About resident permit in my city

Question

Hello, i came to Germany 2013 Dezember and i applied for Asylum after 10 days, since 2013 me and my fiance have been living in Germany and we have 2 kids together age 5 years and 3 years. My 2 children and my fiancee was granted the refuge status of 3 years and a Blue passport in the year 2017 June. In 2017 February i was given negative which i appealed after 1 week later. Since my apeal in 2017 i didnt hear nothing from the Court or from the Bundesamt,

 Last 3 Months July 26 i was in court for my apeal and during the hearing the Judge told me that he can never deport me and that i should learn more German and keep working because my family have the  resident permit and that i am working and i have the both paternity right, the fatherschaft and suggorechts. and after 1 month later the court wrote to my lawyer that they did not believe my story.

So my lawyer told me that she will not make further appeal and we should cancel the Asylum. in that case my Asylum will be over on the 6th of October. i still have my 6 months Aufenthaltgestatung, i have before applied for a resident permit through my children but the landrasamt told me that my Asylum must be over before they will give me the resident. I was in Landrasamt last week to inform them and the man told me that i have to wait for them to received anofficial letter from Bundesamt that the Asylum is over,

I have been working since 1 year now and the Landrsamt have my passport, birth certificate, fatherschat, suggorechts, working contract. I have no financial support from Socialamt or Arbeitsamt, i am working and my bills are on me.   I want to know if i have the chance to get resident permit through my children or through the fact that i will be 7 years in German with A1,A2 German language knowledge without any support financially from the state to my Fiance and me.... Please clerify

Answer 1

Hello Gago,

It is probably right that your lawyer didn’t want to make a further appeal to the higher court because it has no chance in the most cases and would just cost you a lot of money. And it is not surprising that the judge gave you a hope to stay and then your appeal was rejected. The administrative court (Verwaltungsgericht) decides only about your asylum reasons or the reasons for protection in Germany because of the danger of prosecution / unhuman treatment in your country of origin. If they find your asylum reasons insufficient or unbelievable, they don’t give you protection und make a negative decision independent from the fact that you have other reasons (in your case family reasons) to stay in Germany. It is the task of the Ausländerbehörde to decide about residence permit for all reasons other than humanitarian protection (asylum, refugee status, subsidiary protection, ban on deportation).

Normally you won’t keep your Aufenthaltsgestattung for 6 months, its validity is finished with the end of your court procedure. But it depends on your Ausländerbehörde how quick they take your Aufenthaltsgestattung and give you a Duldung.

It was really not possible for the Ausländerbehörde (Landratsamt) to decide about your residence permit for the aim of family reunion before your court procedure was over. It is a condition from the German Law (Aufenthaltsgesetz, §10).

There is no guarantee that you can get a residence permit because of your children without leaving Germany and making an application for family reunion in the German embassy. It is a “normal” procedure after the law and some of the Ausländerbehörden try to force people to do it. But in your case you have many circumstances which speak for the possibility to stay in Germany and get a legal status without leaving. On one side the humanitarian reasons like children’s interests and their right to have both parents and not to be separated from the father for a long time, which can happen if you must make a visum procedure. On the other side your good integration, your working place, earning your living, possessing identity documents etc. And if your Landratsamt has already said to you that the residence permit would be possible after the end of the court procedure, this can also be a good sign.

The Ausländerbehörde must make an official decision about your application and give it to you in a written form. If it is a refusal, they must give the reasons and an explanation how and within which time you can make an objection (Widerspruch). You can also fight it in the court. In case of refusal I would ask a lawyer for help.

And if you don’t achieve a positive result there is still a possibility to make an application to the Commission for Hardship Cases (Härtefallkomission) in your federal state (Bundesland).

Comments

Thank you very much for your reply and i have read and understood all you have writing. I was by the Bundesamt in my city and they have received the cancellation of my asylum from the court in Munich, so the woman told me that they still need one more letter from Bundesmamt that my asylum is canceled fully. Then she also told me that my Aufenthalgestatung is no longer valid anymore that as soon as Bundesamt send them the letter that they will transfer my file to the foreign officer where they issue Resident Permit.

