Toleration (right of residence)

Sample of the carrier form for a Duldung (front and back)

Adhesive label for carrier form

Real toleration with applied adhesive label. Personal data are blacked out.

The tolerance is as defined in the German residence right a 'temporary suspension of removal "from required to leave foreigners . It does not constitute a residence permit and therefore does not constitute a legal residence. Tolerated persons are therefore still required to leave the country de jure .

Sections 60 and 60a of the Residence Act (AufenthG) regulate whose deportation is suspended and who is granted a leave of absence on the basis of this. These are cases in which a deportation cannot (initially) be carried out for legal or factual reasons; in particular if the person concerned isthreatened withpersecution or other serious damage (such as the death penalty , torture or war )in their home country or if theycannot be expected to leave because of a serious illness.

The sole purpose of the acquiescence is to certify that the foreigner is registered with the foreign authorities and that the existing obligation to leave the country will not be enforced for the period mentioned. The stay of a foreigner does not become lawful with the acquiescence, but with the acquiescence there is no criminal liability for illegal residence according to § 95 Abs. 1 Nr. 2 AufenthG, a criminal liability according to. However, section 95 subs. 1 no. 1 AufenthG is possible due to self-inflicted lack of a passport.

Conditions and ancillary provisions can be combined with a tolerance. The tolerance expires with the departure of the foreigner (§ 60a Abs. 5 AufenthG) and does not entitle to return to the Federal Republic of Germany. Furthermore, anyone who poses a serious security risk or who has been legally sentenced to at least three years' imprisonment will not be tolerated (Section 60 subs. 8 AufenthG).

Gainful employment

In principle, tolerated persons are not allowed to work, but employment can be permitted for the duration of the tolerated leave. However, this is a discretionary decision. There is a ban on working for the first three months of the stay . According to Section 32 of the Employment Ordinance (BeschV), the immigration authorities can - with the consent of the Employment Agency and a permitted stay of at least three months in the federal territory - issue a corresponding permit.

Since August 6, 2019, the taking up of employment by a person with a Duldung or residence permit is no longer subject to a priority check. Before this, a labor market test was carried out up to the fifteenth month of the stay ( priority of jobseeking nationals or EU foreigners, examination of the working conditions). Vocational training, FSJ , FÖJ and federal voluntary service were approved by the immigration authorities without a labor market test ( Section 32 BeschVerfV). Likewise, up to 3-month internships without a labor market test could be approved by the immigration authorities (Par. 32 Paragraph 2 No. 1 Employment Regulation). After a stay of 15 months, the priority test was omitted (Par. 32 Paragraph 5 No. 2 Employment Regulation). After 4 years of permitted, permitted or tolerated residence, the labor market test was completely omitted. The approval of the Federal Employment Agency was then no longer required (Par. 32 Paragraph 2 No. 5 Employment Regulation).

The other working conditions must continue to be checked and approved by the Federal Employment Agency.

However, in accordance with Section 60a of the Residence Act, an employment permit may not be issued if measures to terminate the stay ( deportation ) cannot be carried out on the foreigner for reasons for which he is responsible, or if he has gone to Germany in order to obtain benefits under the Asylum Seekers Benefits Act. The employment permit is issued by the immigration authorities in consultation with the responsible regional council, on whose instructions the immigration authority has issued the tolerance (Par. 60a, Paragraph 1, Sentence 1, AufenthG, highest state authority). A reason for refusal is usually the lack of proof of identity (lack of a passport), as this is a self-inflicted reason why a deportation cannot be carried out (Par. 60a, Paragraph 6, Sentence 1, No. 2 of the Residence Act). Persons from safe countries of origin (Par. 29a AsylG Annex II) are generally not granted an employment permit if the asylum application was submitted after August 31, 2015 (Par. 60a, Paragraph 6, No. 3 of the Residence Act).

