11

As a Blue Card holder, if I marry after my resident permit is issued, can my spouse apply for his resident permit from within the territory of Germany?

A little more background: My situation is "Can an international Blue Card holder take his non registered partner with him?" and based on the comments in that question, plus I took some advice from a lawyer it is best for me to marry or get a civil union. Since my situation is a little particular, we intend to marry in Denmark.

Also related to this question is "Who (not EU citizen) can apply for residence permit/visa from within Germany?" which has a very good answer and some mentions to my case, but no concrete reference.

  • (+1) Just a comment to clarify my answer to the other question: I don't think I meant to cover your case. EU citizens and Blue Card holders are in a different situation. – Gala Jun 7 '16 at 18:04
2
+50

The answer to this question depends on the specific visa situation of the spouse. Only for cases listed in §§ 39, 41 AufenthV a residence permit can be applied for from within Germany. Among others (likely irrelevant ones) this applies if:

1) he or she possesses a national visa (Section 6 (4) of the Residence Act) or a residence permit,

2) he or she is exempted from the requirement for a residence title and the exemption is not restricted to a certain part of the Federal territory or to a stay of no longer than six months,

3) he or she is a national of a state specified in Annex II to regulation (EC) no. 539/2001 and is lawfully resident in the Federal territory or possesses a valid Schengen visa for short stays (Section 6 (1), no. 2 of the Residence Act), provided that the conditions pertaining to an entitlement to a residence title are met after his or her entry into the Federal territory, [...]

6) he or she holds a residence title issued by another Schengen state and, by virtue of this residence title is entitled to reside in the Federal territory, [...]

If the partner holds a short-term Schengen visa or can enter Schengen visa-free one might be inclined to think that the number 3 applies. Unfortunately this is not the case if the marriage happens outside Germany. This case is explicitly spelled out in the administrative regulation for the German Residence Act (Nr. 30.0.9 VwV-AufenthG) which also is confirmed in a few court cases (with a slightly different premise, e.g. BVerwG, 11.1.2011 − 1 C 23/09):

Ein Ausländer, der mit einem Schengen-Visum ins Bundesgebiet einreist und nach einer Eheschließung im Schengengebiet (z. B. Dänemark) ins Bundesgebiet zurückreist, reist i. S. d. § 39 Nummer 3 AufenthV ein. Der Einreisebegriff des § 39 Nummer 3 AufenthV ist nicht schengenrechtlich zu verstehen, da es hier um eine Zuständigkeitsfestlegung (auch) für den Bereich nationaler Visa geht. In diesem Bereich gibt es – vorbehaltlich spezifischer Harmonisierungen – kein Gebot gemeinschaftsrechtsfreundlicher Auslegung.

Which translated and without the legalese basically means that if one marries outside Germany § 39 Nr. 3 AufenthV doesn't apply as the conditions for an entitlement to a residence title were not met within Germany.

Note that those two references only explicitly talk about cases were visa are required. However the same also applies for non-visa nationals as Nr. 3 requires a lawful residence for those. If one enters Schengen with the intention of staying longer than the allowed visa-free period then the entry was not lawful in the first place (see e.g. VGH Baden-Württemberg 14.9.2011 –11 S 2438/11). If one would enter Schengen without the intention of marriage and then decides to marry outside Germany I don't know the answer and don't think such a case was ever decided on a high level but I think that should be possible.

The only exception would be if leaving Germany to apply is deemed unreasonable (within the meaning of § 5 Abs. 2 S. 2 AufenthG). This is normally the case if the applicant (Nr. 5.2.3 VwV-AufenthG):

  • is caring for people in the household which can't be ensured otherwise
  • can't travel safely to their home country or there is no German embassy
  • is pregnant, sick, disabled, or of high age

High cost alone is not a reason.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.