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General questions about residence permits
In order to enter and reside in Germany, foreigners must have permission in the form of a residence permit. The Immigration Act has reduced the types of residence permits when compared to the regulations of the former Foreigners Act: Residence permit, EC long-term residence permit, settlement permit and the visa. The residence permit is always granted for a limited period of time, while the settlement permit is granted for an unlimited time and without any geographical restrictions and allows the bearer to pursue paid employment or self-employment. The EC long-term residence permit, which is based on EU law, is an unlimited residence permit which is granted to foreigners who have been lawfully resident in Germany or another member state of the European Union for five years. This permit allows foreigners to move to another EU member state; like the settlement permit, it gives third-country nationals largely the same status as nationals, for example with regard to labour market access and social insurance benefits.
You must apply for a new residence or settlement permit before your old permit expires. As long as you submit your application on time, you may continue to reside legally in Germany and to enjoy all other associated rights (e.g. permission to work) until the foreigners authority has acted on your permit application. But if you submit your application after your temporary residence permit has already expired, you could face serious legal consequences: You would no longer be a legal resident of Germany and would have to leave the country. You would also no longer have permission to work.
The residence permit is a residence title which is, as a matter of principle, granted for a limited period of time and for the purposes listed in the Residence Act. These include for example:
Specific conditions apply to residence permits issued in each of these cases; the same conditions apply to the renewal of residence permits. However, the responsible authority may rule out the possibility of renewal if the purpose of residence is of a temporary nature. Renewal also depends on whether the permit holder has fulfilled his or her obligation to take part in an integration course.
The settlement permit is one of the two types of residence permits introduced by the Immigration Act. Unlike the residence permit, the settlement permit is an unlimited residence title. It authorises the holder to take up employment or self-employment, it does not carry any geographical restrictions and, apart from cases provided for under the Residence Act, it may not be made contingent on any ancillary provisions.
Section 9 of the Residence Act defines the general prerequisites for issuing settlement permits. Some special conditions apply, for example to highly skilled workers, to settlement permits issued on the order of the supreme state authorities pursuant to Section 23 para. 2 of the Residence Act, and to foreigners who are issued a residence permit on humanitarian grounds (Section 26).
This residence permit (Section 9a of the Residence Act) was introduced by the Act to Implement Residence- and Asylum-Related Directives of the European Union. The introduction of the EC long-term residence permit translated the Directive 2003/109/EC of 25 November 2003 into German law.
It is a permanent resident permit issued to third-country nationals after five years of legal residence in a member state of the European Union. This permit allows foreigners to move to another EU member state; like the settlement permit, it gives third-country nationals largely the same status as nationals, for example with regard to labour market access and social insurance benefits.
Questions regarding work permits
The Immigration Act has abolished the former two separate application processes (for residence and work permits). It is no longer necessary to go to both, the foreigners authority and the local government employment agency; instead, your foreigners authority will issue the work permit, if approved by the employment administration, together with your residence permit. The application procedure is now handled internally by the foreigners authorities and the employment administration. This new, streamlined procedure is often referred to as “one-stop government”.
No. You have permission to work only if this is expressly stated in your residence permit (for example in the entry “employment permitted”). Holders of settlement permits, however, generally have permission to work (permission to hold employment is already printed on the settlement permit sticker).
The ban on recruiting foreign labour remains in effect for unskilled, semi-skilled and even skilled workers. Skilled foreign workers may be granted a work permit only in specific, justified cases in which doing so is in the public interest.
Also under the new law, a foreigner may be hired only if no German or foreigner with a privileged claim is available for the position nation-wide. An applicant must first have a job offer, which the potential employer must report to the local government employment agency. The employment agency approves the issuing of a residence permit only if no other higher-priority applicant is available to fill the position. Some exceptions apply in the case of highly skilled workers such as scientists. The employment ordinance specifies additional exceptions, such as in the case of professional athletes.
Highly skilled workers in accordance with Section 19 of the Residence Act are researchers and scientists with specialized training and expertise, teaching staff, senior research assistants and other specialists and experienced employees earning above a certain minimum salary (currently a minimum of €86,400 a year). Highly skilled workers are immediately eligible for a permanent settlement permit. Family members accompanying them to Germany or entering later are entitled to take up paid employment or self-employment.
Section 21 of the Residence Act allows self-employed foreigners to settle in Germany, if exceptional economic interest or special regional needs exist, if the planned business would have a positive economic effect, and if it has secure financing. Entrepreneurs planning to invest at least € 500,000 and create five jobs typically fulfil these conditions. More information is available from German diplomatic missions abroad.
The employment ordinance specifies for which kinds of employment you do not require approval from the Federal Employment Agency to receive a residence permit. If you do need approval, it is not necessary to apply for it yourself; when you apply to a foreigners authority or German diplomatic mission abroad for a visa or residence permit for purposes of employment, they will forward your application to the Federal Employment Agency.
