German Immigration Act : Summary of Major Aspects
German Immigration Act : Summary of Major Aspects
This summary of the future Immigration Act has been
compiled by the Federal Ministry of the Interior and gives you details of the
future Immigration Act (you will find the wording of the Act itself as a working
basis in the German version; the English version will be available shortly). As
the President enacted the Law the new Immigration Act has been promulgated in
the Federal Law Gazette on 5. August 2004 (see BGBl. I Nr. 41, 5.8.2004, page
1950ff) and will be available on bmi.bund.de soon.
BMI, Berlin, June 18, 2004.
Details of the Immigration Act
1. New structures
of the number of residence titles to two. In place of the residence title for
exceptional circumstances, the residence title for specific purposes, the
limited residence permit, the unlimited residence permit and the right of
unlimited residence, the Act now provides for only two residence titles: The
(limited) residence permit and the (unlimited) settlement permit. The new
residence legislation is based no longer on residence titles, but on purposes of
residence (education, gainful employment, subsequent immigration of dependents,
duties are to be allocated to the new Federal Office for Immigration and
Refugees, which will supersede the previous Federal Office for the Recognition
of Foreign Refugees (Residence Act, Section 75):
and implementation of integration courses for foreigners and repatriates;
- Keeping the
Central Aliens Register;
Implementation of measures to promote voluntary returns;
research on migration issues (accompanying research);
Coordination of information on labour migration between foreigners' authorities,
the Federal Employment Agency and German diplomatic representations abroad.
2. Labour migration
§ The Act
provides for highly qualified persons to be granted permanent residence from the
outset; such persons may receive a settlement permit immediately (Residence Act,
Section 19). Family members who enter Germany with such persons or subsequently
are entitled to take up gainful employment (Residence Act, Section 29).
of the settlement of self-employed persons. As a general rule, self-employed
persons are to receive a residence permit if they invest at least 1 million
euros and create at least 10 jobs (Residence Act, Section 21).
Possibility for students to remain in Germany for up to one year after
successfully completing their studies, for the purpose of seeking employment
(Residence Act, Section 16 (4)).
previous dual approval procedure (work/residence) is to be replaced by an
internal approval procedure. The foreigners authority is to issue the work
permit together with the residence permit in a single act, subject to internal
approval from the labour administration, Residence Act, Section 39 (1) (one-stop
§ The ban on
the recruitment of unqualified persons and persons with low qualifications is to
be maintained (Residence Act, Section 39 (4).
§ The ban on
recruitment is also to be maintained for qualified persons, subject to an
exemption: A work permit may be issued in justified instances, when there is a
public interest in an individual taking up employment (Residence Act, Section 18
of acceding states have access to the labour market for qualified employment
(according to the priority principle, that is, only insofar as no German or
person enjoying equal rights is available); priority over nationals of third
countries (Residence Act, Section 39 (6).
§ The points
system has been abolished.
3. Humanitarian immigration
status (refugee recognised under the Geneva Convention) is also granted in case
of non-state persecution pursuant to the EU Asylum Qualification Directive
(Residence Act, Section 60 (1)).
Gender-specific persecution is recognised according to the following formulation
(Residence Act, Section 60 (1)):
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."
status for persons enjoying subsidiary protection, though not for persons who
have committed violations of human rights or similar serious criminal offences
(grounds for denial from the EU Qualification Directive) and in case of repeated
or gross breaches of duties to cooperate (Residence Act, Section 25 (3)).
permit in case of obstacles to deportation in order to avoid successive
suspensions of deportation, if the obligation to leave the country cannot be
fulfilled within 18 months (Residence Act, Section 25 (5)). No residence title
in case of misconduct on the part of the foreigner (e.g. attempt to disguise
Suspension of deportation is retained as a "fine tuning" instrument (Residence
Act, Section 60a).
provision, excluding legal rights. At the request of a Hardship Commission
established by a Land government, the supreme Land authority may order a
residence permit to be issued to a person who is obliged to leave the country
unappealably, by way of derogation from the usual conditions pertaining to the
issuance and extension of permits. A Hardship Commission may be set up at the
discretion of the respective Länder (Residence Act, Section 23a).
4. Subsequent immigration of children
§ The current
legal situation is to be maintained, according due consideration to the
directive on the subsequent immigration of dependents: Subsequent immigration is
permitted up to the age of 18 for children of persons entitled to asylum and of
refugees recognised under the Geneva Convention, whereby such children are also
permitted to enter the country as part of their family unit, other factors being
a command of the German language or "positive integration prognosis" - age limit
otherwise: 16, plus restrictive discretionary ruling, whereby the child's
wellbeing and the family situation are to be taken into consideration, however
(Residence Act, Section 32).
Introduction of the entitlements model for new immigrants who are to take up
permanent residence in the Federal Republic (Residence Act, Section 44).
of sanctions relating to right of residence in case of failure of new immigrants
to attend courses: Breach of obligation to attend courses to be taken into
account in decisions on extensions to residence permits (Residence Act, Section
for foreigners already living in the Federal Republic insofar as places on
courses are available (Residence Act, Section 44a) [persons drawing employment
benefit II and persons with special integration needs]. § Breach of this
obligation to attend integration courses to be punished with a reduction in
benefits for the duration of non-attendance as a sanction under social law
(Residence Act, Section 44a (3).
