Print Act
to Control and Restrict Immigration
and to Regulate the Residence and Integration
of EU Citizens and Foreigners
(Immigration Act)
Article 1 Residence Act
Article 2 Freedom of Movement Act/EU
Act
to Control and Restrict Immigration
and to Regulate the Residence and Integration
of EU Citizens and Foreigners
(Immigration Act)
Of 20 June 2002
The Bundestag has adopted the following Act with the approval of the Bundesrat:
Summary of contents
Article 1Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (Residence Act)
Article 2Act on the General Freedom of movement for EU Citizens
Article 1
Act on the Residence, Economic Activity and Integration of Foreigners
in the Federal Territory (Residence Act)
Summary of contents
Chapter 1
General provisions
Section 1: Purpose of the Act; scope
Section 2 :Definitions
Chapter 2
Entry into and residence in the Federal territory
Part 1
General
Section 3: Passport obligation
Section 4: Requirement for a residence title
Section 5: General preconditions for the granting of a residence title
Section 6: Visa
Section 7: Residence permit
Section 8: Extension of the residence permit
Section 9: Settlement permit
Section 10: Residence titles at the time of application for asylum
Section 11: Ban on entry and residence
Section 12: Area of application; subsidiary provisions
Part 2
Entry
Section 13: Border crossing
Section 14: Unlawful entry; exceptional visa
Section 15: Refusal of entry
Part 3
Residence for educational purposes
Section 16: Further education; language courses; school education Section 17: Other educational purposes
Part 4
Residence for the purpose of economic activity
Section 18: Employment
Section 19: Settlement permit for highly qualified foreigners
Section 20: Immigration via selection procedure
Section 21: Self-employment
Part 5
Residence on humanitarian or political grounds
or under international law
Section 22:Admission from abroad
Section 23:Granting of residence by the supreme Land authorities
Section 24:Granting of residence for temporary protection
Section 25:Residence on humanitarian grounds
Section 26:Duration of residence
Part 6
Residence for family reasons
Section 27: Principles pertaining to the subsequent immigration
of dependents
Section 28: Subsequent immigration of dependents to join a
German national
Section 29: Subsequent immigration of dependents to join a foreigner
Section 30: Subsequent immigration of spouses
Section 31:Independent right of residence
Section 32: Subsequent immigration of children
Section 33: Birth of a child in the Federal territory
Section 34: Children's right of residence
Section 35: Children's independent, unlimited right of residence Section 36: Subsequent immigration of other dependents
Part 7
Special rights of residence
Section 37: Right of return
Section 38: Residence title for former Germans
Part 8
Involvement of the Federal Labour Office
Section 39: Approval of employment for a foreigner
Section 40: Grounds for refusal
Section 41:Revocation of approval
Section 42: Authorisation to issue regulations and instructions
Chapter 3
Promotion of integration
Section 43: Integration course and integration programme
Section 44: Entitlement to attend an integration course
Section 45: Obligation to attend an integration course
Chapter 4
Administrative provisions
Section 46: Administrative orders
Section 47: Prohibition and restriction of political activities
Section 48:Obligations relating to identification papers,
prohibition of departure
Section 49: Establishment and documentation of identity
Chapter 5
Termination of stay
Part 1
Grounds establishing the obligation to leave the Federal territory
Section 50: Obligation to leave the Federal territory
Section 51:Termination of the lawfulness of residence;
continued validity of restrictions
Section 52:Revocation
Section 53:Mandatory expulsion
Section 54:Regular expulsion
Section 55:Discretionary expulsion
Section 56:Special protection for expulsion
Part 2
Enforcement of the obligation to leave the Federal territory
Section 57:Removal
Section 58:Deportation
Section 59:Deportation warning
Section 60:Prohibition of deportation
Section 61:Geographic restrictions; departure facilities
Section 62:Custody awaiting deportation
Chapter 6
Liability and fees
Section 63: Obligations of transport contractors
Section 64: Return transport obligation on the part of transport contractors
Section 65: Obligations of airport operators
Section 66: Parties liable for costs; furnishing of security
Section 67: Scope of liability for costs
Section 68:Liability for living expenses
Section 69:Charges
Section 70:Limitation of actions in respect of claims
Chapter 7
Procedural provisions
Part 1
Areas of competence
Section 71:Competence
Section 72: Requirements for the involvement of authorities
Section 73: Other requirements for the involvement of authorities in
visa procedures and in the issuance of residence titles
Section 74: Involvement of the Federal government;
authority to issue instructions
Part 2
Federal Office for Migration and Refugees
Section 75:Duties
Section 76:Council of Experts for Immigration and Integration
Part 3
Administrative procedures
Section 77:Written form; exemption from formal requirements
Section 78:Forms for residence titles, identification card substitute
and certificates
Section 79:Decision on residence
Section 80:Legal capacity of minors
Section 81:Application for the residence title
Section 82:Cooperation by the foreigner
Section 83:Restriction of right of appeal
Section 84:Effects of an objection and a legal action
Section 85:Calculation of residence periods
Part 4
Data transfer and data protection
Section 86:Collection of personal data
Section 87:Transfer to foreigners authorities
Section 88:Transfer in case of special statutory regulations
on the use of data
Section 89:Procedures applying to measures to ascertain
and document a foreigner's identity
Section 90:Transfer by foreigners authorities
Section 91:Storage and erasure of personal data
Chapter 8
Commissioner for Migration, Refugees and Integration
Section 92:Office of the Commissioner
Section 93:Duties
Section 94:Scope of authority
Chapter 9
Provisions as to punishments for criminal offences and fines
Section 95: Penal provisions
Section 96: Smuggling of foreigners into the Federal territory Section 96a: Smuggling of foreigners into the Federal territory resulting in death; smuggling for gain and as organised bands Section 97: Provisions as to fines
Chapter 10
Authorisation to issue statutory instruments;
transitional and final provisions
Section 98:Authorisation to issue statutory instruments
Section 98a: Linguistic adaptation
Section 99: Continued validity of previous rights of residence Section 100: Continued validity of other measures relating to foreigners and consideration of prior periods
Section 101: Application of previous law
Section 102: Transitional provisions
Section 103: Continued validity of work authorisations
Section 104: Curtailment of fundamental rights
Section 105: 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 integration capacity 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 promotion of 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 and public funds which are based on contributions or which are granted in order to enable residence in the Federal territory.
(3a) 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 ofthe sufficient living space for the accommodation of families.
(4) 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.
(5) Temporary protection within the meaning of this Act is the granting of
residence in application of Council directive 01/55/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).
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.
