On 17 December 2015, the German Federal Administrative Court decided that a foreigner is not entitled to a temporary residence permit (Aufenthaltserlaubnis) if his asylum procedure has not been fully completed. This is also the case if the foreigner cannot be deported because the Federal Office for Migration and Refugees (BAMF) has protected him from deportation by granting him the protection status known as a national ban on deportation.
Generally, foreigners can be granted a temporary residence permit under German law while their asylum procedure is still pending, but only if they have been given an unrestricted right to a permit as a part of their international protection status (refugee protection or subsidiary protection). However, if an asylum seeker is only granted a national ban on deportation, he is not considered to have an unrestricted right to a permit. He is also not entitled to a residence permit if he is trying to obtain another status with more extensive protection by lodging an action in court, which contests BAMF’s decision to reject his application for international protection status and to only grant him protection from deportation.
The plaintiff in this case was an asylum seeker from Afghanistan who entered Germany at the end of 2010. The purpose of her action was to have the court obligate the German immigration authorities to extend the temporary residence permit already issued to her to also include a previous period of time. Based on her application, BAMF had determined that a ban on deportation as defined in section 60, paragraph 7, sentence 1 of the Residence Act applied in her case, but it rejected her application for international protection. She eventually won her court case seeking another status with more extensive protection later on.
The asylum seeker from Afghanistan applied for a temporary residence permit on 17 October 2011 in accordance with section 25, paragraph 3 of the Residence Act, since she had been granted a ban on deportation that had already become binding. The relevant German immigration authorities refused to issue a residence permit because of section 10, paragraph 1 in the Residence Act, which prohibits a residence permit from being issued when the asylum procedure has not been finished and become legally binding yet. In her action, the asylum seeker was seeking to have a temporary residence permit issued to her retroactively starting from the time when the application was submitted in October 2011. She argued that the conditions set out in section 25, paragraph 3 in the Residence Act had already been fulfilled when BAMF granted her the national ban on deportation status and it became legally binding. The administrative court and the higher administrative court dismissed this aspect of her case.
The 1st Senate for appeals at the Federal Administrative Court also dismissed the asylum seeker’s appeal. She could not be issued a residence permit under section 10, paragraph 1 in the Residence Act for the time period in dispute, because her asylum procedure had not been (fully) finalised in a legally binding manner. The provisions prohibiting the issuance of residence permits that are laid out in section 10, paragraph 1 in the Residence Act also apply in situations where the procedure initiated with the asylum application leads to obtaining (final and absolute) protection from deportation, but in other aspects is still not finalised. Therefore, a residence permit is still prohibited from being issued during the asylum procedure and it continues to apply for the entire duration of the legal proceedings.
This restriction stems from the wording of the provision and is confirmed by the systematic correlation between section 10, paragraph 3 in the Residence Act and an assessment of section 51, paragraph 1, no. 8 in the Residence Act. Moreover, section 25, paragraph 3, sentence 1 of the Residence Act does not give people, such as the plaintiff in this case, who have been granted a ban on deportation on the basis of section 60, paragraphs 5 or 7 in the Residence Act a legal right to a residence permit as defined in section 10, paragraph 1 of the Residence Act; it merely says they ‘should’ be issued a residence permit. A ‘should’ rule, such as the one described in section 25, paragraph 3, sentence 1 of the Residence Act, lacks the final abstract and general legislative decision required for taking away the discretionary power that the administrative authorities have when it comes to issuing residence permits.
Federal Administrative Court 1 C 31.14 Judgment from 17 December 2015
Translation from German into English by Rosa Foyle
