Generally, a residence permit for Germany can be granted on various grounds. It is possible to issue a residence permit on humanitarian or political grounds (asylum, refugee protection, subsidiary protection, ban on deportation, case of hardship), but also for family reasons (such as childbirth, marriage or family reunion) as well as for educational or study purposes or for work purposes.
Under certain conditions, however, it also possible to take up employment while an asylum application is still pending. Or in case a recognised refugee becomes a parent, this may as well affect the residence status. This kind of situation can result in a change of residence status, which means, for example, that residence on humanitarian grounds will be changed into residence for family reasons.
At first it must be clarified what the current basis of the residence status is and to which conditions it is subject, so as to examine which rights and obligations this status implies.
This FAQ focuses on issues regarding residence on humanitarian grounds. It will also touch upon those cases where the residence status is likely to change, for example, after having taken up vocational training or employment or when a child has been born.
- Protection status
- Permission to reside (Aufenthaltsgestattung)
- Obligation to take up residence (not to be confused with “residence restriction”, see below on this point, section 47 et seqq. of the Asylum Act)
- Residence Obligation
- Residence restriction (sections 12 and 12a, Residence Act)
- Rescinding the residence restriction in cases of violence
- Termination of residence / Obligation to leave the country
- Suspension of Deportation
During the asylum procedure, the Federal Refugee Office will ascertain for each “asylum application” (application for protection), in descending order:
- whether the applicant is entitled to asylum according to article 16a of the German Constitution
- whether the applicant shall be recognised as a refugee according to the Geneva Refugee Convention (section 3, Asylum Act)
- whether the applicant shall be granted subsidiary protection (section 4, Asylum Act)
- or whether there exist other prohibitions of deportation concerning the applicant’s country of origin (section 60, subsection 5, and section 7, sentence 1, Residence Act).
International protection is now the generally used term. The concept of international protection is derived from European Refugee Law. It subsumes both refugee protection and subsidiary protection under the category of international protection.
Permission to reside (Aufenthaltsgestattung)
Asylum seekers are entitled to remain in Germany for the duration of their asylum proceedings. Upon registering as asylum applicants, they receive a so-called proof of arrival (Ankunftsnachweis) that is valid only for the first few days. Once they have filed a formal application, asylum applicants receive a permission to reside (Aufenthaltsgestattung), a foldable green card that is valid for the duration of the entire asylum procedure. The permission to reside is not a residence permit, but only documents that applicants are entitled to reside in Germany until their asylum application has been finally decided on. In case the Federal Office for Migration and Refugees (BAMF) rejects an asylum application, the permission to reside also remains valid during possible court proceedings.
The permission to reside expires when the BAMF has come to a final, that is, non-appealable decision or, regardless of this decision, when an asylum application has been withdrawn.
Note: The permission to reside will often be issued for a duration of six months, in some German states even for a duration of up to one year, with a possible extension. If a final negative decision on the asylum application is made during this period, however, this decision will render “invalid” the permission to reside. The person concerned is then obliged to leave the country. If the person does not hold a passport or cannot (immediately) leave the country for other reasons, they will be asked to return the permission to reside, and instead a temporary suspension of deportation will be issued.
Obligation to take up residence (not to be confused with “residence restriction”, see below on this point, section 47 et seqq. of the Asylum Act)
The so-called obligation to take up residence (Wohnsitznahmeverpflichtung) determines where asylum seekers are required to take up permanent residence, that is, where they have to live and be registered. Just as the residence obligation, this regulation takes effect from day one.
Also, in case of relocation to a private apartment or a shared accommodation, the obligation to reside in a prescribed district or independent town continues to apply.
The “Second Act for an Improved Enforcement of the Obligation to Leave the Country“ (“Zweites Gesetz zur besseren Durchsetzung der Ausreiseverpflichtung”, in force since August 2019) stipulates that asylum seekers are now obliged reside to in a reception facility for the time period between filing an application and receiving a decision or, in case of a negative decision, until they leave the country or are deported. However, this obligation may not apply for more than 18 months or, in the case of families with children, for more than six months.
Residence obligation (Residenzpflicht) means that the mobility of the person concerned is restricted to a particular town or district and that they may not travel to another location without permission. As a rule, the person then requires a permission from the BAMF or the responsible immigration office in order to leave the designated area. No prior permission is required to attend appointments at courts or authorities where appearance in person is necessary.
The residence obligation applies to asylum seekers once their application has been filed and ceases to apply after three months (section 59a, Asylum Act), unless the person is required to live in the (initial) reception centre for more than three months.
The residence obligation can be also be ordered at a later time, for example, when the person has been convicted of a crime (for details, refer to 1.3).
Residence restriction (sections 12 and 12a, Residence Act)
A residence permit can be linked to certain conditions or restrictions. One of the most important of these subsidiary provisions is the residence restriction, which obliges especially persons who were granted a residence permit on humanitarian grounds to live in a particular state or town.
