Residence status (Germany)
Under immigration status it is colloquially the legal basis for one's residence within the country. The designation is not a legal term. Although it is used in some provisions of German residence law, in the area of data protection law and partly in the school law of the federal states, it is not defined there.
term
The concept of residence status is not necessarily related to a foreign nationality . In the case of unknown persons without identification documents, the question of the residence status can also arise for residents (e.g. when entering Germany and when being found on the street without the person being able to identify themselves).
For non-Germans, the residence status is usually proven by a residence permit or other residence document.
Change
The residence status is sometimes subject to changes - not only when a non-German receives a residence permit for the first time, or an existing residence permit is replaced by a higher-quality one, or the residence permit expires due to the passage of time.
A change can also occur if the non-German acquires German citizenship (e.g. through naturalization ) or loses it again (e.g. as a result of later assumption of a foreign citizenship, see § 25 StAG) or if subsequently (e.g. in the event of paternity contestation ) it becomes known that the person concerned is the child of a German or a non-German as a result of (previously unknown) ancestry and thus either has or does not have German citizenship since birth .
For highly qualified people, various options for changing residence have been legally enshrined, and the 2015 law on the redefinition of the right to stay and the termination of residence created further options for changing residence status (also known as “changing lanes”), for example for well-integrated young people and victims of human trafficking. The question of a "change of lane" for asylum seekers continued to be the subject of political debate at this point.
On June 7, 2019, the Bundestag passed the law on tolerance for training and employment as one of seven laws on migration and asylum, which until mid-2022 certain asylum seekers who meet certain conditions - the u. a. have worked full-time for at least 18 months and have been tolerated for at least twelve months - gives you the opportunity to obtain a more secure residence permit (see: Migration package ).
German
The residence status is usually not a problem for people with German citizenship. By the nature of things, residents have a right of residence in Germany and are not subject to the right of residence.
This is to be distinguished from persons without German citizenship, who are nonetheless Germans because they fall under the extended German definition of Article 116.1 of the Basic Law and thus have the status of status German . As a rule, they have a foreign nationality, but are also German, but without German nationality. They obtained German citizenship through naturalization until August 1, 1999, after they had been recognized as displaced persons or, after December 31, 1992, as ethnic repatriates under the Federal Expellees Act (BVFG). According to current law, when they are recognized as ethnic German repatriates, they acquire German citizenship ( § 7 StAG), so that they no longer have to be naturalized separately. The Federal Administration Office in Cologne decides on the recognition of repatriates .
Germans without German citizenship are unlikely to exist today. Anyone who was a status German on August 1, 1999 (with a certificate of expellee or ethnic German repatriate) acquired German citizenship on that day by virtue of the law ( Section 40a StAG). Anyone who has neglected to apply for appropriate IDs still has the option of having the status of German status determined. As a rule, the citizenship authority (in the districts and urban districts or the regional council ) decides whether to issue a status German identity card . Germans without German citizenship are not subject to the right of residence ( Section 2 subs. 1 AufenthG); they are equal to German nationals in terms of residence law.
The residence status can become important for people who acquired German citizenship through birth in Germany on the basis of the option model , although both parents do not have German citizenship ( Section 4 (3) StAG). You have to decide up to the age of 23 whether you want to give up your foreign citizenship ( § 29 StAG). If they do not do so or if they declare that they will retain their foreign citizenship, they will lose their German citizenship, will henceforth be subject to the law on foreigners and generally require a residence permit as non-EEA citizens . This will change you to a different residence status.
EEA citizens
Stays of up to three months
Citizens of the European Economic Area (EEA) - that is, all member states of the European Union and Iceland , Liechtenstein and Norway - are allowed to stay in Germany for stays of up to three months if they have a valid identity card or passport with them. Neither a visa nor any other requirement (e.g. livelihood security) may be required of them ( Section 2, Paragraph 4, Clause 1 and Paragraph 5, Clause 1 of the FreizügG / EU). The third-country nationals accompanying you who are not EEA citizens need a passport (Section 2 (5) sentence 2 FreizügG / EU). Family members who are third-country nationals may need a visa to enter Germany (Section 2 Paragraph 4 Clause 2 and 3 FreizügG / EU) if they cannot present a residence card. Such an entry visa may have to be issued using the accelerated procedure (Art. 5 (2 ) Union Citizens' Directive ). Germany does not charge any fees for such a visa (Section 2 (6) FreizügG / EU). Third-country nationals then do not have to meet any other conditions or formalities.
