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Residence Act (Aufenthaltsgesetz, AufenthG) |
In the version published on 30 July 2004
(Federal Law Gazette I, p. 1950), last amended by the Act on Implementation of
Residence- and Asylum-Related Directives of the European Union of 19 August 2007
(Federal Law Gazette I, p. 1970), taking into account the amendments required
by the Act Amending the Passport Act and Other Legislation of 20 July 2007
(Federal Law Gazette I, p. 1566), which affect sections 48, 49, 71, 89, 95.
Table of contents
Chapter 1 General provisions
§ 1 Purpose of the Act; scope
§ 2 Definitions
Chapter 2 Entry into and residence in the Federal territory
Part 1 General
§ 3 Passport obligation
§ 4 Requirement for a residence title
§ 5 General preconditions for the granting of a residence
title
§ 6 Visa
§ 7 Residence permit
§ 8 Extension of the residence permit
§ 9 Settlement permit
§ 9a EC long-term residence permit
§ 9b Crediting of residence periods
§ 9c Subsistence
§ 10 Mutual effects of residence titles and applications for
asylum
§ 11 Ban on entry and residence
§ 12 Area of application, subsidiary provisions
Part 2 Entry
§ 13 Border crossing
§ 14 Unlawful entry; exceptional visa
§ 15 Refusal of entry
§ 15a Allocation to the Länder of
foreigners who have entered the Federal territory unlawfully
Part 3 Residence for educational
purposes
§ 16 Further education; language courses; school education
§ 17 Other educational purposes
Part 4 Residence for the purpose of
economic activity
§ 18 Employment
§ 19 Settlement permit for highly qualified foreigners
§ 20 Research
§ 21 Self-employment
Part 5 Residence under international
law or on humanitarian or political grounds
§ 22 Admission from abroad
§ 23 Granting of residence by the supreme Land authorities;
admission when special political interests apply
§ 23 a Granting of residence in cases of hardship
§ 24 Granting of residence for temporary protection
§ 25 Residence on humanitarian grounds
§ 26 Duration of residence
Part 6 Residence for family reasons
§ 27 Principles pertaining to the subsequent immigration of
dependents
§ 28 Subsequent immigration of dependents to join a German
national
§ 29 Subsequent immigration of dependents to join a
foreigner
§ 30 Subsequent immigration of spouses
§ 31 Independent right of residence of spouses
§ 32 Subsequent immigration of children
§ 33 Birth of a child in the Federal territory
§ 34 Children’s right of residence
§ 35 Children's independent, unlimited right of residence
§ 36 Subsequent immigration of parents and other dependents
Part 7 Special rights of residence
§ 37 Right of return
§ 38 Residence title for former Germans
§ 38a Residence permit for persons who possess the status of
long-term residents in other Member States of the European Union
Part 8 Notifications by the Federal
Employment Agency
§ 39 Approval of employment for a foreigner
§ 40 Grounds for refusal
§ 41 Revocation of approval
§ 42 Authorisation to issue
regulations and instructions
Chapter 3 Integration
§ 43 Integration course
§ 44 Entitlement to attend an integration course
§ 44a Obligation to attend an integration course
§ 45 Integration programme
Chapter 4 Administrative provisions
§ 46 Administrative orders
§ 47 Prohibition and restriction of political activities
§ 48 Obligations relating to identification papers
§ 49 Verification, establishment and documentation of
identity
§ 49a Database for found documents
§ 49b Contents of the database for found documents
Chapter 5 Termination of residence
Part 1 Grounds establishing the
obligation to leave the Federal territory
§ 50 Requirement to leave the Federal territory
§ 51 Termination of the lawfulness of residence; continued
validity of restrictions
§ 52 Revocation
§ 53 Mandatory expulsion
§ 54 Regular expulsion
§ 54a Surveillance of expelled foreigners for reasons of
internal security
§ 55 Discretionary expulsion
§ 56 Special protection from expulsion
Part 2 Enforcement of the obligation
to leave the Federal territory
§ 57 Removal
§ 58 Deportation
§ 58a Deportation order
§ 59 Deportation warning
§ 60 Prohibition of deportation
§ 60a Temporary suspension of deportation
§ 61 Geographic restrictions; departure facilities
§ 62 Custody awaiting deportation
Chapter 6 Liability and fees
§ 63 Obligations of transport contractors
§ 64 Return transportation obligation on the part of
transport contractors
§ 65 Obligations of airport operators
§ 66 Parties liable for costs; furnishing of security
§ 67 Scope of liability for costs
§ 68 Liability for living expenses
§ 69 Charges
§ 70 Limitation of actions in respect of claims
Chapter 7 Procedural provisions
Part 1 Areas of competence
§ 71 Competence
§ 71a Jurisdiction and notification
§ 72 Requirements for the involvement of authorities
§ 73 Other requirements for the involvement of authorities
in visa procedures and in the issuance of residence titles
§ 74 Involvement of the Federal government; authority to
issue instructions Part 1a Transit
§ 74a Transit of foreigners
Part 2 Federal Office for Migration
and Refugees
§ 75 Duties
§ 76 (revoked)
Part 3 Administrative procedures
§ 77 Written form; exemption from formal requirements
§ 78 Forms for residence titles, identification card
substitute and certificates
§ 79 Decision on residence
§ 80 Legal capacity of minors
§ 81 Application for the residence title
§ 82 Cooperation by the foreigner
§ 83 Restriction of right of appeal
§ 84 Effects of an objection and a legal action
§ 85 Calculation of residence periods
Part 4 Data protection
§ 86 Collection of personal data
§ 87 Transfer to foreigners authorities
§ 88 Transfer in case of special statutory regulations on
the use of data
§ 89 Procedure applying to measures to investigate,
establish and document a foreigner’s identity
§ 89a Procedural provisions for the database for found
documents
§ 90 Transfer by foreigners authorities
§ 90a Notifications by the foreigners authorities to the
registration authorities
§ 90b Data matching between foreigners authorities and
registration authorities
§ 91 Storage and erasure of personal data
§ 91a Temporary protection register
§ 91b Transfer of data by the Federal Office for Migration
and Refugees as the National Contact Point
§ 91c Intra-Community information in implementation of
directive 2003/109/EC
§ 91d Intra-Community information in implementation of
directive 2004/114/EC
§ 91e Common provisions for the register for the purposes of
temporary protection and intra-Community data transfer
Chapter 8 Commissioner for Migration, Refugees and Integration
§ 92 Office of the Commissioner
§ 93 Duties
§ 94 Scope of authority
Chapter 9 Provisions as to punishments for criminal offences
and fines
§ 95 Penal provisions
§ 96 Smuggling of foreigners into the Federal territory
§ 97 Smuggling of foreigners into the Federal territory
resulting in death; smuggling for gain and as organised
bands
§ 98 Provisions as to fines
Chapter 10 Authorisation to issue
statutory instruments; transitional and final provisions
§ 99 Authorisation to issue
statutory instruments
§ 100 Linguistic adaptation
§ 101 Continued validity of previous rights of residence
§ 102 Continued validity of other measures under the law
relating to foreigners and consideration of prior periods
§ 103 Application of previous law
§ 104 Transitional provisions
§ 104a Regulations governing old cases
§ 104b Right of residence for integrated children of
foreigners whose deportation has been suspended
§ 105 Continued validity of work authorisations
§ 105a Provisions as to the administrative procedure
§ 106 Curtailment of fundamental rights
§ 107 City-state clause
Chapter
1 General provisions
Section
1 Purpose of the Act; scope
(1)
This Act serves to control and restrict the influx of foreigners into the
Federal Republic of Germany. It enables and organises
immigration with due regard to the capacities for admission and integration and
the interests of the Federal Republic of Germany in terms of its economy and labour market. At the same time, the Act also serves to fulfil the Federal Republic of Germany's humanitarian
obligations. To this end, it regulates the entry, stay and economic activity of
foreigners and the integration of foreigners. The provisions contained in other
acts shall remain unaffected.
(2)
This Act shall not apply to foreigners
1. whose legal status is regulated by the Act on the
General Freedom of movement for EU Citizens, in the absence of any legal
provisions to the contrary,
2. who are not subject to German jurisdiction
according to the provisions of Sections 18 to 20 of the Judicature Act,
3. who, by virtue of treaties on diplomatic and
consular intercourse and on the activities of international organisations
and institutions, are exempt from immigration restrictions, from the obligation
to notify the foreigners authority of their stay and from the requirement for a
residence title, and when reciprocity applies, insofar as this may constitute a
prerequisite for such exemptions.
Section
2 Definitions
(1)
A foreigner is anyone who is not German within the meaning of Article 116 (1)
of the Basic Law.
(2)
Economic activity is self-employment and employment within the meaning of
Section 7 of Book Four of the Social Code.
(3)
A foreigner's livelihood is secure when he or she is able to earn their living,
including adequate health insurance coverage, without recourse to public funds.
For the purposes of this definition, such funds do not include child benefits,
children’s allowances, child-raising benefits, parental allowances, and public
funds based on own contributions or granted in order to enable residence in
Germany. A foreigner who is insured under a statutory health insurance scheme
shall be deemed to possess adequate health insurance coverage. Contributions to
household income by family members shall be taken into account when issuing or
renewing residence permits allowing the subsequent immigration of dependents.
For the purposes of issuance of a residence permit pursuant to Section 16, a
foreigner’s livelihood shall be deemed to be secure where he or she disposes of
monthly funds to the amount of the monthly requirement as determined pursuant
to Sections 13 and 13a (1) of the Federal Education Assistance Act. For the
purposes of issuance of a residence permit pursuant to Section 20, an amount
corresponding to two thirds of the reference figure defined in accordance with
Section 18 of Book Four of the Social Code shall be deemed adequate to cover
the cost of living. The Federal Ministry of the Interior shall announce the
minimum amounts pursuant to sentences 5 and 6 in the Federal Gazette annually
by 31 December for the following year.
(4) The space which is required to accommodate a
person in need of accommodation in state-subsidised
welfare housing shall constitute sufficient living space. Living space which
does not comply with the statutory provisions for Germans with regard to
condition and occupancy is not adequate for foreigners, either. Children up to
the age of two are not included in calculation of the sufficient living space
for the accommodation of families.
(5) A Schengen visa
constitutes the standard visa in accordance with the provisions incorporated
into Community law as the Schengen Acquis (official EC Journal no. L 239, p. 1) and the subsequently
promulgated acts of law.
(6) Temporary protection within the meaning of this
Act is the granting of residence in application of Council directive 2001/55/EC
of 20 July 2001 on minimum standards for the granting of temporary protection
in the case of the mass influx of displaced foreigners and on measures to
promote the balanced distribution of the burdens associated with the admission
of these persons and the consequences of such admission among the member states
(official EC Journal no. L 212, p. 12).
(7) A foreigner to whom the legal status of
long-term resident has been granted in a Member State of the European Union
pursuant to Article 2, letter b of Council Directive 2003/109/EC of 25 November
2003 concerning the legal status of third-country nationals who are long-term
residents (Official EU Journal 2004 no. L 16, p. 44) and not subsequently
revoked shall be deemed to be a long-term resident.
Chapter
2 Entry into and residence in the Federal territory
Part 1 General
Section
3 Passport obligation
(1) Foreigners may only enter or stay in the Federal
territory if they are in possession of a recognised
and valid passport or passport substitute, unless they are exempt from the
passport obligation by virtue of a statutory instrument. For the purpose of
residence in the Federal territory, possession of a substitute identity
document shall also suffice in order to meet the passport obligation (Section
48 (2)).
(2) In justified isolated cases, the Federal
Ministry of the Interior or a body designated by the Federal Ministry of the
Interior may permit exemptions from the passport obligation prior to the
foreigner entering the Federal territory for the purposes of crossing the
border, and for a subsequent stay of up to six months.
Section
4 Requirement for a residence title
(1)
In order to enter and stay in the Federal territory, foreigners shall require a
residence title, in the absence of any provisions to the contrary in the law of
the European Union or a statutory instrument and except where a right of
residence exists as a result of the agreement to establish an association
between the European Economic Community and Turkey (Federal Law Gazette 1964
II, p. 509) (EEC/Turkey Association Agreement). The residence titles are
granted in the form of
1. a visa (Section 6),
2. a residence permit (Section 7),
3. a settlement permit (Section 9) or
4. an EC long-term residence permit (Section 9a).
(2)
A residence title shall entitle the holder to pursue an economic activity
insofar as this is laid down in this Act or the permanent residence title
expressly permits pursuit of an economic activity. Every residence title must
indicate whether the pursuit of an economic activity is permitted. A foreigner
who is not in possession of a residence permit for the purpose of employment
can only be permitted to take up employment if the Federal Employment Agency
has granted its approval or a statutory instrument stipulates that taking up
the employment concerned is permissible without the approval of the Federal
Employment Agency. Any restrictions imposed by the Federal Employment Agency in
granting approval are to be specified in the residence title.
(3)
Foreigners may only take up employment if the residence title so allows.
Foreigners may only be employed or commissioned to perform other paid work or
services if they possess such a residence title. This restriction shall not
apply if the foreigner is permitted by virtue of an inter-governmental
agreement, a law or a statutory instrument to pursue an economic activity
without requiring due authorisation via a residence
title. Anyone employing a foreigner or commissioning a foreigner on a sustained
basis to perform paid work or services for gain in the Federal territory must
ascertain whether the conditions pursuant to sentence 2 or sentence 3 apply.
(4)
A residence permit shall also be required by foreigners who are employed as
crew members of an ocean-going vessel which is entitled to fly the German flag.
(5) A foreigner who possesses a right of residence
in accordance with the EEC/Turkey Association Agreement is obliged to furnish
evidence of the existence of said right of residence through the possession of
a residence permit, unless he or she is in possession of a settlement permit or
an EC long-term residence permit. Said residence permit
shall be issued on application.
Section
5 General preconditions for the granting of a residence title
(1)
The granting of a residence permit shall generally presuppose
1. that the foreigner’s livelihood is secure,
1a. that the foreigner's identity is established,
and also their nationality, if they are not entitled to return to another
state,
2. that no grounds for expulsion apply,
3. insofar as the foreigner has no entitlement to a
residence title, that the foreigner’s residence does not compromise or
jeopardize the interests of the Federal Republic of Germany for any other
reason and
4. that the passport obligation pursuant to Section
3 is met.
(2)
The granting of a residence permit, a settlement permit or an EC long-term
residence permit further presupposes that the foreigner
1. has entered the country with the necessary visa
and
2. has already furnished the key information
required for granting of the title in his or her visa application.
These
requirements may be waived if the prerequisites qualifying a foreigner for the
granting of a residence title are met or if special circumstances relating to
the individual case concerned render a subsequent visa application procedure
unreasonable.
(3)
Application of sub-sections 1 and 2 shall be waived in the cases of issuance of
a residence title pursuant to Sections 24, 25 (1) to (3) and Section 26 (3);
application of sub-section 1, nos. 1 to 2 and 2 and sub-section 2 shall be
waived in case of Section 25 (4a). Application of sub-sections 1 and 2 may be
waived in the other cases of issuance of a residence title pursuant to Chapter
2, Part 5. Where application of sub-section 1, no. 2 is waived, the foreigners
authority may point out that expulsion is possible on certain grounds forming
the subject of criminal or other proceedings which are still in progress,
whereby such grounds are to be specified individually.
(4)
A residence title shall be refused if one of the grounds for expulsion pursuant
to Section 54, nos. 5 or 5a applies. Exemptions from sentence 1 may be approved
in justified individual cases, if the foreigner divulges said activities or
allegiances to the competent authorities and credibly distances himself or
herself from his or her actions posing a threat to security. In justified
individual cases, the Federal Ministry of the Interior or a body designated by
the Federal Ministry of the Interior may permit exemptions from sentence 1
prior to the foreigner entering the country for the purposes of crossing the
border, and for a subsequent stay of up to six months.
Section
6 Visa
(1)
A foreigner may be issued
1. a Schengen visa for
transit purposes or
2. a Schengen visa for
stays of up to three months within a period of six months from the date of initial
entry (short-term stays)
if
the requirements for issuance as stipulated in the Convention Implementing the Schengen Agreement and the appurtenant implementing
regulations are fulfilled. In exceptional cases, the Schengen
visa may be issued when the requirements for issuance as stipulated in the
Convention Implementing the Schengen Agreement are
not fulfilled, for reasons of international law or on humanitarian grounds or
to safeguard the interests of the Federal Republic of Germany. In such cases, the
geographic validity shall be restricted to the territory of the Federal
Republic of Germany.
(2)
The visa for short-term stays may also be issued for several stays with a
validity period of up to five years, subject to the proviso that the respective
stays must not exceed three months within a period of six months beginning on
the date of initial entry.
(3)
In special cases, a Schengen visa issued in
accordance with sub-section 1, sentence 1 may be extended up to a total stay of
three months within a period of six months beginning on the date of initial
entry. This provision shall also apply if the visa has been issued by a
diplomatic representation abroad of another state applying the Schengen agreement. A further extension of the visa by
three months within the six-month period concerned shall only be possible
subject to the requirements of sub-section 1, sentence 2.
(4)
A visa for the Federal territory (national visa) shall be required for stays of
longer duration, whereby this visa shall be issued prior to the foreigner
entering the Federal territory. Issuance shall be based on the regulations
applying to the residence permit, the settlement permit and the EC long-term
residence permit. The duration of lawful stay with a national visa shall be offset
against the periods of possession of a residence permit, settlement permit or
EC long-term residence permit.
Section
7 Residence permit
(1)
The residence permit is a temporary residence title. It is issued for the
purposes of residence stated in the following Parts of this Act. In justified
cases, a residence permit may also be issued for a purpose of residence which
is not covered by this Act.
(2)
The residence permit shall be subject to a time limit which takes due account
of the intended purpose of residence. Shoulda vital
prerequisite for issuance, extension or the duration of validity cease to
apply, subsequent shortening of the validity period shall also be possible.
Section
8 Extension of the residence permit
(1)
Extension of the residence permit shall be subject to the same regulations as
apply to issuance.
(2)
As a general rule, the residence permit shall not be extendable if the
competent authority has excluded an extension in the case of a stay which is of
only a temporary nature in accordance with the purpose of residence or at the
time of the last extension of the residence permit.
(3)
If a foreigner breaches his or her obligation to duly attend an integration
course pursuant to Section 44a (1), sentence 1, this shall be taken into
account in the decision on extension of the residence permit. Where no
entitlement to issuance of the residence permit exists, in case of repeated and
gross breach of the obligations pursuant to sentence 1 extension of the residencepermit shall be refused. Where an entitlement to
extension of the residence permit applies only pursuant to this Act, extension
may be refused unless the foreigner furnishes evidence that he or she has
achieved integration into the community and society by other means. In reaching
a decision on this matter, due consideration shall be given to the duration of
lawful stay, the foreigner’s legitimate ties to the Federal territory and
consequences of the termination of residence for dependents of the foreigner who
are lawfully resident in the Federal territory.
(4)
Sub-section 3 shall not be applicable to the extension of a residence permit
issued pursuant to Section 25 (1), (2), (3) or (4a).
Section 9 Settlement permit
(1)
The settlement permit is a permanent residence title. It entitles the holder to
pursue an economic activity and may only be supplemented with a subsidiary
provision in those cases which are expressly permitted by this Act. Section 47
remains unaffected.
(2)
A foreigner shall be granted the settlement permit provided that
1. he or she has held a residence permit for five
years,
2. his or her livelihood is secure,
3. he or she has paid compulsory or voluntary
contributions into the statutory pension scheme for at least 60 months or
furnishes evidence of an entitlement to comparable benefits from an insurance
or pension scheme or from an insurance company; time off for the purposes of
child care or nursing at home shall be duly taken into account,
4. the granting of such a residence permit is not
precluded by reasons of public safety or order, according due consideration to
the severity or the nature of the breach of public safety or order or the
danger emanating from the foreigner, with due regard to the duration of the
foreigner’s stay to date and the existence of ties in the Federal territory,
5. he or she is permitted to be in employment,
insofar as he or she is in employment,
6. he or she is in possession of the other permits
which are required for the purpose of the permanent pursuit of his or her
economic activity,
7. he or she has an adequate knowledge of the German
language,
8. he or she possesses a basic knowledge of the
legal and social system and the way of life in the Federal territory and
9. he or she possesses sufficient living space for
himself or herself and the members of his or her family forming part of his or
her household.
The
requirements of sentence 1, nos. 7 and 8 shall be deemed to be fulfilled if an
integration course has been successfully completed. These requirements shall be
waived if the foreigner is unable to fulfil them on
account of a physical, mental or psychological illness or handicap. The
requirements of sentence 1, nos. 7 and 8 may also be waived in order to avoid
hardship. The aforesaid requirements shall further be waived if the foreigner
is able to communicate verbally in the German language at a basic level and has
not been entitled to participate in an integration course pursuant to Section
44 (3), no. 2 or has not been obliged to participate in an integration course
pursuant to Section 44a (2), no. 3. The requirements of sentence 1, nos. 2 and
3 shall also be waived if the foreigner is unable to fulfil
them due to the grounds stated in sentence 3.
(3)
In the case of cohabiting spouses, it shall suffice if the requirements in
accordance with sub-section 2, sentence 1, nos. 3, 5 and 6 are fulfilled by one
spouse. The requirement in accordance with sub-section 2, sentence 1, no. 3
shall be waived, if the foreigner is undergoing education or training which
leads to a recognised academic or vocational
qualification. Sentence 1 shall apply mutatis mutandis in the cases covered by
Section 26 (4).
(4)
In the case of convicted foreigners, the period specified in sub-section 2,
sentence 1, no. 4 shall begin on release from imprisonment. The following
periods shall be taken into account with regard to the periods of possession of
a residence permit which are necessary in order to qualify for issuance of a
settlement permit:
1. The duration of former possession of a residence
permit or settlement permit, if the foreigner was in possession of a settlement
permit at the time of leaving the Federal territory, minus the duration of
intermediate stays outside of the Federal territory which led to expiry of the
settlement permit; a maximum of four years shall be taken into account.
2. A maximum of six months for each stay outside of
the Federal territory which has not led to expiry of the residence permit.
3. Half of the period of lawful stay for the
purposes of study or vocational training in the Federal territory.
Section
9a EC long-term residence permit
(1)
The EC long-term residence permit is a permanent residence title. Section 9
(1), sentences 2 and 3 shall apply accordingly. In the absence of any
provisions to the contrary in this Act, the EC long-term residence permit is
equivalent to the settlement permit.
(2)
A foreigner shall be issued with an EC long-term residence permit pursuant to
Article 2, letter b of directive 2003/109/EC provided that
1. he or she has been resident in the Federal
territory with a residence title for five years,
2. his or her subsistence and the subsistence of his
or her dependents who he or she is required to support is ensured by a fixed
and regular income,
3. he or she has an adequate knowledge of the German
language,
4. he or she possesses a basic knowledge of the
legal and social system and the way of life in the Federal territory,
5. the granting of such a residence permit is not
precluded by reasons of public safety or order, according due consideration to
the severity or the nature of the breach of public safety or order or the
danger emanating from the foreigner, with due regard to the duration of the
foreigner’s stay to date and the existence of ties in the Federal territory and
6. he or she possesses sufficient living space for
himself or herself and the members of his or her family forming part of his or
her household. Section 9 (2), sentence 2 to 5 shall apply mutatis mutandis to
sentence 1, nos. 3 and 4.
(3)
Sub-section 2 shall not be applicable if the foreigner
1. possesses a residence title pursuant to Part 5
which has not been issued on the basis of Section 23 (2) or holds a comparable
legal status in another Member State of the European Union,
2. has filed an application in a Member State of the
European Union for the granting of refugee status or of subsidiary protection
in accordance with Council directive 2004/83/EC of 29 April 2004 on minimum
standards for the qualification and status of third country nationals or
stateless persons as refugees or as persons who otherwise require international
protection and the content of the protection granted (Official EU Journal no. L
304, p.12) or has applied for temporary protection pursuant to Section 24 and a
decision is pending on his or her application,
3. possesses a legal status in another Member State
of the European Union which corresponds to that described in Section 1 (2), no.
2,
4. is resident in the Federal territory with a
residence permit pursuant to Section 16 or Section 17
5. or for another purpose of an inherently temporary
nature, in particular
a) by virtue of a residence permit pursuant to
Section 18, where the time limit on the approval granted by the Federal
Employment Agency is based on a maximum term of employment imposed pursuant to
Section 42 (1),
b) if an extension to his or her residence permit
has been excluded pursuant to Section 8 (2) or
c) if his or her residence permit serves to enable
the foreigner to live together or to continue to live together as a family with
a foreigner who himself/herself is only resident in the Federal territory for a
purpose of an inherently temporary nature, where no independent right of
residence would arise upon the family unity ending.
Section
9b Crediting of residence periods
The
following periods shall be credited towards the necessary periods pursuant to
Section 9a (2), sentence 1, no. 1:
1. Periods of residence outside of the Federal
territory during which the foreigner possessed a residence title and
a) was resident abroad on account of having been
sent to a foreign country in connection with his or her work, provided that
such individual periods have not exceeded six months or a longer period
stipulated by the foreigners authority pursuant to Section 51 (1), no. 7, or
b) the total periods do not exceed six consecutive
months or, within the period stated in Section 9a (2), sentence 1, no. 1, a
total of ten months,
2. previous periods of residence in the Federal
territory with a residence permit, settlement permit or EC long-term residence
permit, where the foreigner was in possession of a settlement permit or an EC
long-term residence permit at the time of leaving the Federal territory and the
settlement permit or the EC long-term residence permit has expired solely on
account of residence outside of Member States of the European Union or due to
acquisition of the legal status of a long-term residence in another Member
State of the European Union, up to a maximum of four years,
3. periods in which the foreigner was entitled to
freedom of movement,
4. half of any periods of lawful stay for the
purposes of study or vocational training in the Federal territory.
Periods
of residence pursuant to Section 9a (3), no. 5 and periods of residence in which
the foreigner also met the conditions of Section 9a (3), no. 3 shall not be
credited. Periods of residence outside of the Federal territory which are not
credited pursuant to sentence 1 shall not interrupt the period of residence
pursuant to Section 9a (2), sentence 1, no. 1 where the residence outside of
the Federal territory has not resulted in expiry of the residence title; such
times shall not be considered when determining the total duration of residence
pursuant to Section 9a (2), sentence 1, no. 1. In all other cases, exit from
the Federal territory shall interrupt the period of residence pursuant to
Section 9a (2), sentence 1, no. 1.
Section
9c Subsistence
Fixed
and regular income within the meaning of Section 9a (2), no. 2 generally
applies where
1. the foreigner has met his or her tax obligations,
2. the foreigner or his or her cohabiting spouse has
paid contributions or made adequate provision for an old-age pension in Germany
or abroad, provided that he or she has not been prevented from doing so by a
physical, mental or psychological illness or disability,
3. the foreigner and his or her dependents living
with him or her as a family unit are safeguarded from the risk of illness and
the need for nursing care by statutory health insurance or an essentially
equivalent form of insurance coverage which applies for an indefinite period or
is extended automatically and
4. the foreigner who obtains his or her regular
income from an economic activity is entitled to perform the economic activity concerned
and also possesses the other permits required to this end.
(4)
In the case of cohabiting spouses, it shall suffice if the requirements in
accordance with sentence 1, no. 4 are fulfilled by one spouse. With regard to
the contributions or provisions which are necessary pursuant to sentence 1, no.
2, no higher contributions or provisions shall be required than are provided
for in Section 9 (2), sentence 1, no. 3.
