Certificate of freedom of movement (Germany)

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Sample of the previous certificate of freedom of movement.

The certificate of freedom of movement was an official confirmation for citizens of the European Union and the other states of the European Economic Area ( Iceland , Liechtenstein and Norway ) that they had a right of residence in Germany. The certificate was abolished without replacement with effect from January 29, 2013 by the law amending the Freedom of Movement Act / EU and other provisions relating to residence law .

Legal basis

The legal basis for the certificate of freedom of movement was Section 5 (1) of the Free Movement Act / EU (FreizügG / EU) a. F. According to this provision, Union citizens entitled to free movement and their family members who are citizens of a Member State of the European Union were issued ex officio without delay a certificate of the right of residence. The same applied to citizens of Iceland, Liechtenstein and Norway ( Section 12 FreizügG / EU).

There was no obligation under European law to issue such a certificate of freedom of movement. In particular, it is not rooted in Article 8 of the Union Citizens' Directive and the registration certificate , which can be issued as an optional extra , which has different purposes and different requirements than the German certificate of freedom of movement.

The appearance of the certificate of freedom of movement was not regulated by law. However, the form used by the authorities was based on the one in No. 5.1.3. of the General Administrative Regulation for the Freedom of Movement Act / EU publish sample.

Family members of Union citizens who are Union citizens themselves also received a certificate of freedom of movement. Family members with a third country nationality did not receive a certificate of freedom of movement, but - and will continue to do so - a residence card .

The certificate of freedom of movement was not a residence permit under the Residence Act (AufenthG). Since EU citizens are already entitled to stay in the territory of the other member states due to the fundamental freedoms under European law , they only had a declaratory character and thus an identification function from the outset .

Reason for issuing the certificate

EC residence permit issued until 2004 for Union citizens

The original reason for issuing the certificate of freedom of movement was to provide EU citizens with a replacement document after the formal EC residence permit was discontinued at the end of 2004 (Sections 3 to 7 AufenthG / EEC in the version valid until December 31, 2004) they were able to prove their free movement status, if necessary, especially to employers and, if necessary, to authorities. The idea is still widespread that every foreigner must have some kind of document with which he can prove the legality of his stay. Illegal residence is a criminal offense in Germany ( Section 95 AufenthG). Anyone who illegally employs a foreign worker is also liable for the often considerable deportation costs ( Section 66 subs. 4 sentence 1 no. 1 of the Residence Act). In order to exclude any risk of liability and criminal liability, employers therefore often require foreigners to present residence papers. The certificate of freedom of movement gave them certainty - although EEA citizens were never obliged to have one. The certificate of freedom of movement was just a confirmation of the right to stay and work in Germany, not a permit .

Sevim Dağdelen, Member of the Bundestag, describes the prevailing public viewpoint as follows on the occasion of the legislative procedure to abolish the certificate of freedom of movement:

“In everyday life in Germany, which is characterized by bureaucracy, it is already a small revolution when people of non-German citizenship no longer have to show any official certification of their right of residence in Germany - or cannot. And that is also the problem: At least individual representatives of the authorities, for example in the social welfare offices, but also private individuals, such as landlords and employers, and those affected themselves will be unsettled if there is no longer any paper that confirms to EU citizens that they are stay here legally. That is why I believe that systematic and wide publicity for this change in the law is urgently needed so that it does not adversely affect EU citizens. It is also intended to establish a general awareness that EU citizens generally do not need a residence permit or an official certificate if they want to live in Germany. "

In the course of advancing European integration, residence documents for EU citizens have become increasingly less important , especially after the EU Citizenship Directive came into force . Today there is a presumption that an EU citizen is entitled to free movement. Since it is expressly desired to remove all differences between nationals and EU citizens in administrative treatment - as a legal point of view, the requirement to not discriminate on grounds of nationality (Art. 18 TFEU ) - it was only a matter of time before when the certificate of freedom of movement would also be abolished.

Article 8 of the Union Citizens' Directive, however, allows the Member States to require Union citizens who reside on their territory for more than three months to register; A certificate will be issued for this. However, no state is obliged to introduce such a notification requirement. Notification obligations and certificates were introduced in Belgium , Luxembourg , Austria and Spain, among others . The Netherlands abolished the registration certificate on January 6, 2014. For details → main article registration certificate .

Issuing procedure

The procedure for issuing the certificate of freedom of movement was regulated very differently in Germany. The fact that the individual authorities are slowly beginning to realize that Union citizens are no longer treated less favorably than nationals in official matters is reflected in its many facets.

The issuance of a certificate of freedom of movement was not an administrative act because it did not confer any rights, but merely attested existing rights. The certificate was therefore to be issued immediately if there were no doubts about the identity and Union citizenship of the person concerned. Waiting times were not allowed. If the prerequisites for its issue were no longer met, the certificate was not revoked , as with a residence permit , but simply withdrawn informally (Section 5 (5) sentence 1 FreizügG / EU old version ). The confiscation was not an administrative act either, but it was a request to present the certificate to the authorities for the purpose of confiscation.