She also said that either i get a direct Resident permit or the office will issue me a Duldung and i will have to use this Duldung for 18 months and that after 18 months i should come and get my resident permit. this was her statment and she checked my file and also see that the Boss from Auslanderamt has already writing in my file that i will get Duldung for 18 months before i get the Resident permit.......

My lawyer told me that first she will write the Landrasamt again to give me direct resident permit but if it's rejected by the landrasamt then we will get the Duldung before permit. in other cases i will be 7 years in Germany by 2020 and my kids have Resident Permit and i am making A2, i am also working for the past 13 months and my working contracts still valid i am thinking if i can get Integration Resident permit as am qualified to have it.

Please advice, should i have the Duldung for 18 months or reject it?

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Sorry for not answering quickly but I hope it ist not so urgent in your case. You seem to be well informed about your situation and possibilities which I find really very good.
The information that you had got from the woman in the office (was it really Bundesamt or was it the Ausländerbehörde in your city?) is essentially right. After your asylum case has been fully finished and the Ausländerbehörde has got the relevant Information, they will decide about if they give you a residence permit or at first Duldung. The law doesn't provide a clear rule to give a residence permit for family reunion after loosing asylum case without making up for the visum procedure, therefore the Ausländerbehörde can use the humanitarian rule of §25.5 Aufenthaltsgesetz (Residence Act). This rule provides the possibility to give a person with Duldung a residence permit if there are legal or factual reasons against deportation which wouldn't dissappear in forseeable future (in your case this reason is your relation to children with residence permit in Germany). This kind of a residence permit can be issued without any special waiting time (in this case it is left to the discretion of the Ausländerbehörde) or it generally ought to be issued after 18 months with Duldung.
That means it can be difficult to claim for this residence permit before 18 months with Duldung.
As to the residence permit because of your good integration, it can be given to a person with Duldung who has been living in Germany for 6 years (not 7!) having Aufenthaltsgestattung, Duldung or residence permit and has under-age children in his household (§25b.1.1 Aufenthaltsgesetz). You need A2 and earning the most part of your living, these conditions are fulfilled. So in my opinion you can claim for this residence permit and it is also better than the humanitarian one. I think it makes sense to apply at the Ausländerbehörde to give you this integration residence permit as the first option and the humanitarian one as the alternative. In case of a rejection the Ausländerbehörde must give you its decision about both claims and the reasons for it, then you can decide if you make a Widerspruch or just wait. You can discuss it with your lawer.

Answer 2

Dear Sir,

Thanks very much for your reply although your respons was late, yes the woman from the Bundesamt in my City told me all about it and she also stated that they are waiting for the official letter from the Bundesamt that my Asylum have been cancel completely.  She also made notice to me that I can get Duldung and after 18 months in will get my Resident permit.  

Meanwhile I also want to try the Integration Resident permit which I have been living in Germany since 2013 December and I have two underage children between 5 years and 3 years old living under me. My  both children have Refugee status of 3 years with Blau passport since 2017. I have been working since last year September and my passport and other legal document is with the Bundesamt and Auslanderbehorde.  I have A1 and have B1 knowledge. ...

How long should it take before the Bundesamt sent an official letter to my city? If I should apply for Integrations residents permit what are my right?? Please clarify

Comments

How long you will wait, nobody knows. You can count with about 4 weeks but sometimes they just forget to do it, I heard from our consulting lawer that sometimes they don't send a notification for many months. If it doesn't happens for longer time than 4-6 weeks, I would write to BAMF (or better your lawer can do it) and remind them about it.
The paragraph about the integration residence permit is a so called "soll" rule (it generally ought to be issued if you fulfil the conditions). That means that it is not just to the discretion of the Ausländerbehörde if they give it to you or not; they must have serious reasons for a rejection. Therefore it is important to apply for it in a written form, present your arguments and ask for a written decision, which, in case of a rejection, must content reasons. If you (or your lawer) are of the opinion, the reasons are not sufficient, you can make an objection (Widerspruch).