Declaration of commitment (aliens law)

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The submission of a declaration of commitment serves to secure the cost of living in favor of a third-country national and enables him to prove in the administrative procedure that the economic requirements for the issuance of a residence title with regard to Section 5 (1) of the Residence Act are met.

Germany

Scope of the declaration of commitment

The obligor can be a natural or a legal person . The legal consequences of such a declaration, which must be submitted to the immigration authorities or diplomatic mission abroad , are regulated by Sections 66 , 67 and 68 of the Residence Act . The declaration of commitment does not establish any direct obligation towards the beneficiary third-country national, but gives government agencies the option of recourse in the event that they have to bear costs due to the stay that are not countered by contributions. For example, social assistance costs , benefits under the AsylbLG , including any health treatment costs incurred, as well as the costs of any necessary deportation including detention pending deportation, may be incurred, but not pension payments , unemployment benefits or benefits for members of a health insurance, as these benefits are always preceded by contribution payments .

Risks of the declaration of commitment

According to the prevailing view in the case law, the authorities are not obliged to fully inform the obligor of the risks associated with the declaration of commitment before entering into his obligation. In particular, many undertakings are also unaware that their undertaking does not give them any rights vis-à-vis third-country nationals; they cannot therefore force him to leave the country or impose other regulations on him to minimize their own damage (e.g. the use of existing living space, etc.). Particularly high cost risks arise primarily in the following constellations:

  • Asylum application after entry: With regard to long, sometimes multi-year asylum procedures , the often compulsory accommodation in asylum accommodation, livelihood and health care costs can result in high amounts (middle five-digit amounts per person are the rule), especially since the effect of the declaration of commitment does not apply to an asylum application ends; since then, however, it ends in any case after five or three years, see section "Expiry" .
  • Loss of health insurance: Travel health insurance, in particular , often contains exclusions of benefits or ends automatically as soon as a permanent address is taken in the country of travel .
  • Deportation costs: If on occurrence of obligation to leave no timely departure, can deportation costs incurred. These can include in particular the costs of a completed detention pending deportation , transport costs to the airport including the costs for escort officers, the flight costs for the foreigner and, in the case of a necessary escort by officers of the federal police, also the entire flight and other travel costs of the escorts.

Requirements for the performance of the obligor

Depending on the type and duration of the intended stay, different requirements are placed on the financial capacity of the obligated party so that the requirement for granting sufficient means of subsistence can be met. Expenses of the obligor for this can be taken into account for tax purposes, if the requirements of § 33a EStG (“Extraordinary burden in special cases”) are met.

Form and effectiveness

As a rule, the declaration of commitment is recorded on a national, forgery-proof form by the competent authority and the signature of the person making the commitment is certified. However, the use of forms is not required by law; Section 68 subs. 2, sentence 1 of the Residence Act only requires the written form to be effective. Declarations of commitment that are not submitted on the official form can have a different scope of commitment, but are generally not considered sufficient by the authorities. They are still legally effective and justify an obligation to reimburse costs to the extent given. The declaration of commitment can also be used in the procedure for short visitor visas ( Schengen visa ) as proof of a so-called invitation . Some other Schengen user states such as B. France know similar legal structures, but so far only one other contracting state besides Germany has harmonized its declaration form by submitting it to the EU Commission and including it in the annexes for joint consular instructions. If the proposed revision of the visa right of the EU , the undertaking is to be replaced by a uniform format for detecting invitation and accommodation. The provisions of the German residence law would no longer be applicable, which means that the declaration of commitment as a way of protecting the public coffers for short visits is no longer possible.

If six months have passed after submitting the declaration of commitment, it can usually no longer be used to issue a visa.

The revocation of a declaration of commitment is not provided for by law.

Going out

Since the Integration Act came into force on August 6, 2016, every declaration of commitment expires after five years ( Section 68 subs. 1 of the Residence Act). Declarations of commitment received before August 6, 2016 expire after three years, but no earlier than August 31, 2016 ( Section 68a sentence 1 of the Residence Act). Before the Integration Act came into force, declarations of commitment were not limited in time, but expired when a residence permit was issued for another purpose.

Within this three or five year period, the effect of the declaration of commitment according to the national form in the case of an obligation to leave the country only ends with the final departure of the third-country national from the Federal Republic of Germany and otherwise with the issuing of a residence title to the third-country national for a purpose other than that for which the commitment has been made; However, since August 6, 2016, this must be a purpose outside of the fifth section of the Residence Act (e.g. for the purpose of gainful employment). This means that a declaration of commitment does not expire when a residence title is issued for international, humanitarian or political reasons (fifth section of the Residence Act) .

