|Title:||Law to control and limit immigration and to regulate the residence and integration of Union citizens and foreigners|
|Short title:||Immigration Act|
|Abbreviation:||ZuwandG (not official)|
|Scope:||Federal Republic of Germany|
|Legal matter:||Administrative law , immigration law|
|Issued on:||July 30, 2004 ( Federal Law Gazette I, p. 1950 )|
|Entry into force on:||predominantly January 1, 2005|
|Please note the note on the applicable legal version.|
The Immigration Act , also known colloquially as the Immigration Act , ( law to control and limit immigration and to regulate the residence and integration of Union citizens and foreigners ) is a package of laws with which the law on foreigners in the Federal Republic of Germany is redesigned with effect from January 1, 2005 has been. It contained the first versions of the Residence Act and the Freedom of Movement Act / EU , which replaced the previously applicable Aliens Act and the Residence Act / EEC . Some paragraphs in other laws have also been changed.
The Immigration Act was promulgated on August 5, 2004 ( Federal Law Gazette I, p. 1950 ) and came into force on January 1, 2005. Discussions and political arguments about this took place in Germany between 2001 and 2004 ( Schröder I and II cabinet ).
Outline of the law
Creation of the Residence Act
The most important new regulation is the Residence Act introduced with Article 1 of the Immigration Act . It replaces the Aliens Act of 1965/1990. The Residence Act does not apply to Union citizens or to members of diplomatic and consular services. § 1 (sentences 1 to 4) reads
- “The law serves to control and limit the influx of foreigners into the Federal Republic of Germany. It enables and organizes immigration, taking into account the capacity for absorption and integration as well as the economic and labor market interests of the Federal Republic of Germany. The law also serves to fulfill the humanitarian obligations of the Federal Republic of Germany. "
It contains u. a. Regulations on entry, residence, gainful employment and integration rights and obligations of foreigners.
Creation of the Free Movement Act / EU
Article 2 of the Immigration Act contains the Act on the General Free Movement of Union Citizens (Freedom of Movement Act / EU ). This regulates the entry and residence of Union citizens , i.e. persons who are citizens of an EU member state, and their family members. It replaced the Residence Act / EEC of 1980.
Changes to the AsylVfG (now: AsylG), the StAG, the BVFG and the AsylbLG
Articles 3 to 12 of the Immigration Act changed the following laws, among others:
- Asylum Procedure Act, renamed the Asylum Act with effect from October 24, 2015
- Citizenship Act
- Federal Expellees Act
- Asylum Seekers Benefits Act
These changes are intended to streamline and accelerate the implementation of the asylum procedure and to counteract abuse of the asylum procedure.
New regulation of the residence permit
The Residence Act regulates the system of residence permits . Instead of the previous designations residence permit, permit, authorization and authorization
- the residence permit - which is always limited in time, and
- the settlement permit - which is always unlimited.
Unlike in the past, the purpose of the residence for which the residence title was issued is always stated in the residence permit, stating the respective legal paragraph and paragraph of the Residence Act (AufenthG) (example: "subs. 1 no. 1 AufenthG" for a Residence permit issued as part of the immigration of a German spouse). Overall, the Residence Act recognizes around 60 different purposes of residence.
A residence status can also - as before - through
- the visa ( AufenthG),
- the toleration ( Residence Act) - which gives no right of residence, but only the suspension of deportation certifies
- the residence permit after asylum law - for asylum seekers, has not been adjudicated on their status,
to be certified.
Finally, according to the Freedom of Movement Act / EU
- the certificate of freedom of movement (abolished on January 28, 2013) and
- the residence card for family members of EU citizens from a third country (example: the Japanese wife of a French student living in Germany)
After Switzerland failed to join the EEA due to the referendum on December 6, 1992, Swiss citizens receive a residence permit with the special entry CH residence permit due to the EU-Switzerland Free Movement Agreement of June 21, 1999 .
Regulations on the work permit side in the residence permit
The right to work permits is no longer regulated by the Immigration Act in Book III of the Social Code (“Employment Promotion”), but in the Residence Act. The work permit is issued by the immigration authorities (and no longer by the employment agency) and is entered in the residence permit when the residence title is issued. A distinction is made between “employment” as an employee and self-employment. In most cases, the immigration authorities enter the note “employment permitted” in the residence permit, which includes unlimited permission for employment of any kind as well as self-employment ( (2) of the Residence Act).