Section
10 Mutual effects of residence titles and applications for asylum
(1) In the absence of a legal entitlement, a
foreigner who has filed an application for asylum may only be granted a
residence title prior to legally valid completion of the asylum procedure with
the approval of the supreme Land authority, and only when vital interests of
the Federal Republic of Germany so require.
(2) A residence title issued or extended by the
foreigners authority after the foreigner has entered the Federal territory can
be extended in accordance with the provisions of this Act, irrespective of whether
the foreigner has filed an application for asylum.
(3) A foreigner whose asylum application has been
incontestably rejected or who has withdrawn his or her asylum application may
only be granted a residence title prior to leaving the Federal territory in
accordance with the provisions of Part 5. If the asylum application has been
rejected in accordance with Section 30 (3) of the Asylum Procedure Act, no
residence title may be issued prior to the foreigner leaving the Federal
territory. Sentences 1 and 2 shall not apply in cases of entitlement to
issuance of a residence title; sentence 2 shall further not apply where the
foreigner meets the requirements for issuance of a residence permit pursuant to
Section 25 (3).
Section
11 Ban on entry and residence
(1) A foreigner who has been expelled, removed or
deported shall not be permitted to re-enter or stay in the Federal territory.
He or she shall not be granted a residence title, even if the requirements
entitling him or her to a title in accordance with this Act are fulfilled. Time
limits shall generally be applied to the effects stated in sentences 1 and 2 on
application. The time limit begins upon the person concerned leaving the
Federal territory. No time limit shall be applied if a foreigner has been deported
from the Federal territory on account of a crime against peace, a war crime or
a crime against humanity, or on the basis of a deportation order pursuant to
Section 58a. The supreme Land authority may permit exemptions from sentence 5
in individual cases.
(2) By way of exception, the foreigner may, except
in cases covered by sub-section 1, sentence 5, be granted temporary entrance
into the Federal territory for a short period prior to expiry of the exclusion
period stipulated in accordance with sub-section 1, sentence 3, if his or her
presence is required for compelling reasons or if the refusal of permission
would constitute undue hardship. Sub-section 1, sentence 6 shall apply mutatis
mutandis in cases pursuant to sub-section 1, sentence 5.
Section
12 Area of application; subsidiary provisions
(1) The residence title is issued for the Federal
territory. Its validity in accordance with the provisions of the Convention
Implementing the Schengen Agreement for residence in
the territories of the parties signatory shall remain unaffected.
(2) The visa and the residence permit may be issued
and extended subject to conditions. Conditions, in particular geographic
restrictions, may also be imposed subsequently on visa and residence permits.
(3) A foreigner is to leave forthwith any part of
the Federal territory which he or she may enter in breach of a geographic
restriction without the permission of the foreigners authority.
(4) The stay of a foreigner who does not require a
residence title may be made subject to time limits, geographic restrictions,
conditions and requirements.
(5)
The foreigners authority may permit the foreigner to leave the residence area
which is restricted on the basis of this Act. This permission shall be granted
if an urgent public interest applies, if it is necessary for compelling reasons
or if refusing permission would constitute undue hardship. The foreigner may
attend appointments with authorities or court hearings at which his or her
personal appearance is necessary without permission.
Part
2 Entry
Section
13 Border crossing
(1)
Entry into and exit from the Federal territory is permissible only at the
approved border crossing points and within the stipulated traffic hours, in the
absence of any exceptions which may be permissible on the basis of other
statutory provisions or inter-governmental agreements. Foreigners shall be
obliged to carry a recognised and valid passport or
passport substitute in accordance with Section 3 (1) when entering or leaving
the Federal territory and to submit to the police control of cross-border
traffic.
(2)
A foreigner shall be deemed to have entered the Federal territory only after
having crossed the border and passed through the border check-point. Should the
authorities charged with carrying out the police control of cross-border
traffic allow a foreigner to pass through the border check-point for a specific
temporary purpose prior to a decision on the refusal of entry (Section 15 of
this Act, Sections 18, 18a of the Asylum Procedure Act) or during preparation,
safeguarding and implementation of this measure, this shall not constitute
entry pursuant to sentence 1 as long as the said authorities remain able to
monitor the foreigner's stay. The foreigner shall otherwise be deemed to have
entered the Federal territory on crossing the border.
Section
14 Unlawful entry; exceptional visa
(1)
The entry of a foreigner into the Federal territory shall be unlawful if he or
she
1. does not possess a required passport or passport
substitute in accordance with Section 3 (1),
2. does not possess the residence title required in
accordance with Section 4 or
3. is not permitted to enter the Federal territory
in accordance with Section 11 (1), unless he or she possesses a temporary entry
permit in accordance with Section 11 (2). 2.
(2)
The authorities charged with carrying out the police control of cross-border
traffic may issue exceptional visa and passport substitute documents.
Section
15 Refusal of entry
(1)
A foreigner wishing to enter the Federal territory unlawfully shall be refused
entry at the border.
(2)
A foreigner may be refused entry at the border if
1. a reason for expulsion exists,
2. there is a well-founded suspicion that the
foreigner does not intend to stay in the country for the stated purpose,
2a. he or she only possesses a Schengen
visa or is exempted from the visa requirement for a short-term stay and intends
to pursue an economic activity counter to Section 4 (3), sentence 1 or
3. he or she does not fulfil
the conditions for entry into the territory of the parties signatory in
accordance with Article 5 of the Schengen Borders
Code.
(3)
A foreigner who is exempted from the requirement for a residence title for the
purpose of a temporary stay in the Federal territory may be refused entry if he
or she does not fulfil the requirements of Section 3
(1) and Section 5 (1).
(4)
Section 60 (1) to (3), (5) and (7) to (9) shall apply mutatis mutandis. A
foreigner who has filed an application for asylum may not be refused entry if
he or she is permitted to stay in the Federal territory in accordance with the
provisions of the Asylum Procedure Act.
(5)
In order to ensure that a foreigner who has been refused entry does not enter
the Federal territory, the foreigner concerned may be taken into custody
(detention pending exit from the Federal territory) by virtue of a judicial
order where a ruling to refuse entry has been issued and cannot be enforced
immediately. Section 62 (3) shall otherwise apply mutatis mutandis. Sub-section
1 shall not apply in cases in which the judge declines to issue a corresponding
judicial order or to extend the period of detention.
(6)
Where the foreigner has reached the Federal territory by air and has not effected entry pursuant to Section 13 (2) but has been
refused entry, he or she shall be taken to the transit area of an airport or to
a place of accommodation from which his or her exit from the Federal territory
is possible if detention pending exit from the Federal territory is not applied
for. The foreigner’s stay in the transit area of an airport or in accommodation
pursuant to sentence 1 shall require a judicial order no later than 30 days
after arrival at the airport or, should the time of arrival not be ascertainable,
after the competent authorities obtain knowledge of the foreigner’s arrival.
The judicial order shall be issued to ensure the foreigner’s due exit from the
Federal territory. It shall be admissible only where exit is to be expected
within the term of the order. Sub-section 5 shall apply mutatis mutandis.
Section
15a Allocation to the Länder of foreigners who have
entered the Federal territory unlawfully
(1)
Foreigners who enter the country illegally without applying for asylum and who,
upon their illegal entry being established, cannot be placed in custody pending
deportation and deported or expelled directly from custody are to be allocated
to the respective Länder prior to the decision on the
suspension of deportation or issuance of a residence title. They are not
entitled to be allocated to a specific Land or a specific town or location.
Allocation to the Länder shall be carried out by a
central allocation agency to be appointed by the Federal Ministry of the
Interior. In the absence of any divergent allocation basis agreed between the Länder, the allocation basis stipulated for the allocation
of asylum seekers shall apply. Each Land shall appoint up to seven authorities
to initiate allocation by the agency appointed in accordance with sentence 3
and to admit the allocated foreigners. If the foreigner furnishes evidence
prior to allocation that a household community exists between spouses or
parents and their minor children or that other compelling reasons exist which
conflict with allocation to a certain place, this shall receive due
consideration in the allocation process.
(2)
The foreigners authorities may oblige foreigners to present themselves to the
authority initiating allocation. This shall not apply when due consideration is
to be accorded to submissions in accordance with sub-section 1, sentence 6. An
obligation imposed in accordance with sentence 1 shall not be contestable. Any
legal actions shall have no suspensory effect.
(3)
The central allocation agency informs the authority which has initiated
allocation as to the reception centre which is obliged to admit the foreigners
concerned pursuant to sentences 2 and 3. Procedure Act and the available
accommodation capacities shall be obliged to admit the foreigners concerned.
Section 46 (4) and (5) of the Asylum Procedure Act are to be applied mutatis
mutandis.
(4)
The foreigners authority forwards the result of the hearing to the authority
initiating allocation, which notifies the central allocation agency of the
number of foreigners, stating the countries of origin and the results of the
hearing. Spouses and parents and their minor, unmarried children shall be
registered and allocated as a group. The foreigner is to stay at this reception
centre until re-allocated to another location within the Land, but until
suspension of deportation or until issuance of a residence title at the latest;
Sections 12 and 61 (1) shall remain unaffected. The Land governments shall be authorised to regulate allocation within the Land by
statutory instrument, insofar as allocation is not regulated by Land law on the
basis of this Act; Section 50 (4) of the Asylum Procedure Act shall apply
mutatis mutandis. The Land governments may assign the said authorisation
to other bodies of the Land. Orders pursuant to sentence 1 shall not be
contestable. Any legal actions shall have no suspensory
effect. Sentences 7 and 8 shall apply mutatis mutandis, if an allocation order
is issued on the basis of a Land law or a statutory instrument pursuant to
sentence 5.
(5)
Following allocation, the competent authorities may permit the foreigner to
take up residence in another Land. Following a permitted change of residence,
the foreigner shall be deducted from the quota for the Land from which he or
she is released and added to the quota for the admitting Land.
(6)
The provisions of sub-sections 1 to 5 shall not apply to persons who verifiably
entered the Federal territory prior to 1 January 2005.
Part
3 Residence for educational purposes
Section
16 Further education; language courses; school education
(1) A foreigner may be granted a residence permit
for the purpose of studying at a state or state-recognised
university or a comparable educational establishment. Residence for study
purposes shall also extend to language courses in preparation for studies and
attendance of a preparatory course prior to studying (preparatory measures for
courses of study). The residence permit for study purposes may only be issued
where the foreigner has been admitted by the educational establishment
concerned; conditional admission is sufficient. Proof of a knowledge of the
language in which the course of studies is to be conducted shall not be
required where the foreigner’s knowledge of the language has already been taken
into account in the decision on admission or is to be acquired by means of
preparatory measures for the course of study. The period of validity when the
residence permit for study purposes is issued for the first time and for each
subsequent extension shall be at least one year and should not exceed two years
during courses of study and preparatory measures for courses of study; it may
be extended where the purpose of residence has not yet been achieved and is
achievable within a reasonable period of time.
(1a) A foreigner may also be issued a residence
permit for the purpose of applying for a study place. The maximum permissible
duration of residence for a foreigner applying for a place to study shall be
nine months.
(2) As a general rule, no residence permit for
another purpose of residence shall be granted or extended during the stay in
accordance with sub-section 1, unless a legal entitlement applies. Section 9
shall not apply.
(3) The residence permit entitles the holder to take
up employment totalling no more than 90 days or 180
half-days per year, and to take up spare-time student employment. This shall
not apply in the first year of residence during a stay for the purpose of
preparatory measures for a course of study, except during holiday time and in
the case of residence pursuant to sub-section 1a.
(4)
After successful completion of the studies, the residence permit may be
extended by up to one year for the purposes of seeking a job commensurate with
this qualification, provided that it is permissible to fill the vacancy
concerned with foreigners in accordance with the provisions contained in
Sections 18, 19 and 21. Sub-section 3 shall apply mutatis mutandis. Section 9
shall not apply.
(5)
A foreigner may be granted a residence permit to attend language courses which
do not serve to prepare him or her for a course of study and, in exceptional
cases, for the purpose of attending school education. Sub-section 2 shall apply
mutatis mutandis.
(6)
A foreigner to whom another Member State of the European Union has issued a
residence title for study purposes which falls within the ambit of Council
directive 2004/114/EC of 13 December 2004 on the conditions of admission of
third-country nationals for the purposes of studies, pupil exchange, unremunerated
training or voluntary service (Official EU Journal no. L 375, p. 12) shall be
granted a residence permit for the same purpose where he or she
1. wishes to carry out part of his or her studies at
an educational establishment in the Federal territory because he or she is
obliged under the terms of reference for the course of studies to carry out
part of his or her studies at an educational establishment of another Member
State of the European Union or
2. fulfils the conditions pursuant to sub-section 1
and wishes to continue in the Federal territory part of a course of study
commenced in another Member State or to supplement such a course of study in
the Federal territory and
a) is participating in an exchange programme between the Member States of the European Union
or in an exchange programme of the European Union or
b) has been admitted for a course of study for a
period of at least two years in the other Member State of the European Union.
A
foreigner who applies for a residence title pursuant to sentence 1, no. 2 is to
submit to the competent authority documentation on his or her academic
education to date and on the intended course of studies in Germany which
verifies that the studies in the Federal territory shall constitute a
continuation or supplementation of the studies completed to date. Section 9
shall not apply.
(7)
Where the foreigner is under 18 years of age, the persons entitled to care and
custody of the foreigner must consent to the planned stay.
Section
17 Other educational purposes
A
foreigner may be issued a residence permit for the purpose of basic and
advanced industrial training, if the Federal Employment Agency has granted
approval in accordance with Section 39 or if a statutory provision in
accordance with Section 42 or an inter-governmental agreement stipulates that
such basic and advanced vocational training is permissible without approval
from the Federal Employment Agency. Any restrictions imposed by the Federal
Employment Agency in granting approval are to be specified in the residence
permit. Section 16 (2) shall apply mutatis mutandis.
Part
4 Residence for the purpose of economic activity
Section
18 Employment
(1) The admission of foreign employees shall be
geared to the requirements of the German economy, according due consideration
to the situation on the labour market and the need to
combat unemployment effectively. International treaties shall remain
unaffected.
(2)
A foreigner may be granted a residence title for the purpose of taking up
employment if the Federal Employment Agency has granted approval in accordance
with Section 39 or if a statutory provision in accordance with Section 42 or an
inter-governmental agreement stipulates that such employment may be taken up
without approval from the Federal Employment Agency. Any restrictions imposed
by the Federal Employment Agency in granting approval are to be specified in
the residence title.
(3)
A residence permit for the purpose of taking up employment pursuant to
sub-section 2 which does not require a vocational qualification may only be
issued if regulated by an inter-governmental agreement or if issuance of
approval for a residence permit for the said employment is permissible by
virtue of a statutory instrument in accordance with Section 42.
(4)
A residence title for the purpose of taking up employment pursuant to
sub-section 2 which requires a vocational qualification may only be issued for
employment in an occupational group which has been approved by virtue of a
statutory instrument in accordance with Section 42. In justified individual
cases, a residence permit may be issued for the purpose of taking up employment
when there is a public interest, and in particular a regional interest or an
interest relating to the economy or the labour
market.
(5)
A residence title in accordance with sub-section 2 and Section 19 may only be
issued if a concrete job offer exists.
Section
19 Settlement permit for highly qualified foreigners
(1)
A highly qualified foreigner may be granted a settlement permit in special
cases if the Federal Employment Agency has granted approval in accordance with
Section 39 or if a statutory provision in accordance with Section 42 or an
inter-governmental agreement stipulates that the settlement permit may be
granted without approval from the Federal Employment Agency in line with
Section 39 and there are justifiable grounds to assume that integration into
the way of life which prevails in the Federal Republic of Germany and ensurance of the foreigner's subsistence without state
assistance are assured. The Land government may stipulate that issuance of the
settlement permit pursuant to sentence 1 requires the approval of the supreme
Land authority or a body to be designated by the latter.
(2)
Highly qualified persons in accordance with sub-section 1 are, in particular,
1. scientists with special technical knowledge,
2. teaching personnel in prominent positions or
scientific personnel in prominent positions, or
3. specialists and executive personnel with special
professional experience who receive a salary corresponding to at least twice
the earnings ceiling of the statutory health insurance scheme.
Section
20 Research
(1)
A foreigner shall be granted a residence permit for research purposes where
1. he or she has concluded an effective admission
agreement for the purpose of carrying out a research project with a research
establishment which is recognised for implementation
of the special admission procedure for researchers in the Federal territory
pursuant to Council directive 2005/71/EC of 12 October 2005 on a specific
procedure for admitting third-country nationals for the purposes of scientific
research (Official EU Journal no. L 289, p. 15) and
2. the recognised research
establishment has undertaken in writing to bear the costs accruing to public
bodies up to six months after termination of the admission agreement for
a) the foreigner’s subsistence during an unlawful
stay in a Member State of the European Union and
b) deportation of the foreigner.
(2)
The requirement pursuant to sub-section 1, no. 2 should be waived where the
activities of the research establishment are financed primarily from public
funds. The requirement may be waived where there is a special public interest
in the research project. Section 66 (5), Section 67 (3) and Section 68 (2),
sentence 2 and 3 and (4) shall be applicable mutatis mutandis to the
declarations furnished pursuant to sub-section 1, no. 2.
(3)
The research establishment may also submit the declaration pursuant to
sub-section 1, no. 2 to the body responsible for its recognition as a general
declaration for all foreigners to whom a residence permit is issued on the
basis of an admission agreement concluded with the establishment concerned.
(4)
The residence permit shall be issued for a period of at least one year. By way
of derogation from sentence 1, where the research project is completed in a
shorter period the term of the residence permit shall be limited to the
duration of the research project.
(5)
Foreigners who hold a residence title from another Member State of the European
Union for research purposes pursuant to directive 2005/71/EC shall be granted a
residence permit or a visa for the purpose of carrying out parts of the
research project in the Federal territory. The residence permit shall be issued
for a stay of more than three months only if the conditions pursuant to
sub-section 1 are met. (4) Section 9 shall not apply.
(6)
A residence permit pursuant to sub-sections 1 and 5, sentence 2 shall entitle
the holder to pursue an economic activity pertaining to the research project
specified in the admission agreement and to pursue teaching activities. A
foreigner who meets the conditions pursuant to sub-section 5, sentence 1 may
also pursue an economic activity pursuant to sentence 1 without a residence
title for a period of three months within a twelve-month period.
(7)
Sub-sections 1 and 5 shall not apply for foreigners
1. who are resident in a Member State of the
European Union because they have filed an application for the granting of
refugee status or of subsidiary protection within the meaning of directive
2004/83/EC,
2. who are resident in a Member State of the
European Union under the terms of an arrangement to provide temporary protection,
3. whose deportation has been suspended in a Member
State of the European Union on actual or legal grounds,
4. whose research activities form part of doctoral
studies or
5. who are dispatched by a research establishment in
another Member State of the European Union to a German research establishment
as an employee.
Section
21 Self-employment
(1)
A foreigner may be granted a residence permit for the purpose of
self-employment, if
1. an overriding economic interest or a special
regional need applies,
2. the activity is expected to have positive effects
on the economy and
3. personal capital on the part of the foreigner or
a loan undertaking is available to realise the
business idea.
The
prerequisites specified in sentence 1, nos. 1 and 2 are generally met when at
least 500 000 euros are invested and five jobs are
created. Assessment of the prerequisites in accordance with sentence 1 shall
otherwise focus in particular on the viability of the business idea forming the
basis of the application, the foreigner's entrepreneurial experience, the level
of capital investment, the effects on the employment and training situation and
the contribution towards innovation and research. The competent bodies for the
planned business location, the competent trade and industry authorities, the
representative bodies for public-sector professional groups and the competent
authorities regulating admission to the profession concerned shall be involved
in examining the application.
(2)
A residence permit for the purpose of self-employment may also be granted if
special privileges apply according to agreements under international law on the
basis of reciprocity.
(3)
Foreigners aged over 45 should be issued with a residence permit only if they
possess adequate provision for old age.
(4)
The period of validity of the residence permit shall be limited to a maximum of
three years. By way of derogation from Section 9 (2), a settlement permit may
be issued where the foreigner has successfully realised
the planned activity and the subsistence of the foreigner and the dependents
living with him or her as a family unit and whom he is required to support is
ensured by adequate income.
(5)
By way of derogation from sub-section 1, a foreigner may be granted a residence
permit for the purpose of self-employment. A required permit to practice the
profession must have been issued or confirmation must have been provided that
such permit will be issued. Sub-section 1, sentence 4, shall apply mutatis mutandis.
Sub-section 4 shall not apply.
(6)
A foreigner who is to be or has been granted a residence permit for another
purpose may be permitted to pursue self-employment while retaining the
aforesaid purpose of residence where the permits required under other
provisions have been issued or an undertaking has been provided that such
permits will be issued.
Part
5 Residence under international law or on humanitarian or political grounds
Section
22 Admission from abroad
A
foreigner may be granted a residence permit for the purpose of admission from
abroad in accordance with international law or on urgent humanitarian grounds.
A residence permit shall be granted if the Federal Ministry of the Interior or
the body designated by the Federal Ministry of the Interior to uphold the
political interests of the Federal Republic of Germany has declared that the
foreigner is to be admitted. In the case of sentence 2, the residence permit
shall entitle the holder to pursue an economic activity.
Section
23 Granting of residence by the supreme Land authorities; admission when
special political interests apply
(1)
The supreme Land authority may order a residence permit to be granted to
foreigners from specific states or to certain groups of foreigners defined by
other means, in accordance with international law, on humanitarian grounds or
in order to uphold the political interests of the Federal Republic of Germany.
The order may be issued subject to the proviso that a declaration of commitment
be submitted in accordance with Section 68. In order to ensure a nationwide
uniform approach, the order shall require the approval of the Federal Ministry
of the Interior.
(2)
In order to safeguard special political interests of the Federal Republic of
Germany, in consultation with the supreme Land authorities the Federal Ministry
of the Interior may order foreigners from specific states or certain categories
of foreigners defined by other means to be granted approval for admission by
the Federal Office for Migration and Refugees. No preliminary proceedings shall
take place pursuant to Section 68 of the Code of Administrative Court
Procedure. The foreigners concerned shall be issued with a residence permit or
settlement permit, in accordance with the approval for admission. The settlement
permit may be issued subject to a condition restricting the permissible place
of residence. The residence permit entitles the holder to pursue an economic
activity.
(3)
The order may provide for Section 24 to be applied mutatis mutandis, either in
part or in its entirety.
Section
23a Granting of residence in cases of hardship
(1)
By way of derogation from the prerequisites for the issuance and extension of
residence titles as stipulated in this Act, the supreme Land authority may, on
petition from a Hardship Commission to be established by the Land government by
virtue of a statutory instrument, order a residence permit to be issued to a
foreigner who is enforceably required to leave the
Federal territory (hardship petition). According to the individual case
concerned, the said order may be issued with due consideration as to whether
the foreigner's subsistence is assured or a declaration of commitment is
submitted in accordance with Section 68. A case of hardship will not generally
be considered if the foreigner has committed an offence of considerable
severity. The authority to grant residence represents the public interest only
and does not constitute any rights on the part of the foreigner.
(2)
The Land governments are authorised to establish a
Hardship Commission in accordance with sub-section 1 by virtue of a statutory
instrument, to specify the procedure, grounds for exclusion and qualified
requirements pertaining to a declaration of commitment pursuant to sub-section
1, sentence 2, including conditions to be met by the party submitting such a
declaration, and to assign the authority to issue orders pursuant to
sub-section 1, sentence 1 to other bodies. The Hardship Commissions shall take
action solely on their own initiative. No third parties can require a Hardship
Commission to take up a specific individual case or to make a specific
decision. A Hardship Commission may only decide to file a hardship petition
after establishing that urgent humanitarian or personal grounds justify the
foreigner's continued presence in the Federal territory.
(3)
If a foreigner who is dependent on social welfare and who has been issued a
residence permit in accordance with sub-section 1 relocates to the area of
responsibility of another institution, the social welfare institution in whose
area of responsibility a foreigners authority has issued the residence permit
shall be required to reimburse the costs accruing to the local social welfare
institution which now bears responsibility for the foreigner concerned for a maximum
period of three years from the date of issue of the residence permit. The same
shall apply mutatis mutandis for the subsistence payments stipulated in Section
6 (1), sentence 1, no. 2 of Book Two of the Social Code.
Section
24 Granting of residence for temporary protection
(1)
A foreigner who is granted temporary protection on the basis of a resolution by
the Council of the European Union pursuant to directive 2001/55/EC and who
declares his or her willingness to be admitted into the Federal territory shall
be granted a residence permit for the duration of his or her temporary
protection as assessed in accordance with Articles 4 and 6 of said directive.
(3)
The foreigners pursuant to sub-section 1 shall be allocated to the various Länder. The Länder may agree
quotas for admission to grant temporary protection and for allocation.
Allocation to the various Länder shall be carried out
by the Federal Office for Migration and Refugees. In the absence of any
divergent allocation basis agreed between the Länder,
the allocation basis stipulated for the allocation of asylum seekers shall
apply.
(4)
The supreme Land authority or the body appointed by the same shall pass an
allocation ruling. The Land governments are authorised
to regulate allocation within the Länder via
statutory instruments, and may assign this authorisation
to other bodies via statutory instruments; Section 50 (4) of the Asylum
Procedure Act shall apply mutatis mutandis. The allocation ruling shall not be
contestable. Any legal actions shall have no suspensory
effect.
(5)
The foreigner shall have no entitlement to stay in a specific Land or a
specific place. He or she shall take up his or her accommodation and ordinary
residence at the place to which he or she is allocated in accordance with
sub-sections 3 and 4.
(6)
Self-employment must not be excluded. The pursuit of an economic activity with
employee status shall be subject to Section 4 (2).
(7)
The foreigner shall be provided with written notification of the rights and
obligations pertaining to the temporary protection in a language which he or
she is able to understand.
Section
25 Residence on humanitarian grounds
(1)
A foreigner shall be granted a residence permit if he or she is incontestably recognised as being entitled to asylum. This provision
shall not apply if the foreigner has been expelled on serious grounds relating
to public safety and law and order. Residence shall be deemed to be permitted
up to the time of granting of the residence permit. The residence permit
entitles the holder to pursue an economic activity.
(2)
A foreigner shall be granted a residence permit where the Federal Office for
Migration and Refugees has incontestably granted refugee status (Section 3 (4)
of the Asylum Procedure Act). Sub-section 1, sentences 2 to 4 shall apply
mutatis mutandis.
(3)
A foreigner should be granted a residence permit where a deportation ban
applies pursuant to Section 60 (2), (3), (5) or (7). The residence permit shall
not be granted if departure for subsequent admission to another state is
possible and reasonable, the foreigner has repeatedly or grossly breached
duties to cooperate or serious grounds warrant the assumption that the
foreigner
a) committed a crime against peace, a war crime or a
crime against humanity within the meaning of the international instruments
which have been drawn up for the purpose of establishing provisions regarding
such crimes,
b) committed an offence of considerable severity,
c) is guilty of acts contrary to the objectives and
principles of the United Nations, as enshrined in the Preamble and Articles 1
and 2 of the Charter of the United Nations, or
d) represents a risk to the general public or a risk
to the security of the Federal Republic of Germany.
(4)
A foreigner who is non-enforceably required to leave
the Federal territory may be granted a residence permit for a temporary stay if
his or her continued presence in the Federal territory is necessary on urgent
humanitarian or personal grounds or due to substantial public interests. By way
of derogation from Section 8 (1) and (2), a residence permit may be extended if
departure from the Federal territory would constitute exceptional hardship for
the foreigner due to special circumstances pertaining to the individual case
concerned.