The restrictions on access to the labor market for asylum seekers and tolerated persons were relaxed in 2014 as part of an agreement between the federal government and the federal states on “safe countries of origin” : in November 2014, the work ban for tolerated persons was changed from twelve to three months and the priority review period was four years shortened to fifteen months. Until June 30, 2013, the employment of tolerated persons was not yet regulated in the Employment Ordinance (BeschV), but in the Employment Procedure Ordinance (BeschVerfV) at the time .

Spatial restriction

According to § 61 AufenthG, known as residence obligation, holders of a Duldung are only allowed to stay in their federal state . Residence and domicile can be further restricted in individual cases, for example to one district. The immigration authorities can also expand the area if tolerated persons have unrestricted work permits, training purposes require this or the expansion serves to maintain the family unit. For a short-term leaving the federal state, the holder of a Duldung requires a leaving permit; this is not necessary if he wants to keep appointments with authorities and courts at which his personal appearance is required ( Section 12 subs. 5 sentence 3 of the Residence Act). The spatial restriction expires if the person concerned has been allowed, tolerated or permitted to stay in the federal territory without interruption for three months (Section 61 subs. 1b of the Residence Act).

Social benefits (maintenance benefits)

A tolerated foreigner is generally not entitled to unemployment benefit II (ALG) or social assistance . A foreigner with a Duldung according to § 60a AufenthG usually belongs to the group of persons entitled to benefits under the Asylum Seekers Benefits Act (AsylbLG) (see § 1, Paragraph 1, No. 4 AsylbLG). There is only one exception to this, which is very rare in practice: Tulders who have been recognized as entitled to asylum by the Federal Office for Migration and Refugees (BAMF) in the past are not eligible for asylum in accordance with Section 1 (2) and (3) AsylbLG AsylbLG entitled to benefits. In practice, this applies, for example, to foreigners who have lost their residence permit due to deportation orders.

According to § 3 AsylbLG, the necessary needs for food, accommodation (communal accommodation), heating, clothing, health and personal care and household goods are mainly covered by benefits in kind. If something cannot be done, it can be granted in the form of vouchers or other comparable non-cash invoices. Especially with long-term tolerated persons, there are also regular cash payments or transfers. Medical treatment is only granted to a very limited extent (see Section 4 AsylbLG).

In addition, every foreigner who is required to leave the country and who receives benefits in accordance with Section 3 AsylbLG, from the age of 15 (14 years), receives EUR 40.90 per month (EUR 20.45 for those under 14). However, many foreigners who are tolerated or who are legally obliged to leave the country do not receive any cash benefits and thus also not the cash portion of € 40.90 or € 20.45 contained in Section 3 AsylbLG. This is the case if the benefits under the AsylbLG in accordance with Section 1a AsylbLG are limited to what is inevitable under the circumstances. Typical examples of tolerated persons who are subject to such restrictions on benefits are foreigners who prevent the German authorities from completing a deportation (e.g. due to a lack of cooperation in obtaining passports, deceiving their identity, etc.).

After 18 months, higher analogue services according to § 2 AsylbLG can be used under certain conditions . This means that tolerated foreigners receive benefits analogous to the Social Security Code ( SGB XII ) and thus receive the benefits of a regular social welfare recipient, including the benefits of members of a statutory health insurance, without actually becoming a member (cf. § 264 SGB V). With a few exceptions, tolerated foreigners who then receive benefits according to § 2 AsylbLG analogous to SGB XII are on an equal footing with normal social assistance recipients. The differences are that parts of the AsylbLG continue to apply to these tolerated foreigners and that a beneficiary under the AsylbLG, in contrast to the recipient of unemployment benefit 2 under SGB II (commonly known as "Hartz IV recipient"), does not sanction or only sanction it with great difficulty if he does not accept reasonable gainful employment. According to the AsylbLG, tolerated beneficiaries are sometimes even better off than recipients of unemployment benefit II.

