 03.02.2016, Case No.: 2 A 250/14
According to Section 26 (2) of the Residence Act (AufenthG), a foreigner who possesses a residence permit under Section 25 (1) or (2) sentence 1, first alternative, is entitled to be granted a settlement permit if they have held the residence permit for five years. The time spent in the preceding asylum procedure is counted towards the time required for the settlement permit, in deviation from Section 55 (3) of the Asylum Act, provided that the Federal Office for Migration and Refugees has not notified, under Section 73 (2a) of the Asylum Act, that the conditions for revocation or withdrawal are met, their livelihood is predominantly secured, they have sufficient knowledge of the German language, and the conditions of Section 9 (2) sentence 1 numbers 4 to 6, 8, and 9 are met.
According to Section 82 (3) sentence 1 AufenthG, the authority has a duty to provide advice. The foreigner must be informed of their obligations under paragraph 1 of Section 82 AufenthG, as well as their essential rights and obligations under this law, particularly the obligations arising from Sections 44a, 48, 49, and 81, and the possibility of applying under Section 11 (1) sentence 3.
In the following judgment, the Administrative Court of Hannover clarifies that the authority can also fulfill this advisory duty retroactively, and this is not contestable as long as the applicant does not suffer any disadvantages in relation to their legal status.
Introduction
The case concerns a Syrian national who sought the retroactive issuance of a settlement permit from the time of his application in 2009. The plaintiff entered Germany in 1996 and received a residence authorization after a successful asylum procedure, which was later converted into a residence permit. In 2009, he applied for a settlement permit, which was granted, but without retroactive effect. The plaintiff then demanded the retroactive issuance of the settlement permit, which was denied by the Administrative Court of Hannover.
Facts
The plaintiff entered the Federal Republic of Germany in March 1996 and applied for asylum. After a successful asylum procedure, he was granted a residence authorization in 1999, which was extended multiple times. In 2005, this residence authorization was converted into a residence permit under Section 25 (2) AufenthG. In May 2008, the plaintiff was informed that his asylum status would not be revoked. However, it was not until June 2009 that the plaintiff applied for a settlement permit, which was granted in October 2009 without retroactive effect. In 2013, the plaintiff filed another application for the retroactive issuance of the settlement permit, which was rejected.
Plaintiff’s Argument
The plaintiff argued that the defendant had failed to fulfill its advisory and information obligations. He claimed that he was entitled to a settlement permit as early as 2008 but was not informed in time about the possibility of applying. He argued that the long processing time of his application should not be held against him and demanded that the settlement permit be granted retroactively to the time of his application in 2009.
Decision of the Administrative Court
The Administrative Court of Hannover dismissed the lawsuit as inadmissible and unfounded. It found that the plaintiff lacked the necessary legal interest for the retroactive issuance of the settlement permit. A foreigner can only request the retroactive issuance of a residence permit if they can demonstrate a legitimate interest. The court ruled that such an interest did not exist in this case because the plaintiff already possessed an unlimited residence permit, and the retroactive issuance would not provide any additional benefits.
Legal Considerations
The court clarified that the retroactive issuance of a residence permit is only permissible in exceptional cases, such as when the foreigner’s legal status depends on it. Since the plaintiff already held a permanent settlement permit, no further stabilization of his residence status was necessary. The court also noted that any potential effects on his son’s nationality did not constitute a legitimate interest.
Procedural Considerations
The court also rejected the claim for retroactive issuance of the settlement permit based on alleged procedural delays. It noted that the defendant had fulfilled its advisory duty, albeit belatedly, and that the plaintiff did not suffer any adverse consequences as a result. There was no entitlement to reopen the proceedings, as no new facts or evidence had been presented that could justify a different decision.
Conclusion
The Administrative Court of Hannover ruled that the plaintiff was not entitled to a retroactive settlement permit, as there was neither a legitimate interest nor legal or procedural grounds for such a decision. The lawsuit was therefore dismissed.
Source: Administrative Court of Hannover
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