(4a)
By way of derogation from Section 11 (1), a foreigner who has been the victim
of a criminal offence pursuant to Sections 232, 233 or 233a of the Criminal
Code may also be granted a residence permit for a temporary stay, even if he or
she is enforceably required to leave the Federal
territory. The residence permit may only be issued if
1. the public prosecutor’s office or the criminal
court considers his or her temporary presence in the Federal territory to be
appropriate in connection with criminal proceedings relating to the said
criminal offence, because it would be more difficult to investigate the facts
of the case without his or her information,
2. he or she has broken off contact to the persons
accused of having committed the criminal offence and
3. he or she has declared his or her willingness to
testify as a witness in the criminal proceedings relating to the offence.
(5)
By way of derogation from Section 11 (1), a foreigner who is enforceably required to leave the Federal territory may be
granted a residence permit if his or her departure is impossible in fact or in
law and the obstacle to deportation is not likely to be removed in the
foreseeable future. The residence permit should be issued if deportation has
been suspended for 18 months. A residence permit may only be granted if the
foreigner is prevented from leaving the Federal territory through no fault of
his or her own. Fault on the part of the foreigner applies in particular if he
or she furnishes false information, deceives the authorities with regard to his
or her identity or nationality or fails to meet reasonable demands to eliminate
the obstacles to departure.
Section
26 Duration of residence
(1)
The residence permit in accordance with this Part may be issued and extended in
each instance for a maximum period of three years, but for no longer than six
months in cases covered by Section 25 (4), sentence 1 and (5) when the
foreigner has not been legally resident in the Federal territory for at least
18 months. The residence permit shall be issued for three years in the cases
covered by Section 25 (1) and (2) and for at least one year in the cases
covered by Section 25 (3). The residence permit pursuant to Section 25 (4a)
shall be issued for six months in each instance and extended; a longer period
of validity is permissible in substantiated cases.
(2)
The residence permit must not be extended if the obstacle to departure or the
other grounds precluding a termination of residence have ceased to apply.
(3)
A foreigner who has been in possession of a residence permit in accordance with
Section 25 (1) or (2) for three years shall be granted a settlement permit if
the Federal Office for Migration and Refugees has provided notification in
accordance with Section 73 (2a) of the Asylum Procedure Act that the conditions
for revocation or withdrawal do not apply.
(4)
A foreigner who has been in possession of a residence permit in accordance with
this Part for seven years may otherwise be granted a settlement permit if the
conditions stipulated in Section 9
(2),
sentence 1, nos. 2 to 9 are fulfilled. Section 9 (2), sentences 2 to 6 shall
mutatis mutandis. By way of derogation from Section 55 (3) of the Asylum
Procedure Act, the duration of residence
Part
6 Residence for family reasons
Section
27 Principles pertaining to the subsequent immigration of dependents
(1)
The residence permit to enable foreigners to be joined by foreign dependents so
that they can live together as a family (subsequent immigration of dependents) shall
be granted and extended to protect marriage and the family in accordance with
Article 6 of the Basic Law.
(1a)
The subsequent immigration of dependents shall not be permitted
1. if it is established that the marriage has been
entered into or kinship established solely for the purpose of enabling the
subsequently immigrating persons to enter and stay in the Federal territory or
2. if there are concrete indications that one of the
spouses has been forced into marriage.
(2)
Sub-sections 1a and 3, Section 9 (3), Section 9c, sentence 2, Sections 28 to 31
and Section 51 (2) shall apply mutatis mutandis to enable the establishment and
maintenance of a registered partnership in the Federal territory.
(3)
Granting of the residence permit for the subsequent immigration of dependents
may be refused if the person to be joined by his or her dependents is reliant
on benefits in accordance with Book Two or Book Twelve of the Social Code for
the maintenance of other dependents or other members of his or her household.
Section 5 (1), no. 2 may be waived.
(4)
The period of validity of a residence permit for the purpose of the subsequent
immigration of dependents must not exceed the period of validity of the
residence permit held by the foreigner whom the dependents concerned are
joining in the Federal territory. It shall be issued for this period if the
foreigner who is to be joined in the Federal territory by the subsequently
immigrating dependents holds a residence permit pursuant to Section 20 or
Section 38a. The period of validity of the residence permit must not exceed
that of the dependent’s passport or passport substitute, however. The residence
permit is otherwise to be issued for an initial period of at least one year.
Section
28 Subsequent immigration of dependents to join a German national
(1)
The residence permit shall be granted to the foreign
1. spouse of a German,
2. minor, unmarried child of a German,
3. parent of a minor, unmarried German for the
purpose of care and custody
if
the German's ordinary residence is in the Federal territory. By way of
derogation from Section 5 (1), no. 1, it shall be granted in the cases covered
by sentence 1, nos. 2 and 3. By way of derogation from Section 5 (1), no. 1, it
should be granted as a general rule in the cases covered by sentence 1, no. 1.
By way of derogation from Section 5 (1), no. 1, the residence permit may be
granted to the parent of a minor, unmarried German who is not entitled to
custody of said child, if the family unit already exists in the Federal
territory. Section 30 (1), sentence 1, nos. 1 and 2, sentence 3 and (2),
sentence 1 shall apply mutatis mutandis in the cases covered by sentence 1, no.
1.
(2)
As a rule, the foreigner shall be granted a settlement permit if he or she has
been in possession of a residence permit for three years, the family unity with
the German continues to exist in the Federal territory, there are no grounds
for expulsion and the foreigner is able to communicate verbally in the German
language on a basic level. The residence permit shall otherwise be extended as
long as the family unity continues to exist.
(3)
Sections 31 and 35 shall apply subject to the proviso that the foreigner's
residence title shall be replaced by the ordinary residence of the German in
the Federal territory.
(4)
Section 36 shall apply mutatis mutandis to other dependents.
(5)
The residence permit entitles the holder to pursue an economic activity.
Section
29 Subsequent immigration of dependents to join a foreigner
(1)
For the purposes of subsequent immigration to join a foreigner,
1. the foreigner must possess a settlement permit,
EC long-term residence permit or residence permit and
2. sufficient living space must be available.
(2)
The requirements of Section 5 (1), no. 1 and sub-section 1, no. 2 may be waived
in the case of the spouse and the minor, unmarried child of a foreigner who is
in possession of a residence permit in accordance with Section 25 (1) or (2) or
a settlement permit in accordance with Section 26 (3). In the cases covered by
sentence 1, these conditions shall be waived where
1. the application for issuance of a residence title
which is required in connection with the subsequent immigration of dependents
is filed within three months of final recognition as a person entitled to
asylum or final granting of refuge status and
2. it is not possible for a foreigner and his or her
dependents to live together as a family unit in a state which is not a Member
State of the European Union and to which the foreigner or his or her dependents
have special ties.
The
deadline stated in sentence 2, no. 1 shall also be deemed to be met on the
foreigner filing the application in good time.
(3)
The residence permit may only be granted to the spouse and the minor child of a
foreigner who is in possession of a residence permit in accordance with
Sections 22, 23 (1) or Section 25 (3) for reasons of international law, on
humanitarian grounds or in order to safeguard political interests of the
Federal Republic of Germany. Section 26 (4) shall apply mutatis mutandis. The
subsequent immigration of dependents shall not be granted in the cases covered
by Section 25 (4) to (5), Section 104a (1), sentence 1 and Section 104b.
(4)
By way of derogation from Section 5 (1) and Section 27 (3), the residence
permit shall be granted to the spouse and the minor child of a foreigner or the
minor child of the foreigner's spouse if the foreigner has been granted
temporary protection in accordance with Section 24 (1) and
1. the family unit in the country of origin has been
broken up as a result of the foreigner having fled said country and
2. the dependent is admitted from another member
state of the European Union or is located outside of the European Union and is
in need of protection.
The
granting of a residence permit to other dependents of a foreigner who has been
granted temporary protection pursuant to Section 24 (1) shall be subject to
Section 36. Section 24 shall apply to dependents who are admitted pursuant to
this sub-section.
(5)
The residence permit shall entitle the holder to pursue an economic activity,
1. where the foreigner whom the subsequently
immigrating dependents are joining is entitled to pursue an economic activity
or
2. where marital cohabitation has lawfully existed
in the Federal territory for at least two years and the residence permit of the
foreigner whom the subsequently immigrating dependents are joining is not
subject to a subsidiary provision pursuant to Section 8 (2) or extension of his
or her residence is not excluded by law or by an ordinance.
Section
30 Subsequent immigration of spouses
(1)
A foreigner's spouse shall be granted a residence permit if
1. both spouses are at least 18 years of age,
2. the spouse is able to communicate in the German
language on a basic level at least and
3. the foreigner
a) possesses a settlement permit,
b) possesses an EC long-term residence permit,
c) possesses a residence permit pursuant to Section
20 or Section 25 (1) or (2),
d) has held a residence permit for two years and the
residence permit is not subject to a subsidiary provision pursuant to Section 8
(2) or the subsequent issuance of a settlement permit has not been ruled out by
virtue of a rule of law,
e) is in possession of a residence permit, if the
marriage existed at the time of said permit being granted and the duration of
the foreigner's stay in the Federal territory is expected to exceed one year or
f) possesses a residence permit pursuant to Section
38a and the marriage already existed in the Member State of the European Union
in which the foreigner has the status of a long-term resident.
Sentence
1, nos. 1 and 2 shall have no bearing on issuance of the residence permit where
1. the foreigner is in possession of a residence
title pursuant to Sections 19 to 21 and the marriage already existed at the
time when he or she established their main ordinary residence in the Federal
territory,
2. the foreigner held a residence permit pursuant to
Section 20 directly prior to issuance of a settlement permit or an EC long-term
residence permit or
3. the conditions specified in sentence 1, no. 3,
letter f apply.
Sentence
1, no. 2 shall have no bearing on issuance of the residence permit where
1. the foreigner holds a residence title pursuant to
Section 25 (1) or (2) or Section 26 (3) and the marriage already existed at the
time when the foreigner established his or her main ordinary residence in the
Federal territory,
2. the spouse is unable to provide evidence of a
basic knowledge of German on account of a physical, mental or psychological
illness,
3. the spouse’s need for integration is discernibly
minimal within the meaning of a statutory instrument issued pursuant to Section
43 (4) or the spouse would, for other reasons, not be eligible for an
integration course pursuant to Section 44 after entering the Federal territory
or
4. by virtue of his or her nationality, the
foreigner may enter and stay in the Federal territory without requiring a visa
for a period of residence which does not constitute a short stay.
(2)
By way of derogation from sub-section 1, sentence 1, no. 1, the residence
permit may be issued to avoid particular hardship. Where the foreigner holds a
residence permit, the other conditions stipulated in sub-section 1, sentence 1,
no. 3, letter d may be waived.
(3)
By way of derogation from Section 5 (1), no. 1 and Section 29 (1), no. 2, the
residence permit may be extended for as long as the marital cohabitation
continues.
(4)
Where a foreigner is simultaneously married to several spouses and lives
together with one spouse in the Federal territory, no other spouse shall be
granted a residence permit pursuant to sub-section 1 or sub-section 3.
Section
31 Independent right of residence of spouses
(1)
In the event of termination of marital cohabitation, the spouse's residence
permit shall be extended by one year as an independent right of residence
unrelated to the purpose of the subsequent immigration of dependents if
1. marital cohabitation has lawfully existed in the
Federal territory for at least two years or
2. the foreigner has died while marital cohabitation
existed in the Federal territory
and
the foreigner was in possession of a residence permit, settlement permit or EC
long-term residence permit up to this point in time, unless he or she was
unable to apply for an extension in due time for reasons beyond his or her
control. Sentence 1 shall not be applicable if no extension of the foreigner’s
residence permit is permissible or if it is not permissible to issue the
foreigner with a residence permit or EC long-term residence permit because this
is precluded by a rule of law on account of the purpose of residence or by a
subsidiary provision attaching to the residence permit pursuant to Section 8
(2). The residence permit entitles the holder to pursue an economic activity.
(2)
The requirement stipulated in sub-section 1, sentence 1, no. 1 for marital
cohabitation to have existed lawfully for two years in the Federal territory
shall be waived if necessary to enable the spouse to continue his or her
residence in order to avoid particular hardship, unless an extension of the
foreigner's residence permit is excluded. Particular hardship shall be deemed
to apply if the obligation to return to the country of origin resulting from
the termination of marital cohabitation threatens to substantially erode the
foreigner's legitimate interests, or if the continuation of marital
cohabitation is unreasonable due to the erosion of the foreigner's legitimate
interests; such legitimate interests shall also include the wellbeing of a
child living with the spouse as part of a family unit. In order to avoid abuse,
extension of the residence permit may be refused if the spouse is reliant on
benefits in accordance with Book Two or Book Twelve of the Social Code for
reasons for which he or she is responsible.
(3)
By way of derogation from Section 9 (2), sentence 1, nos. 3, 5 and 6, the
spouse shall also be granted a settlement permit if the spouse's subsistence is
safeguarded after the termination of marital cohabitation by maintenance
payments from the foreigner's own funds and the foreigner possesses a
settlement permit or an EC long-term residence permit.
(4)
Without prejudice to sub-section 2, sentence 3, claiming benefits in accordance
with Book Two or Book Twelve of the Social Code shall not preclude extension of
the residence permit. The residence permit can thus be extended for a limited
period for as long as the conditions for granting of the residence permit or EC
long-term residence permit have yet to be met.
Section
32 Subsequent immigration of children
(1)
The minor, unmarried child of a foreigner shall be granted a residence permit
if
1. the foreigner possesses a resident permit in
accordance with Section 25 (1) or (2) or a settlement permit in accordance with
Section 26 (3) or
2. both parents or the parent possessing the sole
right of care and custody hold a residence permit, settlement permit or EC
long-term residence permit and the child relocates the central focus of its
life together with its parents or the parent possessing the sole right of care
and custody to the Federal territory.
(2)
A minor, unmarried child who is 16 years of age or older shall be granted a
residence permit if he or she has a command of the German language or if it
appears on the basis of the child's education and way of life to date that he
or she will be able to integrate into the way of life which prevails in the
Federal Republic of Germany and both parents or the parent possessing the sole
right of care and custody hold a residence permit, settlement permit or EC
long-term residence permit.
(2a)
The minor, unmarried child of a foreigner who holds a residence permit pursuant
to Section 38a shall be granted a residence permit if family unity already
existed in the Member State of the European Union in which the foreigner
possesses the status of a long-term resident. The same shall apply if the
foreigner held a residence permit pursuant to Section 38a directly prior to
issuance of a settlement permit or an EC long-term residence permit.
(3)
A minor, unmarried child of a foreigner who is under 16 years of age shall be
granted a residence permit if both parents or the parent possessing the sole
right of care and custody possess a residence permit, settlement permit or EC
long-term residence permit.
(4)
A minor, unmarried child of a foreigner may otherwise be granted a residence
permit if necessary in order to prevent special hardship on account of the
circumstances pertaining to the individual case concerned. The child's
wellbeing and the family situation are to be taken into consideration in this
connection.
Section
33 Birth of a child in the Federal territory
By
way of derogation from Sections 5 and 29 (1), no. 2, a child who is born in the
Federal territory may be granted a residence permit ex officio if one parent
possesses a residence permit, settlement permit or EC long-term residence
permit. Where both parents or the parent possessing sole right of care and custody
hold a residence permit, a settlement permit or an EC long-term residence
permit at the time of birth, the child born in the Federal territory shall be
granted a residence permit ex officio. A child born in the Federal territory
whose mother or father possesses a visa or is permitted to stay in the Federal
territory without a visa at the time of the birth shall be permitted to stay in
the Federal territory until such time as the visa or the lawful period of stay
without a visa expires.
Section
34 Children's right of residence
(1)
By way of derogation from Section 5 (1), no. 1 and Section 29 (1), no. 2, the
residence permit granted to a child shall be extended as long as a parent
possessing the right of care and custody holds a residence permit, settlement
permit or EC long-term residence permit and the child lives together with the
said parent as part of a family unit, or if the child would have a right of
return pursuant to Section 37 in the event of him or her leaving the Federal
territory.
(2)
Upon a child coming of age, the residence permit granted to the child shall
become an independent right of residence which is unrelated to the purposes of
the subsequent immigration of dependents. The same shall apply in the case of
the granting of a settlement permit and an EC long-term residence permit or if
the residence permit is extended accordingly pursuant to Section 37.
(3)
The residence permit may be extended for as long as the conditions for granting
of the settlement permit and the EC long-term residence permit have yet to be
met.
Section
35 Children's independent, unlimited right of residence
(1)
By way of derogation from Section 9 (2), a minor foreigner who possesses a
residence permit in accordance with this Part shall be granted a settlement permit
if he or she has been in possession of the residence permit for five years on
reaching the age of 16. The same shall apply if
1. the foreigner is of age and has been in
possession of the residence permit for five years,
2. he or she possesses an adequate knowledge of
German and
3. his or her livelihood is secure or he or she is
undergoing education or training which leads to a recognised
academic or vocational qualification.
(2)
Periods in which the foreigner has attended school outside of the Federal
territory shall not normally be taken into consideration with regard to the
required duration of possession of a residence permit as stipulated in
sub-section 1.
(3)
No entitlement to the granting of a settlement permit pursuant to sub-section 1
shall apply if
1. a reason for expulsion based on the foreigner's
personal conduct applies,
2. the foreigner has been sentenced to a term of
youth custody of at least six months or a prison term of at least three months
or a fine of at least 90 daily rates in the past three years due to an
intentionally committed offence, or if a youth prison sentence has been
suspended, or
3. the foreigner's subsistence cannot be assured
without claiming benefits in accordance with Book Two or Book Twelve of the
Social Code or juvenile welfare pursuant to Book Eight of the Social Code,
unless the foreigner is undergoing education or training which leads to a recognised academic or vocational qualification.
The
settlement permit may be granted or the residence permit extended in the cases
covered by sentence 1. If, in cases covered by sentence 1, no. 2, the foreigner
is placed on probation or the youth prison sentence is suspended, the residence
permit will generally be extended until the end of the probationary period.
(4)
The requirements stipulated in sub-section 1, sentence 2, nos. 2 and 3 and
sub-section 3, sentence 1, no. 3 shall be waived if the foreigner is unable to fulfil them on account of a physical, mental or
psychological illness or handicap.
Section
36 Subsequent immigration of parents and other dependents
(1)
By way of derogation from Section 5 (1), no. 1 and Section 29, (1), no. 2, a
residence permit shall be issued to the parents of a minor foreigner who holds
a residence permit pursuant to Section 25 (1) or (2) or a residence permit
pursuant to Section 26 (3), if no parent entitled to legal custody is resident
in the Federal territory.
(2)
Other dependents of a foreigner may be granted a residence permit for the purpose
of subsequent immigration to join the foreigner, if necessary in order to avoid
particular hardship. Section 30 (3) and Section 31 shall apply mutatis mutandis
to adult dependents and Section 34 shall apply mutatis mutandis to minor
dependents.
Part
7 Special rights of residence
Section
37 Right of return
(1)
A foreigner whose ordinary residence as a minor was in the Federal territory
shall be granted a residence permit if
1. the foreigner lawfully resided in the Federal
territory for eight years prior to his or her departure and attended a school
in the Federal territory for six years,
2. the foreigner's livelihood is assured by his or
her own economic activity or by a maintenance commitment into which a third
party has entered for a period of five years and
3. the application for the residence permit is filed
after reaching the age of 15 and prior to reaching the age of 21, and before
the elapse of five years after departure.
The
residence permit entitles the holder to pursue an economic activity.
(2)
Deviation from the requirements stipulated in sub-section 1, sentence 1, nos. 1
and 3 shall be possible in order to prevent particular hardship. The
requirements stipulated in sub-section 1, sentence 1, no. 1 may be waived if
the foreigner has acquired a recognised
school-leaving qualification in the Federal territory.
(3)
The residence permit may be refused
1. if the foreigner was expelled or could have been
expelled when he or she left the Federal territory,
2. if a reason for expulsion exists or
3. as long as the foreigner is a minor and his or
her personal care in the Federal territory is not assured.
(4)
Extension of the residence permit shall not be precluded by the fact that the
foreigner's livelihood is no longer assured on the basis of his or her own
economic activity or that the maintenance commitment no longer applies due to
expiry of the five-year period.
(5)
A foreigner who receives a pension from an institution in the Federal territory
shall generally be granted a residence permit if he or she lawfully resided in
the Federal territory for at least eight years prior to his or her departure.
Section
38 Residence title for former Germans
(1)
A former German
1. shall be granted a settlement permit if he or she
had been ordinarily resident as a German in the Federal territory for five
years when he or she lost his or her German nationality,
2. shall be granted a residence permit if he or she
had been ordinarily resident in the Federal territory for at least one year
when he or she lost his or her German nationality.
The
application for a residence title pursuant to sentence 1 shall be filed within
six months of obtaining knowledge of the loss of German nationality. Section 81
(3) shall apply mutatis mutandis.
(2)
A former German who is ordinarily resident abroad may be granted a residence
permit if he or she possesses an adequate knowledge of German.
(3)
In special cases, the residence title pursuant to sub-section 1 or 2 may be
granted by way of derogation from Section 5.
(4)
The residence permit in accordance with sub-section 1 or 2 entitles the holder
to pursue an economic activity. The pursuit of an economic activity is
permitted within the period for filing an application specified in sub-section
1, sentence 2 and, upon an application being filed, up to the time of the
foreigners authority's decision on the application.
(5)
Sub-sections 1 to 4 shall apply mutatis mutandis to a foreigner who, for
reasons beyond his or her control, has been treated as a German by German
bodies to date.
Section
38a Residence permit for persons who possess the status of long-term residents
in other Member States of the European Union
(1)
A foreigner who has the status of a long-term resident in another Member State
of the European Union shall be granted a residence permit if he or she wishes
to stay in the Federal territory for a period in excess of three months.
Section 8 (2) shall not apply.
(2)
Sub-section 1 shall not be applicable to foreigners who
1. are dispatched by a service provider in
connection with the cross-border provision of services
2. intend to provide any other form of cross-border
services or
3. wish to work in the Federal territory as seasonal
workers or to take up employment as cross-frontier workers.
(3)
The residence title pursuant to sub-section 1 shall entitle the holder to
pursue an economic activity only if the conditions stated in Section 18 (2),
Sections 19, 20 or 21 are met. Where the residence title pursuant to
sub-section 1 is issued for study purposes or for other educational purposes,
Sections 16 and 17 shall apply mutatis mutandis. In the cases covered by
Section 17, the residence title shall be issued without the approval of the
Federal Employment Agency.
(4)
A residence permit issued pursuant to sub-section 1 may be provided with a
subsidiary provision pursuant to Section 39 (4) for no longer than twelve
months. In the case of issuance of the residence permit pursuant to sub-section
1, the period stated in sentence 1 shall begin upon the holder being permitted
to take up employment for the first time. On expiry of this period, the
residence permit shall entitle the holder to pursue an economic activity.
Part
8 Involvement of the Federal Employment Agency
Section
39 Approval of employment for a foreigner
(1)
A residence title which permits a foreigner to take up employment may only be
granted with the approval of the Federal Employment Agency, in the absence of
any provisions to the contrary in statutory instruments. Such approval may be granted
if laid down in inter-governmental agreements, an act or a statutory
instrument.
(2)
The Federal Employment Agency may approve the granting of a residence permit to
take up employment pursuant to Section 18 if
1. a)
the employment of foreigners does not result in any adverse consequences for
the labour market, in particular with regard to the
employment structure, the regions and the branches of the economy, and
b) no German workers, foreigners who possess the
same legal status as German workers with regard to the right to take up
employment or other foreigners who are entitled to preferential access to the labour market under
the law of the European Union are available for the type of employment
concerned or
2. it has established, via investigations for
individual occupational groups or for individual industries in accordance with
sentence 1, no. 1, letters a and b, that filling the vacancies with foreign
applicants is justifiable in terms of labour market
policy and integration aspects and the foreigner is not employed on terms less favourable than apply to comparable German workers. German
workers and foreigners of equal status shall also be deemed to be available if
they can only be placed with assistance from the Federal Employment Agency. The
potential employer of a foreigner who requires approval in order to take up
employment shall be required to furnish the Federal Employment Agency with
information on pay, working hours and other terms and conditions of employment.
(3)
Sub-section 2 shall also apply if approval from the Federal Employment Agency
is required in order to take up employment in cases of residence for other
purposes covered in Parts 3, 5, 6 or 7.
(4)
The approval may stipulate the duration and form of occupational activity and
restrict the employment to specific plants or regions.
(5)
The Federal Employment Agency may approve the granting of a settlement permit
pursuant to Section 19 if employment of the foreigner does not give rise to any
adverse consequences on the labour market.
(6)
The Federal Employment Agency may permit nationals of those states which have
acceded to the European Union in accordance with the treaty of 16 April 2003 on
the accession of the Czech Republic, the Republic of Estonia, the Republic of
Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of
Hungary, the Republic of Malta, the Republic of Poland, the Republic of
Slovenia and the Republic of Slovakia to the European Union (Federal Law
Gazette 2003 II, p. 1408) or in accordance with the treaty of 25 April 2005 on
the accession of the Republic of Bulgaria and Romania to the European Union
(Federal Law Gazette 2006 II, p. 1146) to take up employment which requires a
vocational qualification subject to the conditions stipulated in sub-section 2,
insofar as provisions which diverge from the statutory provisions of the
European Community apply under the said treaties. Such nationals are to be
granted priority over nationals of third countries who enter the Federal
territory for the purpose of employment.
Section
40 Grounds for refusal
(1)
Approval pursuant to Section 39 shall be refused if
1. the employment has come about on the basis of
unlawful placement or recruitment or
2. the foreigner intends to take up employment as a
loan worker (Section 1 (1) of the Act on Temporary Employment Businesses).
(2)
Approval may be refused if
1. the foreigner has culpably breached Section 404
(1) or (2) nos. 2 to 13 of Book Three of the Social Code, Section 10 or 11 of
the Act to Combat Clandestine Employment or Sections 15, 15a or Section 16 (1),
no. 2 of the Act on Temporary Employment Businesses or
2. important personal grounds relating to the
foreigner exist.
Section
41 Revocation of approval
The
approval may be revoked, if the foreigner is employed on less favourable terms than comparable German workers (Section 39
(2), sentence 1) or an offence is committed pursuant to Section 40 (1) or (2).
Section
42 Authorisation to issue regulations and
instructions
(1)
The Federal Ministry of Labour and Social Affairs may
determine the following by means of statutory instruments, with the approval of
the Bundesrat:
1. Types of employment for which no approval is
necessary from the Federal Employment Agency (Section 17, sentence 1, Section
18, sentence 1, Section 19 (1)),
2. occupational groups for which the employment of
foreign labour can be approved in accordance with
Section 18 and, where necessary, further conditions pertaining to the admission
of such employees to the German labour market,
3. exceptions for nationals of certain states,
4. activities which for the purposes of enforcement
of this Act are never to be regarded as employment or are not to be regarded as
such under certain conditions.
(2)
The Federal Ministry of Labour and Social Affairs may
determine the following by means of statutory instruments, without the approval
of the Bundesrat:
1. the conditions and the procedure for the granting
of approval by the Federal Employment Agency, whereby an alternative procedure
for establishing priorities may also be regulated,
2. details concerning restriction of the approval on
a time-, plant-, occupational and regional basis, in accordance with Section 39
(5), 4,
3. exceptional cases in which approval may be
granted by way of derogation from Section 39 (2),
4. types of employment for which no approval is
required from the Federal Employment Agency in accordance with Section 4 (2),
sentence 3,
5. cases in which foreigners whose deportation has
been suspended may be permitted to take up employment by way of derogation from
Section 4 (3), sentence 1.