Citizens of the new EU member states may be hired for certain approved employment only if no German or equally entitled applicant is available to fill the position. Specialists with a degree in engineering from a university or technical university in the areas of mechanical engineering or vehicle manufacturing or electrical engineering, or with a comparable qualification, and graduates of German universities are exempt from this rule. Citizens of the new EU member states have priority over citizens of non-EU countries.
No. The ban on recruiting unskilled or minimally skilled foreign workers remains in force. However, the employment ordinance does make exceptions under certain conditions for some occupations that do not require special qualifications.
Foreign students are allowed to work a maximum of 90 full days or 180 half-days per year. In addition, they may work an unlimited amount of hours in part-time academic jobs. And foreign students may now remain in Germany for a maximum of one year following graduation to find a job commensurate with their academic degree.
On the basis of Directive 2004/114/EC of 13 December 2004 (Students Directive), students from third countries studying in an EU member state may complete parts of their degree in another member state, if certain conditions are met.
Globalization requires researchers to be more mobile. In October 2005, in order to simplify procedures for researchers to enter the EU and take up research activities, the European Union adopted a directive on a specific procedure for admitting third-country nationals for the purposes of scientific research. The most important provisions of this admission procedure are included in Section 20 of the Residence Act and in Sections 38a to 38f of the Ordinance Governing Residence.
Research institutions intending to employ researchers in line with this procedure must first be recognized by the Federal Office for Migration and Refugees. On the Internet (at www.bamf.de), the Federal Office for Migration and Refugees publishes an updated list of the names and addresses of recognized research institutions as well as additional information on the recognition procedure of research institutions and on the entry procedure for researchers.
No. In general, the Residence Act does not apply to EU citizens and their family members. The Act on the General Freedom of Movement for EU Citizens (Freedom of Movement Act/EU) applies instead. But the Freedom of Movement Act/EU refers to the Residence Act in the following cases: (1) if the Residence Act results in a more advantageous legal status than the Freedom of Movement Act/EU; (2) if it is found that the citizen is no longer entitled to freedom of movement; or (3) if provisions of the Residence Act are expressly stated as being applicable.
According to Community law, the following groups are entitled to freedom of movement: EU citizens in paid employment, established self-employed persons, providers or recipients of services, pensioners, students and other persons not in the labour force, persons with the right of permanent residence and their families. Special conditions apply to EU citizens who are not in the labour force (pensioners, students and others): They have the right to freedom of movement only if they and their family members are covered by health insurance and have sufficient resources to support themselves and their family members for the entire period of their residence. These resources must be sufficient to ensure that no recourse to social assistance will be needed.
No. They will automatically receive proof of their right of residence when they register their address with the authorities, as is required of all Germans by state law. When registering their address, EU citizens typically provide information about their right to freedom of movement (e.g. as employed persons). The registry authority forwards this information to the foreigners authority, which issues the proof of the right of residence.
Yes. However, they no longer need to apply for this residence card. It will be automatically issued within six months once the family member has provided the information required.
EU citizens who have lawfully resided in Germany without interruption for five years gain the right of permanent residence. This means their right of residence does not depend on whether they fulfil the necessary conditions for the right to freedom of movement. The same applies to the family members and spouses of EU citizens entitled to freedom of movement, when they have also resided lawfully in Germany for five years.
Such persons may lose their right to residence only if they are found to be a threat to the public order, security or health. In this context, the new law does not refer to expulsion, but to forfeiting the right to freedom of movement. Such cases require a very large burden of proof: There must be a real and sufficiently serious threat to the public order or security, affecting the basic interests of society. This threat must arise from the personal behaviour of the EU citizen in question. Only after the existence of such a threat has been determined can the person be required to leave the country. If the person in question does not comply voluntarily, he or she may be deported.
Temporary suspension of deportation
Foreigners whose deportation has been suspended and who have lived in Germany for at least eight years, or at least six years if living in a household with one or more minor children, as of 1 July 2007, who demonstrate an active willingness to integrate, are housed in conditions of sufficient living space, possess adequate oral German skills, who are law-abiding and have not knowingly deceived the foreigners authorities may initially be granted a temporary right of residence, to expire on 31 December 2009, and equal access to the labour market, in order that they may earn their own living without having to claim public assistance.
After 31 December 2009 this residence permit will be extended only if the foreigner can provide for him/herself and prove that for most of the time in the past he/she was in gainful employment.
Residence permits will not be issued to persons allowed to remain only because they do not have a passport and have not done everything in their power to acquire a passport or the equivalent.
You may apply for a residence permit at any time before your temporary suspension of deportation expires.
The Federal Employment Agency must generally approve of your intended job. The Federal Employment Agency can give its approval only if no German or higher-priority foreigner is available to fill the position, and if you have lawfully resided in Germany for at least one year. Persons who have come to Germany in order to receive financial and material benefits intended for asylum seekers, or are responsible for hindering official measures to end their residence are not allowed to take up employment.
If you have lawfully resided in Germany for at least three years and have a residence permit, the Federal Employment Agency may approve your employment (Section 9 of the Ordinance on official procedures enabling resident foreigners to take up employment). In this case, it is not necessary to determine whether any Germans or higher-priority foreigners are available to fill the position.