(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 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 of 12 September
1963 (Federal Law Gazette II 1964, p. 509) (EEC/Turkey Association
Agreement). The residence titles are granted in the form of a
1. visa (Section 6),
2. residence permit (Section 7) or
3. settlement permit (Section 9).
(2) A residence title shall entitle the holder to pursue an economic activity
insofar as this is laid down in this Act or the 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 Labour Office has granted its approval or a statutory instrument stipulates that taking up the employment concerned is permissible without the approval of the Federal Labour Office. Any restrictions imposed by the Federal Labour Office in granting approval are to be specified in the residence title.
(3) Foreigners may only take up employment if the residence permit so
allows, and may only be employed by employers if they possess such a
residence title. This restriction shall not apply if the foreigner is permitted to
pursue an economic activity without holding a residence title, by virtue of an
inter-governmental agreement, a law or a statutory instrument.
(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. 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 require fulfilment of the
passport obligation in accordance with Section 3 and shall further presuppose
1. that the foreigner's livelihood is secure,
2. that no grounds for expulsion apply and
3. insofar as the foreigner has no entitlement to the granting of a residence title, that foreigner's residence does not compromise or jeopardise the interests of the Federal Republic of Germany for any other reason.
(2) The granting of a residence permit or a settlement 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 requirement 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) In the cases pertaining to the granting of a residence title in accordance
with Section 24, 25 (1) to (3) and Section 26 (3), paragraphs 1 and 2 are to be
waived; application of the said paragraphs may be waived in the other cases
pertaining to the granting of a residence title in accordance with Section 2 (5).
(4) A residence title shall be refused if the foreigner 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, or if the foreigner is proven to be a member of an organisation which supports international terrorism or if he or she supports such an organisation. 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 per six-month period (short-term
stay),
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 in any six-month period.
(3) In special cases, a Schengen visa issued in accordance with paragraph 1,
sentence 1 may be extended up to a total stay of three months per six-month
period. 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
paragraph 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 and settlement permit. The duration of lawful stay with a national visa shall be offset against the periods of possession of a residence permit or a settlement 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. Should a 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, in breach of his or her obligation in accordance with Section 45, a
foreigner has failed to begin attending an integration course, this circumstance should be taken into consideration in deciding on an extension of the residence permit.
Section 9
Settlement permit
(1) The settlement permit is an unlimited residence title. It entitles the holder
to pursue an economic activity, is not subject to any time limits or geographic
restrictions and must not incorporate any subsidiary provisions. 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. he or she has not been sentenced to a term of youth custody or a prison term of at least six months or a fine of at least 180 daily rates due to an
intentionally committed offence,
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 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 sentence 2, nos. 3, 5 and 6 are fulfilled by one spouse. The
requirement in accordance with paragraph 2, 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 paragraph 2,
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.
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 the issuance of a residence title.
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 applied time limit shall apply from the time of leaving the Federal territory.
2) By way of exception, the foreigner may be granted temporary entrance
into the Federal territory for a short period prior to expiry of the exclusion period stipulated in accordance with paragraph 1, sentence 3, if his or her presence is required for compelling reasons or if the refusal of permission would constitute undue hardship.
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 ofthe 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) 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 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 Convention Implementing the Schengen Agreement.
(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), (8) and (9) and Section 62 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.
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 applying
to study and studying at a state or state-recognised university or comparable
educational establishment, including preparatory measures for a course of
study. The period of validity should not exceed two years when the residence
permit is issued for the first time in connection with preparatory measures for a course of study. For study purposes, the residence permit shall be issued for two years and shall be extendable by subsequent periods of up to two years if the purpose of the stay has not yet been achieved and is achievable within a reasonable period. The maximum permissible duration of residence for a foreigner applying for a place to study is 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.
(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.
(4) After completion of the studies, the residence permit may be extended by
up to one year for the purposes of job hunting.
(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.
Section 17
Other educational purposes
A foreigner may be issued a residence permit for the purpose of basic and
advanced vocational training, if the Federal Labour Office 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 Labour Office. Any restrictions imposed by the Federal Labour Office 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
A foreigner may be granted a residence permit for the purpose of taking up
employment if the Federal Labour Office has granted approval in accordancewith 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 Labour Office. Any restrictions imposed by the Federal Labour Office in granting approval are to be specified in the residence permit.
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 Labour Office 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 Labour Office 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 without state assistance is
assured.
(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
Immigration via selection procedure
(1) A settlement permit shall be granted to enable the pursuit of an economic
activity if a foreigner has successfully taken part in a selection procedure. This
shall also apply to foreigners who are already lawfully resident in the Federal
territory.
(2) The selection procedure is conducted in the economic and scientific
interest of the Federal Republic of Germany and serves to enable the
immigration of qualified employed persons who are expected to contribute to
the economic development of and to integrate into the way of life in the Federal Republic of Germany. Selection is carried out by means of a points system, according special consideration to nationals of countries with which negotiations on accession to the European Union have been initiated.
(3) By virtue of a statutory instrument approved by the Bundestag and the
Bundesrat, the Federal Government is authorised to stipulate the conditions for participation in the selection procedure, the general criteria for selection of
those applying for immigration, assessment via a points system and details of
the procedure. Appropriately good health, good character, a secure livelihood
and vocational training constitute the minimum requirements for participation.
The following aspects shall constitute the minimum scope of criteria for
selection of those applying for immigration:
1. Age of the applicant.
2. The applicant's academic and vocational qualifications and professional
experience; interruptions in the applicant's career or a prolonged period of
training on account of the applicant discharging family duties such as
bringing up children or administering care at home must not disadvantage the
applicant in the assessment process.
3. The applicant's marital status.
4. The applicant's knowledge of languages.
5. Relations with the Federal Republic of Germany.
6. Country of origin.
In selecting the applicants for immigration, the respective shares of selected
men and women are to reflect the respective shares of applications received.
(4) The screening process shall only be carried out after the Federal Office
for Migration and Refugees and the Federal Labour Office have set a maximum quota for immigration via the selection procedure in consultation with the Immigration Council (Section 76).
(5) The settlement permit may only be issued if duly applied for within one
year of notification of successful participation in the selection procedure (notice of immigration).
(6) Applicants who have not been successful in the selection procedure may
not participate in the selection procedure again until at least three years after
notification of rejection of their application.
Section 21
Self-employment
(1) A foreigner may be granted a residence permit for the purpose of self-employment if an overriding economic interest or a special regional need
applies, the activity is expected to have positive effects on the economy and
personal capital on the part of the foreigner or a loan undertaking is available to realise the business idea. Assessment of the prerequisites in accordance with sentence 1 shall 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; an overriding economic interest shall generally be assumed when the level of investment is at least 1 million euros and at least ten jobs will be created. 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 shall receive 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 shall be granted after three years, if the foreigner has successfully realised the planned activity and his or her livelihood is assured.