(3)
The Federal Ministry of Labour and Social Affairs may
issue instructions to the Federal Employment Agency on implementation of the
provisions of this Act and the statutory instruments issued in connection
herewith, of the provisions enacted by the European Communities on access to
the labour market and of the inter-governmental
agreements on the employment of workers.
Chapter
3 Integration
Section
43 Integration course
(1)
Foreigners living lawfully in the Federal territory on a permanent basis are
provided with support in integrating into the economic, cultural and social
life of the Federal Republic of Germany and are expected to undertake
commensurate integration efforts in return.
(2)
Integration efforts by foreigners are supported by a basic package of measures
to promote integration (integration course). The aim of the integration course
is to successfully impart the German language, legal system, culture and
history to foreigners. In this way, it is intended to acquaint foreigners with
the way of life in the Federal territory to such an extent as to enable them to
act independently in all aspects of daily life, without the assistance or
mediation of third parties.
(3)
The integration course comprises a basic and advanced language course of
identical duration to provide an adequate knowledge of the language and an
orientation course to impart a knowledge of the legal system, culture and
history in Germany. The integration course is coordinated and carried out by
the Federal Office for Migration and Refugees, which may enlist the services of
private or public organisations to this end.
Reasonable costs are to be charged for attending the integration course,
according due consideration to the ability to pay. The person who is obliged to
ensure the foreigner's subsistence shall also be obliged to pay such a charge.
(4)
The Federal Government is authorised to regulate
further details of the integration course, in particular the basic structure,
the duration, the contents and implementation of the courses, the criteria
relating to the selection and approval of organisations
carrying out the courses and the requirements and general conditions pertaining
to proper and successful participation in the courses and the appurtenant
certification, including arrangement for the payment of costs and the necessary
transmission of data between the bodies involved, via a statutory instrument
without the approval of the Bundesrat.
(5)
The Federal Government shall submit a progress report on implementation and
financing of the integration courses to the German Bundestag on 1 July 2007.
Section
44 Entitlement to attend an integration course
(1)
A foreigner who is resident in the Federal territory on a permanent basis shall
be entitled to attend an integration course
1. on receiving a residence permit for the first
time
a) for employment purposes (Sections 18, 21),
b) for the purpose of subsequent immigration by
dependents (Sections 28, 29, 30, 32, 36),
c) on humanitarian grounds pursuant to Section 25
(1) or (2),
d) as a long-term resident pursuant to Section 38a
or
2. on receiving a residence title pursuant to
Section 23 (2).
Permanent
residence is generally to be assumed if the foreigner receives a residence
permit of over one year's duration or has held a residence permit for more than
18 months, unless the stay is of a temporary nature.
(2)
The attendance entitlement pursuant to sub-section 1 shall lapse two years
after granting of the residence title establishing the entitlement or upon said
title lapsing.
(3)
The entitlement to attend an integration course shall not apply
1. to children, juveniles and young adults who take
up school education or continue their previous school education in the Federal
Republic of Germany,
2. when the need for integration is discernibly
minimal or
3. when the foreigner already possesses an adequate
knowledge of the German language.
In
cases covered by sentence 1, no. 3, the entitlement to attend an orientation
course shall remain unaffected by this proviso.
(4)
A foreigner who does not possess or no longer possesses an attendance
entitlement may be allowed to attend, according to the available number of
places on the course concerned. This provision shall apply mutatis mutandis to
German nationals who do not possess an adequate knowledge of the German
language and have special integration needs.
Section
44a Obligation to attend an integration course
(1)
A foreigner shall be obliged to attend an integration course, if
1. he or she is entitled to attend in accordance
with Section 44 and
a) is unable to communicate at a basic level in the
German language or
b) does not possess an adequate knowledge of the
German language at the time of issuance of a residence title pursuant to
Section 23 (2), Section 28 (1), sentence 1, no. 1 or Section 30 or
2. he or she receives benefits in accordance with
Book Two of the Social Code and an integration agreement pursuant to Book Two
of the Social Code provides for participation in an integration course or
3. he or she has special integration needs and the
foreigners authority requires him to participate in an integration course.
In
cases covered by sentence 1, no. 1, the foreigners authority shall ascertain
whether the foreigner is obliged to attend on issuing the residence title. In
the cases covered by sentence 1, no. 2 the foreigner shall also be obliged to
attend if the institution providing basic security for job seekers requires him
or her to attend. In the cases covered by sentence 1, nos. 1 and 3, where
benefits are received in accordance with Book Two of the Social Code for the
measures pursuant to Section 15 of Book Two of the Social Code the institution
providing basic security for job seekers should, as a general rule, follow the
obligation imposed by the foreigners authority. Where, in individual cases, the
institution providing basic security for job seekers reaches a divergent
decision, it is to notify the foreigners authority accordingly, which shall
then revoke the obligation. The obligation shall be revoked where it is
unreasonable to expect a foreigner to attend a part-time course in addition to
pursuing an economic activity.
(2)
The obligation to attend an integration course shall not apply to foreigners
1. who are undergoing vocational training or any
other form of training or education in the Federal territory,
2. who furnish evidence of attendance of comparable
education measures in the Federal territory or
3. for whom attendance on a sustained basis is
unfeasible or unreasonable.
(2a)
Foreigners who hold a residence permit pursuant to Section 38a shall be
exempted from the obligation to attend an orientation course if they are able
to prove that they have already attended integration measures in another Member
State of the European Union in order to attain their legal status as a
long-term resident.
(3)
If a foreigner fails to meet his or her attendance obligation pursuant to
sub-section 1 for reasons for which he or she is responsible or fails to pass
the final test, prior to extending his or her residence permit the competent
foreigners authority shall inform the foreigner of the possible consequences of
his or her actions (Section 8 (3), Section 9 (2), sentence 1, nos. 7 and 8 of
this Act, Section 10 (3) of the Nationality Act). The foreigners authority may
apply means of administrative coercion in order to enjoin the foreigner to meet
his or her obligation to attend. In case of non-compliance with the obligation
to attend, the prospective charge to cover costs may also be levied in advance
in a single sum by issuing an official notice of fees.
Section
45 Integration programme
The
integration course should be complemented by additional integration measures organised by the Federation and the Länder,
in particular social education and migration-specific counselling
services. The Federal Ministry of the Interior or the body appointed by the
said Ministry shall develop a nationwide integration programme
which, in particular, shall identify the existing integration measures for
foreigners and repatriates of German ancestry which are available from the
Federal government, Länder, local government
authorities and private organisations and put forward
recommendations on the further development of the integration measures. The Länder, local government authorities, the commissioners of
the Federal government, Länder and local government
authorities for issues relating to foreigners and the Federal Government
Commissioner for Matters Relating to Repatriates shall be involved in the
development of the nationwide integration programme
and in compiling informational materials on existing integration measures.
Religious communities, trade unions, employers' associations, voluntary welfare
organisations and other social interest groups should
also be involved.
Chapter
4 Administrative provisions
Section
46 Administrative orders
(1)
The foreigners authority may undertake measures to facilitate the departure of
a foreigner who is enforceably required to leave the
Federal territory; in particular, it may oblige the foreigner to take up his or
her residence at a place of its designation.
(2)
A foreigner may be prohibited from leaving the Federal territory in appropriate
application of Section 10 (1) and (2) of the Passport Act. A foreigner can
otherwise be prohibited from leaving the Federal territory only if he or she
intends to enter another state without being in possession of the necessary documents
and permits. The prohibition of departure shall be lifted as soon as the reason
for its imposition ceases to apply.
Section
47 Prohibition and restriction of political activities
(1)
Foreigners may pursue political activities within the bounds of the prevailing
general statutory provisions. A foreigner's political activities may be
restricted or prohibited if they
1. impair or endanger the development of informed
political opinion in the Federal Republic of Germany, the peaceful co-existence
of Germans and foreigners or of different groups of foreigners in the Federal
territory, public safety and law and order or any other substantial interests
of the Federal Republic of Germany,
2. may be counter to the interests of the Federal
Republic of Germany in the field of foreign policy or to the obligations of the
Federal Republic of Germany under international law,
3. contravene the laws of the Federal Republic of
Germany, particularly in connection with the use of violence,
4. are intended to promote parties, other organisations, establishments or activities outside of the
Federal territory whose aims or means are incompatible with the fundamental
values of a system of government which respects human dignity.
(2)
A foreigner's political activities shall be prohibited if they
1. endanger the free and democratic constitutional
system or the security of the Federal Republic of Germany or contravene the
codified standards of international law,
2. publicly support, advocate or incite to the use
of violence as a means of enforcing political, religious or other interests or
are capable of inciting such violence or
3. support organisations,
political movements or groups within or outside of the Federal territory which
have initiated, advocated or threatened attacks on persons or objects in the
Federal territory or attacks on Germans or German establishments outside of the
Federal territory.
Section
48 Obligations relating to identification papers
(1)
On request, a foreigner shall be obliged to present and surrender
1. his or her passport, passport substitute or
substitute identity document and
2. his or her residence title or a document
confirming suspension of deportation to the authorities entrusted with
implementing the law on foreigners and to leave such documents with the said
authorities for a temporary period, insofar as this is necessary in order to
implement or safeguard measures in accordance with this Act.
(2)
In the case of a foreigner who neither possesses a passport nor can reasonably
be expected to obtain one, it shall be sufficient for the purposes of the
obligations relating to identification papers to carry the document confirming
a residence title or the suspension of deportation, provided that such document
contains the foreigner's personal details and a photograph and is marked to
indicate that it is a substitute identity document.
(3)
If the foreigner does not possess a valid passport or passport substitute, he
or she shall be obliged to cooperate in efforts to obtain the identity paper
and to present and surrender to and leave with the authorities entrusted with
implementing this Act all such documents and other papers as may be of
importance in establishing his or her identity and nationality and in
establishing a possibility of returning him or her to another state and duly
enforcing such a return. If the foreigner fails to meet his obligation in
accordance with sentence 1 and if actual indications exist that he or she is in
possession of such documents, he or she and the objects on his or her person
may be searched. The foreigner shall be required to tolerate this measure.
(4)
Where the passport obligation (Section 3 (1)) is waived pursuant to Section 5
(3), a substitute identity document shall be issued. Sub-section 3 shall remain
unaffected.
Section
49 Verification, establishment and documentation of identity
(1)
Subject to the conditions stipulated in Section 48 (1), the authorities
entrusted with implementing this Act may read out the biometric and other data
stored on the electronic storage medium of a document pursuant to Section 48
(1), no. 1, obtain the required biometric data from the holder of the document
and compare the biometric data. All other authorities to which data are
transmitted from the Central Aliens Register pursuant to Sections 15 to 20 of
the Act on the Central Aliens Register and the registration authorities shall
also be authorised to undertake measures pursuant to
sentence 1, insofar as they are permitted to verify the authenticity of the
document or the holder’s identity. Biometric data within the meaning of
sentence 1 shall comprise only the fingerprints, the photograph and the iris
images.
(2)
On request, every foreigner shall be obliged to furnish the authorities
entrusted with implementing the law concerning foreigners with information on
his or her age, identity and nationality and to submit such declarations in
connection with the procurement of return travel documents as are required by
the diplomatic mission of the state whose nationality he or she possesses or
putatively possesses and are in line with German law.
(3)
In case of doubt regarding the foreigner's identity, age or nationality, the
measures necessary in order to establish his or her identity, age or
nationality shall be undertaken
1. if the foreigner is to be granted entry or a
residence title or his or her deportation is to be suspended or
2. if necessary in order to implement other measures
in accordance with this Act.
(4)
The foreigner's identity shall be verified by photographing and fingerprinting
when allocation is carried out in accordance with Section 15a.
(5)
The necessary measures should be undertaken in order to establish and document
the foreigner's identity
1. if the foreigner intends to enter or has entered
the Federal territory with a forged passport or falsified passport or passport
substitute;
2. if other indications give rise to the suspicion
that the foreigner is intending to re-enter the Federal territory unlawfully,
following refused entry or the termination of a stay in the Federal territory;
3. in the case of foreigners who are enforceably required to leave the Federal territory,
insofar as removal or deportation come into consideration;
4. if the foreigner is to be refused entry and
returned to a safe third country, or if he or she is to be removed to such
country as specified in Section 26a (2) of the Asylum Procedure Act;
5. in the case of an application for a national
visa;
6. when temporary protection is granted in
accordance with Section 24 and in the cases covered by Sections 23 and 29 (3);
7. if a reason for refusal pursuant to Section 5 (4)
has been established.
(6)
Measures within the meaning of sub-sections 3 to 5, with the exception of sub-section
5, no. 5, are the taking of photographs and fingerprints, the taking of
measurements and similar measures, including bodily intrusions undertaken by a
doctor in accordance with prevailing medical standards in order to establish
the foreigner’s age, provided that no ill effect on the latter’s health is to
be feared. The measures shall be permissible on foreigners aged 14 or over; any
doubts as to whether the foreigner has reached 14 years of age shall be to the
detriment of the foreigner. These measures shall only be permissible for the
purpose of establishing the foreigner's identity if the identity cannot be
established by other means, in particular via inquiries to other authorities,
or if the identity cannot be established in time by such other means or if such
other means would involve substantial difficulties.
(6a)
Measures within the meaning of sub-section 5, no. 5 are the taking of
photographs and fingerprints.
(7)
In order to determine the foreigner's state of origin or region of origin, the
foreigner's spoken word may be recorded on audio and data media. Such
recordings may only be made if the foreigner is duly informed beforehand.
(8)
The identity of a foreigner aged 14 or over who is intercepted in conjunction
with unlawful entry from a third state and not refused entry shall be
documented by taking prints of all ten fingers.
(9)
The identity of a foreigner aged 14 or over who is residing in the Federal
territory without the necessary residence title shall be documented by taking
prints of all ten fingers if there are indications that he or she has filed an
application for asylum in a member state of the European Communities.
(10)
The foreigner shall be required to tolerate the measures pursuant to
sub-sections 1 and 3 to 8.
Section
49a Database for found documents
(1)
The Federal Office of Administration shall keep a database in which information
shall be stored on identity documents issued by foreign public bodies and
belonging to nationals of the states specified in Enclosure I to regulation
(EC) no. 539/2001 (Official EU Journal no. L 81, p. 1) which are found in
Germany (database for found documents). Such storage shall serve to establish a
foreigner's identity or nationality and to enable the subsequent return of
foreigners.
(2)
Upon a public body coming into possession of a found document pursuant to
sub-section 1, said body shall forward the document to the Federal Office of
Administration forthwith after a period of seven days has elapsed, unless
1. it obtains knowledge of a notice of loss
submitted by the holder or
2. it determines beyond doubt the holder's place of
residence in Germany or
3. the found document is required for the purposes
of criminal proceedings or as evidence in other proceedings.
In
cases covered by sentence 1, no. 3 the public body shall transfer the items of
information stipulated in Section 49b, nos. 1 to 3 which are contained in the
found document to the Federal Office of Administration for entry in the
database for found documents.
Section
49b Contents of the database for found documents
Only
the following data shall be stored in the file pursuant to Section 49a (1):
1. Information on the holder of the found document
a) Surname, maiden name, first name, spelling of the
names according to German law,
b) date and place of birth,
c) sex,
d) nationality,
e) height,
f) eye colour,
g) photograph,
h) fingerprints
2. Information on the found document:
a) Type and number,
b) issuing state,
c) place and date of issue,
d) duration of validity
3. Other information:
a) Name of the body submitting the document,
b) information on retention or return
4. Photocopy of all pages of the found document,
5. photocopies of documents verifying return of the
document to the issuing state.
Chapter
5 Termination of stay
Part
1 Grounds establishing the obligation to leave the Federal territory
Section
50 Requirement to leave the Federal territory
(1)
A foreigner shall be obliged to leave the Federal territory if he or she does
not possess or no longer possesses a necessary residence title and a right of
residence does not exist or no longer exists under the EEC/Turkey Association
Agreement.
(2)
The foreigner shall be required to leave the Federal territory forthwith or, if
a period has been allowed for departure, by the end of this period. The period
allowed for departure shall end no later than six months after the date on
which the obligation to leave the Federal territory becomes unappealable.
It may be extended in special cases of hardship.
(2a)
If the foreigners authority has concrete grounds to suspect that the foreigner
has been the victim of a criminal offence as specified in Section 25 (4a),
sentence 1, it shall set a deadline for leaving the country which will allow
the foreigner sufficient time to decide whether he or she is prepared to
testify pursuant to Section 25 (4a), sentence 2, no. 3. A period of at least
one month shall be allowed for departure. The foreigners authority may refrain
from setting a deadline for leaving the country pursuant to sentence 1 or may
annul or reduce the period allowed for departure, if
1. the foreigner’s stay is detrimental to public
safety and law and order or other substantial interests of the Federal Republic
of Germany or
2. the foreigner has voluntarily re-established
contact with the persons pursuant to Section 25 (4a), sentence 2, no. 2 after
being duly informed pursuant to sentence 4.
The
foreigners authority or a body authorised by the
latter shall inform the foreigner as to the prevailing arrangements, programmes and measures for victims of criminal offences
stated in Section 25 (4a), sentence 1.
(3)
The period allowed for departure shall be interrupted if the obligation to
leave or of the notification announcing deportation ceases to be enforceable.
(4)
The foreigner can meet his or her obligation to leave the Federal territory by
entering another member state of the European Communities only if his or her
entry into and residence in such state is permitted.
(5)
A foreigner who is required to leave the Federal territory and who intends to
change his or her address or to leave the district covered by the foreigners
authority for more than three days shall be required to notify the foreigners
authority accordingly beforehand.
(6)
The passport or passport substitute of a foreigner who is required to leave the
Federal territory should be taken into custody until the time of his or her
departure.
(7)
For the purpose of terminating his or her residence, a foreigner may be
included in the police's investigative materials relating to wanted persons in
order to determine his or her whereabouts and to apprehend him or her, if is or her whereabouts are not known. A foreigner who has
been expelled, refused entry, or deported may be reported for the purposes of
refusal of entry and, in the event of his or her arrival in the Federal
territory, for the purposes of his or her apprehension. Section 66 of the
Asylum Procedure Act shall apply mutatis mutandis to foreigners who have been
allocated in accordance with Section 15a.
Section
51 Termination of the lawfulness of residence; continued validity of
restrictions
(1)
The residence title shall expire in the following cases:
1. upon expiry of its period of validity,
2. upon the occurrence of an invalidating condition,
3. upon withdrawal of the residence title,
4. upon revocation of the residence title,
5. upon expulsion of the foreigner,
5a. announcement of a deportation order pursuant to
Section 58a,
6. if the foreigner leaves the Federal territory for
a reason which is not of a temporary nature,
7. if the foreigner leaves the Federal territory and
fails to re-enter the Federal territory within six months or within a longer
period set by the foreigners authority,
8. if a foreigner files an application for asylum
following the granting of a residence title pursuant to Sections 22, 23 or 25
(3) to (5); a visa issued for several entries or with a period of validity in
excess of three months shall not expire in accordance with numbers 6 and 7
above.
(2)
The settlement permit of a foreigner who has lawfully resided in the Federal
territory for at least 15 years and the settlement permit of his or her
cohabiting spouse shall not expire in accordance with sub-section 1, nos. 6 and
7, if the aforementioned persons' subsistence is assured and no grounds for
expulsion apply pursuant to Section 54, nos. 5 to 7 or Section 55 (2), nos. 8
to 11. The settlement permit of a foreigner cohabiting with a German as his or
her spouse shall not expire pursuant to sub-section 1, nos. 6 and 7 if no
grounds for expulsion apply pursuant to Section 54, nos. 5 to 7 or Section 55
(2), nos. 8 to 11. On request, the foreigners authority at the place in which
the foreigner was last ordinarily resident shall issue a certificate confirming
the continued validity of the settlement permit.
(3)
The residence title shall not expire in accordance with sub-section 1, no. 7,
if the specified period is exceeded solely on account of the foreigner carrying
out compulsory military service in his or her native country and the foreigner
re-enters the Federal territory within three months of discharge from said
military service.
(4)
A longer period will generally be granted pursuant to sub-section 1, no. 7 if
the foreigner intends to leave the Federal territory for reasons of a temporary
nature and is in possession of a settlement permit, or if the stay outside of
the Federal territory serves the interests of the Federal Republic of Germany.
(5)
The exemption from the requirement for the residence title shall not apply if
the foreigner is expelled, removed or deported; Section 11 (1) shall apply
mutatis mutandis.
(6)
Geographic and other restrictions and conditions under this Act and other acts
shall remain in force after expiry of the residence title or the suspension of
deportation until such time as they are lifted or the foreigner meets his
obligation to leave the Federal territory pursuant to Section 50 (1) to (4).
(7)
Upon a person entitled to asylum or a foreigner whom the Federal Office for
Migration and Refugees has incontestably granted refugee status leaving the
Federal territory, the residence title shall not expire as long as he or she is
in possession of a valid travel document for refugees issued by a German
authority. The foreigner shall have no entitlement to the renewed issuance of a
residence title on the basis of his recognition as a person entitled to asylum
or by virtue of having been incontestably granted refugee status by the Federal
Office for Migration and Refugees, if he or she has left the Federal territory
and the competence for issuing a travel document has passed to another state.
(8)
Prior to revocation of a residence permit pursuant to Section 38a (1), prior to
the expulsion of a foreigner who holds such a residence permit and prior to
issuing a deportation order against a foreigner pursuant to Section 58a, the
competent authority in the proceedings pursuant to Section 91c
(3) shall, through the Federal Office for Migration and Refugees, afford the
Member State of the European Union in which the foreigner holds the legal
status of a long-term resident an opportunity to submit an opinion, if
deportation to an area in which this legal status cannot be acquired is under
consideration. Upon the opinion being received from the other Member State in
good time, it shall be considered by the competent authority.
(9)
The EC long-term residence permit shall expire only if
1. issuance thereof is revoked on account of
fraudulent misrepresentation, threats or bribery,
2. the foreigner is expelled or is served with a
deportation order pursuant Section 58a,
3. the foreigner is resident for a period of twelve
consecutive months outside of the area in which the legal status of a long-term
resident can be acquired,
4. the foreigner remains outside of the Federal
territory for a period of six years or
5. the foreigner acquires the legal status of a
long-term resident in another Member State of the European Union. Sub-sections
2 to 4 shall apply mutatis mutandis to the cases specified in sentence 1, nos.
3 and 4.
Section
52 Revocation
(1)
Save in the cases covered by sub-sections 2 to 7, a foreigner's residence title
can only be revoked if
1. he or she no longer possesses a valid passport or
passport substitute,
2. he or she changes or loses his or her
nationality,
3. he or she has not yet entered the Federal
territory,
4. his or her recognition as a person entitled to
asylum or his or her refugee status lapses or becomes null and void or
5. the foreigners authority establishes, after issuance
of a residence permit pursuant to Section 25 (3), sentence 1, that
a) the conditions pursuant to Section 60 (2), (3),
(5) or (7) are not met or are no longer met,
b) the foreigner fulfils one of the grounds for
exclusion pursuant to Section 25 (3), sentence 2, letters a to d or,
c) in the cases covered by Section 42, sentence 1 of
the Asylum Procedure Act, the assessment is revoked or becomes null and void.
In
the cases covered by sentence 1, nos. 4 and 5, the residence title of the
dependents living together with the foreigner as a family unit may also be
revoked, if these have no independent entitlement to the residence title.
(2)
A visa and a residence permit which have been granted for the purpose of
employment shall be revoked if the Federal Employment Agency revokes the
approval of employment pursuant to Section 41. In the case of sentence 1, a
visa and a residence permit which have not been granted for the purpose of
employment shall be revoked to the extent to which they permit the employment
concerned.
(3)
A residence permit issued for study purposes pursuant to Section 16 (1) may be
revoked, if
1. the foreigner pursues an economic activity
without the necessary permit,
2. the foreigner fails to make adequate progress
with his or her studies, with due regard to the average duration of study for
the course of study at the higher education establishment concerned and taking
into account his or her individual situation, or
3. the foreigner no longer meets the conditions
under which he or she could be granted a residence permit pursuant to Section
16 (1) or (6).
(4)
A residence permit issued pursuant to Section 20 may be revoked, if
1. the research establishment with which the
foreigner has concluded an admission agreement loses its recognised
status, where the foreigner has been involved in an action which has led to the
loss of such status,
2. the foreigner no longer conducts research or is
no longer permitted to conduct research at the research establishment or
3. the foreigner no longer meets the conditions
under which he or she could be granted a residence permit pursuant to Section
20 or under which it would be permissible to conclude an admission agreement
with him or her.
(5)
A residence permit pursuant to Section 25 (4a), sentence 2 should be revoked,
if
1. the foreigner was not or is no longer prepared to
testify in the criminal proceedings,
2. the information referred to in Section 25 (4a),
sentence 2, no. 1 which the foreigner has provided is considered by the public
prosecutor’s office or the criminal court to be in all reasonable probability
false,
3. the foreigner has voluntarily re-established
contact with the persons pursuant to Section 25 (4a), sentence 2, no. 2,
4. the criminal proceedings in which the foreigner
was to testify as a witness have been dismissed or
5. the foreigner no longer meets the conditions for
issuance of a residence title pursuant to Section 25a (4a) on account of other
circumstances.
(6)
A residence permit pursuant to Section 38a should be revoked if the foreigner
loses his or her legal status as a long-term resident in another Member State
of the European Union.
(7)
The Schengen visa of a foreigner residing with this
visa in the Federal territory shall be revoked, if
1. the foreigner pursues an economic activity
without the permit which is required pursuant to Section 4 (3) or
2. there are justifiable grounds to assume that the
foreigner intends to pursue an economic activity without the permit which is
required pursuant to Section 4 (3).
Where
the visa was not issued by a German diplomatic mission abroad, the authority
revoking the visa shall notify the issuing state through the Federal Office for
Migration and Refugees.
Section
53 Mandatory expulsion
A
foreigner shall be expelled, if he or she
1. has been unappealably
sentenced to a prison term or a term of youth custody of at least three years
for one or more intentionally committed offences or to several prison terms or
terms of youth custody for intentionally committed offences totalling
at least three years within a five-year period or preventive detention has been
ordered in connection with the most recent unappealable
conviction,
2. has been unappealably
sentenced to at least two years' youth custody or to a prison term for an
intentionally committed offence under the Narcotics Act, for a breach of the
peace under the conditions specified in Section 125a, sentence 2 of the Penal
Code or for a breach of the peace committed at a prohibited public gathering or
a prohibited procession pursuant to Section 125 of the Penal Code and the
sentence has not been suspended on probation, or
3. has unappealably
received a custodial sentence for smuggling in foreigners pursuant to Section
96 or Section 97 and the sentence has not been suspended on probation.