Reasons for abolition

According to the official justification of the amendment law, the abolition is intended to reduce bureaucratic costs and the administrative burden of the declaratory certificate, which is to be issued free of charge. In 2011, around 540,000 people from EU member states who had moved to Germany were issued a certificate of freedom of movement.

The same aspects were already mentioned in 2004, when the formal EC residence permit for EU citizens was replaced by the freedom of movement certificate. At that time it was already said:

“The EC residence permit is increasingly seen by EU citizens and their family members as a time-consuming, bureaucratic relic with questionable practical benefits. The abolition of the residence permit requirement for most persons entitled to freedom of movement is a lasting sign of ongoing integration and harmonization of the legal status of Union citizens from other member states of the European Union in Germany. The abolition of the residence permit illustrates the importance of the right of free movement - which will in future be largely freed from bureaucratic obstacles. The elimination of the residence permit leads to a noticeable administrative simplification, as hundreds of thousands of EU citizens are spared the often time-consuming journey to the immigration office. "

At that time the legislature could not yet decide to abolish the EC residence permit without replacement .

Consequence of the abolition: No registration certificate required for the right of residence

Not available in Germany : The usual registration certificate for EEA citizens and Swiss citizens in Austria
Registration certificate common in Belgium for EEA citizens in credit card format (German language version)

Since January 29, 2013, EEA citizens no longer need any administrative proof of their right of residence in Germany, in particular no registration certificate from the residents' registration office . Registration with the local municipality is required; However, not in order to obtain a residence document, but in order to comply with the general reporting requirement in Germany. The official registration confirmation issued for this purpose is not a registration certificate i. See Art. 8 Union Citizens' Directive .

This results from the sense and purpose behind this provision. According to this , the member states can (do not have to!) Require registrations and issue registration certificates ( English registration certificate , French attestation d'enregistrement , Spanish certificado de registro , Italian attestato d'iscrizione , Dutch verklaring van inschrijving ). The obligation to register within the meaning of Art. 8 Union Citizens' Directive is intended to enable the authorities to find out about stays of more than three months in order to be able to check whether the person concerned is making permissible use of his right to freedom of movement, e.g. B. is an employee. For a registration certificate according to Article 8 (3) of the Union Citizens' Directive, in addition to an identity card, a confirmation of employment from the employer or a certificate of employment or proof of self-employment can be requested. Any registration under Article 8 of the EU Citizens' Directive will cover all persons who stay in the Member State for more than three months, regardless of whether they are setting up an apartment during this time, or staying on a campsite , in hotels or with friends. The obligation to notify according to Article 8 of the Union Citizens 'Directive arises at the earliest three months after entry (as expressly Article 8 (2) of the Union Citizens' Directive).

All of these aspects are irrelevant when registering according to the reporting laws of the federal states. The registration obligation only refers to the establishment of an apartment . The obligation arises when moving into the apartment and must be fulfilled within one week of moving into the apartment. Neither an employment contract nor a business registration need to be submitted. It does not matter whether the person is employed or not. The purpose of the reporting obligation is to be able to determine the whereabouts of a person. It affects all citizens regardless of their employment status and nationality, including residents and non-EEA citizens, employed people as well as unemployed people or retirees. In addition, it is not the responsibility of the registration authority to examine issues relating to immigration law; In Germany, this is solely a matter for the immigration authorities ( Section 71 of the Residence Act).

In addition to the registration under the Registration Act, the German legislator has waived the registration under the Union Citizens' Directive, which is required in addition to the registration under the Registration Act, especially since its purpose of preventing possible abuse of the right to freedom of movement is hardly achievable. Even with the previous certificate of freedom of movement, which had to be issued immediately after arrival in Germany - even to EEA citizens who were still looking for employment - this could not be guaranteed. A registration certificate under European law - as is common for EEA citizens in Belgium, Luxembourg, Austria and Spain - therefore neither has to be applied for in Germany, nor is one issued. The EEA citizen does not have to carry the official registration confirmation with him at all times. The possession of an official identity document from which the nationality is evident (e.g. identity card, passport), as is usual with Germans, is sufficient.

However, sometimes it may be necessary to determine the exact date on which an EEA citizen was granted residence. If family members have to prove the residence status derived from the EEA citizen (in particular the periods of previous residence ), this is done via a registration certificate (e.g. expressly Section 5a (2) No. 2 FreizügG / EU). This does not necessarily have to be the historical registration confirmation that was issued at the time of registration and that has perhaps been lost in the meantime. The registration offices will certify the exact date of registration at any time - even retrospectively.