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 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
(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) When special political interests of the Federal Republic of Germany apply,
the order may provide for the persons concerned to be granted a settlement
permit. In such cases, a condition restricting the permissible geographic area of residence may be issued by way of derogation from Section 9 (1).
(3) The order may provide for Section 24 to be applied mutatis mutandis,
either in part or in its entirety.
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 01/55/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. The Federal Office for Migration and Refugees keeps a register of the identification data pertaining to admitted foreigners and their dependants.
(2) No temporary protection shall be granted if one of the conditions
stipulated in Section 60 (8) applies; the residence permit shall be refused.
(3) The persons admitted on the basis of a resolution 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. 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 if the Federal Office for
Migration and Refugees has incontestably established that the conditions of
Section 60 (1) are met. Sub-section 1, sentences 2 to 4 shall apply mutatis
mutandis.
(3) A foreigner should be granted a residence permit if the conditions for a
suspension of deportation are fulfilled in accordance with Section 60 (2) to (7).
The residence permit shall not be permitted if departure for subsequent
admission to another state is possible and reasonable.
(4) A foreigner 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 the conditions for the granting and extension
of a residence title as laid down in this Act, a residence permit may be granted
or extended for a foreigner on request from a body duly appointed by the Land government by virtue of a statutory instrument, if the foreigner's continued presence in the Federal territory is justified on urgent humanitarian or personal grounds.
(5) A foreigner who is subject to a final deportation order may be granted a
residence permit if his or her departure is impossible in fact or in law. No
residence permit shall be granted if the foreigner is himself or herself
responsible for the obstacles to departure, in particular if he or she has
furnished 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 mays be issued and
extended in each instance for a maximum period of three years.
(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), nos. 2 to 9 are
fulfilled. Section 9 (2), sentences 2 to 5 shall apply accordingly. By way of
derogation from Section 55 (3) of the Asylum Procedure Act, the duration of
residence pertaining to the asylum procedure preceding granting of the
residence permit shall count towards this qualifying period. Section 35 may be
applied mutatis mutandis for children who have entered Germany prior to
reaching the age of 18.
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.
(2) Sub-section 3, Section 9 (3), 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 social welfare for the maintenance of other foreign dependents or other foreign members of his or her household. Section 5 (1), no. 2 may be waived.
Section 28
Subsequent immigration of dependents to join a German national
(1) By way of derogation from Section 5 (1), no. 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), 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 household already exists in the Federal territory.
(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
household 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 household 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 or a 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).
(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. The subsequent immigration of dependents shall not be
granted in the cases covered by Section 25 (4) and (5).
(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 household in the country of origin has been broken up as a result
of the foreigner having fled said country and2. 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) Without prejudice to Section 4 (2), sentence 3, the residence permit shall
entitle the holder to pursue an economic occupation insofar as the foreigner
who is being joined by his or her dependents by way of subsequent immigration is entitled to pursue an economic activity.
Section 30
Subsequent immigration of spouses
(1) A foreigner's spouse shall be granted a residence permit if the foreigner
1. possesses a settlement permit,
2. possesses a residence permit pursuant to Section 25 (1) or (2),
3. has been in possession of a residence permit for five years or
4. 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 is expected
to exceed one year.
(2) By way of derogation from sub-section 1, no. 4, the residence permit may
be granted if the foreigner possesses a residence permit.
(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.
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 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 or a settlement 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. The residence permit shall entitle the holder to pursue an economic activity.
(2) The requirement stipulated in sub-section 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 in a family household. In order to avoid abuse, extension of the residence permit may be refused if the spouse is reliant on social welfare for reasons for which he or she is responsible.
(3) By way of derogation from Section 9 (2), 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.
(4) Without prejudice to sub-section 2, sentence 3, claiming social welfare
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 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 residence permit pursuant to Section 25 (1) or (2),
2. the foreigner possesses a settlement permit pursuant to Sections 19, 20 or
26 (3) or
3. both parents or the parent possessing the sole right of care and custody hold a residence permit or settlement 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 twelve years of age or older shall be
granted a residence permit if he or she possesses an adequate knowledge of
German and both parents or the parent possessing the sole right of care and
custody possess a residence permit or settlement permit.
(3) A child of a foreigner who is under twelve 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 or settlement permit.
(4) By way of derogation from sub-sections 1 to 3, the minor, unmarried child
of a foreigner may be granted a residence permit with due regard to the child's
wellbeing, the family situation and the expectation that the child will integrate,
on account of his or her knowledge of German, for example.
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 shall be granted a residence permit as standard procedure if the mother possesses a residence permit or settlement permit. A child born in the Federal territory whose mother 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 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 or settlement permit and the child lives together with the said parent in a family household, 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 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 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 or a prison term of at least six months or a fine of at least 180 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 social welfare 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, 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 other dependents
Another dependent 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. 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 or a prison term of at least six months or a fine of at least 180 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 social welfare 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, 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 other dependents
Another dependent 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, nos. 1 and 3
shall be possible in order to prevent particular hardship. The requirements
stipulated in sub-section 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 accordingly.
(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.
(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.
Part 8
Involvement of the Federal Labour Office
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 Labour Office, 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 Labour Office 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, 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. in consultation with the Land labour office, the administrative committee of
the local labour office 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 labour office. The potential employer of a foreigner who requires approval in order to take up employment shall be required to furnish the Federal
Labour Office 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 Labour Office
is required in order to take up employment in cases of residence for other purposes covered in Parts 3, 5, 6 or 7.
(4) Approval for a form of employment pursuant to Section 18 which does not
require a vocational qualification may only be granted if so regulated by a
statutory instrument or inter-governmental agreement.
(5) The approval may stipulate the duration and form of occupational activity
and restrict the employment to specific plants or regions.
(6) The Federal Labour Office 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.
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,
2. the worker intends to take up employment as a loan worker (Section 1 (1) of the Act on Temporary Employment Businesses).
(2) Approval may be refused if1. the foreigner has culpably breached Section 404 (1) no. 2 or (2) nos. 2 to 13,
Section 406 or Section 407 of Book Three of the Social Code or Sections 15,
15a or 16 (1), no. 2 of the Act on Temporary Employment Businesses,
2. important personal grounds relating to the employee 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, without the approval of the
Bundesrat:
1. areas of employment in which approval from the Federal Labour Office is not required for the employment of a foreigner (Section 4 (2), sentence 3,
Section 17, sentence 1, Section 18, sentence 1, Section 19 (1)),
2. the conditions and the procedure for the granting of approval by the Federal
Labour Office, whereby an alternative procedure for establishing priorities
may also be regulated,
3. exceptional cases in which approval may also be granted for types of
employment involving lower levels of qualification (Section 39 (4)),
4. details concerning restriction of the approval on a time-, plant-, occupational
and regional basis, in accordance with Section 39 (5),
5. exceptional cases in which approval may be granted by way of derogation
from Section 39 (2).