Section
54 Regular expulsion
A
foreigner will generally be expelled if
1. he or she has been unappealably
sentenced to at least two years' youth custody or to a prison term for one or
more intentionally committed offences and the sentence has not been suspended
on probation,
2. he or she is unappealably
convicted of smuggling in foreigners pursuant to Section 96,
3. he or she cultivates, produces, imports, carries
through the Federal territory, exports, sells, puts into circulation by any
other means or traffics in narcotics without authorisation
and in contravention of the provisions of the Narcotics Act, or if he or she
aids or abets such acts,
4. he or she participates as a perpetrator of or
accessory to acts of violence against persons or property which are committed
concertedly from within a crowd in a manner which endangers public safety at a
prohibited or disbanded public gathering or in a prohibited or disbanded
procession,
5. facts justifiably lead to the conclusion that he
or she belongs to or has belonged to an organisation
which support terrorism or supports or has supported such an organisation; expulsion may only be based on membership or
supportive acts in the past insofar as the form the basis for a currently
prevailing danger,
5a. he or she endangers the free democratic basic
order or the security of the Federal Republic of Germany, participates in acts
of violence or publicly incites to violence in pursuit of political objectives
or threatens the use of violence,
6. he or she, in the course of an interview which
serves to clarify reservations regarding entry or continued residence, fails to
reveal previous stays in Germany or other states to the German diplomatic
mission abroad or to the foreigners authority or furnishes false or incomplete
information on key points regarding links with persons or organisations
who or which are suspected of supporting terrorism; expulsion on this basis shall
only be permissible if the foreigner is expressly informed prior to the
interview of the security-related purpose of the interview and the legal
consequences of furnishing false or incomplete information; or
7. he or she belonged to the leadership of an organisation which has been unappealably
banned because its purpose or activities are in breach of the criminal laws or
he or she opposes the constitutional order or the concepts of international
understanding.
Section
54a Surveillance of expelled foreigners for reasons of internal security
(1)
A foreigner against whom an enforceable expulsion order pursuant to Section 54,
no. 5, 5a or an enforceable deportation order pursuant to Section 58a exists
shall be obliged to report to the police office which is responsible for his or
her place of residence at least once a week, unless the foreigners authority
stipulates otherwise. If a foreigner is enforceably
required to leave the Federal territory for reasons other than the grounds for
expulsion stated in sentence 1, an obligation to report to the police
authorities corresponding to sentence 1 may be imposed if necessary in order to
avert a danger to public safety and law and order.
(2)
His or her residence shall be restricted to the district of the foreigners
authority concerned, unless the foreigners authority stipulates otherwise.
(3)
He or she may be obliged to live in a different place of residence or in
certain types of accommodation outside of the district of the foreigners
authority concerned, if this appears expedient in order to hinder or to prevent
activities which have led to the foreigner's expulsion and to facilitate
monitoring of compliance with provisions under the law governing organisations and associations or other statutory
conditions and obligations.
(4)
In order to hinder or prevent activities which have led to the foreigner's
expulsion, the foreigner may also be obliged to refrain from using certain
means of communication or communication services, insofar as means of
communication remain at his or her disposal and restrictions are necessary in
order to avert serious risks to internal security or to the life and limb of
third parties. (5) The obligations in accordance with sub-sections 1 to 4 shall
be suspended if the foreigner is in custody. An order in accordance with
sub-sections 3 and 4 shall be immediately enforceable.
Section
55 Discretionary expulsion
(1)
A foreigner may be expelled if his or her stay is detrimental to public safety
and law and order or other substantial interests of the Federal Republic of
Germany.
(2)
A foreigner may be expelled in accordance with sub-section 1 in particular if
he or she, either in Germany or abroad,
1. a) has furnished false or incomplete
information in order to obtain a German residence title, a Schengen
visa, a passport substitute, eligibility for exemption from the passport
obligation or the suspension of deportation or,
b) notwithstanding a legal obligation, has failed to
cooperate in measures undertaken by the authorities responsible for
implementing this Act or the Convention Implementing the Schengen
Agreement in administrative proceedings conducted by authorities of a state
applying the Convention Implementing the Schengen
Agreement, provided that the foreigner was informed beforehand of the legal
consequences of such action,
2. has committed a breach of legal provisions, court
rulings or official orders, excepting isolated or minor breaches, or has
committed an offence outside of the Federal territory which is to be regarded
as an intentionally committed offence in the Federal territory,
3. contravenes a legal provision or official decree
pertaining to the practice of prostitution,
4. uses heroin, cocaine or a comparably dangerous
narcotic and is not prepared to undergo a course of rehabilitation treatment or
evades such treatment,
5. endangers public health through his or her behaviour or is homeless for a prolonged period,
6. claims social welfare for himself/herself, his or
her dependents or other persons belonging to his or her household,
7. receives an educational allowance for persons
outside of his or her own family or an allowance for young adults in accordance
with Book Eight of the Social Code; this shall not apply for a minor whose
parents or parent possessing the sole right of care and custody is lawfully
resident in the Federal territory,
8. a) publicly, at a meeting or by
disseminating literature, endorses or promotes a crime against peace, a war
crime, a crime against humanity or terrorist acts of comparable importance in a
manner conducive to disturbing public safety and order or
b) incites hate
against sections of the population or calls for violence or arbitrary measures
against the same in a manner conducive to disturbing public safety and order or
attacks the human dignity of others by insulting, maliciously disparaging or
slandering sections of the population,
9. specifically and continuously brings his or her
influence to bear on a child or a young person in order to instil
or intensify a hate of persons belonging to other ethnic groups or religions,
10. prevents another person from participating in
life in the Federal Republic of Germany on an economic, cultural or social
level by reprehensible means, in particular through the use or threat of
violence or
11. coerces or attempts to coerce another person
into entering into marriage.
(3)
In reaching the decision on expulsion, due consideration shall be accorded to
1. the duration of lawful residence and the
foreigner's legitimate personal, economic and other ties in the Federal
territory,
2. the consequences of the expulsion for the
foreigner's dependents or partner who is/are lawfully resident in the Federal
territory and who lives/live with the foreigner as part of a family unit or
cohabits with the foreigner as his or her partner in life,
3. the conditions specified in Section 60 (2),
sentence 3 for the suspension of deportation.
Section
56 Special protection from expulsion
(1)
A foreigner who
1. possesses a settlement permit and has lawfully
resided in the Federal territory for at least five years,
1a. possesses an EC long-term residence permit,
2. possesses a residence permit, was born in the
Federal territory or entered the Federal territory as a minor and has been
lawfully resident in the Federal territory for at least five years,
3. possesses a residence permit, has lawfully
resided in the Federal territory for at least five years and cohabits with a
foreigner as specified in numbers 1 to 2 as a spouse or in a registered
partnership,
4. cohabits with a German dependent or partner in
life in a family unit or a registered partnership,
5. is recognised as a
person entitled to asylum, enjoys the legal status of a refugee in the Federal territory
or possesses a travel document issued by an authority of the Federal Republic
of Germany under the Convention of 28 July 1951 relating to the Status of
Refugees (Federal Law Gazette 1953 II, p. 559), shall enjoy special protection
from expulsion. He or she shall only be expelled on serious grounds pertaining
to public security and law and order. Serious grounds pertaining to public
security and law and order generally apply in cases covered by Section 53 and
Section 54, nos. 5, 5a and 7. If the conditions specified in Section 53 apply,
the foreigner shall generally be expelled. If the conditions specified in
Section 54 apply, a discretionary decision shall be reached on his or her
expulsion.
(2)
In the cases covered by Sections 53 and 54, a discretionary decision shall be
reached on the expulsion of an adolescent who has grown up in the Federal
territory and possesses a settlement permit, and on the expulsion of a minor
who possesses a residence permit or settlement permit. If the parents or the parent
possessing the sole right of care and custody are/is lawfully resident in the
Federal territory, the minor shall be expelled in the cases covered by Section
53 only; a discretionary decision shall be reached on his or her expulsion.
Sentence 1 shall not be applicable where the adolescent has been unappealably convicted of wilfully
committing a series of serious offences, of committing severe criminal offences
or of committing a particularly severe criminal offence.
(3)
A foreigner who possesses a residence permit in accordance with Section 24 or
Section 29 (4) can only be expelled under the conditions stipulated in Section
24 (2).
(4)
A foreigner who has filed an application for asylum may only be expelled on
condition that the asylum procedure is unappealably
completed without recognition of the foreigner concerned as a person entitled
to asylum or without a deportation ban being established pursuant to Section 60
(1). This condition shall be waived if
1. a case applies, the facts and circumstances of
which justify expulsion pursuant to sub-section 1 or
2. a deportation warning under the provisions of the
Asylum Procedure Act has become enforceable.
Part
2 Enforcement of the obligation to leave the Federal territory
Section
57 Removal
(1)
A foreigner who has entered the Federal territory unlawfully should be removed
within six months of crossing the border. By way of derogation from this
provision, removal shall be permissible as long as another state is obliged to
admit the foreigner under the terms of an inter-governmental admission
agreement.
(2)
A foreigner who is required to leave the Federal territory and who is returned
or refused entry by another state shall be removed forthwith to a state which
he or she is permitted to enter, unless the obligation to leave the Federal
territory is not yet enforceable.
(3)
Section 60 (1) to (5) (7) to (9) and Section 62 shall apply mutatis mutandis.
Section
58 Deportation
(1)
The foreigner shall be deported if the requirement to leave the Federal territory
is enforceable and voluntary fulfilment of the
obligation to leave is not assured or supervision of departure appears
necessary on grounds of public security and law and order.
(2)
The requirement to leave the Federal territory shall be enforceable if the
foreigner
1. has entered the Federal territory unlawfully,
2. has not yet applied for initial granting of the
necessary residence title or has not yet applied for an extension and the
residence is not deemed to be permitted pursuant to Section 81 (3), or the
residence title is not deemed to remain in force pursuant to Section 81 (4),
3. becomes obliged to leave the Federal territory by
virtue of a ruling on his or her return pursuant to Article 3 of Council
directive 2001/40/EC of 28 May 2001 regarding the mutual recognition of rulings
on the return of third-state nationals reached by another member state of the
European Union (official EC Journal no. L 149, p. 34), provided that the ruling
concerned is recognised by the competent authority,
and no period has been allowed for departure or a granted period has expired.
The requirement to leave the Federal territory shall otherwise become
enforceable only upon refusal of the residence title or another administrative
act via which the foreigner becomes required to leave pursuant to Section 50
(1) becoming enforceable.
(3)
Supervision of deportation is necessary in particular if the foreigner
1. is in detention or another form of public custody
by virtue of a judicial order,
2. has failed to leave the Federal territory within
the period granted for departure,
3. has been expelled pursuant to Section 53 or
Section 54,
4. is destitute,
5. does not possess a passport or passport
substitute,
6. has furnished the foreigners authority with
incorrect information or refused to furnish information with intent to deceive
or
7. has indicated that he or she will not meet his or
her obligation to leave the Federal territory.
Section
58a Deportation order
(1)
The supreme Land authority may issue a deportation order against a foreigner
without prior expulsion on the basis of a prognosis based on facts, in order to
avert a special danger to the security of the Federal Republic of Germany or a
terrorist threat. The deportation order shall be immediately enforceable; no
notice of intention to deport shall be necessary.
(2)
The Federal Ministry of the Interior may assume responsibility if a special
interest on the part of the Federation applies. The supreme Land authority is to
be notified accordingly. Deportation orders issued by the Federation shall be
enforced by the Federal Police.
(3)
A deportation order may not be enforced if the conditions pertaining to a
deportation ban pursuant to Section 60 (1) to (8) apply. Section 59 (2) and (3)
shall apply mutatis mutandis. Assessment in this context shall be carried out
by the authority deciding on the deportation order, whereby this authority
shall not be bound to findings reached in this connection in other proceedings.
(4)
Following announcement of the deportation order, the foreigner is to be
afforded an opportunity to establish contact with a legal adviser of his or her
choice forthwith, unless he or she has secured the services of a lawyer
beforehand; the foreigner is to be informed of this entitlement, of the legal
consequences of the deportation order and the available legal remedies. An
application for temporary relief pursuant to the Code of Administrative Courts
Procedure shall be filed within seven days of announcement of the deportation
order. Deportation may not be enforced until expiry of the period in accordance
with sentence 2 and, if an application for temporary relief is filed in good
time, until the time of the court's decision on said application.
Section
59 Deportation warning
(1)
Notice of intention to deport a foreigner should be served in writing,
specifying a period allowed for departure.
(2)
The notice of intention to deport should specify the state to which the
foreigner is to be deported and shall inform the foreigner that he or she may
also be deported to another state which he or she is permitted to enter or
which is obliged to admit him or her.
(3)
The existence of deportation bans shall not preclude issuance of the notice of
intention to deport. The state to which the foreigner must not be deported
shall be specified in the notice of intention to deport. If the administrative
court establishes the existence of a deportation ban, the validity of the
notice of intention to deport shall remain otherwise unaffected.
(4)
Upon the notice of intention to deport becoming unappealable,
the foreigners authority shall, for the purpose of further decisions on
deportation or the suspension of deportation, ignore any circumstances which
represent an obstacle to deportation to the state specified in the notice of
intention to deport and which occurred prior to the notice of intention to
deport becoming unappealable; any other circumstances
cited by the foreigner which represent an obstacle to deportation, or to deportation
to the specified state, may be ignored. The provisions enabling the foreigner
to assert the validity of the circumstances referred to in sentence 1 through a
court of law by means of a legal action or the temporary relief
procedure pursuant to the Code of Administrative Procedure shall remain
unaffected.
(5)
No deadline shall require to be set in cases covered by Section 58 (3), no. 1;
the foreigner shall be deported directly from detention or public custody. An
impending deportation should be announced at least one week beforehand.
Section
60 Prohibition of deportation
(1)
In application of the Convention of 28 July 1951 relating to the Status of
Refugees (Federal Law Gazette 1953 II, p. 559), a foreigner may not be deported
to a state in which his or her life or liberty is under threat on account of
his or her race, religion, nationality, membership of a certain social group or
political convictions. This shall also apply to persons who are entitled to
asylum and to foreigners who have been incontestably granted refugee status or
who enjoy the legal status of foreign refugees on other grounds in the Federal
territory or who have been granted foreign refugee status outside of the
Federal territory in accordance with the Convention relating to the Status of
Refugees. When a person's life, freedom from bodily harm or liberty is
threatened solely on account of their sex, this may also constitute persecution
due to membership of a certain social group. Persecution within the meaning of
sentence 1 may emanate from
a) the state,
b) parties or organisations
which control the state or substantial parts of the national territory, or
c) non-state parties, if the parties stated under
letters a and b, including international organisations,
are demonstrably unable or unwilling to offer protection from the persecution,
irrespective of whether a power exercising state rule exists in the country,
unless an alternative means of escape is available within the state concerned.
Article 4 (4) and Articles 7 to 10 of Council directive 2004/83/EC of 29 April
2004 on minimum standards for the qualification and status of third country
nationals or stateless persons as refugees or as persons who otherwise require
international protection and the content of the protection granted (Official EU
Journal no. L 304, p.12) shall additionally be applied in establishing whether
a case of persecution pursuant to sentence 1 applies. Where the foreigner cites
the ban on deportation pursuant to this sub-section, the Federal Office for Migration
and Refugees shall establish in an asylum procedure whether the conditions
stated in sentence 1 apply and the foreigner is to be granted refugee status,
except in cases covered by sentence 2. The decision by the Federal Office shall
only be appealable subject to the provisions of the Asylum Procedure Act.
(2)
A foreigner may not be deported to a state in which a concrete danger exists of
the said foreigner being subjected to torture or inhumane or degrading
treatment or punishment.
(3)
A foreigner may not be deported to a state in which he or she is wanted for an
offence and a danger of imposition or enforcement of the death penalty exists.
In such cases, the provisions on deportation shall be applied accordingly.
(4)
If a formal request for extradition or a request for arrest combined with a
notification of intent to file a request for extradition has been received from
another state, deportation of the foreigner to this state shall be permissible
only with the approval of the authority which is responsible for approving
extradition pursuant to Section 74 of the Act on International Mutual
Assistance in Criminal Matters.
(5)
A foreigner may not be deported if deportation is inadmissible under the terms
of the Convention of 4 November 1950 for the Protection of Human Rights and
Fundamental Freedoms (Federal Law Gazette 1952 II, p. 685).
(6)
The general danger that a foreigner may face prosecution and punishment in
another state and, in the absence of any provisions to the contrary in
sub-section 2 to 5, the concrete danger of lawful punishment under the legal
system of another state shall not preclude deportation.
(7)
A foreigner should not be deported to another state in which a substantial
concrete danger to his or her life and limb or liberty applies. A foreigner
shall not be deported to another state in which he or she will be exposed, as a
member of the civilian population, to a substantial individual danger to life
or limb as a result of an international or internal armed conflict. Dangers pursuant
to sentence 1 or sentence 2 to which the population or the segment of the
population to which the foreigner belongs are generally exposed shall receive
due consideration in decisions pursuant to Section 60a (1), sentence 1.
(8)
Sub-section 1 shall not apply if, for serious reasons, the foreigner is to be
regarded as a risk to the security of the Federal Republic of Germany or
constitutes a risk to the general public because he or she has been unappealably sentenced to a prison term of at least three
years for a crime or a particularly serious offence. The same shall apply if
the foreigner meets the conditions stipulated in Section 3 (2) of the Asylum
Procedure Act.
(9)
In the cases covered by sub-section 8, a foreigner who has filed an application
for asylum may, by way of derogation from the provisions of the Asylum
Procedure Act, be served notice of intention to deport and duly deported.
(10)
If a foreigner to whom the conditions stipulated in sub-section 1 apply is to
be deported, notice of intention to deport must be served and a reasonable
period must be allowed for departure. Those states to which the foreigner must
not be deported shall be specified in the notice of intention to deport.
(11)
Article 4 (4), Article 5 (1) and (2) and Articles 6 to 8 of Council directive
2004/83/EC of 29 April 2004 on minimum standards for the qualification and
status of third country nationals or stateless persons as refugees or as
persons who otherwise require international protection and the content of the protection
granted (Official EU Journal no. L 304, p.12) shall apply in establishing
whether bans on deportation apply pursuant to sub-sections 2, 3 and 7, sentence
2.
Section
60a Temporary suspension of deportation
(1)
For reasons of international law or on humanitarian grounds or to safeguard the
political interests of the Federal Republic of Germany, the supreme Land
authority may order the deportation of foreigners from specific states or of
categories of foreigners defined by any other means to be suspended in general
or with regard to deportation to specific states for a maximum of six months.
Section 23 (1) shall apply to a period in excess of six months.
(2)
The deportation of a foreigner shall be suspended for as long as deportation is
impossible in fact or in law and no residence permit is granted. The
deportation of a foreigner shall also be suspended if the public prosecutor’s
office or the criminal court considers his or her temporary presence in the
Federal territory to be appropriate in connection with criminal proceedings
relating to a criminal offence, because it would be more difficult to
investigate the facts of the case without his or her information. A foreigner
may be granted a temporary suspension of deportation if his or her continued presence
in the Federal territory is necessary on urgent humanitarian or personal
grounds or due to substantial public interests.
(2a)
The deportation of a foreigner shall be suspended for one week where his or her
removal or deportation has failed, custody pending deportation is not ordered
and the Federal Republic of Germany is obliged to readmit the foreigner by
virtue of a legal provision, in particular Article 6 (1) of Council directive
2003/110/EC of 25 November 2003 on assistance in cases of transit for the
purposes of removal by air (Official EU Journal no. L 321, p. 26). Suspension
pursuant to sentence 1 shall not be extendable. Entry of the foreigner into the
Federal territory shall be permitted.
(3)
Suspension of deportation shall not affect the foreigner's obligation to leave
the Federal territory.
(4)
The foreigner is to be issued with a certificate confirming the suspension of
deportation.
(5)
The suspension of deportation shall lapse upon the foreigner leaving the
Federal territory. The suspension shall be revoked upon the circumstances
preventing deportation ceasing to apply. The foreigner shall be deported
forthwith upon the suspension lapsing, without any renewed notice of intention
to deport specifying a deadline, unless the suspension is renewed. If
deportation has been suspended for more than one year, prior notice of at least
one month shall be served in case of intended deportation by way of revocation;
such notice shall be repeated, if the suspension has been renewed for more than
one year.
Section
61 Geographic restrictions; departure facilities
(1)
The stay of a foreigner who is enforceably required
to leave the Federal territory shall be restricted in geographic terms to the
territory of the Land concerned. Further conditions and requirements may be
imposed. The geographic restriction pursuant to sentence 1 may be waived if the
foreigner is entitled to take up employment without screening pursuant to
Section 39 (2), sentence 1, no. 1.
(1a)
In cases covered by Section 60a (2a), residence shall be restricted to the
administrative district of the most recently responsible foreigners authority.
The foreigner must proceed to such location forthwith after entering the
Federal territory. Where such an authority is not ascertainable, Section 15a
shall apply mutatis mutandis.
(2)
The Länder may establish departure facilities for
foreigners who are enforceably required to leave the
Federal territory. At such departure facilities, the willingness to leave the
Federal territory voluntarily should be promoted through support and counselling and accessibility for authorities and courts
and implementation of the departure procedure should be ensured.
Section
62 Custody awaiting deportation
(1)
A foreigner shall be placed in custody by judicial order to enable the
preparation of deportation, if a decision on deportation cannot be reached
immediately and deportation would be complicated substantially or frustrated
without such detainment (custody to prepare deportation). The duration of
custody to prepare deportation should not exceed six weeks. In case of
expulsion, no new judicial order shall be required for the continuation of
custody up to expiry of the ordered term of custody.
(2)
A foreigner shall be placed in custody by judicial order for the purpose of
safeguarding deportation (detention pending deportation) if
1. the foreigner is enforceably
required to leave the Federal territory on account of his or her having entered
the territory unlawfully,
1a. a deportation order has been issued pursuant to
Section 58a but is not immediately enforceable,
2. the period allowed for departure has expired and
the foreigner has changed his or her place of residence without notifying the
foreigners authority of an address at which he or she can be reached,
3. he or she has failed to appear at the location
stipulated by the foreigners authority on a date fixed for deportation, for
reasons for which he or she is responsible
4. he or she has evaded deportation by any other
means or
5. a well-founded suspicion exists that he or she
intends to evade deportation.
The
foreigner may be placed in detention pending deportation for a maximum of two
weeks, if the period allowed for departure has expired and it has been
established that deportation can be enforced. By way of exception, the order
for detention pending deportation pursuant to sentence 1, no. 1 may be waived
if the foreigner credibly asserts that he or she does not intend to evade
deportation. Detention pending deportation shall not be permissible if it is
established that it will not be possible to carry out deportation within the
next three months for reasons for which the foreigner is not responsible. Where
deportation has failed due to reasons for which the foreigner is responsible,
the order pursuant to sentence 1 shall remain unaffected until expiry of the
period stipulated in the order.
(3)
Detention pending deportation may be ordered for up to six months. In cases in
which the foreigner frustrates his or her deportation, it may be extended by a
maximum of twelve months. A period of custody to prepare deportation shall
count towards the overall duration of detention pending deportation.
(4)
The authority responsible for the detention application may detain a foreigner
without a prior judicial order and place such foreigner in temporary custody
where
1. there is a strong suspicion that the conditions
pursuant to sub-section 2, sentence 1 apply,
2. the judicial decision on the order for detention
pending deportation is not obtainable beforehand and
3. there is a well-founded suspicion that the
foreigner intends to evade the order for detention pending deportation.
The
foreigner shall be brought before the court forthwith for a decision on the
order for detention pending deportation.
Chapter
6 Liability and fees
Section
63 Obligations of transport contractors
(1)
A transport contractor may only transport foreigners into the Federal territory
if they are in possession of a required passport and a required residence
title.
(2)
The Federal Ministry of the Interior or a body designated by the Federal
Ministry of the Interior may, in consultation with the Federal Ministry of
Transport, Building and Urban Affairs, prohibit a transport contractor from
transporting foreigners into the Federal territory in contravention of
sub-section 1 and threaten a fine in case of violation. Any objections or legal
actions shall have no suspensory effect; this shall
also apply with regard to the imposition of a fine.
(3)
The fine against the transport contractor shall be no less than 1 000 euros and no more than 5 000 euros
for each foreigner whom he transports in contravention of a ruling pursuant to
sub-section 2. The fine may be fixed and enforced by the Federal Ministry of
the Interior or a body designated by the said ministry.
(4)
The Federal Ministry of the Interior or a body designated by the Federal
Ministry of the Interior may agree arrangements for implementation of the
obligation specified in sub-section 1 with transport contractors.
Section
64 Return transport obligation on the part of transport contractors
(1)
If a foreigner is refused entry, the transport contractor who transported him
or her to the border shall be required to remove him or her from the Federal
territory forthwith.
(2)
The obligation pursuant to sub-section 1 shall apply for a period of three
years with regard to foreigners who are transported into the Federal territory
without a required passport, passport substitute or a required residence title
and who are not refused entry because they cite political persecution or the
circumstances referred to in Section 60 (2), (3), (5) or (7). The obligation
shall expire if the foreigner is granted a residence title under the terms of
this Act.
(3)
On request from the authorities charged with carrying out the police control of
cross-border traffic, the transport contractor shall be required to transport
the foreigner to the state which issued the travel document or from which he or
she was transported, or to another state in which his or her admission is
ensured.
Section
65 Obligations of airport operators
The
operator of a commercial airport shall be obliged to provide suitable
accommodation on the airport premises for foreigners who are not in possession
of a required passport or a required visa until the decision on admission is
enforced by the border police.
Section
66 Parties liable for costs; furnishing of security
(1)
Costs arising in connection with the enforcement of a geographic restriction,
refusal of entry, removal or deportation are to be borne by the foreigner.
(2)
In addition to the foreigner, parties who have provided the foreigners
authority or the diplomatic mission abroad with an undertaking that they shall
bear the costs of the foreigner's departure shall also be liable for the costs
specified in sub-section 1.
(3)
In the cases covered by Section 64 (1) and (2), the transport contractor shall,
in addition to the foreigner, be liable for the costs pertaining to return
transportation of the foreigner and for the costs which arise from the time of
the foreigner's arrival at the border crossing point to enforcement of the
decision on admission. A transport contractor who culpably contravenes a ruling
pursuant to Section 63 (2) shall, in addition to the foreigner, be liable for
any other costs arising from refused entry in cases covered by Section 64 (1)
or from deportation in cases covered by Section 64 (2).
(4)
A party who has employed the foreigner shall be liable for the costs or deportation
or removal, if the foreigner was not permitted to pursue the economic activity
under the provisions of this Act. Anyone committing a punishable offence
pursuant to Section 96 shall be liable in the same manner. The foreigner shall
be liable for such costs only to the extent to which they cannot be recovered
from the other liable party.
(5)
The party liable for costs may be required to furnish security. The order for
security to be furnished by the foreigner or the party liable for costs
pursuant to sub-section 4, sentences 1 and 2 may be enforced by the authority
which has issued the order without a prior writ of execution and without
allowing a period for payment, if recovery of the costs would otherwise be at
risk. By way of security for the costs relating to the foreigner's departure
from the Federal territory, return air tickets and other travel vouchers which
are in the possession of a foreigner who is to be refused entry, removed,
expelled or deported or who is permitted to enter and stay in the Federal
territory solely for the purpose of filing an application for asylum may be
confiscated.
Section
67 Scope of liability for costs
(1)
The costs relating to deportation, removal, refused entry and the enforcement
of a geographic restriction cover
1. transport costs and other travel costs for the
foreigner within the Federal territory and up to the destination outside of the
Federal territory,
2. the administrative costs arising in connection
with preparation and enforcement of the measure, including the costs of custody
awaiting deportation, translation and interpreting costs and the expenditure on
accommodation, food and other provisions for the foreigner and
3. all costs arising from necessary official escorts
for the foreigner, including personnel costs.
(2)
The costs for which the transport contractor shall be liable pursuant to
Section 66 (3), sentence 1 cover
1. the costs specified in sub-section 1, no. 1,
2. the administrative costs and expenditure on
accommodation, food and other provisions for the foreigner and translation and
interpreting costs which arise up to the time of enforcement of the decision on
admission and
3. the costs specified in sub-section 1, no. 3,
unless the transport contractor himself provides the necessary escort for the
foreigner.
