What is the difference between the obligation to take up residence, residence restriction and residence obligation?
Once an asylum application has been filed, asylum seekers’ mobility rights will be temporarily regulated. Accordingly, they are required to take up residence, just as their freedom of movement can be curtailed.
Residence obligation means that the person concerned may not leave a designated town or district without permission from the responsible authority. When the residence obligation ceases to apply, the person may travel throughout Germany and stay overnight with friends. In order to attend appointments at authorities or courts where personal appearance is mandatory, no prior permission is required to leave the designated area. The residence obligation applies to asylum seekers once their application has been filed and shall cease 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 latter has become increasingly the rule since the asylum laws were tightened. Because currently the obligation to reside in an initial reception centre – and thus also the residence obligation – applies until the asylum application has been decided on or, in case of a negative decision, until the applicant leaves the country, but it may not apply for more than 18 months or, in the case of families with children, for more than six months (for details see below under obligation to take up residence).
This means that persons who later are recognised as entitled to asylum possibly lose 18 months that they could have otherwise used for the purpose of integration.
The obligation to reside in a reception centre and with it the residence obligation cease to apply when the person concerned receives approval to relocate to a shared accommodation or apartment. This means that German states can shorten the duration of the stay in initial reception centres by allocating asylum seekers to a particular municipality.
It is also possible to issue a permission to leave the district specified in the residence restriction for the purpose of taking up employment, attending school, starting or continuing vocational training and theoretically for study purposes as well. In most cases, the issuing of such a permission is at the discretion of the authorities. A legal entitlement exists only if an urgent public interest applies, if it is necessary for compelling reasons or if denying permission would constitute undue hardship. Experience has shown that it is unproblematic to obtain a permission for family reasons (hospital visits, marriage, death of a family member etc.) or for urgent visits to doctors.
Violating a residence restriction constitutes an administrative offence that is punished with a fine. Repeated violations may be punished with a substantial fine or a prison sentence. More importantly, substantial fines or prison sentences might later compromise the entitlement to a residence permit on humanitarian grounds (see under deportation). Criminal proceedings due to violations of a residence restriction should therefore be taken seriously.
A territorial restriction (residence obligation) can also be ordered once the asylum proceedings have been completed, when the person concerned is subject to a temporary suspension of deportation, especially when the person has been convicted of a criminal offence or when concrete measures to terminate their residence are imminent. A stricter regulation also provides that a territorial restriction shall be ordered when the person concerned has allegedly prevented their deportation by presenting false information or by misleading the authorities as to their identity or nationality or by neglecting their obligation to cooperate in obtaining a passport etc.
Additionally, the Immigration Office may order “measures to facilitate the departure” of persons who are subject to a suspension of deportation, such as the obligation to regularly report to the Immigration Office for monitoring purposes and to seek repatriation counselling (section 46, Residence Act). In this context, however, courts have rejected the obligation to stay in a facility all night. Courts held that such an order must be reasonable in relation to the purpose of the regulation and that it must not turn into a form of harassment with punitive character. A “nightly house arrest” in this form, however, constitutes a restriction of freedom that has no legal grounds.
On the other hand, courts have considered as lawful to require the person concerned to inform the Immigration Office that they intend to spend time outside of a facility at night (e.g. by posting a note on the room door).
If any obligations to cooperate are violated, the residence obligation can also be extended beyond 18 months. Moreover, German states may in certain cases order that the duration shall be extended from 18 to 24 months. Bavaria and North Rhine-Westphalia, for example, have made use of this provision.
Obligation to take up residence
Upon filing an application, asylum seekers are assigned to an initial reception centre. They are obliged to reside there for a period of up to six months or, in case of families with minor children, for up to six months. If, however, the person concerned receives a positive notice on their asylum application, the obligation to reside in a reception centre immediately ends.
The obligatory period can also be shortened if the person concerned is allowed to relocate to a shared accommodation or an apartment. This means it is possible for the federal states to shorten the duration of a stay in an initial reception centre by assigning responsibility to a particular municipality.
There are also special regulations that apply, among others, to persons from so-called safe countries of origin.
In the case of so-called safe countries of origin, the legislator assumes that, due to their democratic status and general political situa-tion, there is no threat of persecution in these countries and that the respective state is capable of protecting citizens from persecution by non-state actors. The so-called safe countries of origin appear in a list contained in the annex to the Asylum Act. The list is reviewed every two years. Currently (as on September 2017), the following countries are included: the mem-ber states of the EU, Albania, Bosnia and Herze-govina, Ghana, Kosovo, Macedonia, the former Yugoslav Republic of Montenegro, Senegal, Serbia (Asylum Act, annex II ad section 29a).
Persons from these countries, except for EU citizens among them, are required to reside in the responsible reception centre for the duration of their asylum procedure. This rule can even apply until deportation if their asylum application has been rejected as “manifestly unfounded” or “inadmissible”. During this time, they are not allowed to take up work and may only temporarily leave the area specified in their residence permit if they have received permission from the Federal Refugee Office.
Information on residence restrictions by the Refugee Council Lower Saxony (2015): www.nds-fluerat.org/leitfaden/24-status-bei-aufnahme-aus-dem-ausland/wohnen-umziehen-reisen/