In some case groups, however, the immigration authorities must first obtain the consent of the Federal Employment Agency before allowing employment , which, after examining the labor market and the working conditions under which the foreigner wishes to work, decides whether employment can be permitted and whether this permission is made dependent on restrictions (e.g. on the type of work performed or the employer). The immigration authorities may then only issue a correspondingly limited permit for employment.
The new immigration of workers following the amendment to the law was - as before - largely regulated by ordinances that were not enacted by the Immigration Act, but by special ordinance procedures. The Employment Ordinance and the Employment Procedure Ordinance issued under the Residence Act replace the earlier "Recruitment Stop Exception Ordinance" and the " Work Permit Ordinance ". The group of new immigrants remained largely identical to that under previous law.
On July 1, 2013, a (new) employment ordinance came into force, which replaced the previous employment ordinance and the former employment procedure ordinance.
Employment opportunities following higher education
What was new was that foreign students who came to Germany for the purpose of studying can stay in Germany if they find a suitably qualified job here after completing their studies. For this purpose, they can be given a period of 18 months to search for a job appropriate to their degree, during which they have full access to the labor market. Previously, the work permit was only issued after a “labor market test”. A labor market test by the Federal Employment Agency no longer takes place for graduates from German universities.
Language promotion, integration courses
The responsibility for the decision on eligibility to participate in a measure for "language promotion" (German courses, 600 hours), which, together with the " orientation courses ", which are intended to impart knowledge about the state, society and history (100 Hours) that form integration courses. Language promotion was previously regulated in social law (Section 419 ff. SGB III - Employment Promotion), while it has now become part of the right of residence (Sections 43 ff. AufenthG).
What was new was that, in addition to an entitlement to participate, an obligation to participate can also be set in justified individual cases. The Federal Office for Migration and Refugees (BAMF), which consists of the previous Federal Office for the Recognition of Foreigners, is responsible for the admission of those who are entitled to participate and - in the case of free places - other foreigners, if applicable, to the courses, for the allocation of funding and the design of the courses Refugees ( AufenthG), which was renamed by the Immigration Act. The Integration Course Ordinance regulates the integration courses .
Changes in refugee law
In contrast to the previous interpretation of the law, according to which the refugee status according to the Geneva Refugee Convention was only granted in the event of state persecution, according to subs. 1 AufenthG, relevant persecution can now also be recognized if the persecution originates from parties and organizations that support the Control the state or essential parts of the state territory as well as non-state actors, insofar as the aforementioned are unwilling or unable to offer appropriate protection against persecution. An advanced civil war situation can also establish a right of residence if there is no domestic alternative to flight. The gender-specific persecution and the consideration of non-state acts of persecution are also new . For example, it should be taken into account if an applicant is being persecuted by family members precisely because of their gender.
Introduction of hardship commissions
For the first time, the law made it possible for the federal states to set up their own hardship commissions and thus standardized a legal basis for a residence permit based on the request of a hardship commission ( Residence Act). The decision on a right of residence for foreigners is thus made de facto dependent on an initiative from a body outside the administration. However, the decision on the issue of such a residence permit at the request of a hardship commission remains with the responsible immigration authority or the higher-level authority (= Ministry of the Interior). At the end of 2006, all federal states - including Bavaria, most recently - set up hardship commissions.
Regulations that have remained unchanged
Around two thirds of the provisions of the Residence Act have been adopted largely unchanged from the previous Aliens Act, often only the number of the respective paragraph has changed. This applies, for example, to the special provisions on penalties and fines for violations of the law on foreigners, the regulations on detention pending deportation, the regulations on deportation or the enforcement of the obligation to leave the country.
In fact, there has always been immigration to Germany (alongside emigration). It was not regulated, however, and deliberately because this was wanted by the political leadership. Actual immigration was therefore managed with ad hoc regulations and not officially regarded as immigration:
- The Basic Law , the Federal German constitution of 1949, recognizes the right of asylum for politically persecuted persons. It was recorded because of the persecution during the National Socialism .
- The influx of around 12 million Germans at the end of World War II is not considered immigration, as these are Germans who were expelled or who fled from formerly German areas . Germans were also expelled from areas that did not belong to Germany at the time ( Free City of Danzig , Poland , Lithuania , the Soviet Union , etc.), but these were people who were expelled explicitly because of their German ethnicity. The situation is somewhat different, but politically similar, with the late repatriates who came to Germany in later years , who often no longer have any current ties to the German cultural area, but who, according to the law in force since 1949 ( Art. 116 GG ), claim to be people of German ethnicity have German citizenship and can therefore immigrate under certain conditions.