Child and youth welfare can also be used.

education

There is no legal entitlement to free participation in an integration course because a formal right of residence is required for this ( Section 44 subs. 1 Residence Act). Those who do not or no longer have the right to participate can, however, be admitted within the framework of available course places (Section 44 subs. 4 AufenthG).

In some of the federal states, all children and young people (including unaccompanied minor refugees ), including those who are tolerated, are required to attend school (elementary school and secondary level 1, or special school, a total of 9 or 10 years of full-time compulsory schooling ), although short-term and long-term tolerance are sometimes viewed differently becomes. In some of the federal states, compulsory vocational schooling follows (up to the beginning of the half-year in which the pupil comes of age). ( For information on compulsory schooling if the residence status is uncertain, see also: Compulsory schooling (Germany) #Asylum seekers, foreigners without residence status .)

If the prerequisites (certificates, knowledge of German, etc.) for starting a course are met and the university or college grants admission to the course, a course of study with a toleration is in principle possible, but this can encounter certain difficulties in practice. It is also possible to get a driver's license with a Duldung.

Tolerated foreigners who have their permanent place of residence in Germany are granted training grants if they have been lawfully, permitted or tolerated in the federal territory for at least 15 months without interruption ( § 8 Paragraph 2 a BAföG ).

residence permit

According to Section 25, Paragraph 5 of the Residence Act, after an 18-month toleration period, there is a right to be granted a residence permit . Such a claim only exists, however, if the foreigner is prevented from leaving the country through no fault of his own, i.e. he was not responsible for the impossibility of deportation and voluntary departure is impossible or at least unreasonable. In principle, the general conditions for issuance in accordance with Section 5 (1) and (2) of the Residence Act must also be met. However, the immigration authorities can waive this at their own discretion (Section 5 subs. 3 sentence 2 of the Residence Act).

practice

As of December 31, 2018, 180,675 foreigners were living in Germany with a Duldung. The practice of extending tolerances again and again is called chain tolerance . Many of the tolerated persons can neither leave the country voluntarily nor be deported because they do not have a passport and / or their origin or nationality has not been clarified beyond doubt and can only be clarified over time or not at all. The reasons for this are the actual inexplicability of the identity data, especially in the case of unaccompanied minors and countries of origin with unreliable documents, a low interest of the countries of origin in the return and the associated hesitant processing or examination of inquiries from German authorities and the lack of cooperation by the foreigners concerned themselves.

As of December 31, 2019, 202,400 foreigners were living in Germany with a Duldung. Another 56,300 were formerly tolerated persons whose departure “for legal or factual reasons” had not been possible for more than 18 months.

Right to stay

On November 17, 2006, the interior ministers of the federal states agreed on a right of residence for tolerated foreigners. Thus was "tolerated" foreigners at the time of entry into force of the regulation (date) over six years (with children) or eight years (no children) Germany live, permanent residence permits are granted when a to 2009 job prove can. The compromise should not result in higher social benefits . Foreigners who deliberately deceived the immigration authorities about circumstances relevant to residence law, in particular who deceived their identity in the past, were excluded. In addition, the statutory old case regulation according to Section 104a of the Residence Act came into force in August 2007 . However, this has now expired.

At the end of 2011 there were calls for a new regulation of the right to stay for tolerated foreigners. Schleswig-Holstein and Rhineland-Palatinate submitted proposals for a renewed, but this time independent statutory right of residence regulation.

BAMF head Frank-Jürgen Weise made a proposal with a deadline regulation at the end of May 2016.

Residence permit for well-integrated tolerated persons

According to § 18a AufenthG, which has been in force since January 1, 2009, and § 25a AufenthG, which has been in force since July 1, 2011 , tolerated persons receive a residence permit under certain conditions if they have been living in Germany for at least six years as young people between the ages of 15 and 20 , successfully attend school here, start vocational training or study. A right to stay for those previously tolerated is also possible if they have completed an apprenticeship or have worked for several years in qualified employment in the federal territory. In these cases, too, the residence permit is excluded for persons who deliberately delay or hinder official measures to terminate their stay.

