Information for foreigners that are non-EU citizens (third-country nationals)

In order to enter and stay in Germany, third-country nationals always require a residence title ("Aufenthaltstitel"). The Residence Act ("Aufenthaltsgesetz") essentially distinguishes between two different residence titles: the unlimited settlement permit ("Niederlassungserlaubnis") and the limited resident permit ("Aufenthaltserlaubnis"). Other important differences in terms of the legal positions of third-country citizens also depend on the purpose for which the limited resident permit is issued.

Note: Visas are also a type of residence permit. A visa, depending on the reasons given for residence in Germany when applying for the visa, is essentially the same as the different types of residence permits discussed in this section. The main difference is that a visa is issued by a German representative office outside of Germany. Residents from the majority of countries throughout the world are subject to visa restrictions. That means that a visa must be applied for at the German representative office in the citizen’s home country before entering Germany. The planned reason for coming to Germany must be correctly given in all visa applications.

More information on visas for Germany and countries whose citizens are required to have a visa can be found at the Internet site: www.auswaertiges-amt. de "Welcome to Germany"/ "Entry into Germany".

The Aufenthaltserlaubnis is a limited residence permit. For some groups of people, however, it becomes the basis for any long-term stay in Germany. In other words after a certain duration of residence in Germany and after certain conditions are met, holders have the right to apply for an unlimited settlement permit ("Niederlassungserlaubnis"). The "Aufenthaltserlaubnis" is generally only issued for specific reasons for coming to Germany. The rights that are granted with an "Aufenthaltserlaubnis" (e.g. entitlement to employment, subsequent immigration of dependents), depends in many cases on the purpose for which the "Aufenthaltserlaubnis" was issued (e.g. employment, training, recognition of refugee status, temporary protection etc).

Employment

A residence permit ("Aufenthaltserlaubnis") only ever allows you to take up gainful employment (employee or self-employment) if the residence permit expressly entitles you to do this. The following procedure generally applies for employees: The immigration authorities ("Ausländerbehörde") check whether the general legal prerequisites for foreigners are fulfilled for issuing an "Aufenthaltserlaubnis". If these are fulfilled, the immigration authorities request approval from the "Bundesagentur für Arbeit" (Federal Employment Agency) for taking up employment in a job. Approval is only then given if the job cannot be filled by a German, EU citizen or other employees given preferential treatment (e.g. third-country nationals who have been living in Germany for a longer period of time). This is known as the Priority Principle ("Vorrangprinzip"). After specific periods of time have lapsed, it is possible to be given the same access to the employment market as German and EU citizens.

Note: Turkish workers and their family members who are legally in Germany are subject to special regulations in regard to work permits. These people have the right to work for others after they have worked for the same employer for a period of four years.

N. B. The residence permit ("Aufenthaltserlaubnis") is only extended or converted into an unlimited settlement permit ("Niederlassungserlaubnis") if an application is made. This application must occur within the time frame given. It is therefore prudent to apply for a new permit some time before the old one has run out. In no case should the new permit be applied for after the old one has elapsed, because this could officially mean the person is illegally residing in Germany. This can lead to a lot of trouble and a loss of certain rights! For example, if the permit runs out on the 18th of February, then the new permit should be applied for on the 18th of February at the very latest, and preferably some time in advance of this date.

The "Niederlassungserlaubnis" secures permanent residence in Germany. It has no time or spatial restrictions and gives you the right to take up gainful employment without having to undergo further approval by the "Bundesagentur für Arbeit" (Federal Employment Agency). This unlimited settlement permit generally entitles you to take up any form of gainful employment (exceptions apply only to a few professions, in particular the medical profession, e.g. doctors, and for receiving civil service status).

The "Niederlassungserlaubnis" should be applied for as soon as all conditions are met.

In the majority of cases this settlement permit will not be issued immediately. There are exceptions, however, for highly qualified people. People also receive a settlement permit directly on arrival in Germany who are accepted by the Federal Republic of Germany for special political reasons (e.g. Jews from the former Soviet Union). All other groups can only receive a settlement permit after a specific period of stay in Germany. Depending on the purpose for which the residence permit ("Aufenthaltserlaubnis") was issued, you may be entitled to a settlement permit ("Niederlassungserlaubnis") if other preconditions are fulfilled.

The following conditions must generally be met in order to receive a settlement permit:

• Possession of a residence permit ("Aufenthaltserlaubnis") for at least five years
• Five years of employment, including payment of social insurance contributions
• Secure livelihood
• Sufficient accommodation for you and your family
• Sufficient knowledge of German
• Basic knowledge of the German legal and social systems

For spouses it is sufficient if the partner is employed and pays social insurance contributions. For children there are wide-ranging exemptions. They are generally entitled to a settlement permit if, at the age of 16, they have possessed a residence permit for five years. There are also special regulations for issuing settlement permits for recognised refugees. They can usually already receive a settlement permit after three years.