Residence on humanitarian grounds
The Immigration Act allows the German states to set up “hardship commissions” (Section 23a of the Residence Act) to conduct hearings in special cases and recommend granting a residence permit even if the usual legal requirements are not met. Such commissions may be called on only when a foreigner is legally required to leave the country after having exhausted all possible measures to be granted the right of residence and thus has no legal claim to remaining in the Federal Republic. Further, special, exceptional humanitarian grounds must be present. But even in such cases, it is generally impossible to grant a residence permit to someone who has committed a serious crime. Further, the authorities may require proof of sufficient financial resources or a sponsor’s declaration of commitment before granting residence.
The German states are solely responsible for setting up hardship commissions and determining their procedures. Each individual state must decide whether to establish a hardship commission and what procedures it will follow. Currently, hardship commissions exist in all federal states. Although the Immigration Act allows for the possibility of hardship commissions, it does not create any individual entitlement to them, i.e. an individual has no legal right to insist that his or her case be decided on by a hardship commission. Decisions by hardship commissions can only recommend a particular action; the ultimate decision lies with the responsible state authority.
According to Section 29 of the Residence Act, the general conditions for the subsequent immigration of family members are as follows:
Additional conditions must be fulfilled depending on the individual circumstances.
The subsequent immigration of foreigners wishing to join their German or non-German spouses in Germany now depends on both spouses having a minimum age of 18 years and on the foreigner wishing to join his or her spouse in Germany having at least basic German language skills.In special cases, the law provides that the requirement concerning the minimum age and/or the proof of German language skills may be dispensed with.Further information on language skills can be obtained at: www.integration-in-deutschland.deunder the heading “Immigrants”.
Children who have not yet turned 16 may move to Germany to rejoin parents who have a residence permit or settlement permit here.
Further, a child may rejoin parents in Germany up to his or her 18th birthday if
These conditions may be waived if
In such cases, unmarried children who have not yet turned 18 are entitled to a residence permit.
Your child may immigrate before his or her 18th birthday as long as the requirements of the (old) Foreigners Act are met and
Family members immigrating to join a relative in Germany are granted the same permission to work as their relative already living in Germany. The Federal Employment Agency checks independently to make sure their jobs satisfy the relevant legal requirements for approval.
You are entitled to participate in an integration course if you are a resident of Germany and your first residence permit was issued after 1 January 2005 in one of the following categories:
Persons who do not have a basic knowledge of the German language are required to take an integration course. Your foreigners authority, the institution providing basic security for job seekers or the Federal Office of Administration will give you a certificate stating whether you are entitled or obligated to take an integration course.
If you entered Germany before 1 January 2005, you are in principle not entitled to participate in an integration course. You may, however, be allowed to take part on request. An application form can be obtained from your foreigners authority or from the Federal Office for Migration and Refugees. You can also submit the application at a licensed provider of integration courses. On the other hand, your foreigners authority, the institution providing basic security for job seekers or the Federal Office of Administration may require you to take an integration course.
Persons who entered Germany before 1 January 2005 may be obligated to take an integration course if
Your local foreigners authority can give you a list of course providers offering integration classes in your area.
If you are required to take an integration course and do not complete the course or attend at all, you will have difficulty renewing your residence permit. Failing to complete a required course may also result in social benefits being cut (by as much as 10%) and will be taken into account should you apply for naturalization. Consolidation of residence, i.e. being granted a settlement permit, now also requires adequate knowledge of the German language, legal system and society.
You make take a course voluntarily, if you pay all course fees yourself and if space is available.
You may contact the Federal Office for Migration and Refugees (BAMF), which is responsible for coordinating the courses. Their information service can be reached by phone at 0911 943 6390 or by e-mail at firstname.lastname@example.org.
No, but you must produce your passport or your passport substitute together with your residence title when requested by the foreigners authority or the police. In this context, please note the following: You must submit your application for the necessary documents far enough in advance that a new passport or passport substitute may be issued to you before your old one expires.
The information service of the Federal Office for Migration and Refugees (BAMF) may be reached by phone at 0911 943 -6390. The citizens’ service can also be contacted by e-mail at email@example.com, and by regular mail at the following address: Bundesamt für Migration und Flüchtlinge, Frankenstr. 210, 90461 Nürnberg.
In accordance with the separation of powers as defined in the Constitution, the German states are in principle responsible for enforcing the law on foreigners. For this reason, the local foreigners authority, as a state government agency, is responsible for deciding on residence law issues in accordance with the law. In doing so, the foreigners authority is subject only to direction by its supervising state authority. Due to this constitutional separation of powers, it is a good idea to contact your local foreigners authority if you have specific questions. Please be aware, however, that the foreigners authorities will be extremely busy, at least initially, in making the necessary adjustments to the new legislation, and that it may take longer to respond to some questions. If you have questions regarding visas, please contact the Federal Foreign Ministry or the German diplomatic mission responsible for your area.
You can find more information on the Immigration Act on the website of the Federal Office for Migration and Refugees (BAMF) at www.bamf.de or www.integration-in-deutschland.de.