You are here:

German Law/Process of withdrawing German residence permit etc.

Advertisement


Question
Hi there,

I'm trying to help a friend in need in Germany.

The background and situation: He has recently married a German in his non-EU home country of Cuba ( Sep 2012)  and moved to Germany to live with her from this said country ( Jan 2013) . He has been granted a 3 year residence permit ( that I think) which is linked to the marriage ie if the relationship breaks down - the residence permit will/can be taken away.

Life in Germany and with the wife has become unbearable for him and he wants to return back to his home country OR before going back to his home country - visit his friend in another Schengen country in Europe for few weeks - then return to Germany from where he can take a direct flight back home.

Regarding the process of relationship breaking down so shortly after him arriving to Germany, I was only able to find out that in the UK for instance if the relationship breaks down the UK citizen can only write to the UK Border Agency to state that the relationship has broken down & thus the Border Agency would then attempt to contact the non-EU ex-partner to deport him/ her ( though he /she would have right to appeal).

A few questions: Is the process similar in Germany ie the wife can contact the relevant government agency to state that the relationship has broken down etc. OR can it become a police/ immigration police matter in Germany? Ie in the UK the police would not get involved but in Germany they can in these type of cases?

I think my friend's main concern is that this could become a police matter somehow and he can't leave the country or is he just being paranoid? He has no criminal record back in his home country neither in Germany. The fact he wants to go back to his home country/ leave the wife after only few months should not constitute a criminal matter right?

He is thinking of just leaving a letter and leaving. However between her discovering the letter and him boarding the flight - there will a few weeks delay as he wants to visit the friend in Switzerland etc. Do you think he will be safe to proceed with that plan of action? Or is there chance that if the wife calls the police - he may get arrested for XYZ ( not sure what the reason could be..unless she resorts to lying)? Even at the airport when boarding the flight, could he be arrested? He is willingly leaving the country with no desire to return so I suppose he should be able to leave/ board the flight?  

One final question, he is quite adamant he wants to return to his home country, however if he decided to stay in another Schengen country ( as his friend would like him to stay and can accommodate him)  - can he? I think the answer is probably no, or at least if he can - he won't be able to work in that country ( in this case Switzerland)?

Many Thanks in advance!

Answer
Hello Hannah,

if the underlying reason for the residence permit (i.e. the relationship with a German spouse) is no longer existent, then the foreign spouse actually has an obligation to inform the immigration authorities himself. Of course the German spouse can do so as well, as can any third party who hears of the break-down of the marriage.
The residence permit will become void already with the actual separation. It is not necessary to file for divorce.

How quickly the immigration authorities will act will depend on their workload. Often, the foreign spouse will be given some time (a few weeks) to book a flight and to leave.
But the residence permit could also be voided immediately, meaning that it would be potentially dangerous for your friend to travel with it. Even though there are no regular passport controls within Schengen, there can be random checks on trains, at airports and close to land borders. Switzerland is performing these random checks. He could be denied entry, arrested and/or deported for travelling without a valid visa. If the wife can prove that they have been separated, she would not need to resort to lying.

For the purposes of travelling around Europe, it would be much better to pretend that he is still in an active marriage.

As to the flight, he can of course always board a flight to Cuba.

In order to live and work in Switzerland, he would need to obtain a Swiss residence permit as the current German one is based on being married to a German citizen in Germany. Unless he lives very close to the Swiss border, it would be very hard to convince the Swiss authorities that he is commuting every day.
Ultimately, this sounds more like he will have to get a divorce from the German wife and get married to the Swiss citizen/resident. But that will of course take some time.

Andreas Moser
www.moser-law.com
www.andreasmoser.wordpress.com

German Law

All Answers


Answers by Expert:


Ask Experts

Volunteer


Andreas Moser

Expertise

Extensive experience in international family law, especially international child abductions and child custody cases. All other areas of German law as well: constitutional law, criminal law, business and contract law, immigration law, inheritance law, and so on.

Experience

Lawyer in Germany from 2002 to 2009. Lawyer for US Army JAG Corps before. Bar-certified specialisation in family law and in administrative law. Articles and lectures about international and domestic family law.

Publications
www.andreasmoser.wordpress.com

Education/Credentials
2000 Law Degree from University of Regensburg, Germany 2002 admitted to the bar (until 2009) 2013 MA Philosophy at the Open University, UK

©2016 About.com. All rights reserved.