Tip: When extending your residence permit ("Aufenthaltserlaubnis"), ask the official dealing with your case about the conditions that still have to be fulfilled before you can apply for a settlement permit ("Niederlassungserlaubnis").

N. B. Even if you possess an "Aufenthaltserlaubnis" or a "Niederlassungserlaubnis", a period of residence outside of Germany can lead you to losing your right of residency in Germany. Of course, not every holiday or trip to visit relatives and friends will lead to the loss of residency rights. But if you show that you are travelling abroad with the intention of staying there for some time (for instance if you cancel the contract on your flat in Germany), then the right of residency is immediately and automatically void. Even if you only leave for a short time there is also a danger. If you stay abroad for a period longer than 6 months, the "Aufenthaltserlaubnis" or the "Niederlassungserlaubnis" are automatically rescinded. Therefore, if you are intending to remain abroad for a long period of time then you should talk to your local immigration authorities. There are a number of legally binding exceptions (for instance for military service and for pensioners). The immigration authorities can help in these matters and discuss other possible exceptions.

There are various residence permits that are issued for the purpose of taking up employment (as an employee or self-employed work). Which residence permit applies to you and which preconditions need to be fulfilled essentially depends on the type of intended employment. Here it is distinguished between employment that does not require any professional qualifications, qualified employment, highly qualified employment and self-employed work.

Non-qualified Employment

It is generally not possible to receive a residence permit for the purpose of taking up employment that does not require professional qualifications. These are only issued under exceptional circumstances if this has been allowed for in intergovernmental agreements or is permitted by legal ordinance.

Qualified Employment

It is permitted to employ professionally qualified foreigners in the case of specific vocations. These occupational groups are determined by legal ordinance. In individual cases, a residence permit can be issued for the purposes of carrying out a job requiring professional qualifications if this is in the public interest.

Highly Qualified Employment

Highly qualified persons can, in special cases, receive a settlement permit ("Niederlassungserlaubnis") right from the outset. The prerequisites for this are, among others, that they have a concrete job offer and that the "Bundesagentur für Arbeit" (Federal Employment Agency) has given their approval. People regarded in particular to be highly qualified persons are scientists with special expert knowledge, teachers and scientific workers with specialist functions. This group also includes specialists and people in senior managerial positions who receive a salary that is above a stipulated minimum value (double the contribution assessment ceiling for statutory health insurance, which is around € 4,000).

Self-employed Work

A residence permit can be issued for carrying out self-employed work. This presupposes that certain prerequisites are fulfilled that, in particular, ensure that the work has a positive effect on the German economy. These prerequisites are generally deemed to be fulfilled with a minimum investment sum of 1 million euros and the creation of ten jobs. If the investment sum or the number of jobs is less than these values, the prerequisites are examined in terms of the viability of the business idea, the amount of invested capital, the business experience of the foreigner and involves, among others, trade authorities and associations. Foreigners who are older than 45 years only receive a residence permit if they have a suitable retirement pension.

The residence permit is initially issued for a maximum of 3 years. If the planned business endeavour has been successfully realised in this time, a settlement permit can already be issued after three years regardless of the usual prerequisites.

Foreign nationals can be issued with a residence permit for the purpose of studying or for applying for a university place. A study applicant may stay for a maximum of nine months. Those who obtain university admission can obtain a residence permit for two years, which is normally extended until the end of the study. During the period of study, students may work up to 90 days or 180 half-days. It is also possible to carry out part-time work made available to students at the universities. On successfully completing the studies, the residence permit can be extended up to one year for the purpose of seeking employment. In order to receive a residence permit for taking up employment, however, the job must accord with the university qualification and it must be permissible for the job position to be filled by foreign workers. (This generally presupposes that the job cannot be carried out by Germans or other foreign nationals given precedence, in particular, EU citizens).

Information for foreign students or those interested in studying in Germany can be obtained from the "Deutsche Akademische Austauschdienst" (German Academic Exchange Service) at www.daad.de or at www.campus-germany.de. See also chapter Training and Further Education

Residency for the Purpose of Vocational Education and Training

A residence permit can also be issued for the purpose of vocational education and training. This generally requires the approval of the "Bundesagentur für Arbeit" (Federal Employment Agency) unless determined otherwise by legal ordinance or inter-governmental agreements.

There are also extensive rules regarding the rights of non-EU, third-country citizens’ to family reunion ("Familiennachzug"), i.e. the rights of family members to join a relative who is already resident in Germany. (For the rights of EU citizens who have availed themselves of their right of free movement, see below). The type of residence permit is a factor in these cases.

Whether family members who subsequently join a relative already resident in Germany have a right to take up employment generally depends on whether the relative already resident in Germany has such a right. Therefore, not only do the same rights apply to the family members who subsequently arrive but also the same restrictions (e.g. have less favourable access to the labour market).