Integration courses for EU citizens insofar as places are available (EU Act on
the General Freedom of Movement for EU Citizens, Section 11(1)).
Federation bears the costs of integration courses (Residence Act, Section 43
§ The costs
of the integration courses for new immigrants (including repatriates) are to be
estimated at € 188 million per annum.
pertaining to the annual attendance of courses by around 50,000 to 60,000
foreigners already living in Germany amount to approx. € 76 million. Provision
is made for contributions by those attending the courses on a graduated basis
according to their financial status. § Länder bear costs of child care and
support from social education authorities.
6. Security aspects
Introduction of a deportation order (Residence Act, Section 58a), which can be
issued by the supreme Land authorities and, in the case of a special federal
interest, by the Federation on the basis of a "evidence-based threat
assessment". Legal redress only possible via a single appeal to the Federal
Administrative Court. If deportation cannot be effected on account of obstacles
to deportation (torture, death penalty), enhanced security is to be provided by
obligations to report to the authorities on a periodic basis, restrictions on
freedom of movement and bans on communication backed up by appropriate penalties
(Residence Act, Section 54a).
§ As a new
provision, the smuggling of people into the Federal Republic of Germany
constitutes a compelling ground for deportation in the case of persons receiving
non-suspended custodial sentences for such offences (Residence Act, Section 53
expulsion when facts justifiably lead to the conclusion that a foreigner belongs
to or has belonged to an organisation which supports terrorism or supports or
has supported such an organisation; membership and supportive acts in the past
are relevant insofar as they form the basis for a currently prevailing danger
(Residence Act, Section 54 (5)).
Introduction of regular expulsion for leaders of banned organisations (Residence
Act, Section 54 (7).
Introduction of discretionary expulsion for "intellectual incendiaries" (e.g.
agitators in mosques): Section 55 (2), no. 8. "(2) A foreigner may be expelled
pursuant to Section 1 in particular, if he or she [1. – 7.] 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."
Introduction of a standard request for information on any anticonstitutional
records prior to issuance of a settlement permit (Residence Act, Section 73 (2))
as a residence title of unlimited duration and prior to the decision on
naturalisation (Public Prosecution Act, Section 37).
§ In order to
implement the freedom of movement within the European Union, residence permits
will be abolished for EU citizens. In future, EU citizens will merely be
required to register with the registration authorities, in the same manner as
Germans. EU citizens are to receive certification confirming their right of
residence (EU Act on the General Freedom of Movement for EU Citizens, Section
7. European harmonisation
§ The EU
directives on the granting of temporary protection and the recognition of
decisions by other member states to return persons to their country of origin
and the directive on supplementation of the provisions pursuant to Article 26 of
the Schengen Implementation Agreement are to be implemented.
8. Asylum procedure
residence status of those having what is called “asylum status according to the
Geneva Convention” (“kleines Asyl”) will be brought into line with the status of
persons entitled to asylum (Residence Act, Section 25). Both groups will
initially receive a limited residence title which can become permanent after
three years if the appurtenant conditions continue to be met. Persons having
“asylum status according to the 6 Geneva Convention” are to have unimpeded
access to the labour market - such as was previously granted only to persons
entitled to asylum.
§ Prior to
issuing a settlement permit to persons entitled to asylum and holders of “asylum
status according to the Geneva Convention”, it is to be assessed whether the
situation in the country of origin has changed (Residence Act, Section 26 (3)).
§ The system
whereby individual decision-makers are not obliged to follow instructions is to
be abolished, as is the office of Federal Commissioner for Asylum Matters. This
will speed up the procedures and lead to a standardisation of decision-making
seekers who apply for asylum at border authorities or foreigners’ authorities
but who subsequently go underground without filing a formal application for
asylum, thereby delaying the beginning of their asylum procedure, will be
referred in future to the follow-up application procedure (Asylum Procedure Act,
Section 23 (2)).
§ In future,
the asylum status according to the Geneva Convention is to be ruled out as
standard procedure when the foreigner leaves his or her country of origin in the
absence of any persecution and subsequently gives rise to persecution only as a
result of (subjective) post-flight reasons which they themselves create (Asylum
Procedure Act, Section 28 (2)).
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 distributed among the
respective Länder prior to the decision on the suspension of deportation or
issuance of a residence title (Residence Act, Section 15a).
Introduction of proof of a knowledge of the German language for repatriates'
family members as a prerequisite for inclusion in the admission notice (basic
knowledge), Federal Act on Refugees and Expellees, Section 9 (1).
10. Entry into force and timetable
consultation in the Mediation Committee on 30 June 2004. The Mediation
Committee's resolution was adopted in the Bundestag on 2 July 2004 and in the
Bundesrat on 9 July 2004. § Entry into force on 1 January 2005.
7 § Following
provisions to enter into force ahead of the actual Act (on the day following
promulgation): Renaming of “Federal Office for the Recognition of Foreign
Refugees” as “Federal Office for Immigration and Refugees”, abolishment of the
system whereby individual decision-makers are not obliged to follow
instructions, and abolishment of the office of Federal Commissioner;
authorisation to adopt ordinances having the force of law to implement the