- In connection with the economic upswing in the Federal Republic during the reconstruction after the Second World War, so-called guest workers were recruited as additional workers from 1955. This was done under the rule with the name "rotation", which was retained until the recruitment stop in 1973, which said that people should only stay in Germany temporarily and return to their home countries at the latest when they retire .
In the 1990s it became clear that the previous regulations had many shortcomings. In particular, by largely excluding legal immigration opportunities, they forced people to resort to the essential remaining loophole for obtaining a residence permit, the right of asylum . In order to ward off the number of supposed or real so-called “bogus asylum seekers”, which is felt to be large, the practice of asylum law has been tightened.
Furthermore, many commercial enterprises, especially in economically flourishing sectors such as information technology , but also in sectors with very low wages such as agriculture , complained that they could not find enough German workers and that there were hardly any legal opportunities to recruit such workers from abroad . The 1973 recruitment ban, which is still in effect, puts a legal stop to such measures.
The immigration law was regulated by the Federal Republic of Germany, first by the post-1945 continued in force Aliens Police Regulation of 1938, which was in 1965 replaced by a first Foreigners Act ( "Foreigners Act 1965"). On January 1, 1991, the fundamentally reformed “Aliens Act 1990” came into force in both parts of Germany and was replaced by the Residence Act on January 1, 2005.
The right of asylum in Germany was originally guaranteed by Basic Law since 1949 . The asylum procedure was initially based on the Asylum Ordinance of 1953, since 1965 according to § 28 ff. Of the Aliens Act 1965, from 1982 until today according to the Asylum Procedure Act , which was renamed the Asylum Act with effect from October 24, 2015 . In 1993 the right of asylum in Art. 16 was replaced by Basic Law and this and numerous amendments to the Asylum Act considerably restricted it.
In order to remedy the shortcomings of the complicated legislation on foreigners and to take account of the fact that Germany has de facto been a country of immigration since the 1960s with a population of almost nine percent foreigners, the Federal Government set up the "Independent Commission on Immigration" in 2000 ( so-called Süssmuth Commission ). After a year-long discussion, in July 2001 it presented a report with extensive proposals for immigration legislation. Just a few weeks later, the Federal Ministry of the Interior presented the ministerial draft of the “Immigration Act”, which, however, only took up part of the proposals of the Süssmuth Commission and was generally much more restrictive. This proposal was discussed between the coalition partners SPD and Greens and passed by the Bundestag and Bundesrat in March 2002. On June 25, the formal promulgation of the law ( Federal Law Gazette I, p. 1946 ), which was to come into force primarily on January 1, 2003, took place.
After the Federal Constitutional Court had declared the Federal Council decision and thus the law itself to be invalid due to the unclear voting behavior of the State of Brandenburg ( BVerfGE - 2 BvF 1/02 - of December 18, 2002, Federal Law Gazette 2003 I p. 126 ), the draft was in Mediation committee between SPD, Greens, CDU / CSU and FDP negotiated again. As a result of the economic recession, unemployment has since risen again not only among computer scientists, engineers and natural scientists, whose influx from abroad should be promoted by the immigration law. Among other things, in the further discussion in the mediation committee this led to the fact that the options originally provided for in the law for new immigrants were largely dispensed with.
- Federal Interior Minister Otto Schily presented the draft to the Federal Cabinet on August 3, 2001 .
- On November 7, 2001, the federal cabinet passed the bill.
- On March 1, 2002, the law was passed by the Bundestag .
- The law will be presented to the Federal Council on March 22nd, 2002 : The law is a law requiring approval due to the provisions on administrative procedures it contains . The then Federal Council President Klaus Wowereit declares the law adopted by the Federal Council; Due to the exact course of the vote, however, it was highly controversial whether the majority for the law came about in accordance with the constitution. When Federal President Johannes Rau signed the law on June 20, 2002 , he sharply criticized the parties' approach.
- On December 18, 2002, the Federal Constitutional Court declared the Federal Council vote of March 22 to be invalid at the request of the CDU / CSU- governed federal states . In its judgment , the court criticized the fact that the then SPD Federal Council Chairman Klaus Wowereit had declared Brandenburg's votes to be valid. Alwin Ziel (SPD) with yes, CDU Interior Minister Joerg Schoenbohm but with no matched. However, a country must vote uniformly so that its votes can be taken. Wowereit had asked repeatedly and finally interpreted the vote as approval when Schönbohm no longer replied. The law was controversial in the SPD-CDU coalition of Brandenburg.