Stays of more than three months
EEA citizens are allowed to stay in the Federal Republic of Germany for more than three months - and then in principle for an unlimited period - if they meet the requirements of the freedom of movement under European law (e.g. employee status, self-employed or people who can otherwise provide evidence of a livelihood and sufficient health insurance coverage dispose, § 2 Abs. 2 and 3 FreizügG / EU). In Germany they received a certificate of freedom of movement until January 28, 2013 as proof of their residence status . Since then, they no longer need a residence document; proof of your citizenship (identity card, national passport) is sufficient. The loss of the right of free movement under European law can be determined by the immigration authorities . Thereafter, if the EEA citizen does not leave Germany, he will be subject to the general right of residence again and will need a residence permit ( Section 11 (2) FreizügG / EU). Otherwise, the freedom of movement under European law does not exclude the issue of a residence title for third-country nationals to an EEA citizen.
EEA citizens who are entitled to free movement receive a permanent right of residence after five years, which is evidenced by the certificate of permanent residence . With this residence status, their right of residence can only be withdrawn in exceptional cases.
Non-EEA citizens who accompany an EEA citizen as a family member enjoy a right of residence in the Federal Republic that is dependent on the EEA citizen. In certain cases or after a certain period of time, your right of residence can become independent of the EEA citizen. You will receive a residence card or a permanent residence card .
Insofar as residence documents are still issued for this group of people, these are only of a declaratory nature. According to Art. 25 Union Citizens' Directive, the exercise of the right of residence may under no circumstances be made dependent on possession of a registration certificate , a document attesting to permanent residence, a certificate of application for a residence card for family members, a residence card or a permanent residence card, if the right is provided by a other evidence can be proven. This means that the residence documents under European law only have an identification function. The possession of the residence document neither guarantees the material existence of a right of residence (it may have lapsed since the document was issued), nor does the lack of a residence document indicate illegal residence. If the third-country national wife makes it credible that she is married to an EEA citizen and lives with him, she is granted a right of residence - even without being a holder of a residence card. Failure to have a residence card issued can then be punished in a similar way as if a resident has not obtained a valid identity card; however, her stay is not illegal and of course she does not have to leave the country. This reduces the right of residence of EEA citizens and their family members to compliance with formalities; at the same time, the lines between legality and illegality of residence are blurring.
The regulations for EU citizens result from the fundamental freedoms of the Treaty on the Functioning of the European Union (TFEU) and, under secondary law, primarily from the Union Citizens' Directive. The residence status for citizens of the other EEA member states results from the agreement concluded with these states.
Swiss
Swiss citizens enjoy a special position. The free movement agreement with the European Union gives them a position similar to that of free movement.
For short stays, you only need an identity card or passport ( Section 28 Sentence 1 AufenthV), but neither a visa nor a residence permit. Third-country nationals of Swiss family members, if they have a Swiss residence permit, are exempt from the requirement of a visa or residence permit for trips of up to 90 days in a period of 180 days (Art. 21 Schengen Implementation Convention ). In addition, your entry possibility may depend on an entry visa.
Swiss citizens and their third-country family members want to take up employment in Germany - unlike EEA citizens - they require a declaratory residence permit (in Germany a residence permit-CH ). However, this is only an identification document; a Swiss citizen without a residence permit-CH is therefore not staying illegally in Germany.
The continued requirement of a residence permit despite freedom of movement has historical reasons, because the agreement with Switzerland (from 1999) is older than the Union Citizens' Directive (from 2004), which for the first time provided for the elimination of residence permits for EEA citizens.
Turks
With a few exceptions, Turkish nationals require a visa to be obtained prior to entry for all entries and stays, including short-term ones.
If they live for some time with a residence permit in Germany, Turkish nationals can acquire a position similar to freedom of movement, which is based on the Association Agreement between the EEC and Turkey of September 12, 1963 and, based on this, on the decision 1/80 of the Association Council of the EEC and Turkey of September 19, 1980 . However, freedom of movement is restricted to the country of residence; There is no freedom of movement within the EEA.
According to Decision No. 1/80 - ARB 1/80 - a Turkish employee must either have been legally employed in the country of residence for a long time or his family members must have been allowed to join him. After reaching one of a total of three levels, the Turkish employee receives ever greater access to the labor market and a right of residence until after completing the third level, unrestricted access to the labor market and a permanent right of residence has arisen (Art. 6 ARB 1/80). His family members obtain similar permanent residence rights after three or five years of family coexistence (Art. 7 ARB 1/80). Once this residence status has been acquired, it only expires after leaving Germany for good or in the event of serious violations of public safety and order (Art. 14 ARB 1/80), which must be similarly serious in order to revoke the right of residence to an EEA citizen. The right of permanent residence according to Art. 6 ARB 1/80 is also limited to the phase of active employment; if the Turkish employee has left the labor market for good (e.g. due to incapacity for work or due to retirement), he can no longer invoke the right under Art. 6 ARB 1/80. He then has the conditions for a national residence permit have purchased (in Germany: residence permit , permission for permanent residence in EU , residence permit ) to remain.
