Residence status (Aufenthaltsstatus)Residence status (Aufenthaltsstatus)
State classification of persons fleeing to Germany
Various forms of nomenclature exist in Germany for classification of residence status for aliens, and attached to these categories, depending on the status, are various restrictions and regulations.
In principle, for entry into Germany and residence, each alien must hold a residence approval (Aufenthaltsgenehmigung) ('Aliens require a residence approval for entry and residence within federal territory.' § 3 I 3 Aliens Act).
Residence approval (Aufenthaltsgenehmigung) is further categorised into residence permission (Aufenthaltserlaubnis), right of residence (Aufenthaltsberechtigung), residence allocation (Aufenthaltsbewilligung) and authorisation of residence (Aufenthaltsbefugnis). Toleration of stay (Duldung) differs fundamentally from all the other residence categories in that it contains no rights to residence but simply a postponement of deportation.
The minors and spouses of Germans, EU aliens and aliens who hold at least a residence permission with unlimited duration have the right to the issuance of residence approval (as long as they fulfill the general preconditions, such as; securing an income through employment, sufficient living conditions, the absence of grounds for expulsion). In all other cases state assessment comes into effect.
Residence allocation is granted 'if residence is allowed for an alien for a particular, by definition only a temporary stay, for a particular purpose' (e.g., study courses). A change of the purpose of the stay and an extension of the residence allocation after the fulfillment of the original purpose of the stay is precluded. A change of the study course during this period is for example extremely difficult.
Authorisation of residence is granted, 'if an alien is allowed entry and residence within federal territory for reasons of international rights or urgent humanitarian reasons or for maintaining the political interests of the Federal Republic of Germany'.
Since 1991/92, in view of some hundred thousand unresolved asylum cases, certain refugee groups with a few years of residence, unfinished asylum procedures and high acceptance quotas have obtained such authorisation of residence.
Authorisation of residence may be either granted or extended for a maximum of two years.
An alien who has been in possession of authorisation of residence for eight years may be granted an unrestricted residence permit, if certain preconditions are fulfilled, such as, among other things, the securing an income through ones own employment or through demonstrating ones means of subsistence.
Residence permission is not bound to a particular purpose. It may be issued with a specific expiry date and may be extended, or (in the case of rights to asylum) issued without an expiry date. It may be issued with various stipulations attached, e.g., a proscription of self-employment. It is also quite usual that it is initially issued with an expiry date, and only after a number of years is it exchanged for an unrestricted residence permit.
Residence permits are issued to, for example, persons with rights to asylum (Asylberechtigte). Newly arriving foreign workers from non EU states may be issued with them only in exceptional cases, e.g. close family relatives or scientists with special qualifications or, for example professional sports(wo)men.
A right of residence carries no time limit, and, with the exception of a ban on political activity, it contains no other conditions or stipulations. Right of residence is to be granted if the person...
In addition, particular conditions must be fulfilled, for example; the securing of an income by one's means, regular payments to the obligatory pension funds (for further stipulations, see § 27 Aliens Act).
Toleration of stay differs fundamentally from the above mentioned residence categories. It represents simply a temporary postponement of deportation. It is issued if deportation, for legal or actual reasons, is impossible, or if other grounds for toleration exist, such as the actual threat to life, limb or freedom, or if from the highest (German) state authority deportation is precluded for aliens from certain countries for reasons of international rights or humanitarian grounds, or to maintain the political interests of the FRG.
Toleration of stay always carries with it a time restriction and is normally not valid beyond one year. Nevertheless, an extension may be applied for.
Asylum Seekers are persons who are seeking protection in the FRG from political persecution and have submitted a petition for asylum which has not yet been legally decided upon.
De facto refugees are persons who, for humanitarian reasons and under the protection of the Geneva Convention on Refugees (see legal basics), are provisionally allowed to stay in the FRG without submission of a petition for asylum or despite a legally effective dismissal of a petition.
Persons with rights to asylum are persons whose petitions have received indisputably positive recognition and who enjoy the legal status of the Geneva Convention on Refugees (see legal basics). They hold an unrestricted residence permit, although they remain subordinated to aliens rights.
Quota refugees are persons who, through an FRG declaration to receive refugees as part of a humanitarian assistance initiative, fall under the legal status of a refugee according to the Geneva Convention on Refugees (see legal basics). In legal terms they are virtually equivalent to persons with rights to asylum.
Belgium, Denmark, Germany, Greece, Spain, France, Italy, Ireland, Luxembourg, The Netherlands, Austria, Portugal, Finland, Sweden and The United Kingdom.
Schengen states are all EU states with the exception of Ireland and The United Kingdom. (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal, Spain, and Sweden).
The so-called 'safe third countries' are, excepting in this case Germany itself, all states of the European Union (Austria, Belgium, Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal, Spain, Sweden and The United Kingdom) as well as Norway, Poland, Switzerland and The Czech Republic.
Safe countries of origin are states in which, 'due to the civil, and human rights situation and the application of justice and the general political conditions appear to be maintained, and in which neither political persecution nor inhuman nor degrading treatment nor punishment takes place.' (§ 16 a paragraph 3 of the basic constitutional law).
Presently, the following countries are thus categorised: Bulgaria, Ghana, Poland, Romania, Senegal, The Slovak Republic, The Czech Republic, Hungary. (as of 1997). This categorisation of states as 'safe countries of origin' may be altered by the German federal government.
A time period is fixed for each alien, and by the expiry of which the alien has to depart of his/her own free will. This is formally known as either a border crossing certificate or a departure certification under §42 of the Aliens Act). In the case of actual obstacles to deportation a 'toleration of stay' under § 55 paragraph 4 of the Aliens Act is to be granted. By the aliens authorities it is the usual practice simply to issue a 'border crossing certification' in such cases.
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