(2) The Federal Ministry of Labour and Social Affairs may issue instructions
to the Federal Labour Office 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
Promotion of integration
Section 43
Integration course and integration programme
(1) The integration of foreigners living lawfully in the Federal territory on a
permanent basis into the economic, cultural and social life of the Federal
Republic of Germany shall be promoted.
(2) Integration efforts by foreigners are supported by a basic package of
measures to promote integration (integration course). The integration course
covers measures to acquaint foreigners with the language, legal system and
culture in Germany and Germany's history. These measures are 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. Successful attendance is confirmed by a certificate to be issued by the body responsible for carrying out the language course. Attendance of the basic language course is generally a precondition for attendance of the advanced language course. Where necessary, the integration course should be supplemented by support from social education workers and by child care services. For foreigners who are entitled and obliged to attend (Sections 44, 45), the basic language course and the orientation course are 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. Implementation of the integration measures is otherwise the responsibility of the Länder. A reasonable charge to help cover costs may be levied for attendance of 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 general conditions
pertaining to attendance, including the charges, via a statutory instrument to be approved by the Bundesrat.
(5) The integration course may be complemented by further integration
measures, in particular migration advisory 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.
Section 44
Entitlement to attend an integration course
(1) A foreigner shall be entitled to attend an integration course once upon
receiving a residence permit
1. for employment purposes (Sections 18, 21),
2. for the purpose of subsequent immigration by dependents (Sections 28, 29,
30, 32, 36),
3. on humanitarian grounds pursuant to Section 25 (1) or (2) or
4. without linkage to a purpose of residence (Section 7 (1), sentence 2),
if he or she is resident in the Federal territory on a permanent basis. Permanent residence is generally to be assumed if the foreigner holds 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. A person receiving a settlement permit in accordance with Section 23 (2) shall also be entitled to attend an integration course. This entitlement shall not apply to children, juveniles and young adults who take up school education or continue their previous school education in the Federal Republic of Germany.
(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) 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.
Section 45
Obligation to attend an integration course
(1) A foreigner who is entitled to attend an integration course pursuant to
Section 44 shall be obliged to attend, if he or she is unable to communicate
verbally in the German language at a basic level.
(2) On issuing the residence title establishing the attendance entitlement, the foreigners authority shall ascertain whether the foreigner is obliged to attend.
(3) A foreigner shall be partially or wholly exempted from the attendance
obligation pursuant to sub-section 1 if
1. he or she is undergoing vocational training or any other form of training or
education in the Federal territory,
2. he or she furnishes evidence of attendance of comparable education
measures in the Federal territory or
3. if it is unfeasible or unreasonable for him or her to attend on a sustained
basis.
(4) 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, prior to extending his or her residence permit the competent foreigners authority shall conduct an advisory meeting at which the foreigner shall be informed of the consequences of his or her breach of the obligation and of the failure to attend the integration course (Section 8 (3), Section 9 (2), nos. 7 and 8, Section 10(3) of the Nationality Act).
Chapter 4
Administrative provisions
Section 46
Administrative orders
(1) The foreigners authority may undertake measures to facilitate the
departure of a foreign who is required to leave the Federal territory
unappealably; 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, prohibition of departure
(1) On request, a foreigner shall be obliged to present and surrender his or
her passport, passport substitute or identification card substitute and his or her residence title or a document confirming suspension of deportation to the
authorities entrusted with implementing this Act 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 an identification card substitute.
(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.
Section 49
Establishment and documentation of identity
(1) On request, every foreigner shall be obliged to furnish the authorities
entrusted with implementing the law concerning foreigners with information on
his or her identity and nationality.
(2) In case of doubt regarding the foreigner's identity or nationality, the
measures necessary in order to establish his or her identity or nationality shall
be undertaken
1. if the foreigner is to be granted entry or a residence title or
2. if necessary in order to implement other measures in accordance with this
Act.
(3) The necessary measures may 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 required to leave the Federal territory
unappealably, 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 a visa application for a stay of more than three months by
nationals of states with which difficulties exist regarding the return of
applicants, and in the cases stipulated in Section 73 (4); 6. when temporary protection is granted in accordance with Section 24 and in
the cases covered by Section 23, 29 (3);
7. if a reason for refusal pursuant to Section 5 (4) has been established.
(4) For the purposes of sub-sections 2 and 3, measures shall include the
taking of photographs and finger-prints, the taking of measurements and similar measures. These measures shall be permissible for foreigners who are aged 14 or over. 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.
(5) 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.
(6) The identity of a foreigner aged 14 or over who is apprehended in
conjunction with unlawful entry from a third state and not refused entry shall be documented by taking prints of all ten fingers.
(7) 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.
(8) The foreigner shall be required to tolerate the measures pursuant to sub-sections 2 to 7.
Chapter 5
Termination of stay
Part 1
Grounds establishing the obligation to leave the Federal territory
Section 50
Obligation 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 whichthe obligation to leave the Federal territory becomes unappealable. It may be extended in special cases of hardship.
(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 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 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,
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 as an employee or a self-employed person for at least 15 years and the settlement permit of his or her spouse shall not expire in accordance with sub-section 1, nos. 6 and 7, if the aforementioned persons' subsistence is assured. 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 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 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 whose compliance with
the conditions pursuant to Section 60 (1) has been incontestably confirmed by
the Federal Office for Migration and Refugees 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 the incontestable confirmation by the Federal Office for Migration and Refugees that the conditions pursuant to Section 60 (1) are met, if he or she has left the Federal territory and the competence for issuing a travel document has passed to another state.
Section 52
Revocation
(1) Save in the cases covered by sub-section 2, a foreigner's residence title
can only be revoked if1. 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 or
4. his or her recognition as a person entitled to asylum or his or her refugee
status lapses or becomes null and void.
In the cases covered by sentence 1, no. 4, the residence title of the dependents living in the foreigner's family household 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 Labour Office 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.
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 or
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.
Section 54
Regular expulsion
A foreigner will generally be expelled if he or she
1. 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. is unappealably convicted of smuggling in foreigners pursuant to Section 96,
3. 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. 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. is not eligible for a residence title because the conditions establishing a
reason for refusal in accordance with Section 5 (4) apply or,
6. 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
international 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
incorrect information.