Hence the residence restriction as such does not apply to persons whose asylum proceedings are pending, but to those who already hold a residence permit. As a rule, the restriction will be applied as long as the person concerned receives state benefits.
Relocating from one state to another shall be approved particularly in cases where the change of residence makes it possible to secure one’s subsistence without relying on state benefits, where it allows one to live together with one’s marriage or life partner or where it provides protection from threatening family members or partners.
In Summer 2016, a new provision was added to the residence restriction that applies to recognised refugees and persons entitled to subsidiary protection. The residence restriction laid down in section 12a of the Residence Act requires these persons to reside in that state which was responsible for their asylum proceedings for three years after having been granted asylum. Hence even recognised refugees do not enjoy the freedom to choose their place of residence within Germany. This legal provision makes it also possible to designate the municipality where the person concerned has to take up residence. This kind of residence restriction can of course be removed in case one wants to take up studies, vocational training or employment or in order to avoid a case of hardship (see also chapters 6.2 and 7).
Rescinding the residence restriction in cases of violence
The residence restriction can be rescinded in cases of gender-specific violence. In such cases, the person concerned is under obligation to cooperate. When filing an appeal against the residence restriction, they have to explain their personal situation. Among the documents that would support the appeal are medical or hospital records stating physical or psychological injuries, letter of confirmation that one has been admitted to a women’s shelter, criminal charges, protection orders issued by courts, a judicial assignment of an apartment in accordance with the Protection against Violence Act, but also comprehensive statements issued by recognised counselling centres for victims of violence. If a case has been thoroughly explained and documented as requiring protection against violence, it will always be regarded as grounds for rescinding the residence restriction. In exceptional situations, where an urgent need for protection is plainly evident, the obligation to provide documentation may be waived.
Termination of residence / Obligation to leave the country
As a general principle, every person who is not a EU citizen requires a permit to stay in Germany. The person is obliged to leave the country if the residence permit expires after a certain period or if it ends due to a negative decision on granting or renewing a residence title, or if, for example, an asylum application has been finally rejected.
This does not always imply that a person also immediately leaves or is entitled to immediately leave the country. Sometimes there are actual or legal obstacles, for example, if documents are missing, if a person is unable to board because of maternity protection, if there is no airport in the country of origin, or for other reasons. In such cases, the deportation will be temporarily suspended. This does not amount to a residence title. It merely certifies that, although the person is obliged to leave, the deportation cannot be presently enforced.
Suspension of Deportation
A “temporary suspension of deportation” (Duldung) can be issued for persons who are obliged to leave the country and have no German passport. This means that the suspension of deportation does NOT amount to a residence permit and does not provide a basis for lawfully residing in Germany. Persons whose deportation has been suspended, for example because their permission to reside has ended or because their asylum application has been finally rejected, are still obliged to leave the country. Only specific reasons (e.g. illness, lack of passport etc.) can justify that the enforcement of this obligation is suspended temporarily or in the long term.
Whereas deportation refers to authorities enforcing the termination of residence, expulsion solely lays down the revocation of the resi-dence title along with a re-entry ban.
Persons without German passport can be expelled, that is, lose their right of residence when they have been convicted for serious offences or are regarded as a danger to the public for other reasons. Weighing the public interest in expulsion against the individual interest in remaining will then result in an overriding interest in the person’s deportation.
Until 2015, the interest in expulsion was considered “especially serious” when the person concerned had been sentenced to a prison term of at least two years. After the incidents on New Year’s Eve of 2015/16 in Cologne, another grounds for expulsion was added: If the person has been sentenced for committed offences against life, physical integrity, sexual self-determination or property or for resisting enforcement officers, then a sentence for a prison term of one year will justify expulsion. After further legal changes, a sentence of one year on probation for causing bodily harm now already provides grounds for expulsion. A sentence of one year for receiving social benefits without entitlement or for committing an offence under the Narcotics Act are also considered grounds for expulsion.
In any case, the government agency or, in the event of an appeal against the decision, a court has to consider, in each individual case, whether the state’s concern with having the person deported outweighs the person’s wish to stay. In this regard, the person’s ‘rootedness’ in Germany and their residence status are of special importance.
However, a person that has been expelled will not in every case have to leave the country or rather will not necessarily be deported.
If, for example, refugee status has been recognised and if it has been determined that the person is threatened with torture or other human rights violations in their country of origin, the state will, as a rule, abstain from deportation, even if the person has become liable to prosecution in Germany. In this case, however, a residence permit will not be granted. Such a person’s deportation will more often be considered as permanently suspended.
Deportation refers to the execution of the obli-gation to leave. That is, deportation is in each instance preceded by a decision on terminating or discontinuing residence. Moreover, the per-son is at first required to voluntarily leave the country and thereby to comply with the obli-gation to leave. It is not until the person neg-lects to do so that authorities can prepare and enforce compulsory deportation.