Damages for Unlawful Rejection of Residence Permit

The immigration office is obligated to compensate for damages if it unlawfully rejects a well-found claim for a residence permit. The office is especially liable for loss of income. Read what happened:


A foreigners office in Hesse denied Mr. Doe a residence permit. Not accepting this decision, he appealed but lost in the extra judicial appellation proceedings. The applicant fought in court for his rights and he won the case. The court obligated the office to grant a permit. Understand that it cannot be that a court or a different office grants you a residence period – only the competent one may. Therefore, the court only ruled (and was only empowered to rule) that the office is required to grant the permission. So, after the court’s decision became final the applicant again applied for a permit. The problem was that this person was unemployed for a long time. This person showed the office with proofs already in appellation proceedings in the office, i.e. before filing a case in court, that he now had a job.

The court ruled that the office responsibly neglected its duty to diligently study the facts of the case. The office tried to excuse itself that it believed that the facts of the case at the time of application were relevant and not later arising facts. This opinion is gross negligently wrong. It is a standing judgment of the Federal Administrative Court that the facts at the time of deciding (either for a judgment or for an administrative act) are to be considered for the decision. If an applicant comes up with new facts on his behalf they must be considered while deciding his case. In other words, the applicant showed here long time before the officer made a formal decision that he had a job and was not on welfare. To be on welfare gives grounds for deportation. Nevertheless, the office still assumed he was on welfare. This responsibly wrong decision gives grounds for state liability following §839 BGB and art. 34 GG.

State liability means that the state must make good for Mr. Doe’s damages. He is now entitled to receive his lost salary from the state. This salary will be net. He will have to show and prove that he lost some certain income due to the office’s refusal. If he fails he will not collect anything. Net income means his salary as agreed with the employer minus wage tax, and social security premiums.

Published on the old CMS: 2006/7/16
Read on the old CMS till November 2008: 1,172 reads

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