- In January 2003, the federal government submitted the law to the Bundestag again without any changes to the content, which passed it again.
- Also in January, the federal government issued ordinances to implement those parts of the law that do not require the approval of the Bundesrat.
- On June 20, 2003, the Federal Council, in which the CDU / CSU-led countries now have a clear majority due to elections in the meantime, rejects the law.
- As is mandatory in such cases, a mediation process is initiated in the joint mediation committee of the Bundestag and Bundesrat.
- On October 10, 2003, the mediation committee set up a working group due to a lack of agreement. This working group will meet on November 14th and November 28th and on December 11th, 2003. On January 16th, 2004 the working group will meet for the last time.
- On July 1, 2004, the law was passed again by the Bundestag. The Federal Council approves it on July 9, 2004, the Federal President issues it on July 30, 2004. The law will be announced on August 5th in the Federal Law Gazette (Federal Law Gazette I p. 1950). It comes into force on January 1, 2005.
- On March 18, 2005, a 1st amendment to the Residence Act comes into force. A second change in law is in the works, it is the - adaptation of foreigners and asylum law to binding rules (- some already overdue directives ) of the European Union to make.
- On March 28, 2007, the Federal Cabinet resolved to reform the Immigration Act, with which, among other things, the guidelines of the European Union on residence and asylum law are to be implemented in national law. In addition, the draft law contains an integration-oriented adjustment of the spouses reunification, with which a minimum age is required and proof of simple language skills are introduced before entry. For tolerated foreigners with a stay of eight or six years, a statutory old case regulation is created in the form of a one-time reference date regulation that supplements the regulation on the right of residence resolved by the Conference of Interior Ministers.
- On April 27, 2012, the Bundestag passed the federal government's draft law to implement the highly qualified directive of the European Union (see EU Blue Card ) in order to facilitate the immigration of foreign skilled workers to Germany.
It is criticized that integration should be better promoted by the state, for example through language courses, cultural institutions, integration programs and neighborhood projects, and that the alleged ghetto formation could best be halted through the creation of adequate and affordable housing and decently paid jobs. According to critics, however, the federal government is making too little money available for this.
For example, the funds distributed by the “ Federal Office for Migration and Refugees ” (BAMF) for integration courses under the Immigration Act from 2005 onwards did not increase until 2015 compared to the funds for German courses for foreign migrants distributed through the “Language Association” and according to Book III of the Social Code until 2015 elevated. The rules for participation were changed and more bureaucratised, administration was given to the BAMF, but the number of courses was not increased. The number of course participants fell from 130,728 in 2005 to 88,629 in 2010 and only rose to the original level in 2014 with 142,439 participants. Only with the reorganization of the BAMF in the course of the refugee crisis in 2015 did the number of course participants increase to 179,398. The number of authorizations issued was around half greater in all years, which confirmed the criticism raised in 2005 that the number of integration courses had not been increased as required.
For a long time, however, most foreigners who wanted to take part in a German course were not entitled to it under the Immigration Act, as the law basically restricted the right to participate to the - few - new immigrants:(1) of the Residence Act regulated that only one Whoever received one of the residence permits mentioned there “for the first time” is entitled to participate. Even those who received a residence title “for the first time” were not entitled if this title was granted for reasons other than those specified in Section 44 (1) of the Residence Act, for example for the humanitarian reasons in Sections , 23, 23 a or 25 subs 3 to 5 Residence Act.
The announced opening of Germany to new immigrants did not take place with the law. The corresponding legal ordinances (employment ordinance, employment procedure ordinance) limit the possibilities for new immigrants pretty precisely to the group of people who were already allowed to immigrate according to the corresponding ordinances under the old law (work permit ordinance, recruitment freeze exception ordinance) (example: top athletes, specialty chefs, highly qualified scientific specialists). In fact, the immigration of new skilled and skilled workers to Germany actually decreased in 2005 compared to the previous year.
Foreigners who were permanently entitled to stay for humanitarian reasons ( hardship regulations etc.) were in many cases excluded from state integration benefits (German courses, child benefit, training subsidies) according to the relevant regulations of the Immigration Act and the social law derived from it.
With the entry into force of the Asylum Procedure Acceleration Act on October 24, 2015, integration courses were opened for a wider group of people: since then, asylum seekers and tolerated persons have also had access, provided they have good prospects of staying ( see also: Integration of immigrants # integration policy ). The integration course also includes a German course.
