No Independent Status after Innocent Split up?

When living in Germany on a dependant status, e.g. as a spouse, your permit ends as soon as the cohabitation ends. However, the law also grants the possibility to change the dependant status to independent status. The question now arises, who has to give grounds the split up? A husband raped his wife and she applied for prolonging her residence after they split. The OVG Hesse gave an answer to this question on January 17, 2007 (re 7 TG 2908/06).


The wife, applying for prolongation of her residence permit, married her Serbian husband on March 23, 2005 in Kosovo. Her husband already had a permanent residence permit at that time. On August 27, 2005, she applied for a residence permit for family reunification, which was granted. Two days after having arrived in Germany, she was brought to the airport to return to Kosovo. On one of the next days, her cousin reported to the police that the applying wife was raped and beat up by her husband and deported back to Kosovo because she was not a virgin anymore. The applicant could not seek assistance because she did not speak German.

After having returned to Germany, she applied to prolong her permission to reside. Her cousin had given her a job as a kitchen help for a gross salary of € 960. The Foreigners Office denied her application to remain in Germany and threatened to deport her. The office was of the opinion that she could not qualify for undue hardship pursuant to §31 AufenthG because she, the applicant, had not given reason to terminate the cohabitation, but rather her husband. In this case, it was the husband who “disposed” of his wife.

She applied for a temporary injunction. The court set aside the office’s decision. In this preliminary proceeding, the court had to weigh the public interest in the execution of the law and the applicant’s interest in suspension. This weighing turned out to be to the benefit of the applicant. The court considered it likely that the wife should be granted independent residential status pursuant to §31 AufenthG, because the applicant can claim undue hardship.

§31 AufenthG converts the dependant to an independent residence permit when the marriage has legally existed for two years in Germany in as much as it is necessary to prevent undue hardship, unless a prolongation is ruled out. The exception in §31 AufenthG “unless a prolongation is ruled out” is not applicable to the wife because only her husband gave grounds for an expulsion from Germany. He raped his wife. However, the husband has permanent residence status so that a question of renewing his status does not arise. The court ruled that the law takes into account the situation of each foreigner individually. Since the wife was legally living in Germany and no grounds not grant residence exist, she therefore has the right to remain. Any other opinion on this regulation would be contrary to the lawmakers’ intentions. This law intends to give an applicant a break whenever he is infringed in his matters worthy of protection after a couple has split up.

Published on the old CMS: 2007/6/29
Read on the old CMS till November 2008: 227 reads

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