A residence permit automatically loses its validity after a foreigner has been absent from German territory for six months. The loss of the residence permit can also occur at the moment when the foreigner crosses the border of the Federal Republic of Germany, without the aforementioned six-month period having elapsed. This is the case if the circumstances of the case indicate the foreigner's intention to move their permanent place of residence abroad.
For example: the Jewish emigrant Igor Koval makes a clear decision to return to one of the countries of the former Soviet Union. He liquidates his household, gives up his apartment, and deregisters with all authorities. In this case, he loses his residence permit at the moment of boarding the plane. This general rule applies to all foreigners, including contingent refugees.
Do not forget to extend your absence period in time
In practice, I have to deal with various situations surrounding the aforementioned six-month period. It can be extended by the Foreigners Authority upon the personal application of the person concerned. A reasoned application for extending the period of absence from Germany should be submitted before the aforementioned six months have elapsed. Attention should also be paid to the actual timely issuance of this permission.
When making a decision, the Foreigners Authority must be guided by the provisions of §44 (3) of the Aliens Act. In general, persons with secure residence titles in Germany such as the 'right of residence' (Aufenthaltsberechtigung) or 'residence permit' (Aufenthaltserlaubnis) can reasonably hope for a positive decision on their application to extend the period of absence. Business trips that are in line with or serve the interests of Germany are a weighty reason for a longer stay abroad. In this respect, contingent refugees are treated on an equal footing with all other groups of foreigners. Nevertheless, I advise against relying entirely on the Foreigners Authority definitely issuing the desired permission for a longer stay abroad.
Marriage is not a luxury, but...?
The Foreigners Authorities have to confront the following situation. A contingent refugee moves to Germany together with a non-Jewish spouse. Very quickly after moving, the marriage falls apart. On closer inspection, one can reasonably suspect that the marital relationship has long existed only on paper. The purpose of maintaining the appearance of a marital relationship was to create an immigration basis for the spouse without their own right to immigrate, whether for the sake of joint children, material or other interests. As a rule, after moving, both spouses very quickly receive a permanent residence permit, after which such a couple quickly separates and ends all relations.
The question arises as to how to deal with such a situation and whether the residence permit may be revoked from the non-Jewish spouse. The opinion of lawyers on this matter is unambiguous: the decisive factor is the accurate characterization of the marital community. A fictitious marriage does not give the non-Jewish spouse the right to emigrate together to Germany. In such cases, the issuance of the permanent residence permit was unfounded, and this permit must be revoked. The actual existence of marital relations at the time of moving changes the situation fundamentally. The breakdown of the family on German territory does not entail the loss of the residence permit for the non-Jewish spouse, and he or she is not threatened with deportation to the home country.
Foreigners Authorities that revoke a residence permit in the event of a family breakdown, citing §49 of the Administrative Procedure Act (Verwaltungsverfahrensgesetz) or §9 of the Aliens Act (Auslaendergesetz), act contrary to current legislation. In such a case, persons affected by these decisions have no choice but to seek protection in court. The chances of success should be assessed as good.
The same rules apply when examining the circumstances of so-called 'problematic' marriages. Signs of these are considered to be a large age difference between spouses, their origin from completely different national and social backgrounds, geographical zones, in general - everything that raises suspicion of the fictitiousness of the marriage being concluded for the purpose of immigrating to Germany. I must say that these doubts should not be to the detriment of immigrants. Here, doubts are also resolved in their favor. The Foreigners Authority may impose serious punitive sanctions only in the case of absolute certainty of its correctness and provability of the fictitiousness of the marital relationship or the breakdown of the marriage long before immigration to Germany.
Thomas Pue,
German lawyer.