(3)
The costs specified in sub-sections 1 and 2 shall be charged by the competent
authority pursuant to Section 71 by means of a payment order to the amount of
the actually incurred costs. The general principles for the calculation of
public-sector personnel costs shall apply with regard to calculation of the
personnel costs.
Section
68 Liability for living expenses
(1)
Anyone who has provided the foreigners authority or a diplomatic mission abroad
with a declaration of commitment to bear a foreigner's living expenses shall be
required to reimburse all public funds which are expended to cover the
foreigner's living expenses, including the provision of living space, medical
care in case of illness and any required nursing care, and including any such
expenditure which is based on a legal entitlement of the foreigner. Expenses
which are based on the payment of contributions shall not require
reimbursement.
(2)
The declaration of commitment pursuant to sub-section 1, sentence 1 must be furnished
in writing. It shall be enforceable in accordance with the Administrative
Enforcement Act. The public body which has expended the public funds shall be
entitled to the reimbursement.
(3)
The diplomatic mission abroad shall notify the foreigners authority forthwith
of a declaration of commitment pursuant to sub-section 1, sentence 1.
(4)
On obtaining knowledge of the expenditure of public funds which are to be
reimbursed pursuant to sub-section 1, the foreigners authority shall notify forthwith
the public body which is entitled to the reimbursement as to the declaration of
commitment pursuant to sub-section 1, sentence 1, and shall furnish said body
with all the information which is necessary for the purposes of asserting and
enforcing the reimbursement claim. The recipient may only use the data for the
purposes of reimbursement of the public funds expended for the foreigner and
the refusal of further payments.
Section
69 Charges
(1)
Fees and expenses shall be charged for official acts performed under this Act
and for statutory instruments issued in enforcement of this Act. Sentence 1
shall not apply for official acts by the Federal Employment Agency pursuant to
Sections 39 to 42. Section 287 of Book Three of the Social Code shall remain
unaffected.
(2)
The Federal Government shall, with the approval of the Bundesrat,
determine by statutory instrument the cases which are subject to a fee, the
scales of fees, and exemptions and reduced fees, particularly in cases of need.
The Administrative Costs Act shall apply insofar as the present Act does not
contain any divergent provisions.
(3)
The fees which are fixed in the statutory instrument must not exceed the
following maximum rates:
1. for issuance of a residence permit: 80 euros,
2. for issuance of a settlement permit: 200 euros,
2a. for issuance of an EC long-term residence
permit: 200 euros,
3. for the extension of a residence permit: 40 euros,
4. for issuance of a national visa and of a passport
substitute and substitute identity document: 100 euros,
5. for issuance of a Schengen
visa: 210 euros,
6. for issuance of a Schengen
collective visa: 60 euros and 1 euro per person,
6a. for recognition of a research establishment for
the purpose of concluding admission agreements pursuant to Section 20: 200 euros,
7. for other official acts: 30 euros,
8. for official acts performed for the benefit of
minors: half the fee allocated for the official act concerned.
(4)
A surcharge of no more than 25 euros may be imposed
for issuance of a national visa and a passport substitute at the border. A
surcharge of no more than 30 euros may be imposed for
an official act undertaken outside of normal office hours on request from the
applicant. Surcharges may also be imposed for official acts which are performed
for a national whose home country imposes fees in excess of those stipulated in
sub-section 2 on Germans for corresponding official acts. Sentences 2 and 3
shall not apply to the issuance or extension of a Schengen
visa. In setting surcharges, the maximum rates stipulated in sub-section 3 may
be exceeded.
(5)
The statutory instrument pursuant to sub-section 2 may provide for a processing
fee to be charged for applications for official acts which are subject to fees.
The processing fee for the application for a settlement permit or an EC
long-term residence permit must not exceed half the fee which is chargeable for
issuance of the respective permit. This fee shall be offset against the fee for
the official act. The fee shall not be repaid if the application is withdrawn
and/or the official act which is applied for is refused.
(6)
The statutory instrument pursuant to sub-section 2 may provide for fees to be
charged for the filing of an objection, whereby the following maximum rates
shall apply to such fees:
1. for an objection to the refusal of an application
for the performance of an official act which is subject to a fee: half the fee
set for this act,
2. for an objection to any other official act: 55 euros.
If
the objection is successful, the fee shall be deducted from the fee for the
official act to be performed and the remainder shall be repaid.
Section
70 Limitation of actions in respect of claims
(1)
The claims for the costs specified in Section 67 (1) and (2) shall become
statute-barred six years after they become due for payment.
(2)
In addition to the cases covered by Section 20 (3) of the Administrative Costs
Act, the limitation period for claims pursuant to Sections 66 and 69 shall also
be interrupted for as long as the party liable for costs is not resident in the
Federal territory or for as long as his or her residence in the Federal
territory cannot be ascertained because he or she has failed to meet the
statutory registration or notification obligation.
Chapter
7 Procedural provisions
Part
1 Areas of competence
Section
71 Competence
(1)
The foreigners authorities shall be competent for residence- and passport-
related measures and rulings in accordance with this Act and in accordance with
provisions relating to foreigners which are contained in other acts. The Land
government or the body appointed by the Land government may determine that only
one or several specific foreigners authorities are competent.
(2)
Outside of Germany, the diplomatic missions authorised
by the Ministry of Foreign Affairs shall be responsible for matters relating to
passports and visas.
(3)
The authorities charged with carrying out the police control of cross-border
traffic shall be responsible for
1. removal, refusal of entry at the border, the
imposition of time limits on the effects of removals which they carry out
pursuant to Section 11 (1) and (2) and the return of foreigners from and to
other states and, where necessary for the purposes of preparation and
safeguarding of these measures, for effecting arrest and applying for custody,
2. granting a visa and issuing a passport substitute
pursuant to Section 14 (2), and suspending deportation pursuant to Section 60a
(2a),
3. revoking a visa
a) in case of refusal of entry or removal,
b) on request from the diplomatic mission abroad
which has issued the visa or
c) on request from the foreigners authority which
has approved issuance of the visa, insofar as this approval was required for
said issuance,
4. prohibiting departure and implementing the
measures pursuant to Section 66 (5) at the border,
5. verifying at the border whether transport
contractors and other third parties have observed the provisions of this Act
and the ordinances and orders enacted on the basis of this Act,
6. other measures and rulings under the law relating
to foreigners which prove necessary at the border and for which the authorities
possess authorisation from the Federal Ministry of
the Interior or for which they are authorised by the
said Ministry in the individual case concerned,
7. procuring return travel documents for foreigners
from individual states by way of official assistance,
8. issuing notes and certificates for which
provision is made in legislation of the European Union confirming the date and
place of entry via the external border of a Member State which applies the Schengen acquis in full; this
shall not preclude the competence of the foreigners authorities of other bodies
designated by the Länder.
(4)
The foreigners authorities, the authorities charged with carrying out the
police control of cross-border traffic and, where necessary in discharging
their duties pursuant to sub-section 5, the police forces of the Länder shall be responsible for the necessary measures
pursuant to Sections 48 and 49 (2) to (9). In cases covered by Section 49 (4),
the authorities initiating allocation pursuant to Section 15a shall also be
responsible. The diplomatic missions abroad authorised
by the Ministry of Foreign Affairs shall be competent in the cases covered by
Section 49 (5) no. 5.
(5)
The police forces of the Länder shall also be
responsible for carrying out removal, for enforcing the obligation to leave the
Federal territory pursuant to Section 12 (3), for implementing deportation and,
where necessary for the purposes of preparation and safeguarding of these
measures, for effecting arrest and applying for custody.
(6)
The Federal Ministry of the Interior or the body appointed by the said Ministry
shall decide in consultation with the Ministry of Foreign Affairs on the
recognition of passports and substitute passport papers (Section 3 (1)). 1);
the decisions shall take the form of general orders and may be announced in the
electronic Federal Gazette.
Section
71a Jurisdiction and notification
(1)
In the cases covered by Section 98 (2a) and (3), no. 1, the administrative
authorities within the meaning of Section 36 (1), no. 1 of the Administrative
Offences Act shall be the customs administration authorities. These cooperate
with the authorities stated in Section 2 (2) of the Act to Combat Clandestine
Employment in prosecuting offences and imposing punishments.
(2)
The customs administration authorities shall notify the Central Trade and
Industry Register as to non-appealable orders imposing administrative fines
pursuant to Section 98 (2a) and (3), no. 1 which are to be entered in the
register. This shall apply only to fines in excess of 200 euros.
(3)
Courts of law, prosecuting authorities and penal authorities should furnish the
customs administration authorities with findings from other proceedings which
they consider necessary in prosecuting administrative offences pursuant to
Section 98 (2a) and (3), no. 1, except where it is apparent to the body furnishing
such information that the legitimate interests of the data subject or other
parties involved in the proceedings in the exclusion of such information
prevail. Due consideration is to be accorded to how well substantiated the
findings to be communicated are.
Section
72 Requirements for the involvement of authorities
(1)
Permission to enter the Federal territory (Section 11 (2)) may only be granted
with the consent of the foreigners authority which is competent for the
intended place of residence. The authority which has expelled, removed or
deported the foreigner is generally to be involved.
(2)
The foreigners authority shall decide whether deportation to a specific state
is prohibited pursuant to Section 60 (2) to (5) or (7) and whether a residence
title is to be refused pursuant to Section 25 (3), sentence 2, letters a to d
only after involving the Federal Office for Migration and Refugees.
(3)
Geographic restrictions, requirements and conditions, time limits pursuant to
Section 11 (1), sentence 3, orders pursuant to Section 47 and other measures
against a foreigner who is not in possession of a required residence title may
only be amended or lifted by a different authority in consultation with the
authority which ordered the measures. Sentence 1 shall not apply if the
foreigner's residence is restricted to the region for which the other
foreigners authority is competent in accordance with the provisions of the
Asylum Procedure Act.
(4)
A foreigner against whom legal proceedings are instituted by a public authority
or preliminary investigations are instituted under criminal law may only be
expelled or deported in consultation with the competent public prosecutor's
office. A foreigner who qualifies as requiring protection within the meaning of
the Act to Harmonise Protection for Witnesses may
only be expelled or deported in consultation with the Office for the Protection
of Witnesses.
(5)
Section 45 of Book Eight of the Social Code shall not apply for departure
facilities and facilities which serve as temporary accommodation for foreigners
who are granted a residence permit for reasons of international law or on
humanitarian or political grounds or whose deportation is suspended.
(6)
The competent public prosecutor’s office for the criminal proceedings referred
to in Section 25 (4a) or the criminal court concerned with such proceedings
shall be involved prior to reaching a decision on the issuance, extension or
revocation of a residence title pursuant to Section 25 (4a) and prior to
setting, annulling or reducing a deadline for leaving the country pursuant to
Section 50 (2a), except in cases covered by Section 87 (5), no. 1. Where the
competent public prosecutor’s office is not yet known to the foreigners
authority, it shall involve the police authority responsible for the place of
residence prior to reaching a decision on setting, annulling or reducing a
deadline for leaving the country pursuant to Section 50 (2a).
Section
73 Other requirements for the involvement of authorities in visa procedures and
in the issuance of residence titles
(1)
The information collected in a visa procedure by the German diplomatic mission
abroad on the person applying for a visa and the inviting party may be
transferred via the Ministry of Foreign Affairs to the Federal Intelligence
Service, the Federal Office for the Protection of the Constitution, the
Military Counter-Intelligence Service, the Federal Office of Criminal Police
and the Customs Criminological Office for the purpose of ascertaining any
grounds for refusal pursuant to Section 5 (4).
[as of 1 February 2009]
(1) Data collected in the course
of the visa procedure by a German diplomatic mission abroad or by the
diplomatic mission abroad of another Schengen state
which is responsible for taking receipt of the visa application on the person
applying for a visa, on the inviting party and on persons guaranteeing that the
foreigner’s subsistence will be ensured by way of a declaration of commitment
or by other means or on other reference persons in Germany may be transferred
via the competent body responsible to the Federal Intelligence Service, the
Federal Office for the Protection of the Constitution, the Military
Counter-Intelligence Service, the Federal Office of Criminal Police and the
Customs Criminological Office for the purposes of ascertaining any grounds for
refusal pursuant to Section 5 (4) or investigating any other security
reservations.
The
authorities involved shall transfer information on grounds for refusal pursuant
to Section 5 (4) to the competent diplomatic mission abroad via the Ministry of
Foreign Affairs. The procedure pursuant to Section 21 of the Central Aliens
Register Act shall remain unaffected. In cases covered by Section 14 (2), the
respective authorities charged with carrying out the police control of
cross-border traffic may transfer the data collected in the visa application
procedure to the authorities stated in sentence 1.
(2)
Prior to issuing or extending any other residence title, the foreigners
authorities may transfer the personal data stored at their facilities on the
person concerned to the Federal Intelligence Service, the Military
Counter-Intelligence Service, the Customs Criminological Office, the Land
Office for the Protection of the Constitution, the Land Office of Criminal
Police or the competent police authorities for the purpose of ascertaining any
grounds for refusal pursuant to Section 5 (4) or in order to investigate any
security reservations. Prior to issuing a settlement permit, the stored
personal data shall be transferred to the security authorities and intelligence
services stated in sentence 1, should this be expedient in order to ascertain
any grounds for refusal pursuant to Section 5 (4) or to investigate any
security reservations.
[as of 1 May 2008]
(2) Prior to issuing or extending
a residence title, temporarily suspending deportation or permitting residence,
the foreigners authorities may transfer the personal data stored at their
facilities on the persons concerned via the Federal Office of Administration to
the Federal Intelligence Service, the Military Counter-Intelligence Service,
the Customs Criminological Office, the Land Office for the Protection of the
Constitution, the Land Office of Criminal Police or the competent police
authorities for the purpose of ascertaining any grounds for refusal pursuant to
Section 5 (4) or in order to investigate any other security reservations.
(3)
The security authorities and intelligence services stated in sub-sections 1 and
2 shall notify the inquiring body forthwith as to whether grounds for refusal
pursuant to Section 5 (4) or any other security reservations apply. Should the
authorities stated in sentence 1 obtain knowledge of grounds for refusal pursuant
to Section 5 (4) or other security reservations during the period of validity
of the residence title, they shall duly notify the competent foreigners
authority or the competent diplomatic mission abroad forthwith. The authorities
stated in sentence 1 may store and use the data transferred with the inquiry if
necessary in discharging their statutory duties. Transfer provisions in
accordance with other acts shall remain unaffected.
(4)
The Federal Ministry of the Interior shall determine via a general statutory
instrument in consultation with the Ministry of Foreign Affairs and with due
regard to the prevailing security situation in which cases the authorisation pursuant to sub-section 1 shall be used with
regard to nationals of particular states and persons belonging to groups
defined by any other means.
Section
74 Involvement of the Federal government; authority to issue instructions
(1)
A visa may be granted to safeguard political interests of the Federal
government subject to the proviso that extension of the visa and the issuance
of another residence title after expiry of the visa and the lifting and
amendment of requirements, conditions and other restrictions pertaining to the
visa may only be undertaken in consultation with or subject to the consent of
the Federal Ministry of the Interior or the body appointed by said Ministry.
(2)
The Federal government may issue individual instructions on implementation of
this Act and the statutory instruments enacted on the basis of this Act if
1. the security of the Federal Republic of Germany
or any other substantial interests of the Federal Republic of Germany so
require,
2. measures undertaken by one Land in connection
with the law on foreigners impair substantial interests of another Land,
3. a foreigners authority intends to expel a
foreigner who is exempted from the requirement for a residence permit by virtue
of his or her belonging to a consular or diplomatic mission.
Part
1a Transit
Section
74a Transit of foreigners
Foreign
states may return foreigners to another state from their territory via the
Federal territory or readmit foreigners into their territory from another state
via the Federal territory, subject to the permission of the competent
authorities (transit operations). Transit operations shall be carried out on
the basis of inter-governmental agreements and legislation of the European
Community. The central authority pursuant to Article 4 (5) of directive
2003/110/EC is the Federal Police Central Bureau. The foreigner in transit is
to tolerate the necessary measures in connection with his or her transit
journey.
Part
2 Federal Office for Migration and Refugees
Section
75 Duties
Notwithstanding
its duties in accordance with other acts, the Federal Office for Migration and
Refugees shall have the following duties:
1. Coordination of the information on the residence
for the purpose of pursuing an economic activity between the foreigners
authorities, the Federal Employment Agency and the German diplomatic missions
abroad authorised for matters pertaining to passports
and visas by the Ministry of Foreign Affairs;
2. a)
Development of the basic structure and contents of the integration course
pursuant to Section 43 (3),
b) implementation of
the same and
c) measures pursuant
to Section 9 (5) of the Federal Expellees Act;
3. Expert supporting work for the Federal government
in the field of the promotion of integration and the production of
informational materials on integration measures offered by the Federal government,
Land governments and local government authorities for foreigners and
repatriates of German ancestry;
4. Scientific research on migration issues
(accompanying research) with the aim of obtaining analytical conclusions for
use in controlling immigration;
5. Cooperation with the administrative authorities
of the Member States of the European Union as the National Contact Point and
competent authority pursuant to Article 27 of directive 2001/55/EC, Article 25
of directive 2003/109/EC and Article 8 (3) of directive 2004/114/EC, and for
communications pursuant to Section 52 (7), sentence 2;
6. Keeping the register pursuant to Section 91a;
7. Granting payment of the funds approved under the
schemes to promote voluntary return;
8. Carrying out the admission process pursuant to
Section 23 (2) and the allocation of foreigners admitted pursuant to Section 23
and Section 22, sentence 2 to the Länder;
9. The provision of migration advisory services
pursuant to Section 45, sentence 1, unless such services are provided by other
bodies; it may enlist the services of private or public institutions to this
end;
10. Recognition of research establishments for the
purpose of concluding admission agreements pursuant to Section 20; in this
connection, the Federal Office for Migration and Refugees shall be supported by
a consultative council on research migration;
11. Coordinating the transfer of information and
evaluating findings of the federal authorities, in particular of the Federal
Criminal Police Office and the Federal Office for the Protection of the
Constitution, on foreigners for whom measures under the law on foreigners,
asylum or nationality are to be considered owing to a risk to public security.
§ 76 (r e v o k e d)
Part
3 Administrative procedures
Section
77 Written form; exemption from formal requirements
(1)
The administrative act via which a passport substitute, a substitute identity
document or a residence title is refused or subjected to geographic or time
restrictions, conditions and requirements must be in written form; the same
applies to expulsion and the suspension of deportation. The same also applies
to restrictions of the stay pursuant to Section 12 (4), the orders pursuant to
Sections 47 and 54a and the revocation of administrative acts in accordance
with this Act. An administrative act refusing a residence permit, a settlement
permit or an EC long-term residence permit shall be supplemented by explanatory
notes informing the foreigner as to the legal remedy which is available in
order to challenge the administrative act, the body with which the
corresponding appeal is to be lodged and the deadline which is to be observed.
(2)
Refusal and restriction of a visa and of a passport substitute prior to the
foreigner entering the Federal territory shall not require any statement of
grounds or information on available legal remedies; refusal at the border shall
not require written form.
Section
78 Forms for residence titles, identification card substitute and certificates
(1)
The residence title shall be issued according to a standard form, containing a
serial number and a zone for automatic reading. The standard form contains the
following items of information:
1. Surname and first name of the holder,
2. duration of validity
3. place and date of issue,
4. type of residence title,
5. issuing authority,
6. serial number of the appurtenant passport or
passport substitute,
7. comments.
(2)
If the residence title is issued as an independent document, the following
additional items of information shall be provided:
1. Date and place of birth,
2. nationality,
3. sex,
4. comments,
5. holder's address.
(3)
In addition to the holder's photograph and personal signature, the residence title
may also contain other biometric features of the holder's fingers, hands or
face. The photograph, the signature and the additional biometric features may
also be incorporated into the residence title following encoding by means of
security processes. The personal details stated in sub-sections 1 and 2 may
also be incorporated into the residence title following encoding by means of
security processes.
(4)
The zone for automatic reading contains the following items of information:
1. Family name and first name,
2. date of birth,
3. sex,
4. nationality,
5. type of residence title,
6. serial number of the form,
7. issuing state,
8. duration of validity
9. check digits.
(5)
Public bodies may store, transfer and use the data contained in the zone for
automatic reading in discharging their mandatory duties.
(6)
The substitute identity document contains a serial number and a zone for
automatic reading. In addition to the name of the issuing authority, the place
and date of issue, the period / duration of validity, the first name and
surname of the holder, residence status and incidental provisions, the standard
form may also provide the following items of information on the holder's
identity:
1. Date and place of birth,
2. nationality,
3. sex,
4. height,
5. colour of eyes,
6. holder's address,
7. photograph,
8. personal signature,
9. additional biometric features of fingers, hands
or face,
10. note that the personal details are based on
information furnished by the foreigner.
The
photograph, the signature and the additional biometric features may also be
incorporated into the substitute identity document following encoding by means
of security processes. Sub-sections 4 and 5 shall apply mutatis mutandis.
(7)
The certificates pursuant to Section 60a (4) and Section 81 (5) shall be issued
according to a standard form which contains a serial number and may be provided
with a zone for automatic reading. The certificate may otherwise contain only
those data items specified in sub-section 6 and a note to the effect that the
foreigner does not satisfy the passport obligation with the certificate alone.
Sub-sections 4 and 5 shall apply mutatis mutandis.
Section
79 Decision on residence
(1)
A decision shall be reached on the residence of foreigners on the basis of the
circumstances which are known in the Federal territory and accessible
knowledge. The foreigners authority shall decide whether the conditions
specified in Section 60 (2) to (7) apply on the basis of the knowledge in its
possession and the knowledge which is accessible in the Federal territory and,
where necessary in individual cases, the knowledge accessible to the
authorities of the Federal Government outside of the Federal territory.
(2)
If a foreigner who has applied for issuance or extension of a residence title
is under investigation on suspicion of having committed a criminal or
administrative offence, the decision on the residence title shall be suspended
until the attendant proceedings are completed and, in the case of a conviction,
until the sentence becomes unappealable, unless it is
possible to reach a decision on the residence title without considering the
outcome of the proceedings.
Section
80 Legal capacity of minors
(1)
A foreigner who is 16 years of age or older shall be capable of performing
procedural actions pursuant to this Act, provided that he or she would not be
legally incapacitated in accordance with the German Civil Code or, on attaining
majority, would not require supervision and prior approval in this matter.
(2)
A minor's lack of legal capacity shall not preclude his or her refusal of entry
or removal. The same shall apply to the notice of intention to deport and
subsequent deportation to the country of origin, if his or her legal
representative is not resident in the Federal territory or the latter's
whereabouts in the Federal territory are unknown.
(3)
In application of this Act, the provisions of the German Civil Code shall
determine whether a foreigner is to be regarded as a minor or an adult. The
legal capacity and the capacity to undertake other acts in the law of a
foreigner who is of age under the law of his home country shall remain
unaffected.
(4)
The legal representatives of a foreigner under the age of 16 and any other
persons attending to the foreigner in the Federal territory in place of the
legal representatives shall be obliged to file the necessary applications on
behalf of the foreigner for issuance and extension of the residence title and issuance
and extension of the passport, passport substitute and substitute identity
document.
Section
81 Application for the residence title
(1)
In the absence of any provisions to the contrary, a residence title shall be
issued to a foreigner only upon the foreigner concerned filing a corresponding
application
(2)
A residence title which may be obtained after entering the Federal territory in
accordance with the statutory instrument pursuant to Section 99 (1), no. 2
shall be applied for immediately after entry or within the period stipulated in
the statutory instrument. The application for a child born in the Federal
territory who is not officially to be granted a residence title shall be filed
within six months of birth.
(3)
If a foreigner who is legally resident in the Federal territory and does not
possess a residence title applies for issuance of a residence title, his or her
residence shall be deemed to be permitted up to the time of the decision by the
foreigners authority. If the application is filed late, deportation shall be
deemed to be suspended from the time of application up to the time of the
decision by the foreigners authority.
(4)
If a foreigner applies for an extension of his or her residence title or
issuance of a different residence title, the previous residence title shall be
deemed to remain in force from the time of its expiry until the time of the
decision by the foreigners authority.
(5)
The foreigner shall be issued a certificate confirming the effect of his or her
application (provisional residence document).
Section
82 Cooperation by the foreigner
(1)
The foreigner shall be obliged to put forward his or her interests and any
circumstances in his or her favour which are not
evident or known, specifying verifiable circumstances, and to produce forthwith
the necessary evidence relating to his or her personal situation, other
required certificates and permits and other required documents which he or she
is able to furnish. The foreigners authority may set him or her a reasonable deadline
for this purpose. It shall set him or her such a deadline when postponing the
processing of an application for issuance of a residence title on account of
lacking or incomplete information and shall specify the information which
subsequently requires to be furnished. Circumstances put forward and documents
furnished after expiry of said deadline may be ignored.
(2)
Sub-section 1 shall be applied mutatis mutandis in an objection procedure.
(3)
The foreigner shall be notified of his or her duties pursuant to sub-section 1
and of his essential rights and duties under this Act, in particular the
obligations arising from Sections 44a, 48, 49 and 81 and the possibility of
filing an application pursuant to Section 11 (1), sentence 3. If a time limit
is set, he or she shall be notified of the consequences of failure to observe
the set deadline.
(4)
Where necessary for the purposes of preparing and implementing measures under
this Act and in accordance with provisions relating to foreigners in other
acts, an order may be issued requiring a foreigner to report personally to the
competent authority and to the diplomatic missions or authorised
officials of the state whose nationality he putatively possesses and requiring
a medical examination to be carried out in order to ascertain whether the
foreigner is fit to travel. If a foreigner fails to comply with an order
pursuant to sentence 1, the order may be compulsorily enforced. Section 40 (1)
and (2), Sections 41, 42 (1), sentences 1 and 3 of the Act on the Federal
Police shall apply mutatis mutandis.
(5)
On request, the foreigner for whom a document is to be issued according to a
standard form in accordance with this Act, the Asylum Procedure Act or the
provisions enacted to implement this Act is to
1. submit a current photograph in accordance with a
statutory instrument enacted pursuant to Section 99 (1), no. 13 or to cooperate
in the taking of such a photograph and
2. cooperate in the taking of his or her
fingerprints.
The
photograph and the fingerprints may be incorporated into documents pursuant to
sentence 1 and processed and used by the competent authorities to document and
subsequently establish the foreigner’s identity.
Section
83 Restriction of right of appeal
(1)
The refusal of a visa for tourist purposes and of a visa and a passport
substitute at the border shall not be subject to appeal. Upon being refused a
visa and a passport substitute at the border, the foreigner shall be informed
of the possibility of filing an application with the competent diplomatic
mission abroad.
(2)
The refusal to suspend deportation shall not be contestable.
Section
84 Effects of an objection and a legal action
(1)
An objection or legal action against
1. the refusal of an application for issuance or
extension of a residence title,
2. a condition imposed pursuant to Section 61 (1),
sentence 1 requiring the foreigner to take up residence at a departure
facility,
3. the amendment or rescission of a subsidiary
provision concerning the pursuit of employment
4. revocation of the foreigner’s residence title
pursuant to Section 52 (1), sentence 1, no. 4 in the cases covered by Section
75 (2) of the Asylum Procedure Act,
5. revocation or withdrawal of the recognition of
research establishments for the purpose of concluding admission agreements
pursuant to Section 20 and
6. the revocation of a Schengen
visa pursuant to Section 52 (7) shall have no suspensory
effect.
