Bavarian Administrative Court, 05.08.2015, Case No.: 10 B 15.429
According to Section 28 of the Residence Act (AufenthG), a foreign spouse, the minor unmarried child of a German citizen, as well as the parent of a minor unmarried German child for the exercise of parental custody, are granted a residence permit if the German citizen has their habitual residence in Germany. In certain cases, this permit is issued differently from Section 5 (1) No. 1. A settlement permit is generally issued after three years, provided that the family community continues and sufficient German language skills are present.
Section 9 (2) of the Residence Act specifies that a foreigner is granted a settlement permit after five years of holding a residence permit if their livelihood is secured, they have paid 60 months of contributions to the pension insurance, there are no security concerns, sufficient language skills are present, and appropriate housing is available. The Bavarian Administrative Court clarified that the residence permit under Section 28 (2) sentence 1 AufenthG must be one according to Section 28 (1) sentence 1. Additionally, it is not sufficient for the settlement permit under Section 9 (2) if future integration is only probable; a five-year secured stay is required.
Introduction and Case Background
The plaintiff, a Kosovar national, entered Germany in 2008 with his mother and sister as part of family reunification with his father, who was living in Germany and held a settlement permit. The plaintiff initially received a residence permit under Section 32 (3) AufenthG, which was extended until 2018. In December 2013, the plaintiff applied for a settlement permit under Section 9 AufenthG. The competent authority rejected this application in February 2014, arguing that Section 9 (2) AufenthG was not applicable to the plaintiff and that the requirements were not met.
Lawsuit and First-Instance Judgment
The plaintiff and his sister filed a lawsuit against the rejection notices, seeking the issuance of a settlement permit. The Bavarian Administrative Court in Augsburg ruled in their favor in September 2014, stating that Section 35 (1) sentence 1 AufenthG did not apply, as the plaintiffs had not yet reached the age of 16. However, they were entitled to a settlement permit under Section 28 (2) sentence 1 AufenthG. The court found it sufficient that the plaintiffs held a residence permit under Section 32 (3) AufenthG and that their father had since acquired German citizenship.
Defendant’s Appeal
The defendant appealed the ruling, arguing that the plaintiff had no claim to a settlement permit under Section 28 (2) sentence 1 AufenthG because this only applied to a residence permit under Section 28 (1) AufenthG. The defendant maintained that Section 28 (2) AufenthG regulates the extension of the residence permit for family members of Germans, while the plaintiff held a residence permit for a different purpose. The legislative system and intent, the defendant argued, did not support extending this provision to cases like the plaintiff’s.
Decision of the Bavarian Administrative Court
The Bavarian Administrative Court ruled that the appeal was partially successful and that the plaintiff’s lawsuit should be dismissed. The rejection of the application for a settlement permit was lawful. The plaintiff had no claim to a settlement permit under either Section 28 (2) sentence 1 AufenthG or Section 9 (2) AufenthG. It was decisive that the residence permit must have been issued under Section 28 (1) sentence 1 AufenthG to qualify for a settlement permit under Section 28 (2) sentence 1 AufenthG. The wording, legislative history, and purpose of the regulation supported this interpretation.
Legal System and Justification
The court clarified that Section 28 AufenthG, as a lex specialis, governs family reunification with German citizens and takes precedence over general provisions. Section 28 (2) sentence 1 AufenthG is only applicable if the residence permit was granted for family reunification with Germans under Section 28 (1) sentence 1 AufenthG. The legislative intent, as expressed in the former Section 23 AuslG, did not envisage that residence permits for other purposes could form the basis for a settlement permit. The legislature specifically created a privilege for family members of Germans, which is tied to the specific requirements of Section 28 (1) sentence 1 AufenthG.
Conclusion and Dismissal of the Lawsuit
The plaintiff did not meet the requirements for a settlement permit under either Section 28 (2) sentence 1 AufenthG or Section 9 (2) AufenthG. Since the plaintiff had not yet reached the age of 16, Section 35 AufenthG did not apply. Additionally, he could not demonstrate the necessary knowledge of the German legal and social system. The Bavarian Administrative Court amended the judgment of the Augsburg Administrative Court accordingly and dismissed the plaintiff’s lawsuit.
Source: Bavarian Administrative Court
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