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
1. has furnished false information in procedures under the terms of this Act or to obtain a standard visa in accordance with the Convention Implementing the
Schengen Agreement for the purpose of obtaining a residence title or,
notwithstanding a prevailing legal obligation, has failed to cooperate in
measures undertaken by the authorities responsible for implementing this Act
in Germany and abroad, whereby expulsion on this basis shall only be
permissible if the foreigner is expressly informed prior to the interview of the
legal consequences of furnishing false or incomplete information,
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 or
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.
(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 in a family household or cohabits with the foreigner as his or her partner in life,
3. the conditions specified in Section 60 (11), 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,
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
and 2 as a spouse or in a registered partnership, 4. cohabits with a German dependent or partner in life in a family household 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 relating
to the Status of Refugees of 28 July 1951 (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. 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.
(3) A foreigner who possesses a residence permit in accordance with Section
24 or Section 29 (3) 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 any obstacle precluding deportation 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 shall 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 obligedto 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 unappealable.
(3) Section 60 (1) to (5), (8), (9) and Section 62 shall apply mutatis mutandis.
Section 58
Deportation
(1) The foreigner shall be deported if the obligation to leave the Federal
territory is unappealable 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 obligation to leave the Federal territory shall be unappealable 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 after expiry of the period of validity and the
residence is not deemed to be permitted pursuant to Section 81 (3),
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 01/40/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, pp. 34 to 36), 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 obligation to leave the Federal territory shall otherwise become
unappealable only upon refusal of the residence title or another administrative
act via which the foreigner becomes obliged to leave pursuant to Section 50 (1) becoming unappealable.
(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 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.
Section 60
Prohibition of deportation
(1) In application of the Convention relating to the Status of Refugees of 28
July 1951 (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, sex, membership of a certain social group or political convictions. This shall also apply to foreigners who enjoy the legal status of foreign refugees in the Federal territory or are recognised as foreign refugees outside of the Federal territory within the meaning of the Convention relating to the Status of Refugees. The conditions stated in sentence 1 onlyapply in cases of non-state persecution within the meaning of the Convention relating to the Status of Refugees of 28 July 1951. In this connection, it shall be examined whether the applicant is able to obtain protection from imminent persecution in his or her country of origin. In this context, it is irrelevant whether the persecution is attributable to the country of origin. If the foreigner cites an obstacle to deportation pursuant to this sub-section, the Federal Office for Migration and Refugees shall establish whether the necessary conditions apply in an asylum procedure according to the provisions of the Asylum Procedure Act, except in cases covered by sentence 2. The ruling of 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.
(3) A foreigner may not be deported to a state in which he or she is wanted
for an offence and a danger of the foreigner receiving the death penalty applies. 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 not be permissible
until a decision is reached on extradition.
(5) A foreigner may not be deported if deportation is inadmissible under the
terms of the Convention for the Protection of Human Rights and Fundamental
Freedoms of 4 November 1950 (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. Dangers in this
state 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 sub-section 11, 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, for serious reasons, there are justifiable grounds to assume that the foreigner has 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, or that he or she committed a serious non-political crime outside of the territory of the Federal Republic of Germany prior to being admitted as a refugee or that he or she has committed acts in contravention of the objectives and principles of the United Nations. (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) For reasons of international law or on humanitarian grounds or to
safeguard the 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. Deportation shall otherwise be suspended only if it is impossible in fact or in law and the foreigner is not granted a residence title. The foreigner shall be issued with appurtenant confirmation.
Section 61
Geographic restrictions; departure facilities
(1) The stay of a foreigner who is unappealably obliged 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.
(2) The Länder may establish departure facilities for foreigners who are
unappealably obliged 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 unappealably obliged to leave the Federal territory on
account of his or her having entered the territory unlawfully, 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.
(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.
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 Housing, 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.
(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. (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 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) or (5). 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 theforeigner'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 otherprovisions for the foreigner and translation and interpreting costs which ariseup to the time of enforcement of the decision on admission and3. 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 Labour Office 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,
3. for the extension of a residence permit: 40 euros,
4. for issuance of a national visa and of a passport substitute and identification card substitute: 30 euros,
5. for issuance of a Schengen visa: 210 euros,
6. for issuance of a Schengen collective visa: 50 euros and 6 euros per person,
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) Surcharges may be allocated for official acts which are performed abroad,
in order to compensate for differences in purchasing power. A surcharge of no
more than 25 euros may be imposed for issuance of a 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. 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 must not
exceed half the fee which is chargeable for issuance of the settlement 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 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 enforcing Section 63 (3),
3. revoking a visaa) in case of refusal of entry or removal or,
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 and
7. procuring return travel documents for foreigners from individual states by way of official assistance.
(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. The
diplomatic missions abroad authorised by the Ministry of Foreign Affairs shall be competent in the cases covered by Section 49 (3) 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)).
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 foreigners authority which has deported or
expelled 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 (7) 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 foreigners authority in
consultation with the foreigners 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.
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 by the said diplomatic mission 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). The procedure pursuant to Section 21 of the Central
Aliens Register Act shall remain unaffected.
(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 and the Land Office of Criminal Police for the purpose of ascertaining any grounds for refusal pursuant to Section 5 (4).
(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 apply pursuant to Section 5 (4). They 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 ofanother residence title after expiry of the visa and the lifting and amendment ofrequirements, 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 2
Federal Office for Migration and Refugees
Section 75
Duties
(1) Notwithstanding its duties in accordance with other acts, the Federal
Office for Migration and Refugees shall have the following duties:
1. Implementation of the selection procedure and selection of the persons
applying for immigration pursuant to Section 20;
2. coordination of the information on the residence for the purpose of pursuing
an economic activity between the foreigners authorities, the Federal Labour
Office and the German diplomatic missions abroad authorised for matters
pertaining to passports and visas by the Ministry of Foreign Affairs; 3. a) Development of the basic structure and contents of the basic language
course and the orientation course pursuant to Section 43 (3), sentence 5,
b) implementation of the same and
c) measures pursuant to Section 9 (5) of the Federal Expellees Act;
4. 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;
5. cooperation with the administrative authorities of the members states of the
European Union as the National Contact Point pursuant to directive
01/55/EC;
6. keeping the register pursuant to Section 24 (1), sentence 2;
7. granting payment of the funds approved under the schemes to promote
voluntary return;
8. allocation of the persons admitted pursuant to Section 23 (2) to the
respective Länder.
(2) The Federal Institute for Demographic and Migration Research is to be
established as an independent academic research establishment at the Federal Office for Migration and Refugees. It shall be under the legal and administrative supervision of the Federal Ministry of the Interior.
