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Guide: Applying for a Residence Permit Germany

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Step-by-Step-Guide how to apply for a residence permit in Germany at your local foreigners office

... which requirements you must fulfil in order to apply for a residence permit at the Foreigners' Office

... which documents are required to apply for and extend a residence permit

... Details on the size and rental period of your rented flat and on permissible health insurance policies (in particular expat and incoming insurance policies)

... when the residence permit expires and how to apply for an extension

HERE YOU LEARN ...

Written by: Attorney at Law (Berlin)
Publication date: 12.04.2024
Estimated reading time: 12 min.

1. Applying for a residence permit in Germany

A residence permit can always be issued if the general residence requirements and the special residence requirements are met. The special residence requirements are usually the purpose of residence (e.g. work, study or family reunification) and vary from case to case. In addition to these special residence requirements, however, the general requirements must also be met. These general requirements are the same in every visa and residence case, which is why they must always be fulfilled by every foreigner. This article presents all the general residence requirements to be fulfilled by foreigners.

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To stay in Germany, you must fulfil the following general residence requirements:

 

  • clarified identity (passport)

  • secure livelihood (financial means, housing and health insurance)

  • No criminal record or other deportation interests

  • Entry with the correct visa

 

These requirements can only be waived under certain circumstances. This can always happen if there is an exceptional case . Whether this is the case can be fully reviewed by the courts (BVerwG, judgement of 30.04.2009, 1 C 3/08). In case of doubt, you can find out from a lawyer when such an exceptional case exists.

2. Requirements for the issue of a residence permit

2.1 Clarified identity and passport requirement

Identity and nationality must be clarified before a residence permit can be issued. As a rule, identity is clarified by presenting a passport. However, this is not mandatory, as there are countries whose passports are not recognised (e.g. Somalia and Afghanistan). In such cases, further documents may have to be presented to clarify identity (e.g. an Afghan Tazkira). However, the obligation to co-operate ends at the limit of reasonableness. If necessary, a replacement identity document can also be issued.

2.2 Securing a livelihood

A further requirement for the issue of a residence permit is that the person's livelihood is secured. Securing one's livelihood means the ability to pay the rent, all necessary insurances (especially health insurance) and expenses for general living expenses (food) without drawing on public funds. With a few exceptions, the means of subsistence must always be secured.

 

In order to secure subsistence, there must be a positive forecast that the foreigner's subsistence will be secured in the long term without recourse to other public funds. This requires a comparison of the anticipated need for maintenance with the resources available in the long term. Both the determination of the available income and the maintenance requirement for foreigners capable of work and persons who live with them in a community of need are generally based on SGB II (BVerwG, 26 August 2008, 1 C 32.07, guiding principle 1; BVerwG 29 November 2012, 10 C 4.12, para. 25). However, the decisive factor here is not whether social benefits are actually received, but only whether an entitlement exists (BVerwG, 26 August 2008 - BVerwG 1 C 32.07, para. 19 ff.). The foreigners authority will therefore always calculate the need "notionally", regardless of whether social benefits are actually received (even if the foreigner waives social benefits).

2.2.1 Sufficient financial resources

How are needs determined?

To determine the total need, the expenses of the entire community of need must be added together. The community of need includes the following groups of people:

 

  • person living in a partnership (irrespective of any marriage),

  • unmarried children under the age of 25, as long as they are not economically independent,

  • Parents of unmarried children under the age of 25,

  • partners of the parents of unmarried children under the age of 25.

 

Groups not entitled to maintenance (e.g. parents of the spouse) and pensioners are not taken into account under residence law. Purely shared accommodation does not constitute a community of need as long as it is not a "community of responsibility" and there is a maintenance claim. A community of responsibility is only assumed if people live together for longer than one year and can dispose of each other's income.

 

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How much is a foreigner required to cover their living expenses?

The amount of a foreigner's need is based on the standard rates of § 20 SGB II, § 27a, 28 SGB XII. These are the following amounts in 2024

 

Needs of single persons (livelihood security): 563.00 euros

Need for spouses (livelihood security): 1,012.00 euros

Needs of persons up to and including 5 years of age (subsistence protection): 357.00 euros

Needs of persons aged 6 to 13 (subsistence protection): 390.00 euros

Needs of persons aged 14 to 17 (subsistence protection): 471.00 euros

Requirement for adults in a community of need (livelihood protection): 451.00 euros

 

Additional needs may exist for particularly vulnerable groups of people (e.g. expectant mothers, disabled people, single parents and other special groups).

 

The rent including operating costs must then be added to the social needs. The tenancy agreement must be submitted to the Aliens Department for this purpose. In the case of subletting agreements, permission to sublet may also be required (VG Berlin, 19.05.2014, 5 K 187.13 V). If housing is provided free of charge, the immigration authority generally applies the "customary local" rent (OVG Berlin-Brandenburg, 14 April 2010, 11 S 12.10). The rental agreement must fulfil certain criteria with regard to size and rental period.

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How is income determined?

As soon as the need has been determined, it must be checked whether the community of need has sufficient income to cover the need (BVerwG 29 November 2012, 10 C 4.12). The income is usually derived from the employment contracts, but other sources of income are also conceivable (e.g. rental or investment income). If the income fluctuates (e.g. in the case of self-employed persons), the average income of the last 6 months must be calculated.

