Foreign spouses of German citizens are usually entitled to be granted an unlimited residence permit in accordance with § 28 (1) No. 1 German Residence Act. But what is to be done if the German spouse dies before the immigration authority has issued a residence permit for the subsequent immigration of spouses in accordance with § 28 German Residence Act? The Administrative Court of Bayreuth ruled on such a case in its ruling of 4 December 2014 (Ref.: B 4 E 14.786).

The applicant was a Ukrainian national who entered Germany on the basis of a Schengen Visa and married a German national there. She then returned to the Ukraine and applied for a visa to join her spouse there in accordance with § 28 German Residence Act. The German embassy refused to grant the visa, but the applicant filed a lawsuit, which she withdrew upon the death of her husband, since the representative of the FRG had offered her, in agreement with the immigration authority, to grant her the visa for the subsequent immigration of spouses in return for withdrawal of the lawsuit.

The originally issued Schengen Visa was subsequently extended twice as a national visa for the purpose of processing court hearings and the distribution of estates. Finally, the applicant applied for a residence permit as an independent right of residence pursuant to § 31 German Residence Act.  However, the Immigration Authority rejected this application.


Requirements of § 31 German Residence Permit

Pursuant to § 31 (1) German Residence Act, spouses are granted an independent right of residence in the event of the dissolution of the marital cohabitation

  • if the foreigner has died while the marital cohabitation existed in the Federal territory (Germany) and
  • if the foreigner was previously in possession of a residence permit, settlement permit or permit for permanent residence in the EU

In the present case, however, the applicant had not yet been granted a corresponding residence permit; at the time of the death of her German spouse, she had merely been assured that a visa would be granted to her pursuant to § 28 German Residence Act, but had not yet received the visa.


Provisional Effect: Retroactive granting of the Residence Title?

The competent immigration authority therefore rejected the application for a residence permit under § 31 German Residence Act on the grounds, among other things, that the assurance to grant a visa was not equivalent to the required possession of the residence permit.

The applicant based her action for the granting of a residence permit pursuant to § 31(1) German Residence Act decisively on the provisional effect provided for in the Residence Act:

  • If the extension of a residence permit or the granting of another residence permit is applied for before its period of validity expires, § 81 (3) German Residence Act provides for the so-called provisional effect. This means that if the application is submitted in good time, the previous residence title will continue to exist from the time of its expiry until the decision of the Immigration Authority on the application for extension is made.

The applicant argued that at the time of her spouse’s death the application for a visa for the subsequent immigration of spouses pursuant to § 28 German Residence Act had already been submitted and that the provisional effect of § 81 (3) German Residence Act must therefore apply retroactively in her favour to the extent that she must be treated as if she had already held the residence permit required under § 31 (1) German Residence Act at the time of submission of the application. The German embassy was not responsible for the fact that it had originally rejected her visa application incorrectly and thus delayed the application for a residence permit pursuant to § 28 German Residence Act.


Application for the Visa: Decision by Court

However, the Administrative Court of Bayreuth rejected the application as unfounded and ruled that it was unfounded on the basis that the factual requirements of § 31 (1) German Residence Act were not fulfilled.

According to the case law of the Federal Administrative Court, the required “spouse’s residence permit” within the meaning of § 31 German Residence Act was only to be understood as a residence permit issued for the purpose of spouse reunification. Thus, the Schengen Visa or the applicant’s national visit / business trip visa did not meet this requirement.

Irrespective of this, however, the visa applied for by the applicant is also insufficient for the purpose of spouse reunion, since the wording of § 31 German Residence Act requires a residence permit within the meaning of § 4 (1), § 7 German Residence Acta visa is not such a residence permit.

The provisional effect asserted by the applicant, i.e. the retroactive validity of a residence title already applied for, thus only applies to the case in which a residence permit pursuant to § 28 German Residence Act (and not the mere visa) had already been applied for at the time of the death of the German spouse. This would have been possible if the applicant had already been granted the visa for the purpose of spouse reunification, had then entered Germany and had applied for a residence permit pursuant to § 28 German Residence Act before the death of her husband.

In the present case, however, the applicant had only received the assurance that she would receive the visa at the time of her husband’s death. Moreover, she had not previously entered Germany for the purpose of joining her spouse, but on the basis of her Schengen Visa and had inevitably applied for a residence permit pursuant to § 28 German Residence Act only after the death of her spouse.


Impact of Originally Incorrect Application Rejection

The Administrative Court rejected as irrelevant the applicant’s argument that the rejection of the application for a visa was erroneous and that the application for the residence permit was delayed for that reason alone.

According to the case-law of the Federal Administrative Court, it was established that the person affected by an erroneous administrative decision under general administrative law was not entitled to be placed in the position they would have been in if the decision had been made correctly by way of remedying the consequences. A claim to the removal of consequences could at best lead to the restoration of the original state without the sovereign intervention, i.e. that the application is deemed not to have been rejected and must be decided upon again. However, it was not possible to persuade the authority to grant a residence permit pursuant to § 31 (1) German Residence Act.


Entitlement to Residence Permit if Visa granted

The Administrative Court of Bayreuth ultimately dismissed the claimant’s complaint as unfounded.

According to the court, the mere possession of a visa at the time of the death of the German spouse, even if it was issued for the purpose of spousal reunion, does not meet the requirements of § 31 (1) German Residence Act.

Nevertheless, the applicant does not necessarily have to actually already possess a residence permit pursuant to § 28 German Residence Act (or a settlement permit or permit for permanent residence in the EU) at the time of the spouse’s death.

According to the Administrative Court of Bayreuth, it is sufficient for the applicant to have entered Germany by means of a visa for the purpose of spouse reunification and to have submitted an application for a residence permit pursuant to § 28 German Residence Act at the time of death. In this case, the effect of § 81 (3) German Residence Act is to take effect, which simulates the possession of a residence permit at the time of death when the residence permit is subsequently granted.

In summary, the following applies: If the German spouse dies before the residence permit is granted in accordance with § 28 German Residence Act, this does not affect the entitlement to a residence permit in accordance with § 31 German Residence Act, provided the corresponding application was submitted before the time of death. However, the mere application for a visa pursuant to § 28 German Residence Act is not sufficient.


Immigration Lawyer in Germany

At Schlun & Elseven Attorneys, we are experienced legal professionals in the field of immigration law. From our offices in Cologne, Aachen and Düsseldorf we have worked with many clients from all over the world over the past few years. Should you require further assistance with family reunification, residence permits due to a German spouse, dual citizenship or any other immigration issue, our lawyers can provide the counsel you are looking for. Our conference rooms can be found nationwide in Germany and we also offer our services from distance through telephone, email and video conferencing.

Our attorneys can provide you with the information you need when it comes to German immigration law in English as well as German to ensure that we do not get lost in translation. We offer further services in other languages such as Spanish, Portuguese, Turkish and Chinese. If you have any further questions about German immigration law make sure to contact us. We are looking forward to working with you.

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