Loss determination procedure

The loss determination procedure according to Section 5 (4) FreizügG / EU has remained. If the requirements for freedom of movement (see Section 2 FreizügG / EU) no longer apply, the expiry of freedom of movement and the obligation to leave the country can be determined. The same applies - now expressly regulated in Section 2 (7) FreizügG / EU - in cases of improper invocation of the right to freedom of movement.

However, the loss detection method is not very effective. It often gets going when the job center reports to the immigration authorities that they have been receiving benefits for a longer period of time with the SGB ​​II, with a request to examine measures relating to immigration law . Even if it is successfully completed, the EEA citizen who has left the country after the loss has been determined has the option of re-entering the country and looking for a new job, relying on his right of free movement. For this he is allowed to stay in Germany. A loss assessment is therefore used for people who have been receiving SGB II benefits for a very long time, for whom the will to gain employment is extremely doubtful based on their previous employment history and for whom it can be assumed that they will not do so without further ado after leaving the federal territory will return to Germany (e.g. people from the non-sedentary scene).

It is different if the loss of the right of residence is determined for reasons of public order , security or health ( Section 6 (1) FreizügG / EU). This loss determination is linked to a re-entry ban. Nonetheless, re-entry and a stay in the federal territory are punishable ( Section 9 FreizügG / EU in conjunction with Section 7 (2) FreizügG / EU). Such a loss determination corresponds in its effects to the expulsion under the Residence Act . In order to be able to re-enter Germany, the entry ban must be limited in time.

The loss assessment for reasons of public health can only be made if the illness occurs within the first three months after entry (Section 6, Paragraph 1, Clause 3 FreizügG / EU). The fact of a criminal conviction alone is not enough to determine the loss. There must be an actual and sufficiently serious threat that affects a basic interest of society (Section 6 (2) FreizügG / EU).

When making the decision, the length of stay of the person concerned in Germany, their age, their state of health, their family and economic situation, their social and cultural integration in Germany and the extent of their ties to the country of origin must be taken into account (Section 6 (3) FreizügG / EU).

The invalidation of the national passport, identity card or other passport substitute cannot justify termination of the stay (Section 6 (7) FreizügG / EU). The requirements are therefore very high and are rarely met in practice.

Permanent residence for EEA citizens

EEA citizens no longer receive a certificate of freedom of movement in Germany; However, after a longer stay they are entitled to a permanent residence certificate. For further details → Certificate of permanent residence (Germany) .

Web links

Individual evidence

  1. ^ From January 21, 2013 (Federal Law Gazette I p. 86)
  2. ↑ Federal Ministry of the Interior: General administrative regulation for the Freedom of Movement Act / EU ( Memento of January 5, 2011 in the Internet Archive ) No. 5.1.3 of October 26, 2009, accessed on September 17, 2012.
  3. ↑ Speech by Member of the Bundestag Sevim Dağdelen , BT plenary protocol 17/201 of October 25, 2012 , p. 24441 (B), PDF doc. (2.97 MB), accessed January 27, 2013.
  4. ↑ A registration certificate (French: attestation d'enregistrement ) in Luxembourg on the homepage of the Steinfort municipality ( Memento of March 14, 2011 in the Internet Archive ), accessed on January 30, 2013.
  5. ^ A registration certificate (Spanish: Certificado de registro de ciudadano de la unión ) in Spain in the EU Prado database , accessed on January 23, 2016.
  6. ↑ Information from the Dutch Immigration Office ( Immigratie- en Naturalisatiedienst, IND) ( Memento from May 2, 2016 in the Internet Archive ) (PDF; 28 kB) from January 7, 2014 (Dutch) together with additional information in English ( Memento from May 21 , 2016 ) . September 2016 in the Internet Archive ) (PDF; 165 kB), both accessed on May 23, 2016.
  7. ↑ See wording in Section 5 (1) FreizügG / EU a. F.
  8. ↑ See Harms in Storr / Wenger / Eberle / Albrecht / Harms, Commentary on Immigration Law , 2nd edition 2008, § 5 FreizügG marginal no. 3.
  9. ↑ BT-Drs. 17/10746 , PDF doc. (255 kB), and BT-Drs. 17/11105 , PDF doc. (198 kB), both accessed on January 27, 2013.
  10. ↑ BT-Drs. 17/10746, justification, p. 8.
  11. ↑ See the official justification of the Immigration Act in BT-Drs. 15/420 , PDF doc. (980 kB), p. 101.
  12. ^ Speech by Stephan Mayer , Member of the Bundestag , BT plenary protocol 17/195 of September 27, 2012 , PDF doc. (302 MB), p. 23575 (D), accessed January 15, 2013.
  13. ↑ For example, according to Section 17 (5) of the Hessian Registration Act .
  14. ↑ See e.g. B. Section 13 (1) of the Hessian Registration Act .