The national law on aliens is largely superseded by the special provisions governing this residence status. Persons with this residence status receive a declaratory residence permit in Germany as proof of their partial right of freedom of movement ( Section 4 (5) of the Residence Act). If you do not obtain the declaratory residence permit, you are merely committing an administrative offense ( Section 98, Subsection 2, No. 1 AufenthG), but not a criminal offense due to illegal residence ( Section 95, Subsection 1, No. 2, AufenthG). For further details → main article Decision 1/80 of the Association Council EEC-Turkey .
All other Turkish citizens are subject to the general rules of immigration law for non-EEA citizens, in particular the Residence Act, with regard to their residence status. You need a normal residence permit, which constitutively establishes your right of residence .
Non-EEA citizens
For all other non-German citizens (this also includes stateless persons, see Section 2, Paragraph 1 of the Residence Act), a distinction is made between those who are allowed to stay in Germany without a residence permit and those who require a residence permit .
Permit-free stay
A permanent residence without a permit (unlike until April 1997, when children under the age of 16 from Yugoslavia , Morocco , Turkey and Tunisia were allowed to stay with their parents in Germany without a permit, Section 2 (2) DVAuslG 1990) is no longer a flat rate for older children Groups of people, but only in numerically insignificant individual cases.
Exemptions exist for holders of foreign service passports ( Section 19 Residence Ordinance), for employees of the European Union, the Council of Europe and intergovernmental organizations ( Section 20 Residence Ordinance), for cross-border commuters ( Section 21 Residence Ordinance), for pupils who are entered on a pupil list ( Section 22 AufenthV), for flight personnel ( Section 23 AufenthV), for seafarers ( Section 24 of the Residence Ordinance), for inland waterwaymen ( Section 25 of the Residence Ordinance), for people who do not leave the transit area of an airport, provided they do not exceptionally require a residence permit for this ( Section 26 AufenthV) and for diplomats accredited in Germany ( § 27 AufenthV).
For short stays of up to 90 days per period of 180 days, there are exemptions from the visa requirement for so-called positive states . The positive states then do not need a visa or any other residence permit to enter the country, only their national passport (this is different for stays that last longer than 90 days, or if you want to start work within 90 days).
In addition, there are cases in which third countries according to Section 1 subsection 3 of the Residence Act is not subject to the Residence Act and the subordinate Residence Ordinance (AufenthV). This applies in particular to cases of military personnel in the NATO armed forces and the civilian corps according to the NATO troop statute .
Residence requiring approval
Citizens from the other countries of origin (so-called negative states ), on the other hand, require a visa for any entry (i.e. even for short stays) . For further details → Regulation (EU) 2018/1806 (EU visa regulation) .
Negative states that require a residence permit do not necessarily require a German visa or German residence permit to enter Germany . Within the Schengen area , any visa issued by another member state or a residence permit from a member state of the Schengen area entitles the holder to stay for up to 90 days in any 180-day period (Articles 19 to 21 of the Schengen Convention ).
A residence permit is always required for long-term stays (also for positive countries ) and a special visa that allows long-term residence is required for entry. After entering the country, the foreigner generally receives a residence permit , later (as a permanent right of residence) a settlement permit or a permit for permanent residence in the EU . The latter enables easier relocation to another EEA state. Highly qualified people - the point of orientation is not the type of work but a certain minimum income - can receive an EU Blue Card .
Residence status while processing the application
In the examination phase (after entering the country and submitting an application for a residence permit or after submitting an application for an extension of the residence permit), a provisional right of residence often arises, which is evidenced by a fiction certificate .
Old residence rights
According to the Aliens Act in force until December 31, 2004 , there were other residence permits, namely the residence permit , residence permit and residence permit . These forms of right of residence, which are summarized under the generic term of the residence permit, were transferred by law to the current residence permit on January 1, 2005 ( Section 101 of the Residence Act), even if this is not yet reflected in the national passport of the person concerned. All foreigners who require a residence permit must have an electronic residence permit by August 30, 2021 ; Then at the latest you will receive a document about your actual current residence status.
