(New) ways to a regular residence status
The legal requirements for a successful asylum application are very high. It is therefore important that refugees from countries in which – according to the Federal Office and the courts – they do not have to fear individual persecution do not merely wait for the outcome of their asylum proceedings. Instead, they should as well consider alternative ways to achieve a legal stay. The same holds true in cases where the authorities assume that the
person concerned could have also found protection from persecution in their own country.
Until recently, there were no legal provisions, nor was there any political will to enable persons who are subject to a temporary suspension of deportation to again obtain a lawful residence status – unless the person would become entitled to a residence permit after having given birth to a child that acquires German/European citizenship or after having married a German/European citizen (see above under point 11). Even in case of a marriage according to German law or the birth of a German child, the immigration offices will, as a rule, insist that the person concerned returns to their country of origin and initiates a regular procedure for family reunification.
This means that some persons will be subject to a suspension of deportation for many years, although this status is actually supposed to apply only to cases where a deportation order is suspended temporarily.
For some time now, there have also been other options which were primarily introduced to serve the interests of employers and the economy.
Persons who have been staying in Germany for a long time and are subject to a suspension of deportation can by taking up vocational training or
employment obtain a lawful residence status.
Temporary suspension of deportation for the purpose of training (Ausbildungsduldung)
Already since 2015, persons without German passport who are required to leave the country and who have started a vocational training can, under
certain conditions but regardless of their age, be granted suspension of deportation for the entire duration of a quality vocational training. Since 1 January 2020, this suspension of deportation for the purpose of training is defined by the newly added section 60c of the Residence Act.
A requirement is that one has started quality vocational training or has been granted an according training place that leads to a certificate in a state-recognised or similarly regulated occupation and normally takes two years. Shorter trainings as an assistant or helper are also permitted for occupations in which a labour shortage exists (e.g. care assistance) if one has been granted a quality training place that starts directly afterwards.
The suspension of deportation for the purpose of training is an option for persons whose deportation has been suspended for at least three months. But it is also an option for persons who started a training during their asylum procedure and would like to continue this training after the rejection of their asylum application, provided that they themselves and the training place meet the relevant requirements.
The suspension of deportation for the purpose of training cannot be granted when the person is not permitted to pursue an
economic activity pursuant to section 60a, sentence 6 of the Residence Act, when the person has been convicted of an offence intentionally committed or when the person is from a safe country of origin. Moreover, the person is only entitled to the suspension of deportation for the purpose of training when their identity has been established in time or when the person has at least complied with their obligation to cooperate in establishing their identity. If their identity cannot be determined, although they can provide proof of their cooperation, the decision upon granting the suspension of
deportation is at the discretion of the authorities.
Once granted, the suspension of deportation for the purpose of training can, after successful completion of the vocational training, be renewed for six months for the purpose of seeking employment. If the person is kept on in the training enterprise, this provides a possibility to eventually obtain lawful residence status.
Temporary suspension of deportation for the purpose of employment (Beschäftigungsduldung)
Another newly added provision that is in effect since 1 January 2020 is section 60d of the Residence Act, the temporary suspension of deportation for the purpose of employment. This provision aims at enabling persons whose deportation has been suspended to obtain a lawful residence status and to provide them with a prospect of remaining in Germany. It is a key date regulation, which means it only applies to persons who have entered Germany before 1 August 2018. However, only very few refugees and persons whose deportation has been suspended are able to meet the high requirements:
- the person needs to have been granted temporary suspension of deportation for at least 12 months,
- the person needs to have been in employment with full social security coverage for at least 18 months, with contract working hours of at least 35 hours per week (or at least 20 hours per week in the case of single parents),
- the person has ensured his or her subsistence for the past 12 months and continues to ensure his or her subsistence,
- the person has proven proficiency in German (level A2) and
- has not been convicted of an offence intentionally committed.
Despite its high requirements, the new legal regulation allows for transitioning into a lawful residence status in a similar way as sections 25a and
25b of the Residence Act. It is therefore advisable that persons applying for asylum or international protection also take these possibilities into
consideration from the beginning of their stay in Germany.
Temporary suspension of deportation for persons whose identity is not verified (or “second-class” Duldung)
The “temporary suspension of deportation for persons whose identity is not verified” (section 60b of the Residence Act)” is a stricter provision that
applies to persons who are obliged to leave Germany and who, from the perspective of the Immigration Office, lack cooperation in establishing
their identity and/or obtaining a passport. According to this provision, a person who is obliged to leave the country because their asylum procedure has been concluded or for other reasons will be granted a temporary suspension of deportation that involves drastic restrictions. The person is not allowed to pursue an economic activity, is subject to a residence restriction, their benefit payments will be cut, they can be taken into custody awaiting deportation, custody to enforce cooperation or custody to secure departure.
What also negatively affects the prospects for legal residence is that the length of time during which the person is granted this kind of suspension will not be counted towards the time requirements for the rights of residence according to sections 25a and 25b of the Residence Act.
If the person has not undertaken any efforts to cooperate, but does so at a later point, the person shall again be granted a regular suspension of deportation. It is not only reasonable to expect and thus required from the person that they apply in person for a passport, but also that they apply for additional documents with the embassy or the authorities of the country of origin and pay for any fees accrued. Moreover, it is considered reasonable to expect them to participate in collective interviews with the embassy or a delegation of the country of origin and to provide a statement declaring that they will “voluntarily” return and, if necessary, that they will complete compulsory military service.
Most of these requirements are not new, the immigration offices have been asserting them in different guises for years. But now they are
enshrined in law, so that violating the obligation to cooperate in acquiring a passport will immediately lead to a “second-
class” suspension of deportation.
In this context, it is also important that acquiring a passport or establishing one’s identity also assume a more significant role for granting suspension of deportation for the purpose of training or for the purpose of employment. Persons who enter Germany as of 2020 shall be granted suspension of deportation for the purpose of training only when their identity has established beyond doubt within six months of entering the country.
Note: While an initial asylum procedure is pending and has not been rejected as manifestly unfounded, there is NO obligation to acquire a passport or to cooperate in acquiring a passport. In this regard, caution should be exercised because immigration offices will sometimes, due to ignorance or
bad faith, require cooperation (see information under 1.1).