Restrictions also apply ( detention pending deportation , residence obligation for asylum seekers and tolerated persons, detention pending deportation and expulsion options, high formal requirements for the reunification of spouses with foreigners and Germans, etc.). Some of the restrictions have been tightened.
The “ chain tolerance ” also remained, which, according to critics, hampers or prevents integration. At the end of 2005, around 200,000 foreigners with a certificate of “suspension of deportation” ( Duldung ) were still living in Germany, some of them for more than 10 years.
Despite the inclusion of “non-governmental” and “gender-specific” persecution as additional reasons for refugee recognition in Germany in 2005 only around 2500 asylum seekers were granted refugee status according to the Basic Law or the Geneva Refugee Convention . The recognition rate in 2005 was around 5%, making it one of the lowest in Europe. At the same time, however, more than 11,000 refugees - including over 7,000 from Iraq - were withdrawn from this status again in 2005 (so-called “revocation procedure”).
Overall, Germany thus had a declining refugee recognition rate in 2005. The UNHCR has sharply criticized Germany for its asylum revocation practice.
Critics also see the problem that foreigners who are married to Germans have to present proof of language skills before entering Germany. This prevents the foreigner from moving to Germany and the normal start of the marriage - at least temporarily. Some experts see it as a violation of Article 6 of the Basic Law (protection of marriage).
- Residence ordinance
- Immigration Act (proposed law)
- Greencard (Germany)
- Law to improve the identification and recognition of professional qualifications acquired abroad
- Federal Government Commissioner for Migration, Refugees and Integration: Report on the situation of foreigners in Germany. Berlin 2005. Chapter BV (Integration Promotion) and Chapter C (Development of the Law) contain extensive explanations and comments on current application problems of the Immigration Act, → “6. Report on foreigners "Part 1 (content) and Part 2 (text)
- Federal Ministry of the Interior: Preliminary application notes on the Residence Act and the Freedom of Movement Act / EU. Berlin 2004. The often restrictive “semi-official” comment from the Federal Ministry of the Interior, according to which (almost) all immigration authorities work, download ( PDF ; 2 MB).
- Bill with justification BT-Drs. 15/420
- Literature on the immigration law in the catalog of the German National Library
- Wording of the vote in the Federal Council (PDF; 560 kB) from page 171
- Decision of the Federal Constitutional Court of December 18, 2002 on the 2002 Federal Council vote
- www.zuwanderung.de - Website of the Federal Ministry of the Interior on the ZuwG
- Overview of the foreigners and asylum legislation 2014/15
- Brief information on the immigration law in German, Arabic, Italian and Turkish
- Klaus J. Bade, Jochen Oltmer: Normal case Migration (= ZeitBilder . Volume 15 ). Federal Agency for Political Education, Bonn 2004, ISBN 3-89331-543-8 , p. 127-132 ( bpb.de [PDF]).
- § 1 paragraph 2 Residence Act
- Residence permit for students and graduates, Jurati law firm . Retrieved April 3, 2014 .
- Compilation of all laws and ordinances of the federal states on the hardship commissions. (PDF; 821 kB) at migrationsrecht.net.
- Report of the Independent Commission on Immigration ( Memento from March 4, 2016 in the Internet Archive )
- Blue card for qualified immigrants adopted, Bundestag. Retrieved April 3, 2014 .
- On the reallocation of the budget for language promotion from the Ministry of Labor to the Ministry of the Interior, see the report by the Federal Government Commissioner for Migration, Refugees and Integration on the Situation of Foreigners in Germany, August 2005, p. 184 ff. ( Bundesregierung.de ( Memento from July 29, 2016 in the Internet Archive )).
- BAMF, integration course statistics for 2015 archive link ( memento from May 23, 2016 in the Internet Archive ) accessed on May 23, 2016
- Sponsor circular 06/15: Opening the integration courses for asylum seekers and tolerated persons with good prospects to stay. BAMF, October 23, 2015, accessed June 1, 2016 . ( PDF )
- Cf. on the number of Bundestag printed matter 16/307 v. December 21, 2005 (PDF; 4.7 MB).
- Figures according to the partial statistics “Migration and Asylum” (PDF), published on 23 August 2006, published by the Federal Office for Migration and Refugees.
- PE of November 2, 2005 "UNHCR confirms position on the revocation of asylum" ( Memento of January 13, 2015 in the Internet Archive )