Asylum seekers, refugees
Asylum seekers have a special residence status. In the phase of checking your initial application, you will receive a residence permit . This only serves to certify that the asylum procedure has been carried out and does not constitute a residence permit. Periods of residence permits count as periods of previous residence (e.g. for granting a permanent right of residence or as periods of prior residence for naturalization) only if the asylum procedure ended with recognition ( § 55 para. 3 AsylG). Otherwise there is no entitlement to a residence permit after the asylum procedure has been completed.
If the procedure ends with the recognition of asylum , the granting of refugee status or at least with the granting of subsidiary protection , the notification of recognition of the Federal Office for Migration and Refugees (BAMF) already creates a statutory right of residence ( Section 25 (1) sentence 3 and Section 25 (2)) Sentence 2 AufenthG), but is not yet a residence permit itself. On the basis of the notification of recognition, the person concerned is entitled to a residence permit from the local immigration authority (Section 25 subs. 1 and 2 AufenthG), which certifies the respective residence status and is issued at the same time as a travel document for refugees .
If the asylum procedure ends with the establishment of a national ban on deportation ( Section 60 (5) or (7) of the Residence Act), the local immigration authority usually issues a residence permit (Section 25 (3) of the Residence Act). If, in exceptional cases, the issue of a residence permit does not yet come into consideration, the granting of a Duldung will have to be checked (Section 60a of the Residence Act).
Without residence permit (tolerated)
The weakest form of residence status in Germany is Duldungen . The acquiescence does not represent a right of residence, but only the official proof of the temporary suspension of deportation . The person concerned is therefore required to leave the country; the obligation to leave the country is not carried out by deportation. Despite the lack of legality of the stay, the stay is not punishable.
How long the deportation is waived depends on the circumstances of the individual case. In general, deportation must be impossible for factual or legal reasons ( Section 60a, Paragraph 2 of the Residence Act). Real reasons can be the lack of flight connections to the home country or the lack of a national passport. There are many legal reasons; these can e.g. B. in the broadcasting effect of basic rights (common reason: protection of marriage and family, Art. 6 GG and Art. 8 European Convention on Human Rights - ECHR). If this residence status exists for a longer period of time through no fault of one's own, the transition to a residence permit for humanitarian reasons can be considered (Section 25 subs. 5 AufenthG).
Persons with a border crossing certificate are also factually tolerated . You are required to leave the country and can leave voluntarily. As a rule, a border crossing certificate is only issued for a very short period of time in cases in which a voluntary departure is intended and is imminent. From a legal point of view, however, even in these cases there is a toleration until the expiry of the departure period often noted on the border crossing certificate, as the immigration authorities are legally prohibited from tolerating the stay of a foreigner who is required to leave the country without toleration.
Without legal residence status
All persons who do not have one of the above-mentioned residence statuses thus fulfill the objective criminal offense of Section 95 (1) No. 2 Residence Act. A criminal liability is given if the stateless (colloquially also illegal ) stay takes place with the knowledge and will of the foreigner, which is the case in particular in the case of so-called immersion . Particularly in the case of human trafficking , however, there may also be stays without status, in which the victims are not always punishable.
Several residence statuses at the same time?
The variety of residence permits that are possible today , which no longer build on one another from the weaker to the stronger right of residence, but rather grant more, sometimes less rights in relation to each other - for example in the area of gainful employment and family reunification - but are also designed very differently when it comes to the circumstances of expiry, raised the question of whether a person can hold multiple residence permits. A Turkish citizen can have an interest in not losing an acquired right of permanent residence under ARB 1/80. With such a permit, however, it is generally not possible for him to switch to self-employed work, so that he would have to "switch" to a normal residence permit or a settlement permit. However, both may expire more easily than his acquired permanent right of residence under the law of association.
In addition, the Residence Act is much more closely linked than its predecessor, the Aliens Act , to the possession of a certain residence permit in order to be able to claim higher-quality residence permits, naturalization or certain social benefits . For this reason, since January 1, 2005, the exact legal basis on which the residence title is based has been entered in the residence title. A possible oversight by the clerk at the immigration office can result in legal disadvantages for the person concerned, which he only notices later. The question may arise here whether a foreigners authority can be obliged to retrospectively issue the person concerned with a specific residence permit or to issue him retrospectively as if he had previously held the coveted residence permit.
