The new Immigration Act consists of 15 articles, some of which contain new provisions, while others amend previously applicable legislation. For our compatriots, Article 1 is of primary importance, namely the Act on the Residence of Foreign Nationals, which repeals the previously applicable Act on the Status of Foreign Nationals and regulates numerous issues concerning your residence and your rights in Germany. Other important provisions are contained in Article 2, which includes the new Act on the Freedom of Movement and Permanent Residence of Citizens of the European Union. This Act replaces the previously applicable Act on Residence in the European Economic Community (EEC). Article 3 regulates changes to the procedure for examining applications for political asylum.
The first part of the reference book explains the main provisions of the new Immigration Act in the form of answers to the most frequently asked questions. The second part will give you an idea of the rules in force during the transition period and help you understand which changes apply to you personally. Many individual provisions are to be further regulated by government decrees, which, however, have mostly not yet been approved.
Residence options in the Federal Republic of Germany for citizens from non-EU countries
1. Purposes of residence. For what purpose can foreigners stay in Germany?
You may obtain a residence permit:
(a) for the purpose of entering the territory of Germany;
(b) for the purpose of education;
(c) for the purpose of gainful employment (this applies both to entrepreneurs and members of the liberal professions, as well as to employed persons);
(d) on the basis of international law, for humanitarian or political reasons (for example, as a refugee);
(e) for family reasons (for example, the arrival of spouses and children within the framework of family reunification);
(f) on the basis of special statutory rights of residence (for example, the right to return to the country for foreigners who lived in Germany as minors).
In justified cases, you may be issued a residence permit for another purpose.
2. Residence status.
(a) Visa. It exists in the form of a Schengen visa for transit or short-term stays of up to three months. This visa is issued under the conditions of the Schengen Agreement. With a Schengen visa, you are permitted to stay within its validity period for tourist purposes in the following Schengen countries: Belgium, Denmark, Germany, Finland, France, Greece, Iceland, Italy, Luxembourg, the Netherlands, Norway, Austria, Portugal, Sweden and Spain.
For a long-term stay, you need a visa for Germany, for which you can apply in your home country at a German mission abroad.
(b) A residence permit (Aufenthaltserlaubnis) is limited in time and is issued for a stay in the country for specific purposes. The duration of the stay is determined by the relevant purpose. Under certain circumstances, a residence permit confers the right to work.
(c) A permanent residence permit (Niederlassungserlaubnis) is issued for an indefinite period and includes the right to work. It is not limited in time or location and must not contain additional conditions, except that under certain circumstances political activity may be prohibited or restricted.
In addition to the three above-mentioned documents permitting residence (visa, residence permit and permanent residence permit), there continue to exist, as before, a residence permit for asylum seekers (Aufenthaltsgestattung) for the period during which their application is being examined, and a certificate of deferral of deportation (Duldung). A certificate of deferral of deportation is not a residence permit, but merely a unilateral declaration by the department for visas and registration of foreign nationals (Auslanderbehorde) temporarily deferring deportation. Holders of such a certificate are still obliged to leave the country. If they leave the country, they have no right to return to Germany.
Citizens of the European Union who have the right to freedom of movement and permanent residence receive, through administrative procedure, a certificate of the right of residence. Family members of EU citizens who enjoy the right of freedom of movement and permanent residence and who are themselves not EU citizens are issued, through administrative procedure, a residence permit for the European Union (Aufenthaltserlaubnis-EU).
3. General conditions for obtaining a document permitting residence.
To obtain a document permitting residence, the following conditions must generally be met, first of all:
(a) you must have a valid passport or a document in lieu thereof;
(b) means of subsistence must be secured;
(c) your identity and citizenship must be established;
(d) there must be no grounds for your deportation;
(e) your stay must not conflict with or threaten the interests of the Federal Republic of Germany;
(f) you must have entered the country with the necessary visa and, already when applying for the visa, must have provided information that is decisive for the issuance of a residence permit;
(g) you must not be subject to a ban on entry and residence;
(h) you must not be in the process of having your application for political asylum examined, which would prevent the issuance of a residence permit, unless you are entitled to such a permit.
Your means of subsistence are considered secured if you are yourself able to cover your subsistence minimum, including adequate health insurance, without having recourse to public funds.
In addition, the rules for your entry into the country must be observed. In general, every foreigner must have a residence permit document to enter Germany and stay in the country. It must be obtained before entering the country in the form of a visa at a foreign mission of the German state. Such a mission is the embassy or the Consulate General of Germany. The same conditions apply as for the issuance of the corresponding residence permit document within the country. Exceptions exempting from the obligation to obtain a visa will be additionally specified in a government regulation.
Other exceptions exempting from the obligation to obtain a visa arise from the foundations of European law.
4. Permission to work in the residence permit document. After receiving the residence permit document, should you also obtain an additional work permit from the labor authority in order to be entitled to work as an employee?
The previously existing dual procedure for issuing permits has been replaced by an approval procedure: after receiving the residence permit document, you no longer need to contact the labor authority to submit an application in order to obtain a work permit. Instead, the residence permit document issued to you determines to what extent you are permitted to work and what kind of activity this may be. The labor authority still makes a decision on your access to the labor market, but this procedure is now carried out within the framework of internal administration.
To be continued.
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