Subsequent Change of Residence Purpose

The applicant, a Filipinian woman, entered Germany with a tourist visa and married a German in Denmark shortly before her German visa expired.
After marriage, she applied for a residency permit for family reunion. She informed the office that she came to Germany upon invitation of her now husband, an acquaintance. During her stay in Germany, they made a quick decision to marry ASAP. Since they married shortly before expiration of the visa, and application time for a wedding in Germany is so long, they decided to marry in Tonder, Denmark.

The immigration office denied her application after weighing all arguments pro and con. As seen by the office, the applicant intended to marry her husband already at the time of application. She therefore entered Germany with the wrong visa and so did not meet the requirement of §5  AufenthG for subsequent change of residence purpose. According to subsection 2 clause 2 of this provision a subsequent change of the residency's purpose can (meaning in legalese discretion) be allowed as a matter of discretion if you have the right for sojourn or it cannot be expected to go through the visa proceedings again due to the circumstances in the individual case.

The Filipinian woman did not succeed in the extra-judicial proceedings and in the first instance in the administrative court. Thus, the case was brought to OVG Baden-Wurt­tem­berg (verdict of March 30, 2006, re 13 S 389/06). The court saw no wrong use of discretion by the authority. The applicant did not present convincing arguments to persuade the authority that the reason for her visa has in fact subsequently changed. The court held that this woman entered Germany with the intention to marry her now husband. All facts of the case pointed out that she entered in the almost certain expectation to wed. This is assumed even though she had a round trip ticket and argued to return home in case she would have been reluctant to marry. She did not say anything about how the circumstances were at home at the time of departure. Short-time and long-time travels are prepared differently. Supposing she really spontaneously decided to marry, she surely still would have had to take care of some matters at home. Such sojourn on trial is not comparable to a visit - for which the visa was granted.   In this case, the public interest prevails over the constitutional right of family cohabitation.