While in the past both questions were usually answered in the negative because the length of stay was important but not the legal basis on which the stay was based, these questions are now increasingly answered in the affirmative. In March 2013, the Federal Administrative Court confirmed the lower courts' view. It has decided that a Turkish citizen can claim a settlement permit in addition to the EC permanent residence permit . Because he can improve his legal residence status with a settlement permit. A ban with the consequence that a foreigner who fulfills the legal requirements for issuing both residence permits would have to choose one of the two is not to be found in either the wording or the system of the Residence Act.
The same should also apply to the question of a retrospective issue of a residence permit that has been applied for. The Federal Administrative Court has already ruled earlier that someone who can prove that he has a need for legal protection for the retroactive possession of a residence permit, because it can be important for the further legal status from which point in time the foreigner has the coveted residence title, the retroactive one Can apply for a residence permit.
In practice, however, such requests are still quite rare.
See also
literature
- Bergmann / Dienelt (Hrsg.): Immigration law comment . 11th edition. CH Beck, Munich 2016, ISBN 978-3-406-68087-8 .
- Fritz / Vormeier (Ed.): Community commentary on the Residence Act (GK-AufenthG) loose-leaf in 6 folders . Luchterhand, ISBN 978-3-472-05322-4 .
- Hofmann (Ed.): Law on foreigners . 2nd Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8329-5871-8 .
- Huber (Ed.): Residence Act: AufenthG . 2nd Edition. CH Beck, Munich 2016, ISBN 978-3-406-65231-8 .
- Storr / Wenger / Eberle / Albrecht / Harms: Commentary on immigration law . 2nd Edition. Boorberg, Stuttgart / Munich / Hanover / Berlin / Weimar / Dresden 2008, ISBN 978-3-415-03978-0 .
Web links
- Graphics and text: Germany: Foreign population by residence status, end of 2016 , from: Figures and facts: The social situation in Germany , Federal Agency for Civic Education / bpb
Individual evidence
- ↑ § 11 AsylbLG, § 78 , § 78a and § 91d AufenthG, the annex to the AZRG-DV and Art. 4 Bavarian Admission Act of May 24, 2002 (Bay. GVBl. P. 192).
- ↑ Ordinance on the type of data that may be stored in accordance with Sections 8 and 9 of the Federal Criminal Police Office Act (BKA data ordinance) .
- ↑ § 4 Ordinance on the one-year vocational school in the state of Berlin (VO one-year OBF) of 19 September 2007 (GVBl. P. 489); § 3 [Hamburgische] training and examination regulations of the vocational preparation school (APO-BVS) of April 20, 2006 (HambGVBl. P. 189).
- ↑ Janne Grote, Michael Vollmer: Change between residence permits and purposes of residence in Germany. (PDF) In: Focus study of the German national contact point for the European Migration Network (EMN), Working Paper 67. Federal Office for Migration and Refugees / European Migration Network, 2016, pp. 5–6 , accessed on September 19, 2018 .
- ↑ Based on Art. 5 Paragraph 1 and Art. 6 Paragraph 1 Union Citizens' Directive.
- ↑ Based on Article 6, Paragraph 2 of the Union Citizens' Directive.
- ↑ Based on Art. 7 Union Citizens' Directive.
- ↑ Agreement on the European Economic Area of May 2, 1992 , accessed on February 5, 2013 . In: OJ. 1994, L 1, pp. 3-522.
- ↑ Agreement between the Swiss Confederation, on the one hand, and the European Community and its member states, on the other hand, on freedom of movement of June 21, 1999 , accessed on February 5, 2013 . In: OJ. 2002, L 114, pp. 6-63.
- ↑ Federal Court of Justice, ruling v. October 6, 2004 - 1 StR 76/04 -, InfAuslR 2005, 80; Federal Administrative Court of March 21, 2000 - 1 C 23/99.
- ↑ VG Aachen, judgment of March 14, 2012 - 8 K 1159/10 -; VG Cologne, ruling v. January 24, 2012 - 12 K 576/09 - InfAuslR 2012, 183; see also OVG Lüneburg, decision of November 1, 2011 - 11 OA 324/11 - InfAuslR 2012, 20.
- ↑ Press release of the Federal Administrative Court No. 17/2013 of March 19, 2013, accessed on March 22, 2013.
- ↑ BVerwG, ruling v. June 9, 2009 - 1 C 7.08 -, NVwZ 2009, 1431.
EEA citizens or Swiss and their family members: Residence permit-CH | Residence card | Certificate of permanent residence | Permanent residence card
Residence permit for third-country nationals: Residence permit | EU Blue Card | Permanent residence permit in the EU | Settlement permit | visa
Other residence documents: Proof of arrival | Residence permit | Toleration | Fiction certificate