(2)
Notwithstanding their suspensory effect, an objection
or legal action shall not affect the operative effect of an expulsion or any
other administrative act which terminates the lawfulness of the residence. For
purposes pertaining to admission or the pursuit of an economic activity, the
residence title shall be deemed to remain in force until expiry of the deadline
for raising an objection or instituting legal action, during judicial
proceedings concerning a permissible application for the institution or
restoration of suspensory effect or for as long as
the submitted legal remedy has suspensory effect. The
lawfulness of the residence shall not be interrupted if the administrative act
is revoked by an official decision or by an unappealable
court ruling.
Section
85 Calculation of residence periods
Interruptions
of the lawfulness of residence of up to one year may be ignored.
Part
4 Data protection
Section
86 Collection of personal data
The
authorities charged with implementing this Act may collect personal data for
the purposes of implementing this Act and provisions relating to foreigners
contained in other acts, insofar as this is necessary in discharging their
duties under this Act and in accordance with provisions relating to foreigners
contained in other acts. Data within the meaning of Section 3 (9) of the Federal
Data Protection Act and corresponding provisions contained in the data
protection acts of the Länder may be collected
insofar as this is necessary in individual cases in discharging assigned
duties.
Section
87 Transfer to foreigners authorities
(1)
On request, public bodies shall notify circumstances of which they obtain
knowledge to the bodies specified in Section 86, sentence 1, insofar as this is
necessary for the purposes stated in said Section.
(2)
Public bodies shall notify the competent foreigners authority forthwith, if
they obtain knowledge of
1. the whereabouts of a foreigner who does not
possess a required residence title and whose deportation has not been
suspended,
2. a breach of a geographic restriction or
3. any other grounds for expulsion;
in
the cases covered by numbers 1 and 2 and in case of any other actions
punishable under this act, the competent police authority may be notified
instead of the foreigners authority, if one of the measures specified in
Section 71 (5) is possible; the police authority shall notify the foreigners
authority forthwith. Public bodies should notify the competent foreigners
authority forthwith if, in discharging their duties, they obtain knowledge of
special integration needs within the meaning of a statutory instrument enacted
pursuant to Section 43 (4). The diplomatic missions abroad shall transfer to
the competent foreigners authority personal data on a foreigner which is
suitable for the purposes of establishing the latter’s identity and nationality,
should they acquire knowledge of the fact that such data may be of current
significance in enforcing the foreigner’s enforceable requirement to leave the
Federal territory.
(3)
The Federal Government Commissioner for Migration, Refugees and Integration shall
be obliged to provide notifications pursuant to sub-sections 1 and 2 regarding
a foreigner belonging to this category of persons only if such notification
does not compromise the commissioner in discharging his or her own duties. The
Land governments may determine by legal instrument that Foreigners’
commissioners of the respective Länder and of local
government authorities are obliged to provide notifications relating to a
foreigner who is lawfully resident in the Land or local government district concerned
or who resided lawfully in the Land or local government district up to the time
of issuance of an administrative act terminating the lawfulness of the
residence subject to sentence 1 only.
(4)
The bodies responsible for instituting and implementing criminal or fine
proceedings shall notify the competent foreigners authority forthwith of the
institution of such proceedings and of due settlement of the proceedings at the
public prosecutor's office, in court or at the administrative authority which is
competent for prosecuting the administrative offence and imposing due
punishment, stating the relevant statutory provisions. Sentence 1 shall apply
mutatis mutandis for the institution of extradition proceedings against a
foreigner. Sentence 1 shall not apply for proceedings instituted for an
administrative offence which is punishable by a fine of up to one thousand euros. The Office for the Protection of Witnesses shall
notify the competent foreigners authority forthwith of the beginning and end of
witness protection for a foreigner.
(5)
The bodies to be involved pursuant to Section 72 (6) are to notify the
foreigners authorities
1. ex officio of any circumstances justifying the
revocation of a residence title issued pursuant to Section 25 (4a) or the shortening
or annulment of a deadline for leaving the country granted pursuant to Section
50 (2a) and
2. ex officio of the competent body or of any
transfer of competence, where a case of involvement pursuant to Section 72 (6)
has taken place or notification has been effected pursuant to no. 1.
Section
88 Transfer in case of special statutory regulations on the use of data
(1)
Personal data and other information shall not be transferred pursuant to Section
87, if such transfer is precluded by special statutory regulations.
(2)
Personal data which are made accessible to a public body by a doctor or by
other persons stated in Section 203 (1), nos. 1, 2, 4 to 6 and sub-section (3)
of the German Penal Code may be transferred by said public body,
1. if the foreigner constitutes a risk to public
health and special protective measures to eliminate the risk are not possible
or fail to be observed by the foreigner or
2. if the data are required in order to ascertain
whether the conditions specified in Section 55 (2) no. 4 apply.
(3)
Personal data which are subject to tax secrecy under Section 30 of the Tax Code
may be transferred if the foreigner has contravened a provision of tax law,
including customs law and monopolies law or a provision of foreign trade and
payments law, or has breached import, export or transit bans or bans on the
introduction of goods into customs territory and criminal investigations have
been instituted or a fine of at least five hundred euros
has been imposed for such contravention or breach. In cases covered by sentence
1, the authorities charged with carrying out the police control of cross-border
traffic may also be notified, if a ban on the foreigner leaving the Federal
territory is to be issued pursuant to Section 46 (2).
(4)
Sub-sections 1 to 3 shall apply mutatis mutandis to transfer by the authorities
charged with implementing this Act and by private bodies.
Section
89 Procedures applying to measures to investigate, establish and document a
foreigner’s identity
(1)
Federal Office of Criminal Police shall provide official assistance in
assessing the data which are collected pursuant to Section 49 by the
authorities entrusted with implementing this Act and which are transferred
pursuant to Section 73. The data collected pursuant to Section 49 (3) to (5)
shall be stored separately from other identification data. The data pursuant to
Section 49 (7) shall be kept by the authority carrying out the recordings.
(2)
Use of the documents obtained pursuant to Section 49 (3) to (5) or (7) shall
also be permissible for the purposes of ascertaining the foreigner's identity
or allocating evidence in the course of criminal prosecution and measures
undertaken by the police to avert dangers. Said documents may be transferred or
furnished to the authorities responsible for these measures, to the extent and
for the duration necessary.
(3)
The data collected pursuant to Section 49 (1) shall be erased by all
authorities directly after completing the process of verifying the authenticity
of the document or the identity of the holder. The data collected pursuant to
Section 49 (3) to (5) or (7) shall be erased by all authorities storing such
data if
1. the foreigner has been issued with a valid passport
or passport substitute and granted a residence title by the foreigners
authority,
2. a period of ten years has elapsed since the
foreigner's last departure from the Federal territory or attempted unlawful
entry,
3. a period of three years has elapsed since refusal
of entry or removal in cases covered by Section 49 (5), nos. 3 and 4 or
4. a period of ten years has elapsed since
application for the visa in cases covered by Section 49 (5), no. 5 and since
the voice recording in the case of Section 49 (7).
Erasure
of the data shall be documented.
(4)
Sub-section 3 shall not apply if and for as long as the data are required in
connection with criminal proceedings or to avert a danger to public safety or
law and order.
Section
89a Procedural provisions for the database for found documents
(1)
On request from the authority collecting the data concerned, the Federal Office
of Administration shall check the data collected pursuant to Section 49 on a
foreigner against the data contained in the database for found documents, in
order to establish a foreigner's identity or nationality by reference to a
found document, should doubts exist in this respect.
(2)
In order to enable the data to be counter-checked in this manner, the body
requesting the check shall transfer the appurtenant photograph or finger prints
and other items of information stipulated in Section 49b, no. 1 to the Federal
Office of Administration.
(3)
If the transferred data on the foreigner correspond to the stored data on the
holder of a found document, the data shall be transferred to the requesting
body in accordance with Section 49b.
(4)
Where the Federal Office of Administration is unable to clearly establish a
foreigner's identity, it shall transfer the information stored on similar persons
in the database for found documents to the requesting body, if it is to be
expected that the latter's knowledge will enable the foreigner's identity to be
established by reference to one of the found documents. The requesting body is
to erase forthwith all information which cannot be attributed to the foreigner
and to destroy appurtenant records.
(5)
The information shall be transferred via remote data transmission. Automatic
retrieval of the data is permissible in accordance with Section 10 (2) to (4) of
the Federal Data Protection Act.
(6)
The Federal Office of Administration shall check the data stored in the
database for found documents against the data transferred by
1. an authority responsible for establishing the
identity or nationality of a foreigner pursuant to Section 16 (2) of the Asylum
Procedure Act and
2. an authority responsible for criminal prosecution
or police measures to avert dangers for the purposes of establishing a
foreigner's identity or attributing evidence upon request from the said
authorities. Sub-sections 2 and 5 shall apply mutatis mutandis.
(7)
The data pursuant to Section 49b shall be erased ten years after the initial
storage of data pertaining to the document concerned. If the purpose of storage
ceases to apply prior to this period elapsing, the data shall be erased
forthwith.
(8)
The bodies concerned are to undertake state-of-the-art measures to ensure data
protection and data security which, in particular, guarantee the
confidentiality and integrity of the data; when generally accessible networks
are used, state-of-the-art encryption methods shall be applied.
Section
90 Transfer by foreigners authorities
(1)
In individual cases in which there are concrete indications of
1. foreigners taking up employment or pursuing an
economic activity without the necessary residence title pursuant to Section 4,
2. breaches of the obligation to cooperate pursuant
to Section 60 (1), sentence 1, no. 2 of Book One of the Social Code with regard
to a department of the Federal Employment Agency, a statutory health insurance,
nursing insurance, accident insurance or
pension insurance agency, an
institution providing basic security for job seekers or a social welfare
agency, or contravention of the obligation to report pursuant to Section 8a of
the Act on Benefits for Asylum Seekers,
3. the breaches specified in Section 6 (3), nos. 1
to 4 of the Act to Combat Clandestine Employment, the authorities charged with
implementing this Act shall notify the authorities responsible for prosecuting
the breaches according to numbers 1 to 3 and imposing due punishment, the
institutions providing basic security for job seekers or the social welfare
agencies and the competent authorities pursuant to Section 10 of the Act on
Benefits for Asylum Seekers.
(2)
In prosecuting and imposing punishments for breaches of this Act, the
authorities charged with implementing this Act shall cooperate in particular
with the other authorities specified in Section 2 (2) of the Act to Combat
Clandestine Employment.
(3)
The authorities charged with implementing this Act shall notify the competent
authorities under Section 10 of the Act on Benefits for Asylum Seekers of
circumstances and measures under this Act, a knowledge of which is necessary
for the purposes of benefits under the Act on Benefits for Asylum Seekers, the
information which they receive on the issuance of approval for employment to
persons eligible for benefits under the Act on Benefits for Asylum Seekers and
information relating to the expiry, revocation or withdrawal of issued
approvals.
(4)
The foreigners authorities shall notify the bodies to be involved pursuant to
Section 72 (6) forthwith of
1. the issuance or refusal of a residence title
pursuant to Section 25 (4a),
2. the setting, reduction or annulment of a period
allowed for departure pursuant to Section 50 (2a) or
3. the transfer of competence from the foreigners
authorities to another foreigners authority; this obligation applies to the
foreigners authority to which competence has been transferred.
Section
90a Notifications by the foreigners authorities to the registration authorities
(1)
The foreigners authorities shall notify the competent registration authorities
forthwith upon obtaining information indicating that the data stored in the
register on foreigners who are obliged to register with the authorities are
incorrect or incomplete. They shall notify the registration authorities in
particular when a foreigner who is obliged to register with the authorities
1. is resident in the Federal territory and has not
registered with the authorities,
2. has left the Federal territory on a permanent
basis.
(2)
The notifications pursuant to sub-section 1 should contain the following
information on the foreigner who is obliged to register with the authorities:
1. Surname, name at birth and first name,
2. date, place and state of birth,
3. nationalities,
4. most recent address in Germany and
5. date of exit from the Federal territory.
Section
90b Data matching between foreigners authorities and registration authorities
Foreigners
authorities and registration authorities which share the same geographic area
of competence shall exchange the data specified in Section 90a (2) annually for
the purpose of data maintenance. The receiving authority shall match the
transferred data with its own stored data; automated matching shall be
permissible. The transferred data may only be used for the purposes of carrying
out data matching and data maintenance, after which it shall be erased forthwith;
furnished data carriers shall be returned or destroyed forthwith.
Section
91 Storage and erasure of personal data
(1)
The data relating to expulsion, removal and deportation shall be erased ten
years after expiry of the limitation period specified in Section 11 (1),
sentence 3. They are to be erased prior to this if they contain information
which may no longer be used against the foreigner in accordance with other
statutory provisions.
(2)
Notifications pursuant to Section 87 (1) which are immaterial to an impending
decision under the law relating to foreigners and which are unlikely to be of
relevance to a later decision under the law relating to foreigners shall be
destroyed forthwith.
(3)
Section 20 (5) of the Federal Data Protection Act and corresponding provisions
in the data protection acts of the Länder shall not
apply.
Section
91a Temporary protection register
(1)
The Federal Office for Migration and Refugees shall keep a register of
foreigners in accordance with Section 24 (1) who have applied for a visa or a
residence permit and of their dependents within the meaning of Article 15 (1)
of directive 2001/55/EC for the purposes of granting residence, allocating
admitted foreigners to places of residence in the Federal territory, relocating
the place of residence of admitted foreigners to other member states of the
European Union, the reunification of families and the promotion of voluntary
return.
(2)
The following items of information shall be stored in the register:
1. On the foreigner:
a) The personal details - with the exception of
former names and the home address in Germany -, the last place of residence in
the country of origin, the region of origin and information furnished
voluntarily on the foreigner’s religion,
b) information on occupation and vocational
training,
c) date of receipt of the foreigner's application
for a visa or a residence permit, the authority responsible for processing the
application, and information regarding the decision on the application or the
state of progress in the application procedure,
d) details of the identity and travel document,
e) the Central Aliens Register number and the visa
file number,
f) country of destination and date of leaving the
country of origin,
2. the personal details in accordance with number 1,
letter a, with the exception of the voluntary information on the religion of
the foreigner's dependents in accordance with sub-section 1,
3. details of documents confirming marriage,
unmarried partnership or kinship.
(3)
The foreigners authorities and the diplomatic missions abroad shall be obliged
to transfer the data stated in sub-section 2 to the registration authority
forthwith when an application has been filed
1. for a residence permit pursuant to Section 24 (1)
or
2. for a visa to secure temporary protection in the
Federal territory.
(4)
Sections 8 and 9 of the Act on the Central Aliens Register shall apply mutatis
mutandis.
(5)
On request, the data may be transferred to the foreigners authorities,
diplomatic missions abroad and other organisational
units of the Federal Office for Migration and Refugees, including the National
Contact Point established at the Federal Office for Migration and Refugees in
accordance with Article 27 (1) of directive 2001/55/EC for the purposes of discharging
their duties under the law regarding foreigners and asylum in connection with
the granting of residence, allocating admitted foreigners to places of
residence in the Federal territory, relocating the place of residence of
admitted foreigners to other member states of the European Union, the
reunification of families and the promotion of voluntary return.
(6)
The registration authority is to produce records of data transmissions in
accordance with sub-section 5. Section 13 of the Act on the Central Aliens
Register shall apply mutatis mutandis.
(7)
Data transmission pursuant to sub-sections 3 and 5 shall be effected in
writing, in electronic form or via automated procedures. Section 22 (2) to (4),
of the Act on the Central Aliens Register shall apply accordingly.
(8)
The data shall be erased no later than two years after the termination of
temporary protection for the foreigner. Sections 34 (1) and (2) and Section 37
of the Act on the Central Aliens Register shall apply mutatis mutandis with
regard to notification of the data subject and invalidation of the data.
Section
91 b Transfer of data by the Federal Office for Migration and Refugees as the
National Contact Point
In
its capacity as the National Contact Point in accordance with Article 27 (1) of
directive 2001/55/EC, the Federal Office for Migration and Refugees may
transfer the data contained in the register pursuant to Section 91 a to the following bodies for the purposes of relocation of
the place of residence of admitted foreigners to other member states of the
European Union or the reunification of families:
1. National Contact Points of other member states of
the European Union,
2. bodies and institutions of the European
Communities,
3. other foreign, supranational or intergovernmental
bodies, provided that an appropriate level of data security pursuant to Section
4b (3) of the Federal Data Protection Act is ensured at such bodies.
Section
91c Intra-Community information in implementation of directive 2003/109/EC
(1)
In its capacity as the National Contact Point pursuant to Article 25 of
directive 2003/109/EC, the Federal Office for Migration and Refugees shall
notify the competent authority of another Member State of the European Union in
which the foreigner concerned possesses the status of a long-term resident as
to the contents and date of a decision on the issuance or extension of a
residence permit pursuant to Section 38a (1) or on the issuance of an EC
long-term residence permit. The authority which has reached the decision shall
transfer the data necessary to this end to the Federal Office for Migration and
Refugees without delay. The data required for notifications pursuant to
sentence 1 may be transferred to the National Contact Point by means of an
automated process, using the Central Aliens Register number.
(2)
In the procedure pursuant to Section 51 (9) the Federal Office for Migration
and Refugees shall forward inquiries ex officio to the competent bodies of the
Member State of the European Union concerned, stating the intended measure and
the key factual and legal grounds stated by the foreigners authority in
substantiation of the intended measure. The foreigners authority shall transfer
the necessary information to the Federal Office for Migration and Refugees to
this end. The Federal Office for Migration and Refugees shall forward to the
competent foreigners authority the answers received from bodies of other Member
States of the European Union in this connection.
(3)
The Federal Office for Migration and Refugees shall notify the competent
authority of another Member State of the European Union ex officio where a
foreigner who possesses long-term resident status in said Member State has been
served notice of intention to deport or remove him or her
1. to the Member State of the European Union in
which the foreigner holds long-term resident status or
2. to a territory outside of the European Union
or
such a measure has been carried out, or where a corresponding deportation order
pursuant to Section 58a has been issued or carried out. The notification shall
state the primary reason for terminating the foreigner’s stay. The notification
shall take place as soon as the German authority ordering the measure concerned
pursuant to Section 71 informs the Federal Office for Migration and Refugees of
the intended or effected measure. To this end, the authorities stated in
sentence 3 shall furnish the necessary information to the Federal Office for
Migration and Refugees without delay.
(4)
In the case of notifications pursuant to sub-sections 1 to 3, the foreigner’s
personal details shall be transferred for identification purposes. Where
dependents who are living with the long-term resident as a family unit on a
long-term basis are also involved in cases covered by sub-section 3, their
personal details shall also be transferred.
(5)
The Federal Office for Migration and Refugees shall forward inquiries from
bodies of other Member States of the European Union in connection with the
involvement pursuant to Article 22 (3), subparagraph 2 of directive 2003/109/EC
to the competent foreigners authorities. The competent foreigners authority
shall furnish the Federal Office for Migration and Refugees with the following
information of which it has due knowledge:
1. Personal details of the foreigner with long-term
resident status concerned,
2. residence- and asylum-related decisions which
have been reached for or against the said foreigner,
3. interests which favour
or militate against the foreigner's return to the Federal territory or a third
country or
4. any other circumstances which it is to be assumed
may be of relevance to the inquiring Member State’s decision on residence
matters.
The
competent foreigners authority shall otherwise provide notification that it has
no knowledge of any pertinent information. The Federal Office for Migration and
Refugees shall forward this information ex officio to the competent body of the
inquiring Member State of the European Union.
(6)
The Federal Office for Migration and Refugees shall notify the respectively
competent foreigners authority ex officio of the contents of notifications from
other Member States of the European Union
1. according to which the other Member State of the
European Union is intending to carry out or is carrying out
residence-terminating measures against a foreigner who holds an EC long-term
residence permit,
2. according to which a foreigner who holds an EC
long-term residence permit has acquired long-term resident status in another
Member State of the European Union or has been issued a residence title or had
his or her residence title extended in another Member State of the European
Union.
Section
91d Intra-Community information in implementation of directive 2004/114/EC
(1)
On request, the Federal Office for Migration and Refugees shall furnish the
competent authority of another Member State of the European Union with the
necessary information in order to enable the competent authorities of the other
Member State of the European Union to verify whether the conditions pertaining
to issuance of a residence permit pursuant to Article 8 of directive
2004/114/EC apply. This information shall comprise
1. the foreigner’s personal details and information
on his or her identity and travel documents,
2. information on the foreigner’s present and former
residence status in Germany,
3. information on completed criminal investigations
or such investigations which are known to the foreigners authority,
4. other data concerning the foreigner which are
stored in the Central Aliens Register or which originate from the foreigner’s
file or the visa file and which have been requested by the other Member State
of the European Union.
To
this end, on request from the Federal Office for Migration and Refugees the
foreigners authorities and the diplomatic missions abroad shall transfer to the
Federal Office the necessary data in order to enable the said Federal Office to
duly provide the information to the requesting competent authorities of the
other Member State.
(2)
The diplomatic missions abroad and the foreigners authorities may address
requests for information to competent bodies of other Member States of the
European Union through the Federal Office for Migration and Refugees, where
this is necessary in order to verify compliance with the conditions for
issuance of a residence permit pursuant to Section 16 (6) or of a corresponding
visa. To this end, they may transfer
1. the foreigner’s personal details,
2. information on the foreigner’s identity and
travel documents and on his or her residence title which has been issued in
another Member State of the European Union and
3. information on the subject of the application for
issuance of the residence title and on the place where such application was
filed and, where pertinent, specify the contents of the desired information in
precise terms. The Federal Office for Migration and Refugees shall forward
information which it receives to the competent foreigners authorities and
diplomatic missions abroad. The data which are transferred in the information
furnished by the competent bodies of other Member States of the European Union
may be used by the foreigners authorities and diplomatic missions abroad for
this purpose.
Section
91e Common provisions for the register for the purposes of temporary protection
and intra-Community data transfer
For
the purposes of Sections 91a to 91d,
1. personal details shall be defined as names, in
particular surname, name at birth, first names and former names, date of birth,
place of birth, sex, nationalities and home address in Germany,
2. details of the identity and travel document shall
be defined as the type, number, issuing body, date of issue and period of
validity.
Chapter
8 Commissioner for Migration, Refugees and Integration
Section
92 Office of the Commissioner
(1)
The Federal Government shall appoint a Commissioner for Migration, Refugees and
Integration.
(2)
The Commissioner's office shall be established at one of the supreme Federal
authorities and may be held by a member of the German Bundestag. The
Commissioner may also hold an office under the Act governing the Legal Status
of Parliamentary State Secretaries, without this requiring special approval
(Section 5 (2), sentence 2 of the Act governing Federal Ministers, Section 7 of
the Act governing the Legal Status of Parliamentary State Secretaries). In this
case, discharge of the Commissioner's duties shall remain unaffected by the
legal status in accordance with the Act governing the Legal Status of
Parliamentary State Secretaries.
(3)
The personnel and material resources required in order to perform the duties of
the office shall be provided. The budget allocation shall be shown in a
separate section of the individual plan of the supreme Federal authority
pursuant to sub-section 2, sentence 1.
(4)
Save in the case of dismissal, the office tenure shall end upon a new Bundestag
convening.
Section
93 Duties
The
Commissioner shall have the following duties:
1. To promote the integration of migrants who are
permanently resident in the Federal territory and, in particular, to support
the Federal Government in developing its integration policy, also with regard
to aspects of employment policy and social policy, and to provide ideas for the
further development of integration policy in the European context;
2. to develop the necessary conditions for the most
harmonious possible co-existence between foreigners and Germans and between
different groups of foreigners, to promote mutual understanding and to
counteract xenophobia;
3. to counteract unequal treatment with regard to
foreigners;
4. to help ensure that the interests of the
foreigners resident in the Federal territory receive due consideration;
5. to provide information on the legal possibilities
for naturalisation;
6. to safeguard the rights of freedom of movement of
EU citizens and to submit proposals on further arrangements to safeguard such
rights;
7. to encourage and support initiatives to integrate
migrants who are resident in the Federal territory on a permanent basis, including
such initiatives at the level of the Länder and local
authorities and among social groups;
8. to monitor immigration into the Federal territory
and into the European Union and the develop of immigration into other states;
9. to cooperate in the areas of the duties specified
in numbers 1 to 8 with the bodies of the local authorities, Länder,
other member states of the European Union and the European Union itself which
have the same or similar remits to the Commissioner;
10. to inform the public in the areas of duties
specified in numbers 1 to 9.
Section
94 Scope of authority
(1)
The Commissioner shall be involved at the earliest possible juncture in
law-making projects of the Federal Government or individual federal ministries
and in other matters relating to his or her remit. The Commissioner may submit
proposals and forward opinions to the Federal Government. The federal
ministries shall support the Commissioner in discharging his or her duties.
(2)
The Commissioner shall submit a report on the situation of foreigners in
Germany to the German Bundestag every two years.
(3)
If the Commissioner possesses adequate information indicating that public
bodies of the Federal Government are committing breaches within the meaning of
Section 93, no. 3 or are failing to protect the rights of foreigners in any
other way, he or she may require a statement. The Commissioner may attach his
or her own assessment to this statement and forward the statement to the public
body and the latter's superior authority. The public bodies of the Federal
Government shall be obliged to furnish information and to answer questions. The
public bodies shall transfer personal data only if the data subject himself or
herself has approached the Commissioner to request that the latter take action
in relation to the public body on the data subject's behalf, or if the
foreigner's consent is proven by any other means.
Chapter
9 Provisions as to punishments for criminal offences and fines
Section
95 Penal provisions
(1)
Any person who
1. resides in the Federal territory in contravention
of Section 3 (1),
2. resides in the Federal territory without a
necessary residence title pursuant to Section 4 (1), sentence 1, is enforceably required to leave the Federal territory and
whose deportation has not been suspended,
3. enters the Federal territory in contravention of
Section 14 (1), nos. 1 or 2,
4. contravenes an enforceable order pursuant to
Section 46 (2), sentence 1 or 2 or Section 47 (1), sentence 2 or sub-section 2,
5. fails to furnish an item of information or
furnishes incorrect or incomplete information in contravention of Section 49
(2), insofar as the offence is not punishable pursuant to sub-section 2, no. 2,
6. fails to tolerate a measure specified in Section 49
(10) in contravention of said Section,
6a. fails repeatedly to meet an obligation to report
to the authorities in contravention of Section 54a, repeatedly contravenes
geographic restrictions or other conditions imposed on their stay or fails to
meet the obligation to take up residence in a designated facility despite
having been notified repeatedly as to the legal consequences or uses certain
means of communication in contravention of Section 54a (2),
7. repeatedly breaches a geographic restriction pursuant
to Section 61 (1) or
8. belongs to an organisation
or group in the Federal territory which consists primarily of foreigners and
whose existence, aims or activities are concealed from the authorities in order
to avert the prohibition of said organisation or
group shall be punishable with up to one year’s imprisonment or a fine.
(1a)
The same punishment shall be applicable to anyone who wilfully
commits an act specified in Section 404 (2), no. 4 of Book Three of the Social
Code or in Section 98 (3), no. 1, who requires a residence title pursuant to
Section 4 (1), sentence 1 in order to reside in the Federal territory and only
possesses a residence title in the form of a Schengen
visa pursuant to Section 6 (1).
(2)
Anyone who
1. a)
enters the Federal territory or
b) resides in said
territory in contravention of Section 11 (1), sentence 1 or
2. furnishes or uses false or incomplete information
in order to procure a residence title or a suspension of deportation for
themselves or for another or who knowingly uses a document procured in this
manner for the purposes of deceit in legal matters
shall
be punishable with up to three years’ imprisonment or a fine.