 

A lump sum for income-related expenses and the allowance for gainfully employed persons of 100 euros must then be deducted from the income (BVerwG, 26 August 2008, 1 C 32.07, Ls. 2, para. 24). According to the legal doctrine, the following amounts must therefore be subtracted from income:

 

Flat-rate allowance for income-related expenses (§ 11b II SGB II): - 100 euros

20% of gross income between €100 and €520: max. - €84

30 % of gross income between € 520 and € 1000: max. - € 144

10 % of gross income between € 1000 and € 1200/1500: max. 20/50

 

As a result, a maximum of €378 must be deducted from your income. In addition, maintenance obligations to relatives living outside the community of need must be deducted (BVerwG 07.04.2009, 1 C 17.08), even if these are not titled. The minimum maintenance according to § 1612a BGB can be used as a benchmark. However, maintenance obligations are not taken into account if it can be assumed that these maintenance obligations will not be enforced in the future (BVerwG 10 C 14.12, 29 November 2012). Maintenance obligations of adult children towards their parents (e.g. in the event of care) are also not taken into account (BVerwG, 28 September 2004, 1 C 10.03).

Sample calculation for securing a livelihood

As a result, the livelihood of a foreigner should be calculated as follows:

 

Net income

minus lump sum for work-related expenses

minus the family's standard needs

minus rent

minus health insurance

 

The exact calculation of living expenses can be very laborious (especially in complicated cases). If in doubt, a lawyer specialising in migration law should be consulted, as the immigration authorities often disregard many circumstances that are favourable to the foreigner.

 

According to the case law of the Federal Administrative Court, a prognosis decision must be made. The decisive factor here is whether residence will be secured in the long term (BVerwG 29.11.2012, 10 C 4.12). In particular, career opportunities against the background of the foreigner's (possibly particularly good) education must also be taken into account. According to case law, the time horizon to be taken as a basis is 1 year (ECJ, Mimoun Khachab case, judgement of 21 April 2016, C-558/14).

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2.2.2 Flat/Apartment

2.2.3 Health insurance

2.3 No criminal record or interest in deportation

The issue of a residence permit also requires that there is no "interest in deportation". This is particularly the case if the applicant has a criminal record. However, previous convictions can only be held against a residence permit if the conviction is no longer entered in the Federal Central Criminal Register (BVerwG, judgement of 12.07.2018 - 1 C 16.17, para. 22 ff). The utilisation periods of Section 51 BZRG apply.

 

However, it should be noted that deportation does not have to actually be possible. Rather, it is sufficient that there is an interest in deportation. Therefore, even minor legal offences (e.g. road traffic offences) can be sufficient to prevent the extension of a residence permit. However, the limit here is proportionality. In Berlin, there is also a "minor offence threshold": the Berlin authorities only assume an interest in deportation if the applicant has been sentenced to more than three months' imprisonment or a juvenile sentence or a fine of more than 90 daily rates in the last three years. However, the Berlin standards do not apply nationwide, which means that other authorities can refuse to extend a residence permit even for minor offences.

2.4 Entering the country with the correct visa

In principle, it is also necessary for the applicant to have entered the country with the required visa. This means that entry must be made with the same visa as the subsequent stay. In particular, it is not possible, for example, to enter the country with a Schengen visa and then apply for a visa for gainful employment at the immigration authority. In this respect, the legislator has intended the visa as a control instrument for migration. A visa is therefore required even if the applicant is already in Germany. Of course, this only applies to the initial issue of a new residence permit and not to the extension of a residence title (Section 39 No. 1 AufenthV).

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When can a residence permit be applied for without a visa?

The law recognises various exceptions to the visa requirement. These are mainly the following:

 

  • Applying for an extension instead of an initial issue,

  • Permanent exemption from the requirement for a residence permit (e.g. former EU citizens and diplomats),

  • fulfilment of eligibility requirements after entry (e.g. marriage of a German, birth of a German child, job offer as a skilled worker),

  • Holding residence permits from other Schengen states (in particular Blue Card)

 

Which foreigners do not have to go through a visa procedure?

However, entry with the correct visa is generally not required if a residence title can be applied for in Germany (§§ 39 ff. AufenthV). Of particular practical relevance here is the holding of a Blue Card from another European country (Sec. 39 No. 7, 7a AufenthV) and the extension of an ICT card (Sec. 39 No. 8 AufenthV).

 

Furthermore, nationals of certain countries do not have to complete the visa procedure in order to apply for a residence permit in Germany (so-called best friends countries). This primarily includes the following nationalities: Australia, Israel, Japan, Canada, the Republic of Korea, New Zealand, the United Kingdom of Great Britain and Northern Ireland and the United States of America (USA). Under certain conditions, this also applies to the following nationalities: Andorra, Brazil, El Salvador, Honduras, Monaco and San Marino.

3. Expiry of the residence permit

As a rule, the residence permit can only be issued if there are no grounds for cancellation. This means that even if all the general conditions for granting a residence permit are met, there must be no circumstances that would cause the residence permit to expire. The most common grounds for cancellation are described below.

 

When does my residence permit expire?

The residence permit expires in accordance with § 51 AufenthG in the following cases:

 

  • Expiry of the period of validity

  • fulfilment of a condition subsequent (e.g. termination of studies, discontinuation of health insurance cover, claiming benefits under SGB II, SGB XII, AsylblG)

  • Withdrawal and cancellation

  • Expulsion and deportation order

  • Departure for non-temporary reasons

  • Departure for more than 6 months

  • Retroactive time limit

  • Special regulations for certain humanitarian titles

 

Particularly relevant here are the grounds for cancellation of departure for more than 6 months (§ 51 Para. 1 No. 7 AufenthG) and departure for a non-temporary reason (§ 51 Para. 1 No. 6 AufenthG). There are exceptions here, particularly in the case of long-term residence with a settlement permit, for holders of an EU Blue Card or an EU permanent residence permit (and their family members) and for spouses of Germans.

4. Extension of the residence permit

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