Furthermore, according to § 25b AufenthG, which has been in effect since August 1, 2015, foreigners who have "sustainably integrated into the living conditions of the Federal Republic of Germany" are granted a residence permit. To do this, you must have lived in Germany for eight years (or six years in the case of a family or four years or a domestic school or professional qualification in the case of young people and adolescents). In addition, there are prerequisites regarding their commitment to the free democratic basic order , certain legal knowledge, securing livelihoods, language skills and, if necessary, school attendance, and no obstacles such as B. lack of cooperation in removing obstacles to departure or an interest in deportation (within the meaning of Section 54 of the Residence Act, Paragraph 1 or Paragraph 2 Nos. 1 and 2). Your parents, siblings, spouses or life partners can then also get a right of residence.

Education tolerance

Since the Integration Act came into force on August 6, 2016, anyone who takes up or has started vocational training for at least two years has, under certain conditions, a legal right to be granted a tolerance for the duration of the training under certain conditions under Section 60a, Paragraph 2 of the Residence Act. For this it is necessary that there is no work ban according to § 60a Abs. 6 AufenthG, no concrete measures to terminate residence are imminent and no criminal conviction to a certain extent has been made. In the construction there must be a "qualified vocational training in a state-approved or equivalent regulated apprenticeship act". The conclusion of the training contract must be communicated to the immigration authorities at a point in time at which no concrete measures to end the stay are imminent. The training contract should also be submitted to the relevant chamber of commerce. According to § 18a, the acquiescence is valid for a further two years ("3 + 2 rule") in the event of subsequent employment appropriate to the training.

The term "3 + 2 rule" comes from the fact that most occupations require three years of training. The regulation also applies to two-year training occupations; One-year apprenticeships in helper professions, however, are not qualified vocational training. The decisive factor is not the actually envisaged duration of the training, but the training time that the respective legal training law provides. A toleration for the implementation of a non-qualified training, for example as a health and nursing assistant or geriatric care assistant , is only possible at a discretionary way , as a toleration for an entry-level qualification, which, however, rarely happens.

For further developments see also : Migration Package (2019).

supporting documents

↑ Klaus Dienelt : Duldung: What is a Duldung and what rights are associated with it? Federal Agency for Civic Education, September 13, 2016, accessed on May 27, 2018 .

↑ Detailed description of cases in which a tolerance is granted by the Lower Saxony Refugee Council

↑ § 32 BeschV nF (new version) in the version valid on August 6, 2019 through Article 2 V. v. 07/22/2019 Federal Law Gazette I p. 1109, buzer.de

↑ Ordinance amending the ordinance on the Integration Act and the Employment Ordinance of July 22, 2019 Federal Law Gazette 2019 I p. 1109

↑ Amendment to Section 32 Employment Ordinance of November 6 , 2014 , buzer.de

↑ Amendment to § 32 Employment Ordinance of 11.11.2014 , buzer.de

↑ BeschVerfV , buzer.de

↑ See Harmening: We Stay Outside, School Compulsory Education and School Rights for Refugee Children in Germany ( Memento from 23 August 2006 in the Internet Archive ), 2005 (PDF; 1.4 MB).

↑ Studies with Duldung or residence permit , information from the Berlin Refugee Council, accessed on December 24, 2011.

↑ Foreign population according to residence status. Federal Statistical Office, accessed on June 30, 2019 .

↑ "How many refugees live in Germany?" mediendienst-integration.de, accessed on June 19, 2020

↑ "Immigration: Coalition agrees on the right to stay" ( Memento of the original from March 15, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Notification from March 13, 2007, www.zeit.de; "Tolerated foreigners have to prove themselves" , message from March 13, 2007, www.handelsblatt.com. @1@ 2