Section 76
Council of Experts for Immigration and Integration
(1) A Council of Experts for Immigration and Integration (Immigration Council)
is to be established at the Federal Office for Migration and Refugees, whereby
this Council shall be independent of instructions from the latter. The Council
shall have the task of appraising the national admission and integration
capacities and current migration trends on a regular basis.
(2) The Immigration Council shall be composed of seven members who must
possess special knowledge in the field of demography, labour market policy,
migration or integration. The members of the Immigration Council shall be
appointed by the Federal Ministry of the Interior for a period of four years.
(3) The Immigration Council shall submit a report annually on current
immigration trends in the Federal Republic of Germany and the foreseeable
future development of such trends. The report shall also present the course of
development regarding the admission of repatriates of German ancestry, the
granting of residence titles for the purposes stated in this Act, the number of
asylum procedures and the results of these procedures. The report shall further contain statements on the necessity of immigration via the selection procedure pursuant to Section 20 and, if appropriate, a recommendation regarding the maximum quota.
(4) The Immigration Council shall submit its report to the Federal Ministry of
the Interior by 15 June each year. The Federal Government shall forward the
report together with its statement to the German Bundestag and the Bundesrat.
Part 3
Administrative procedures
Section 77
Written form; exemption from formal requirements
(1) The administrative act via which a passport substitute, an identification
card substitute 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 Section 47 and the revocation of administrative acts in accordance with this Act.
(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 identification card substitute 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 identification card substitute following encoding by
means of security processes. Sub-sections 4 and 5 shall apply mutatis
mutandis.
(7) The certificates pursuant to Section 60 (11) 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 adecision 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 identification card substitute.
Section 81
Application for the residence title
(1) In the absence of any provisions to the contrary, a residence title shall
only be issued subject to an application being filed.
(2) A residence title which may be obtained after entering the Federal
territory in accordance with the statutory instrument pursuant to Section 98 (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. Residence shall be deemed to be permitted up to the time of the foreigners authority's decision on the application, provided that the application is filed in good time.
(3) If a foreigner who is legally resident in the Federal territory 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 prior to expiry of his or her current
residence title, the residence title shall be deemed to remain in force until the
time of the decision by the foreigners authority. If the application is filed after
expiry, deportation shall be deemed to be suspended from the time of
application up to 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. 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 45, 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 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 Federal Border Police Act shall apply mutatis mutandis.
Section 83
Restriction of right of appeal
The refusal of a notice of immigration pursuant to Section 20, 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.
Section 84
Effects of an objection and a legal action
(1) An objection or legal action against the refusal of an application for
issuance or extension of a residence title and against a condition imposed
pursuant to Section 61 (1) requiring the foreigner to take up residence at a
departure facility 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. 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 transfer and 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 of1. 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.
(3) The Federal Government Commissioner for Matters Relating to
Foreigners 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.
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 hav 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 48 (4).
(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
document and establish a foreigner's identity
(1) The Federal Office of Criminal Police shall provide official assistance in
assessing the documents obtained pursuant to Section 49. The documents
obtained pursuant to Section 49 (2) and (3) shall be kept separate from other
identification material. The voice recordings pursuant to Section 49 (5) shall be kept by the authority carrying out the recordings.
(2) Use of the documents obtained pursuant to Section 49 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 to the authorities responsible for these measures, to the extent and for the duration necessary.
(3) The documents obtained pursuant to Section 49 (2), (3) or (5) shall be
destroyed by all authorities in whose safekeeping they are located, 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 (3), nos. 3 and 4 or4. a period of ten years has elapsed since application for the visa in cases
covered by Section 49 (3), no. 5 and since the voice recording in the case of
Section 49 (5).
(4) Sub-section 3 shall not apply if and for as long as the documents are
required in connection with criminal proceedings or to avert a danger to public
safety or law and order. A record of the destruction shall be drawn up.
Section 90
Transfer by foreigners authorities
(1) In individual cases in which there are concrete indications of
1. foreigners taking up employment or pursuing activities 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 Labour Office, a statutory health insurance, nursing insurance,
accident insurance or pension insurance agency 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 308 (3) nos. 1 to 4 of Book Three of the
Social Code, 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 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 304 (2) of Book Three of the Social Code.
(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.
Section 91
Storage and erasure of personal data
(1) The data relating to expulsion 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.
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 the Ministry of Labour
and Social Affairs and may be held by a member of the German Bundestag.
(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 Ministry of Labour and Social Affairs' individual plan.
(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) Anyone who
1. resides in the Federal territory in contravention of Section 3 (1) in
conjunction with Section 48 (2),
2. resides in the Federal territory without a necessary residence title pursuant
to Section 4 (1), sentence 1, is unappealably obliged 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 (1), insofar as the offence is not
punishable pursuant to sub-section 2, no. 2,
6. fails to tolerate a measure specified in Section 49 (8) in contravention of
said Section,
6a. repeatedly breaches a geographic restriction pursuant to Section 61 (1) or
7. 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 by up to one year's imprisonment or a fine.
(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 for themselves or for another or who knowingly uses a
residence title procured in this manner for the purposes of deceit in legal
matters shall be punishable by 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-section 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.
Section 96
Smuggling of foreigners into the Federal territory
(1) Anyone who incites another person to commit any of the acts specified in
Section 95 (1), nos. 1, 2 or 3 or aids another person in committing such an act
and
1. receives a pecuniary advantage or the promise of a pecuniary advantage in
return or
2. acts in such a manner repeatedly or for the benefit of several foreigners
shall be punishable by up to five years' imprisonment 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 by 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, sub-section 2, no. 1 and sub-section 3 shall be
applicable to contraventions of statutory provisions on the entry of foreigners
into the European territory of a state party to the Convention Implementing the
Schengen Agreement and the residence of foreigners in such territory, if1. 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. Sections 43a and 73d of the Penal Code shall be applicable in the cases covered by sub-section 2, nos. 2 to 5.
Section 96a
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) Sections 43a, 73d of the Penal Code shall be applied.
Section 97
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 or,
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
shall be deemed to have committed an administrative offence.
(3) Any who intentionally or negligently
contravenes an enforceable condition pursuant to Section 12 (2), sentence 2 or (4) or a geographic restriction pursuant to Section 61 (1),2. 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),
3. contravenes an enforceable order pursuant to Section 46 (1) or Section 61
(1),
4. fails to file one of the applications specified in Section 80 (4) in contravention of said Section or
5. contravenes a statutory instrument pursuant to Section 98 (1), nos. 6 or 8,
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. 2.