The family reunion of third-country nationals can only occur after certain conditions have been met (for instance the apartment must not be too small and the livelihood of the family members joining somebody in Germany must be guaranteed by the person already resident in Germany). Exceptions can be made, for instance with recognised refugees (people with rights to asylum or refuge according to the Geneva Refugee Convention), because the family can only get together on a regular basis in Germany. In addition, different conditions apply to different family members who wish to move to Germany.

Family members who are normally allowed to join a person already resident in Germany include the person’s spouse (see a), the person’s children (see b) and in individual cases also other family members (see c).

• a) Spouses have the right to come to Germany if the partner already living in Germany has a settlement permit ("Niederlassungserlaubnis"), and also in some cases if he/she has a residence permit ("Aufenthaltserlaubnis"). With the latter group ("Aufenthaltserlaubnis"), this right only applies if the partner living in Germany is a recognised refugee, or has possessed a residence permit for five years, or the marriage already existed at the point at which the third-country national arrived in Germany and the duration of his/her residency is expected to last more than one year. In cases where these conditions are not met (for instance if the marriage occurs after the person has moved to Germany), then the authorities have the discretion to decide themselves.
• b) Children have a right to join their parents in Germany until they are 16 if both parents (or the parent having the right of custody of the children) are in possession of an residence permit ("Aufenthaltserlaubnis") or a settlement permit ("Niederlassungserlaubnis"). Minors over the age of 16 also have a right to join their parents in Germany if they speak German or if the authorities are sure that the child will be able to integrate in Germany. The same applies if the child moves its main place of residence to Germany together with its parents or the parent having the right of custody, and both parents (or the parent having the right of custody) possess a residence or settlement permit. Children of people who have been granted asylum have the right to join their parents in Germany until the age of 18. With juvenile children where these conditions are not met, the authorities have the discretion to decide themselves. Here, authorities can only allow the children to move to Germany if this is necessary to avoid cases of particular hardship.
• c) Other family members – such as adult children or grandparents – also have the right to join their family members in some cases. This is only permitted, however, if certain stringent conditions are fulfilled. There must be a case of "extraordinary hardship". This can occur if either side (either the ones residing in Germany or those abroad) needs to be urgently looked after by the relatives because they are ill or at an advanced age.

Note on the keyword "Partnership": In Germany same-sex couples can form a partnership or civil union similar to marriage. The foreign partners in this type of relationship also have the same basic rights as those of married spouses.

Note: German citizens have fewer restrictions in terms of bringing family members into Germany. For instance, all children who are residents of third countries can come to Germany until they have reached the age of 18. Even if a German citizen living in Germany is no longer able to look after himself or herself, relatives from abroad are also normally allowed to come to Germany, as it is not expected that the family member living in Germany could or should be forced to move abroad.

Note: Recognised refugees (people with rights to asylum or refuge according to the Geneva Refugee Convention) enjoy important privileges (e.g. it is not absolutely necessary to have a guaranteed livelihood). On the other hand, people who receive a residence permit for other humanitarian grounds or for reasons of international law are subject to sometimes substantial restrictions in terms of the right to family reunion. Only certain aspects of these complex rules can be described here.

Note on the keyword "Independent Right of Residence": Some marriages fail because of disagreements or even the use of violence. In the past there was a problem here because in order to extend an "Aufenthaltserlaubnis", the same conditions normally had to be met that applied when issuing the "Aufenthaltserlaubnis". If the persons concerned did not yet have a permanent residence permit (now called a "Niederlassungserlaubnis" or settlement permit), then sometimes the authorities refused to extend the residency rights of the spouses because the married couple had separated. Legislators believed that this was too hard. Now residency rights are extended even if the partnership has ended, as long as the marriage was in place for two years after moving to Germany. If the couple split up before the two years have elapsed, individual residency rights are nevertheless granted in some cases of hardship. Legislators assume that such cases of hardship occur when women, for instance, are forced to leave their husbands after being subjected to domestic violence.

If friends or family members from abroad wish to visit Germany, this is not governed by the same regulations governing family members who wish to remain in Germany. Third-county visitors often need to secure a visa before coming even if they only want to stay briefly in Germany. In other words, visitors must acquire a visa, which is subject to a fee, from a German representative office in the third county. The German representative offices have a considerable amount of leeway when allocating visas. Of course, family ties are taken into account when allocating visas, and close relatives are often granted visas in these cases. In order to gain a visa, the visitor must prove that he/she has enough means at their disposal to finance their stay in Germany. This proof is usually provided by the family member resident in Germany, who signs a form at the local Immigration Office guaranteeing that they will cover the living costs of the visitor should this be necessary. This guarantee is called a "Verpflichtungserklärung". The Immigration Office often charges a fee for processing this application.

Tip: More information on visas for Germany and countries whose citizens are required to have a visa can be found at the Internet site: www.auswaertiges-amt.de, "Welcome to Germany"/ "Entry into Germany".