Can I apply for a residence permit according to §5 of the FreizügG/EU without having a valid visa or residence permit?

Question

Dear staff of wefugees ,thanks a lot for many answers and help .I hope this is my last question .

So  I come from NON  Eu country  , I made an asyl application this year 29.05.2019 and been located in Bonn , during my asyl process I got married with my husband he is from Romania EU citizen  living in Germany since 5 years and has unbefristet Arbeitsvertrag .We got married on 21.11.2019 in Standesamt Bonn ,and since I have received an negative for my asylum case I moved from the camp and made the registration in Meldebehörde  together with my husband in one apartment in Fankfurt .
So I wanted to make an appoitment in Ausländerbehörde in Frankfurt to make an Aufenthalts Antrag according to § 5 Abs. 1 Freizügigkeitsgesetz/EU - FreizügG/EU,but since I have no Visa and also my Aufenthaltsgestattung has expired  ,I am little bit worried if I have rights to make such an application and I don't know what are my  chances becoming an Aufenthalts .
#222222</a>; font-family:arial,helvetica,sans-serif; font-size:small">Do you know if I can apply for stay permit without Visa ? Should I go in AB together with my husband or I can go alone ? Do you have any infos which documents I must have with me ? 

#222222</a>; font-family:arial,helvetica,sans-serif; font-size:small">once again THANKS A LOT 

#222222</a>; font-family:arial,helvetica,sans-serif; font-size:small">REGARDS
A.G

Answer 1

Hello and welcome back to the Wefugees Community!

First of all, congratulations to your wedding and all the best for you both!

Regarding your current residence status, since your asylum application got rejected, I assume that the immigration office (Ausländerbehörde) in Bonn would want to issue a Duldung. 

I am not an expert on EU-law and regulations, but I also did not find any information that you might not be able to apply for the §5 of the FreizügG/EU when you are holding a Duldung. Maybe one of our experts, as Melina from @Infoverbund or @alla_fka, can correct me or add to that?

On this website, you find more information on required documents (for Berlin though, but I assume that for other cities as Frankfurt it will be not much different).

And where to apply for the EU-residence permit in Frankfurt and contact details in general (also for information hotline), please see here.

I hope this helps and do not hesitate to get back to us with any further questions.

Kind regards,

Meike

Answer 2

Hello

thank you for sharing your question with the Wefugees Community!

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Unfortunately I am also not an expert on this field, but here is what I know:

First of all, are you holding any document right now? For example a Duldung? You should definetly apply for a "Aufenthaltskarte" according to FreizügG since you have the right to get one. There just might be a problem with you not having a visa, since you are in general as a foreign spouse to a EU-citizen by German Law obliged to enter with a visa. So it could happen that the Ausländerbehörde might ask you to enter again with a visa. But due to jurisdiction of the European Court of Justice they are actually not allowed to do so. Also there are some exceptions where you wouldn´t need to leave Germany and enter again. 

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So I would probably recommend you to try it at your local Ausländerbehörde. If they ask you for a proper visa or want you to re-enter Germany, you go see a lawyer so that he/she can help you to avoid it.

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Regarding the documents: I cant tell you exactly what kind of documents they will ask from you, but I can tell you for sure that you will need: proof of your marriage such as marriage certificate, proof that your husband is working in Germany, f.e. his contract. I found this list of documents on the website of the immigration office in Berlin. If you are not from Berlin, the documents might still be the same or at least very similar:

https://service.berlin.de/dienstleistung/324282/en/

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I hope this helps. Please don´t hesitate getting back to the Wefugees Community if you have furter questions!

All the best

Melina

Note: Please keep in mind that we can´t provide qualified legal advice via the internet and that any information given can´t replace such legal advice.

Comments

Thank you, dear Melina, for your fast reply and the very useful information!

Best,

Meike

Answer 3

Hallo,

I agree with Melina from InfoVerbund that you have to apply for Aufenthaltskarte. If you have already changed your Gestattung in Duldung, it is good, because you have an official document in Germany and don't stay here illegally after your document expired. But even if you don't have a valid German document, it is anyway important to make an application.

The possibility to get the Aufenthaltskarte after FreizügG depends on a number of conditions. One of them is how your asylum application was rejected. If you for example had so called "offensichtlich unbegründet" rejection, it mostly prohibits the Ausländerbehörde to issue a residence permit for family reunion from Germany. It would be only possible if you had an absolute right for this residence permit (so called Anspruch), and you have no "Anspruch", instead of your marriage to a Romanian  person, because you came to Germany without proper visum. That means that you can need reasons to prove a hardship case if you don't want to leave Germany and make a visum. And if you are from a "safe country" you have a ban for getting a residence permit for a special time in your rejection, which must be first taken away.

That means you need somebody (a councelling center or a lawyer) to check your case in detail.

Anyway to take a lawyer, either from the very beginning or at least in case of rejection, is essential. If you have a lawyer from the very beginning the advantage can be that the Ausländerbehörde doesn't reject so easily, they know then that they must treat the case more seriously because you are prepared to fight.