(
5) The administrative offence may be punished by a fine of up to five
thousand euros in the cases covered by sub-section 2, no. 2, by a fine of up to three thousand euros in the cases covered by sub-sections 1 and 2, no. 1 and 3 and sub-section 3, no. 2, and by a fine of up to one thousand euros in the other cases.
(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 98
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,
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,
4. to exempt foreigners whose admission is assured from the passport
obligation,
5. to introduce or approve other official identification papers as passport
substitutes,
6. 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,
7. to determine that foreigners who neither possess a passport or passport
substitute nor can be reasonably expected to obtain the same may be
issued with a travel document as a passport substitute, may be provided
with a certificate to confirm their entitlement to re-enter the Federal territory
and may be exempted from the passport obligation,
8. 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,
9. to regulate the contents of the register pursuant to Section 24 (1), sentence
2 and the procedure pertaining to relocation of the residence of foreigners
who are granted temporary protection to another member state of the
European Union,
10. to determine 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) and
11. to determine that the
a) registration offices,
b) authorities concerned with matters of nationality,
c) authorities concerned with passports and identification papers, d) social welfare and youth welfare offices,
e) judicial, police and regulatory authorities,
f) employment offices,
g) tax offices and main customs offices and
h) trading standards authorities
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, insofar
as such information is necessary in order for the foreigners authorities to
discharge their duties under this Act and in accordance with provisions
relating to foreigners in other acts; the statutory instrument shall define the
type and scope of data, the measures and the other items of information
which are to be transferred.
(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 visas 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, nos. 1 and 2 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 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. (4) The Land governments shall be authorised to appoint the body pursuant to Section 25 (4a) via statutory instrument. The statutory instrument must regulate the composition of the body and the procedure.
Section 98a
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 99
Continued validity of previous rights of residence
(1) A right of unlimited residence or unlimited residence permit issued prior to
1 January 2003 shall remain valid as a settlement permit in accordance with the purpose of residence and the circumstances forming the basis for its issuance. An unlimited 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) 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.
Section 100
Continued validity of other measures under the law relating to foreigners
and consideration of prior periods
(1) Other measures undertaken prior to 1 January 2003 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. (2) The period of possession of a residence title for exceptional purposes or of a temporary suspension of deportation prior to 1 January 2003 shall count towards the qualifying period for the issuance of a settlement permit pursuant to
Section 26 (4).
Section 101
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
2003 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), most recently amended by Article 3 of the Act of 29 October 1997
(Federal Law Gazette I, p. 2584). Section 52 (1) no. 4 shall apply mutatis
mutandis in such cases.
Section 102
Transitional provisions
(1) Decisions on applications filed prior to 1 January 2003 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 99 (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 2003, 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), nos. 3 and 8 shall not apply.
(3) In the case of foreigners who are lawfully resident in Germany prior to 1
January 2003, 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 orimprisonment 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.
Section 103
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 Labour Office. 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
Labour Office.
Section 104
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, 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.
Section 105
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.
Article 2
Act on the General Freedom of Movement for EU Citizens
Freedom of Movement Act/EU
Section 1
Scope
This Act regulates entry into and residence in the Federal territory by
nationals of other member states of the European Union (EU citizens) and their dependents.
Section 2
Right of entry and residence
(1) EU citizens entitled to freedom of movement shall have the right to enter
and reside in the Federal territory pursuant to this Act.
(2) The following persons are entitled to freedom of movement under
Community law:
1. EU citizens who wish to reside in the Federal territory as employees or for
the purposes of seeking employment or carrying out vocational training,
2. EU citizens who are entitled to pursue an independent economic activity
(established self-employed persons),
3. EU citizens who, without taking up residence in the Federal territory, wish to render services as self-employed persons pursuant to Article 50 of the Treaty establishing the European Community (service providers), provided that they are entitled to provide the services concerned,
4. EU citizens as the recipients of services,
5. persons entitled to remain in the Federal territory pursuant to EEC regulation no. 1251/70 adopted by the Commission on 29 June 1970 on the right of employees to remain in the territory of a Member State after having been employed in that state (official EC Journal no. L 142, p. 24, corrected official EC Journal 1975 no. L 324, p. 31) and directive 75/34/EEC adopted by the Council on 17 December 1974 concerning the right of nationals of a Member State to remain in the territory of another Member State after having pursued therein an activity in a self-employed capacity (official EC Journal no. L 14, p. 10),
6. non-gainfully employed EU citizens, subject to the requirements of Section 4,
7. dependents, subject to the requirements of Sections 3 and 4. (3) The entitlement pursuant to Section 2 (1) shall remain unaffected by
temporary disablement for work as a result of illness or an accident. The same shall apply to periods of involuntary unemployment on the part of an employee which are confirmed by the competent local labour office and for periods during which a self-employed person ceases to pursue an economic activity as a result of circumstances which he or she was unable to influence.
(4) EU citizens do not require a visa in order to enter the Federal territory or a
residence title in order to stay in the Federal territory. Dependents who are not
EU citizens shall require a visa in order to enter the Federal territory if a legal
provision stipulates such a requirement.
(5) EU citizens, their spouses or partners in life and their dependent children
who have resided lawfully and continuously in the Federal territory for five years are entitled to enter into and stay in the Federal territory, irrespective of whether the other requirements pertaining to eligibility for general freedom of movement are fulfilled. For children under 16, this shall apply only if a parent or legal guardian is lawfully resident in the Federal territory.
(6) No charges shall be imposed for issuance of the certificate relating to the
right of residence, the EU residence permit and the visa.
Section 3
Dependents
(1) Dependents of the persons specified in Section 2 (2), nos. 1 to 3 shall
possess the entitlement pursuant to Section 2 (1) if they cohabit with the person entitled to freedom of movement whose dependents they are. Dependents of the persons specified in Section 2 (2), nos. 4 and 5 shall possess the entitlement pursuant to Section 2 (1), the latter in accordance with sub-sections 4 and 5.
(2) Dependents within the meaning of sub-section 1 are
1. the spouse and relatives in the descending line who are under 21 years of
age,
2. relatives in the ascending and descending line of the persons specified in
sub-section 1 or of the latter's spouse, for whom these persons or their
spouses provide maintenance.
(3) Dependents of a deceased gainfully employed person (Section 2 (2) nos.
1 to 3) who were permanently resident at the deceased's address at the time of the latter's death shall spossess the entitlement pursuant to Section 2 (1) if
1. the gainfully employed person had been permanently resident in the territory covered by the scope of this Act for at least two years at the time of his or her death orSection 5
Certificate confirming the right of residence under Community law,
EU residence permit
(1) EU citizens entitled to freedom of movement and their dependents who
are nationals of a member state of the European Union shall be issued a
certificate confirming the right of residence as standard procedure by the
competent authority.