(3)
An attempt to commit an offence shall be punishable in the cases covered by
sub-section 1, no. 3 and sub-sections 1a and 2, no. 1, letter a.
(4)
Objects which are related to an offence pursuant to sub-section 2, no. 2 may be
confiscated.
(5)
Article 31 (1) of the Convention relating to the Status of Refugees shall
remain unaffected.
(6)
In the cases covered by sub-section 1, nos. 2 and 3, an act without the
necessary residence title shall be deemed equivalent to an act carried out on
the basis of a residence title obtained by threat, bribery or collusion or by
furnishing incorrect or incomplete information.
Section
96 Smuggling of foreigners into the Federal territory
(1)
Anyone who
1. incites another person to commit an act pursuant
to Section 95 (1), no. 3 or (2), no. 1, letter a and
a) receives a pecuniary advantage or the promise of
a pecuniary advantage in return or
b) acts in such a manner repeatedly or for the
benefit of several foreigners or
2. incites another person to commit an act pursuant
to Section 95 (1), no. 1 or no. 2, (1a) or (2), no. 1, letter b or no. 2 and
receives a pecuniary advantage or the promise of a pecuniary advantage in
return
shall
be punishable with a prison sentence of up to five years or a fine.
(2)
Anyone who, in the cases covered by sub-section 1,
1. acts for gain,
2. acts as a member of a band which has come
together for the purpose of committing such offences on a continuous basis,
3. carries a firearm, if the offence concerns an act
pursuant to Section 95 (1), no. 3 or (2) no. 1, letter a,
4. carries another type of weapon in order to use
said weapon in connection with the offence, if the offence concerns an act
pursuant to Section 95 (1), no. 3 or (2) no. 1, letter a, or
5. subjects the smuggled persons to potentially
fatal, inhumane or humiliating treatment or a risk of sustaining severe damage
to their health
shall
be punishable with a prison sentence of between six months and ten years.
(3)
An attempt to commit such offences shall be punishable.
(4)
Sub-section 1, no. 1, letter a, no. 2, sub-section 2, nos. 1, 2 and 5 and
sub-section 3 shall be applicable to contraventions of statutory provisions on
the entry of foreigners into the territory of the Member States of the European
Union and the territory of the Republic of Iceland and of the Kingdom of Norway
and on the residence of foreigners in such territories, where
1. such contraventions correspond to the acts
specified in Section 95 (1), nos. 2 or 3 or Section 2, no. 1 and
2. the offender supports a foreigner who is not a
national of a member state of the European Union or of another state party to
the Convention on the European Economic Area.
(5)
Section 73d of the Penal Code shall be applicable in the cases covered by
sub-section 2, no. 1, also in conjunction with sub-section 4, and in cases
covered by sub-section 2, nos. 2 to 5.
Section
97 Smuggling of foreigners into the Federal territory resulting in death;
smuggling for gain and as organised bands
(1)
Anyone causing the death of the smuggled person in the cases covered by Section
96 (1), also in conjunction with Section 96 (4), shall be punishable by
imprisonment for a term of no less than three years.
(2)
Anyone acting for gain as a member of a band which has come together for the
purpose of committing such offences on a continuous basis in the cases covered
by Section 96 (1), also in conjunction with Section 96 (4), shall be punishable
by imprisonment for a term of between one and ten years.
(3)
Less serious cases pursuant to sub-section 1 shall be punishable by
imprisonment for a term of between one year and ten years, less serious cases
pursuant to sub-section 2 shall be punishable by imprisonment for a term of
between six months and ten years.
(4)
Section 73d of the Penal Code shall be applicable.
Section
98 Provisions as to fines
(1)
Anyone who negligently commits an act specified in Section 95 (1), nos. 1 or 2
or (2), no. 1, letter b shall be deemed to have committed an administrative
offence.
(2)
Anyone who
1. fails to furnish evidence in contravention of
Section 4 (5), sentence 1,
2. fails to submit to the police control of
cross-border traffic in contravention of Section 13 (1), sentence 2,
3. in contravention of Section 48 (1) or (3),
sentence 1, fails to submit a document or paper specified therein, fails to
submit such a document or paper in time or fails to surrender the same in time
or fails to leave the same with the competent authorities or to do so in time
or
4. acts in contravention of an enforceable order
pursuant to Section 44a (1), sentence 1, no. 3, sentence 2 or 3 shall be deemed
to have committed an administrative offence.
(2a)
Anyone who, in contravention of Section 4 (3), sentence 2, intentionally or
negligently commissions a foreigner on a sustained basis to perform paid work
or services for gain shall be deemed to have committed an administrative
offence.
(3)
Anyone who intentionally or negligently
1. pursues a self-employed activity in contravention
of Section 4 (3), sentence 1,
2. contravenes an enforceable condition pursuant to
Section 12 (2), sentence 2 or (4) or a geographic restriction pursuant to
Section 54a (2) or 61 (1), sentence 1,
3. enters or leaves the Federal territory outside of
an approved border crossing point or outside of the stipulated traffic hours or
fails to carry a passport or passport substitute with them in contravention of
Section 13 (1),
4. contravenes an enforceable order pursuant to
Section 46 (1), Section 54a (1), sentence 2 or (3) or Section 61 (1), sentence
2,
5. fails to provide notification, provides incorrect
notification or fails to provide notification in good time in contravention of
Section 54a (1), sentence 1,
6. fails to file one of the applications stipulated
in Section 80 (4) in contravention of the said Section or
7. contravenes a statutory instrument pursuant to
Section 99 (1), nos. 7 or 10, insofar as such statutory instrument refers to
this provision as to fines for a specific offence
shall
be deemed to have committed an administrative offence.
(4)
An attempt to commit an administrative offence may be punishable in the cases
covered by sub-section 2, no. 2 and sub-section 3, no. 3.
(5)
The administrative offence shall be punishable in the cases covered by
sub-section 2a by a fine of up to five hundred thousand euros,
in the cases covered by sub-section 2, no. 2 and sub-section 3, no. 1 by a fine
of up to five thousand euros, in the cases covered by
sub-sections 1 and 2, nos. 1 and 3 and sub-section 3, no. 3 by a fine of up to
three thousand euros and in the other cases by a fine
of up to one thousand euros.
(6)
Article 31 (1) of the Convention relating to the Status of Refugees shall
remain unaffected.
Chapter
10 Authorisation to issue statutory instruments;
transitional and final provisions
Section
99 Authorisation to issue statutory instruments
(1)
The Federal Ministry of the Interior shall be authorised,
via statutory instruments with the approval of the Bundesrat,
1. to provide for exemptions to the requirements for
a residence title in order to facilitate the stay of foreigners, to regulate
the procedure for the granting of exemptions and for the continued validity and
further granting of residence titles under this Act upon a ground for exemption
arising and to restrict exemptions for the purpose of controlling economic
activity by foreigners in the Federal territory,
2. to determine that the residence title may be
obtained prior to entry into the Federal territory from the foreigners
authority or after entry,
3. to determine in which cases the approval of the
foreigners authority shall be required for the granting of a visa, in order to
ensure the involvement of other authorities concerned,
3a. to define detailed aspects of the procedure
relating to the issuance of residence titles to researchers pursuant to Section
20, in particular
a) to regulate the procedure relating to the
recognition of research establishments, the attendant conditions and the
duration of recognition, the revocation of recognition of a research
establishment and the contents of and conditions pertaining to the conclusion
of admission agreements pursuant to Section 20 (1), no. 1,
b) to provide for the authority which is responsible
for granting recognition to publish the addresses of the recognised
research establishments, referring in such publications to declarations
pursuant to Section 20 (3),
c) to oblige foreigners authorities and diplomatic
missions abroad to notify the authority responsible for granting recognition as
to any findings on recognised research establishments
which might provide grounds for the revocation of the said establishments’
recognition,
d) to oblige recognised
research establishments to provide due notification, should the conditions
pertaining to recognition or conditions pertaining to concluded admission
agreements cease to apply or in the event of changes to any other significant
circumstances,
e) to establish a consultative council on research
migration at the Federal Office for Migration and Refugees which will support
the Ministry in connection with the recognition of research establishments and
monitor and evaluate the application of Section 20,
f) to set the dates on which the processing of
applications for the recognition of research establishments is to begin,
3b. to define self-employed activities for which a
permit pursuant to Section 4 (3), sentence 1 is never required or is not
required under certain conditions,
4. to exempt foreigners who enter the Federal
territory in connection with rescue operations and the provision of assistance
in case of disasters from the passport obligation,
5. to introduce or approve other official German
identification papers as passport substitutes,
6. to issue general approval for official
identification papers which have not been issued by German authorities to be
used as passport substitutes,
7. to determine that foreigners who are exempted
from the requirement for a residence title and foreigners who enter the Federal
territory with a visa shall be required to furnish the foreigners authority or
another authority with due notification of their residence upon effecting entry
or after effecting entry, in order to safeguard the interests of the Federal
Republic of Germany,
8. to stipulate, in the interests of enabling or
facilitating travel, that foreigners' existing entitlement to re-enter the
Federal territory can be confirmed in a passport substitute,
9. to stipulate the conditions according to which an
identification card substitute may be issued and for how long such an
identification card substitute shall be valid,
10. to regulate the obligations concerning
identification papers of foreigners residing in the Federal territory with
regard to the issuance and extension, loss and relocation, presentation and
surrender of a passport, passport substitute and identification paper
substitute, the entries concerning entry into, exit from and
interception in the Federal territory and decisions by the competent
authorities in such documents,
11. to stipulate details pertaining to the register
pursuant to Section 91a and to the conditions and the procedure for data
transfer,
12. to stipulate how the place of residence of
foreigners who have been granted temporary protection in accordance with
Section 24 (1) can be relocated to another member state of the European Union,
13. to define details regarding the requirements
pertaining to photographs and fingerprints and to the design of and issuance
arrangements for the forms to be used in implementation of this Act and the
recording and incorporation of features in encoded form pursuant to Section 78
(3) in accordance with the provisions of Community law and pursuant to Section
78 (6) and (7),
14. to determine that the
a) registration authorities,
b) authorities concerned with matters of nationality
and certifying authorities pursuant to Section 15 of the Federal Expellees Act,
c) authorities concerned with passports and
identification papers,
d) social welfare and youth welfare offices,
e) judicial, police and regulatory authorities,
f) Federal Employment Agency,
g) tax offices and main customs offices,
h) trading standards authorities,
i) diplomatic missions
abroad and
j) institutions providing basic security for job
seekers
shall
be required to furnish the foreigners authorities with personal data on
foreigners, information on official acts and other measures relating to
foreigners and other information on foreigners without prior request; the
statutory instrument shall define the type and scope of data, the measures and
the other items of information which are to be transferred; data may only be
provided in so far as is necessary in order for the foreigners authorities to
discharge their duties under this Act or in accordance with provisions relating
to foreigners in other acts.
(2)
The Federal Ministry of the Interior shall further be authorised
to determine, via statutory instrument with the approval of the Bundesrat, that
1. every foreigners authority shall keep a file on
foreigners who are or have been resident in their regions, who have filed an
application with the authority or have provided the authority with notification
of entry and residence and for or against whom the authority has undertaken a
measure or taken a decision under the law pertaining to foreigners,
2. the diplomatic missions abroad shall keep a file
on granted and refused visas and may mutually exchange the data stored therein
and
3. the authorities charged with implementing this
Act shall keep any other file which is necessary in discharging their duties.
The
data to be recorded pursuant to sentence 1, no. 1 shall cover the foreigner's
personal data, including his or her nationality and address, information
relating to the passport, measures undertaken in accordance with the law
pertaining to foreigners, entry in the Central Aliens Register and former
addresses of the foreigner, the competent foreigners authority and the
furnishing of records to another foreigners authority. The foreigners
authorities' authorisation to store further personal
data shall be determined by the data protection provisions of the respective Länder.
(3)
The Federal Ministry of the Interior shall be authorised
to appoint the competent body pursuant to Section 73 (1) without the approval
of the Bundesrat, by way of a statutory instrument
issued in consultation with the Ministry of Foreign Affairs.
(4)
The Federal Ministry of the Interior may issue and amend statutory instruments
pursuant to sub-section 1, nos. 1 and 2 without the approval of the Bundesrat, insofar as this is necessary in order to fulfil an inter-governmental agreement or to safeguard
public interests. A statutory instrument pursuant to sentence 1 shall expire no
later than three months after coming into force. Its period of validity may be
extended via statutory instrument with the approval of the Bundesrat.
Section
100 Linguistic adaptation
The
Federal Ministry of the Interior may, via statutory instrument without the
approval of the Bundesrat, replace the terms employed
for persons in this Act with non-gender-specific or masculine and feminine
terms, provided that this is possible without altering the contents of the
provisions and is linguistically correct, and may undertake the subsequently
necessary linguistic adaptations. The Federal Ministry of the Interior may
publish the wording of this Act in the Federal Law Gazette after issuing a
statutory instrument pursuant to sentence 1.
Section
101 Continued validity of previous rights of residence
(1)
A right of unlimited residence or unlimited residence permit issued prior to 1
January 2005 shall remain valid as a settlement permit in accordance with the
purpose of residence and the circumstances forming the basis for its issuance.
A permanent residence permit which has been granted pursuant to Section 1 (3)
of the Act on Measures in Aid of Refugees Admitted under Humanitarian Relief Programmes of 22 July 1980 (Federal Law Gazette I, p. 1057)
or in corresponding application of the aforesaid act and a subsequently issued
right of unlimited residence shall remain valid as a settlement permit pursuant
to Section 23 (2). 2.
(2)
The other residence authorisations shall remain valid
as residence permits in accordance with the purpose of residence and the circumstances
forming the basis for their issuance.
(3)
A residence title which to which the annotation “EC long-term residence permit”
was appended prior to [insert: date on which this Act enters into force
pursuant to Article 10 (1)] shall retain its validity as an EC long-term
residence permit.
Section
102 Continued validity of other measures under the law relating to foreigners
and consideration of prior periods
(1)
Other measures undertaken prior to 1 January 2005 in accordance with the law
pertaining to foreigners, in particular time limits and geographic
restrictions, conditions and requirements, prohibitions and restrictions of
political activities, expulsions, notices of intention to deport and
deportations, including their legal consequences, limiting periods as to their
effects and beneficial measures, the recognition of passports and passport
substitute papers, exemptions from the passport obligation, rulings on costs
and fees, shall remain valid. Measures and agreements in connection with the furnishing
of security shall also remain valid, even if they relate in part or in their
entirety to periods after this Act comes into force. The same shall apply to
the effects by force of law resulting from the filing of applications pursuant
to Section 69 of the Foreigners Act.
(2)
The period of possession of a residence title for exceptional purposes or of a
temporary suspension of deportation prior to 1 January 2005 shall count towards
the qualifying period for the issuance of a settlement permit pursuant to
Section 26 (4).
Section
103 Application of previous law
Sections
2a and 2b of the Act on Measures in Aid of Refugees Admitted under Humanitarian
Relief Programmes in the version valid until 1
January 2005 shall continue to apply for persons who enjoy the status pursuant
to articles 2 to 34 of the Convention relating to the Status of Refugees in
accordance with Section 1 of the Act on Measures in Aid of Refugees Admitted
under Humanitarian Relief Programmes of 22 July 1980
(Federal Law Gazette I, p. 1057). Section 52 (1), sentence 1, no. 4 shall apply
mutatis mutandis in such cases.
Section
104 Transitional provisions
(1)
Decisions on applications filed prior to 1 January 2005 for the granting of an
unlimited residence permit or a right of unlimited residence shall be taken in
accordance with the law applying up to this time. Section 101 (1) shall apply
mutatis mutandis.
(2)
In the case of foreigners who are in possession of a residence permit or a
residence title for exceptional circumstances prior to 1 January 2005, for the
purposes of the decision on the granting of a settlement permit it shall be
sufficient with regard to such foreigners' knowledge of the language if they
are able to communicate verbally in the German language at a basic level. Section
9 (2), sentence 1, nos. 3 and 8 shall not apply.
(3)
In the case of foreigners who are lawfully resident in Germany prior to 1
January 2005, Section 20 of the Foreigners Act shall apply in its most recently
amended version with regard to the subsequent immigration of children born
prior to this date, unless this Residence Act grants a more favourable
legal status.
(4)
The major, unmarried child of a foreigner whose compliance with the
requirements of Section 51 (1) of the Foreigners Act has been incontestably
established prior to this Act coming into force shall be granted a residence
permit in appropriate application of Section 25 (2), if the child was a minor
at the time of the foreigner's applying for asylum, he or she has been resident
in the Federal territory at least since compliance with the requirements
pursuant to Section 51 (1) of the Foreigners Act was incontestably established
and his or her integration is to be expected. Granting of the residence permit
may be refused if the child has been sentenced to a term of youth custody or
imprisonment of at least six months or to a fine of at least 180 daily rates in
the past three years for an intentionally committed offence.
(5)
Foreigners who have been recognised between 1 January
2004 and 31 December 2004 as being entitled to asylum or who have been found to
meet the requirements pursuant to Section 51 (1) of the Foreigners Act in the said period or who have been issued a permanent residence
permit pursuant to Section 1 of the Act on Measures in Aid of Refugees Admitted
under Humanitarian Relief Programmes of 22 July 1980
(Federal Law Gazette I, p. 1057) in the said period
or in corresponding application of the aforesaid Act shall be entitled to
attend an integration course once free of charge in accordance with Section 44
(1), unless they have begun to attend a German language course prior to 1
January 2005.
(6)
Section 23 (2) in the version valid until 24 May 2007 shall continue to apply
in such cases in which the order issued by the supreme Land authority on the
basis of the version applying until 24 May 2007 provides for issuance of a
settlement permit where special political interests of the Federal Republic of
Germany prevail. Section 23 (2), sentence 5 and Section 44 (1), no. 2 shall be
applied mutatis mutandis to the affected foreigners and the dependents
relocating their residence to the Federal territory with the former.
(7)
A settlement permit may also be issued to spouses, partners in life and minor,
unmarried children of a foreigner who were in possession of a residence title
for exceptional circumstances pursuant to Section 31 (1) of the Foreigners Act
or a residence permit pursuant to Section 35 (2) of the Foreigners Act prior to
1 January 2005, where the conditions of Section 26 (4) are met and they
continue to meet the conditions according to which issuance of a residence
title for exceptional circumstances pursuant to Section 31 of the Foreigners
Act or of a residence permit pursuant to Section 35 (2) of the Foreigners Act
was permissible.
Section
104a Regulations governing old cases
(1)
By way of derogation from Section 5 (1), no. 1 and (2), a foreigner whose
deportation has been suspended should be granted a residence permit where he or
she has been continuously resident in the Federal territory for at least eight
years on 1 July 2007, or, if he or she lives together with one or several
minor, unmarried children as a family unit, where he or she has been
continuously resident in the Federal territory for at least six years on the said
date, by virtue of his or her deportation having been suspended, his or her
residence being permitted or a residence permit having been issued on
humanitarian grounds and he or she
1. has sufficient living space at his or her
disposal,
2. has an adequate knowledge of the spoken German
language corresponding to level A2 of the Common European Framework of
Reference for Languages,
3. furnishes proof that any children of school age
actually attend school,
4. has not wilfully
deceived the foreigners authority as to circumstances of relevance to his or
her situation under residence law and has not wilfully
delayed or obstructed official measures to end his or her residence,
5. does not have any links to extremist or terrorist
organisations and does not support such organisations and
6. has not been convicted of an offence wilfully committed in the Federal territory, whereby fines totalling up to 50 daily rates or up to 90 daily rates in
the case of offences which, in accordance with the Residence Act or the Asylum
Procedure Act, can only be committed by foreigners shall be ignored as a
general principle.
Where
the foreigner ensures his or her subsistence independently by means of an
economic activity, the residence permit shall be granted pursuant to Section 23
(1), sentence 1. It shall otherwise be issued pursuant to sentence 1; it shall
apply as a residence title pursuant to Chapter 2, Part 5; Sections 9 and 26 (4)
shall not apply. The requirement stated in sentence 1, no. 2 may be waived
until 1 July 2008. The requirement stated in sentence 1, no. 2 shall be waived
if the foreigner is unable to meet it on account of a physical, mental or
psychological illness or handicap or on grounds of old age.
(2)
An unmarried child of full age whose deportation has been suspended, said child
being the child of a foreigner whose deportation has been suspended and who has
been continuously resident in the Federal territory for at least eight years on
1 July 2007, or, if he or she lives together with one or several minor,
unmarried children as a family unit, where he or she has been continuously
resident in the Federal territory for at least six years on the said date, by
virtue of his or her deportation having been suspended, his or her residence
being permitted or a residence permit having been issued on humanitarian
grounds, may be granted a residence permit pursuant to Section 23 (1), sentence
1 where said child was a minor at the time of entering the Federal territory
and where it appears, on the basis of the child’s education and way of life to
date, that he or she is capable of integrating into the way of life which
prevails in the Federal Republic of Germany. The same shall apply to a
foreigner who has been continuously resident in the Federal territory for at least
six years as an unaccompanied minor by virtue of his or her deportation having
been suspended, his or her residence being permitted or a residence permit
having been issued on humanitarian grounds, where it appears, on the basis of
the child's education and way of life to date, that he or she is capable of
integrating into the way of life which prevails in the Federal Republic of
Germany.
(3)
If a family member living as part of a family household has committed offences
pursuant to sub-section 1, sentence 1, no. 6, this shall lead to refusal of the
residence permit for other family members according to this provision. Sentence
1 shall not apply to the spouse of a foreigner who has committed offences
within the meaning of sub-section 1, sentence 1, no. 6 where the spouse
otherwise meets the requirements of sub-section 1 and it is necessary to enable
the continued stay of the spouse in order to avoid special hardship. Where, in
exceptional cases, children are separated from their parents, their care and welfare
in Germany must be ensured.
(4)
The residence permit may be issued subject to the condition that the foreigner
attend an integration interview or that an integration agreement be concluded. The
residence permit entitles the holder to pursue an economic activity.
(5)
The residence permit shall be issued with a period of validity until 31
December 2009. It shall be extended by two further years as a residence permit
pursuant to Section 23 (1), sentence 1 if the foreigner’s subsistence was
ensured up to 31 December 2009 primarily by the foreigner on his or her own
through the pursuit of an economic activity or if the foreigner has ensured his
or her subsistence on his or her own on a non-temporary basis since 1 April
2009 at least. In both cases, facts must be available to justify the assumption
that the foreigner’s subsistence will be for the most part ensured in the
future. In the case of sub-section 1, sentence 4 the residence permit shall be issued
with an initial period of validity extending only until 1 July 2008 and shall
be extended only if the foreigner furnishes proof that he or she meets the
conditions of sub-section 1, sentence 1, no. 2 by the aforesaid date at the
latest. Section 81 (4) shall not apply.
(6)
With regard to extension of the residence permit, derogation from sub-section 5
shall be possible in order to avoid cases of hardship. This provision shall
apply in the case of
1. apprentices undergoing training in a recognised trade or on government-sponsored pre-vocational
training measures,
2. families with children who are only temporarily
reliant on supplementary social benefits,
3. single parents who are temporarily reliant on
social benefits and who cannot reasonably be expected to take up employment
pursuant to Section 10 (1), no. 3 of Social Code Book II,
4. persons who are unable to work but whose
maintenance and any necessary care is secured on a long-term basis by any other
means without recourse to any public benefits, except where the benefits are
based on contributions which have been paid in,
5. persons who are 65 years of age or older on 31
December 2009, when they have no family in their country of origin but do have
dependents (children or grandchildren) who are permanently resident in the
federal territory or German nationals and when it is thus ensured that no
social benefits will be claimed for such persons.
(7)
The Länder may order a residence permit pursuant to
sub-sections 1 and 2 to be refused to nationals of certain states on grounds of
national security for the Federal Republic of Germany. In order to ensure a
nationwide uniform approach, such an order shall require the approval of the
Federal Ministry of the Interior.
Section
104b Right of residence for integrated children of foreigners whose deportation
has been suspended
By
way of derogation from Section 5 (1), no. 1, (2) and Section 10 (3), sentence
1, a minor, unmarried child may be granted a residence permit in his or her own
right pursuant to Section 23 (1), sentence 1 in the event of the said child’s
parents or the parent possessing the sole right of care and custody not being
granted a residence permit or an extension of the same pursuant to Section 104a
and leaving the federal territory, where
1. the child has reached the age of 14 on 1 July
2007,
2. the child has been lawfully resident in Germany
or resident in Germany by virtue of suspended deportation for at least six
years,
3. the child has a command of the German language,
4. on the basis of the child’s education and way of
life to date, he or she has integrated into the prevailing way of life in the
Federal Republic of Germany and it is ensured that the child will remain
integrated in this way of life in the future and
5. care and custody of the child are ensured.
Section
105 Continued validity of work authorisations
(1)
A work permit issued prior to this Act coming into force shall remain valid
until its period of validity expires. If a residence title is granted under
this Act, the work permit shall be deemed to constitute approval of employment
from the Federal Employment Agency. The conditions contained in the work permit
shall be adopted into the residence title.
(2)
A permission to work granted prior to this Act coming into force shall be
deemed to constitute unqualified approval of employment from the Federal
Employment Agency.
Section
105a Provisions as to the administrative procedure
No
derogations by way of Land law shall be permissible from the provisions set out
in Section 4 (2), sentence 2 und 4, (5) sentence 2, Section 5 (3) sentence 3,
Section 15a (4) sentence 2 and 3, Section 23 (1) sentence 3, Section 23a (1)
sentence 1, (2) sentence 2, Section 43 (4), Section 44a (1) sentence 2, (3)
sentence 1, Section 49a (2), Section 72 (1) to (4), Section 73 (2) sentence 2,
(3) sentence 1 and 2, Section 78 (2) to (7), Section 79 (2), Section 81 (5),
Section 82 (1) sentence 3, (3), Section 87 (1), (2) sentence 1 and 2, (4)
sentence 1, 2 and 4, (5), Section 89 (1) sentence 2 and 3, (3) and 4, Section
89a (2), (4) sentence 2, (8), Sections 90, 90a, 90b, 91 (1) and (2), Section
91a (3), (4) and (7), Section 91c (1) sentence 2, (2) sentence 2, (3) sentence
4 and (4) sentence 2, Sections 99 and 104a (7) sentence 2, and from the provisions
set out in Section 43 (4) and Section 99 pertaining to the administrate
procedure.
[as of 1 May 2008]
In Section 105a, the reference
“Section 73 (2), sentence 2” shall be replaced by the reference “Section 73
(2)”.
Section
106 Curtailment of fundamental rights
(1)
The fundamental rights of physical integrity (Article 2 (2), sentence 1 of the
Basic Law) and freedom of the person (Article 2 (2), sentence 2 of the Basic
Law) shall be curtailed under the terms of this Act.
(2)
The procedure in connection with the deprivation of liberty shall be determined
by the law on judicial proceedings regarding the deprivation of liberty. If a
decision requires to be reached on the duration of custody awaiting deportation
or detention pending exit from the Federal territory, the local court of first
instance may assign the proceedings by virtue of an unappealable
ruling to the court in whose district the foreigner is being held in custody
awaiting deportation or in detention pending exit from the Federal territory.
Section
107 City-state clause
The
senates of the Lands of Berlin, Bremen and Hamburg
shall be authorised to adapt the provisions of this
Act regarding the competence of authorities to the special administrative
structures of their Länder.
The above translation is unofficial. It was published by the Federal Ministry of the Interior. Reproduced with kind permission. © 2007 Federal Ministry of the Interior. This HTML edition by Nico Köppel, and © 2009 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.