In 1999, Boris Varelik moves to Germany as a contingent refugee together with his wife and two children aged 8 and 10. In Germany, the whole family receives a permanent residence permit. A middle-aged mining engineer has good professional connections and a reputation in the mining industry. Germany's dying mining industry cannot offer Varelik a position worthy of his education and qualifications.
After struggling through various retraining programs following his language courses and still not finding work, Varelik decides to return to his homeland, where he is offered a position as a mine manager. His wife and children remain living in Germany, and the mining engineer himself intends to visit his family briefly two or three times a year. He would also like to keep his residence permit in Germany. To implement his plans, Varelik asks the foreigners authority to issue him a permit for a long stay abroad without losing his right of residence in Germany. How does German legislation on the legal status of foreigners view this constellation?
Conditions for Loss of Residence Permit
Section 51 No. 6 and 7 of the Residence Act stipulates that a foreigner loses his residence permit at the moment of leaving the territory of the Federal Republic of Germany with the intention of permanently residing abroad (No. 6). The same applies if he has not returned to Germany within six months or another period agreed with the foreigners authority (No. 7).
In plain terms, this means the following. If a foreigner decides to move the center of his vital interests outside Germany and to stay abroad for an indefinite period, he loses his residence permit in the Federal Republic of Germany at the moment of crossing the German border. Of course, the foreigners authority must have solid grounds for immediately revoking the residence permit. Such reliable indicators are: dismissal from work, termination of the apartment rental agreement, sale of bulky household goods, furniture. In some cases, the foreigners authority cannot tell from the circumstances of the case whether the foreigner left Germany permanently or temporarily. In these situations, the aforementioned six-month period serves as a guideline. If a foreigner is absent from the country for more than six months, he is considered to have permanently left Germany.
The Importance of the Six-Month Interval
At this point I would like to make important clarifications about the meaning of the aforementioned six-month interval. Many people understand this rule to mean that it suffices to come to the country for a couple of days and the period is supposedly interrupted. According to a common opinion, visiting Germany twice a year with short visits satisfies the requirements of the law (since they were outside Germany for less than six months). That opinion is mistaken. A couple of formal visits a year, when it is clear that the foreigner permanently resides abroad, definitely do not save the residence permit. The assessment of each individual case of a foreigner's long stay outside Germany must be based on the true intentions of the foreigner who went abroad, not on formal deadlines.
The aforementioned six-month period is a legally prescribed guideline for the actions of officials. If a foreigner is absent for more than six months, he is deemed by law to have left permanently and loses the right of residence in the Federal Republic of Germany. Here the official is not obliged to investigate the case. The absence of the foreigner for more than six months forces him to automatically revoke the residence permit.
Extension of the Period of Absence
The same paragraph of the law allows the foreigners authority to issue a foreigner an individual permit for staying outside Germany for more than six months. The law states that the authority must issue a permit for a long stay abroad if the foreigner's work activity is in the interests of the country. The authority must also make sure that the work or stay abroad is temporary in nature. Another condition is that the foreigner holds a permanent residence permit in the Federal Republic of Germany (Niederlassungserlaubnis). For foreigners with a temporary residence permit, obtaining such a permit is even more difficult.
All interested parties must take care to submit the application in advance. It is important that the actual permit must be obtained before the six-month period of absence from the country has expired. The authority does not consider applications submitted after the expiry of this period.
Status of Stay Abroad
Varelik must justify his application for an individual permit to extend his absence from Germany by the temporary nature of his work or business activity in his homeland. It is also important to state that the center of his vital and family interests remains in Germany.
How, from a lawyer's point of view, should Varelik's application be classified? This depends on the specific circumstances. If the family continues to live in Germany, Varelik himself stays in his homeland for a long time, but also returns to his family for extended periods, then, in my opinion, there is no reason to apply the rules of § 51 Abs. 1 Nr. 6 AufenthG. A permit to extend the period of absence may be issued when it is truly a long but nevertheless finite stay abroad.
Certain professional connections in Germany can play a positive role for a mining engineer. For example, he is sent by a German company to set up joint production or other business. For the German company and other organizations, he is considered a German businessman working on foreign projects, who spends a lot of time on business trips to the target country.
Varelík, however, intends to take up the position of mine manager at a domestic mining and processing plant. He will receive a service apartment and must remain constantly near the plant to be accessible to superiors and subordinates. I believe that in this case the authorities will refuse to issue such a permit. From the circumstances of the case, it is clear that he is leaving Germany forever and moving the center of his vital interests to his homeland. Indeed, the rules of §51 Abs. 1 Nr. 6 AufenthG may be applied to him here, and he loses his residence permit in Germany.
More complicated is the inflexible and legally prescribed six-month period of absence from Germany, when the loss of residence status occurs automatically, regardless of all other circumstances (§51 Abs. 1 Nr. 7 AufenthG). Varelík's responsible work at the mine does not allow him to leave for Germany at his own discretion. Here there is clearly a transfer of the center of his vital interests to one of the republics of the former Union, which inexorably leads to the loss of the German visa due to long absence and actual permanent residence there. Continuous, long-term residence in the CIS countries as a businessman from Germany for up to six months may also cause Varelík certain problems. Everything here depends on the circumstances of the specific case.
Long-term foreign residents in Germany
In connection with the issue of long-term absence, the provision of §51 Abs. 2 AufenthG is relevant. It concerns foreigners who have legally resided in Germany for at least 15 years and members of their families. In the event of a prolonged departure abroad, these persons do not lose their right of residence provided that, after returning to Germany, they can support themselves without social assistance. All unlimited residence permits (Aufenthaltserlaubnis) and rights of residence (Aufenthaltsberechtigung) valid as of 31.12.2004 were automatically converted into a permanent residence permit (Niederlassungserlaubnis) as of 01.01.2005. Thus, a foreigner who has lived in Germany since the beginning of 1990 without social assistance may freely go abroad for an unlimited period.
Departure of a foreign spouse
A special rule applies to foreign spouses of German citizens. Provided the family relationship continues, a foreign spouse's departure abroad for a prolonged period does not lead to the loss of the right of residence. In other words, the foreign spouse may reside abroad for a long time while the German spouse remains in Germany. If both consider their relationship a valid marriage, the foreign spouse does not lose his or her right of residence in Germany. This right of return for a foreign spouse of a German citizen permanently residing abroad is not tied to material preconditions. Even if the German spouse receives social assistance, he or she has the right to reunification with the foreign spouse. This rule on the right of spousal reunification must be applied individually. It may be necessary to prove to the foreigners authority that the marriage actually existed and continues to exist even when the husband and wife live in different countries.
A residence permit in Germany is not extinguished in the event of a foreigner's prolonged departure for the purpose of performing compulsory military service in his home country (§51 Abs. 1 Nr. 7 AufenthG). After demobilization from the armed forces, the foreigner must enter Germany within three months.