(2) Dependents who are not EU citizens shall be issued an official EU
residence permit.
(3) The competent foreigners authority may require fulfilment of the
requirements pertaining to the entitlement pursuant to Section 2 (1) to be
substantiated within reasonable periods. The relevant information can be
furnished to the competent registration office when registering with the said
office. The registration office shall then forward the information to the competent foreigners authority. The registration office shall not process or use the information for any other purposes.
(4) Should special circumstances so require, verification that the
requirements pertaining to eligibility for the certificate are still fulfilled may be
carried out.
(5) Should the requirements pertaining to the entitlement pursuant to Section
2 (1) cease to be met within five years of the person concerned establishing
permanent residence in the Federal territory, the loss of the entitlement
pursuant to Section 2 (1) may be declared, the certificate confirming the right of residence under Community law withdrawn and the EU residence permit
revoked. Section 3 (3), sentence 2 shall apply mutatis mutandis.
Section 6
Loss of the entitlement to entry and residence
(1) Without prejudice to Section 5 (5), loss of the entitlement pursuant to
Section 2 (1) can only be determined, the certificate confirming the right of
residence under Community law withdrawn and the EU residence permit
revoked on grounds of public order, safety or health (Article 39 (3), Article 46 (1) of the Treaty on the European Community). Entry may also be refused on the grounds stated in sentence 1.
(2) A criminal conviction alone shall not constitute sufficient grounds for the
decisions or measures specified in sub-section 1. Only criminal convictions
which have yet to be deleted from the Federal Central Criminal Register may be taken into consideration, and these only insofar as the circumstances pertaining to the said convictions indicate personal behaviour which constitutes a current threat to public order. A real and sufficiently serious danger must apply which affects a fundamental interest of society. (3) After permanent, lawful residence in the Federal territory for a period of
more than five years, the loss of the entitlement to entry and residence can only be determined on particularly serious grounds.
(4) The decisions or measures stated in sub-sections 1 to 3 must not be
undertaken for economic purposes.
(5) Should a passport, identification card or other passport substitute become
invalid, this cannot constitute grounds for termination of the holder's residence.
(6) Prior to the decision pursuant to sub-section 1, the person concerned
should be heard. The decision must be issued in writing.
Section 7
Requirement to leave the Federal territory
(1) EU citizens shall be required to leave the Federal territory, if the
foreigners authority has indisputably established that no entitlement to entry and residence exists. Dependents who are not EU citizens shall be required to leave the Federal territory, if the foreigners authority has unappealably revoked or withdrawn the EU residence permit. A notice of intention to deport shall be served, setting a deadline for departure. Except in urgent cases, a minimum deadline period of 15 days must be set if an EU residence permit or a certificate confirming the right of residence under Community law has yet to be issued, while a minimum deadline period of one month shall apply in all other cases.
(2) EU citizens and their dependents who have lost their entitlement to
freedom of movement pursuant to Section 6 (1) or (3) shall not be permitted to
re-enter and stay in the Federal territory. The prohibition pursuant to sentence 1 is subject to a time limit. The time limit begins upon the person concerned
leaving the Federal territory.
Section 8
Obligation to carry identification papers
EU citizens and their dependents shall be obliged,
1. on entering the Federal territory,
a) to carry a passport or a recognised passport substitute on their person
and,
b) on request, to hand over such identification papers to a competent official
for inspection,
2. to hold the necessary passport or passport substitute for the duration of their
stay in the Federal territory, 3. to present the passport or passport substitute and the certificate confirming the right of residence under Community law and the EU residence permit to the authorities charged with implementing this Act and to hand over the aforesaid papers and leave them with the said authorities for a temporary period, should this be necessary in order to enforce or safeguard measures under this Act.
Section 9
Penal provisions
Any person who enters or stays in the Federal territory in contravention of
Section 7 (2), sentence 1 shall be punishable by up to one year's imprisonment or a fine.
Section 10
Provisions as to fines
(1) Anyone who does not hand over a passport or passport substitute or fails
to do so in good time in contravention of Section 8 (1), letter b shall be deemed to have committed an administrative offence.
(2) Anyone who, with intent or through negligence, is not in possession of a
passport or passport substitute in contravention of Section 8 (2) shall be
deemed to have committed an administrative offence.
(3) Anyone who, with intent or through negligence, does not carry a passport
or passport substitute on their person in contravention of Section 8 (1), letter a
shall be deemed to have committed an administrative offence.
(4) The administrative offence shall be punishable with a fine of up to two
thousand five hundred euros in the cases covered by sub-sections 1 and 3, and with a fine of up to one thousand euros in the other cases.
(5) In the cases covered by sub-sections 1 and 3, the administrative
authorities within the meaning of Section 36 (1), no. 1 of the Administrative
Offences Act shall be the Federal Border Police offices.
Section 11
Application of the Residence Act
(1) Section 3 (2) , Section 11 (2), Sections 13, 14 (2), Sections 36, 44 (3),
Section 46 (2), Section 50 (3) to (7), Section 74 (2), Sections 77,80, 85, 86 to
88, 90, 91, 96 and 96a of the Residence Act shall apply mutatis mutandis to EU citizens and their dependents who are entitled to enter and stay in the Federal territory pursuant to Section 2 (1) or (5). The Residence Act shall also apply if it establishes a more favourable legal status than this Act. (2) If the foreigners authority has determined that the entitlement pursuant to
Section 2 (1) or the entitlement pursuant to Section 2 (5) does not exist or has
lapsed, the Residence Act shall apply in the absence of any special provisions
contained in this Act.
(3) For the purposes of this Act, periods of lawful residence of under five
years shall correspond to the periods of possession of a residence permit;
periods of over five years shall correspond to the periods of possession of a
settlement permit.
Section 12
Nationals of EEA states
This Act also applies to nationals of EEA states and their dependents within
the meaning of this Act. The force of law is hereby conferred on the above Act. The Act shall be promulgated in the Federal Law Gazette.
Berlin, 20 June, 2002
The Federal President
The Federal Chancellor
The Federal Minister of the Interior
The Federal Minister of Foreign Affairs
The Federal Minister of Justice
The Federal Minister of Finance
The Federal Minister of Economics and Technology
The Federal Minister of Labour and Social Affairs
The Federal Minister for Family Affairs, Senior Citizens, Women and Youth
The Federal Minister of Transport, Building and Housing
The Federal Minister of Education and Research
The Federal Minister for Economic Cooperation and Development