According to media reports, the change in the law that came into force on August 6, 2016 may have a high financial impact on those people who relied on the expiry of the declaration of commitment when granting asylum and made a financial commitment on this basis. Such an undertaking has been called for in connection with country acceptance programs, for example by refugee aid organizations such as the Syria Refugee Aid Initiative and the Syria Refugee Sponsorship Association , which, however, claims to bear all the costs of the commitments it initiated from donations from a large number of sponsors, so that it no claims against the guarantors can arise here. According to the media, in autumn 2016 it was not yet clear how old cases would be dealt with. For a long time it was controversial whether a declaration of commitment expires when refugees are recognized. In January 2017, the Federal Administrative Court ruled that the guarantor is liable for the cost of living even after refugee status has been granted, since the term “purpose of stay” in the sense of the declaration of commitment basically covers every stay for international, humanitarian or political reasons under Section 5 of the Residence Act. The state co-responsibility within the meaning of Directive 2011/95 / EU (Article 29) had been complied with in that the costs for benefits in the event of illness, pregnancy, childbirth, need for care and disability were already excluded from the declarations of obligation to be submitted within the framework of the state admission orders. However, anyone who assumed that they would only have to pay a few months when submitting the guarantee could, as the Federal Ministry of Social Affairs revealed , contest their declaration of commitment due to error , which will then be checked in each individual case. In January 2019, after long negotiations, an agreement was reached on outstanding old cases.

Austria

Since 2007, the declaration of commitment in Austria has been gradually converted to an electronic declaration of commitment (EVE). This is in charge of the inviter immigration police authority (in Vienna at the police station to give the residence district). It is free of charge and, in addition to submitting the declaration, also includes an examination of the viability of the declaration of commitment. This eliminates the notarial confirmation of the signature of the inviting party , which was previously required .

The invitees receive an eight-digit ID number that they must give to the invitee. When submitting an application to the competent representative authority abroad, the representative will give the number under which the representative authority can access the declaration of commitment 48 hours after submitting the same.

Required documents from the inviting party:

  1. passport
  2. Employment confirmation
  3. three final pay slips
  4. Rental agreement and / or land register extract
  5. Registration confirmation
  6. Invitee data
  7. possibly savings books, securities, etc.

With the EVE, the inviter declares that he is ready to cover all costs that public legal entities could incur as a result of the visa applicant's stay, even if this goes beyond the period of the invitation.

Other states

Other states have sponsorship programs specially developed for refugees. In Canada , individuals and initiatives can privately sponsor refugees . The sponsors undertake to provide the following support for one year: help with finding accommodation, financial support, social and emotional support, food and clothing. In contrast to the German declaration of commitment, sponsorship (for refugees) in Canada is limited to one year. Even Italy and the United Kingdom see private refugee sponsorship programs before.

Commitments known as affidavits played an important role during the National Socialist era . Family members, friends and qualified organizations in countries outside Germany (after the connection outside Germany and Austria) were able to enable persecuted persons to enter overseas countries (United Kingdom, USA) with a certified declaration of surety , who thereby escaped National Socialist persecution on the continent.

literature

  • Tiede / Schirmer: The declaration of commitment in immigration law . In: The Public Administration (DÖV), 67th year (2014), Issue 11, pp. 480–484.

Individual evidence

  1. ↑ The Lüneburg Higher Administrative Court confirmed in 2013 that the maintenance obligation does not end with the application for asylum even in the event of an ultimately positive asylum application, see OVG Lüneburg 13th Senate, judgment of November 13, 2013, 13 LC 197/11 .
  2. ↑ a b Information on the declaration of commitment. Federal Foreign Office, accessed on November 7, 2018 .
  3. ↑ a b Declarations of Commitment - Changes by the Integration Act. Refugee Council Lower Saxony, September 3, 2016, accessed on September 8, 2016 .
  4. ^ A b Adrian Arab: Refugee helpers suddenly find themselves in financial need. In: Die Welt , N24 . October 11, 2016. Retrieved October 18, 2016 .
  5. ↑ [1] . In: fluechtlingspaten-syrien.de . Retrieved June 29, 2017.
  6. ↑ a b Klaus Dienelt : Limitation of liability from declarations of commitment for supporters of refugees possible. In: migrationsrecht.net. 2017, accessed August 28, 2017 .
  7. ↑ The privatization of humanity. Non-profit society for the support of asylum seekers e. V. (GGUA), August 2015, accessed on August 28, 2017 .
  8. ↑ BVerwG 1 C 10.16 of January 26, 2017
  9. ↑ Refugee helpers : A good deed can be expensive. In: Süddeutsche Zeitung . August 28, 2017. Retrieved August 28, 2017 .
  10. ↑ Refugee sponsors happy about a solution in the dispute over claims. In: t-online.de. January 25, 2019, accessed February 15, 2019 .
  11. ↑ http://www.bmi.gv.at/cms/BMI_Fremdenpolizei/einreise_visa/Visum_6.aspx
  12. ↑ Private Sponsorship of Refugees Program - Information for refugees. Government of Canada, May 1, 2017, accessed August 29, 2017 .
  13. ↑ Emerging private sponsorship programs in Europe: A new partnership between government and local communities. In: resettlement.eu. 2017, accessed on August 29, 2017 .
  14. ↑ Gefluechtet.de: efforts to the affidavit
  15. ↑ literaturepochen.at: Three ways into emigration