HERE YOU LEARN ...
... what requirements you must meet to apply for a residence permit from the immigration authorities
... how to book an appointment at the immigration office (especially in Berlin)
... which documents are necessary for the application and extension of a residence permit
... necessary size and rental period of your rental apartment
Written by:
Attorney
Publication date:
14.05.2024
Reading time
10 mins
Table of Content
1. Apply for a residence permit in Germany
2. Requirements for residence permit (first issue)
2.1 Clarified identity and passport requirement
2.2 Securing a livelihood
2.3 No previous convictions or interest in deportation
2.4 Entry with the correct visa
2.5 No grounds for termination (especially stays abroad)
3. Residence permit and appointment in Berlin
3.1 Appointment at the immigration office
3.2 Appointment at the Berlin Immigration Office (LEA)
4. Extension of residence permit
5. Residence permit to settlement permit
6. FAQ on residence permits
1. Apply 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 (Section 5 of the Residence Act). The special residence requirements are usually the purpose of the stay (e.g. work (Sections 18 ff. of the Residence Act), studies (Sections 16 ff. of the Residence Act) or family reunification (Sections 27 ff. of the Residence Act)) and vary from case to case . In addition to these special residence requirements, the general requirements must also be met. These general requirements are the same for every visa and residence case, which is why every foreigner must always meet them. This article presents all the general residence requirements that foreigners must meet.
To stay in Germany you must meet the following general residence requirements :
clarified identity (passport)
Secured livelihood (financial resources, housing and health insurance)
no previous convictions or other reasons for deportation
Entry with the right visa
Deviations from these requirements can only be made under certain circumstances . This can always happen if an exceptional case applies. Whether this is the case can be fully verified by the courts (BVerwG, judgment of April 30, 2009, 1 C 3/08). If in doubt, you can find out from a lawyer when such an exceptional case applies.
2. Requirements for the granting of a residence permit
2.1 Clarified identity and passport requirement
In order to be granted a residence permit, it is necessary that the identity and nationality are clarified (Section 5 Paragraph 1 No. 1a of the Residence Act). As a rule, identity is clarified by presenting a passport . However, this is not mandatory, as there are countries whose passports are not recognized (e.g. Somalia and Afghanistan). In these cases, further documents may have to be presented to clarify identity (e.g. an Afghan Tazkira). However, the obligation to cooperate ends at the limit of what is reasonable. If necessary, an ID card replacement can also be issued (e.g. a travel document for foreigners in accordance with Section 5 of the Residence Ordinance).
2.2 Securing a livelihood
Another requirement for the granting of a residence permit is that the person's livelihood is secured (Section 5 Paragraph 1 No. 1 of the Residence Act). Securing a livelihood means the ability to pay rent , all necessary insurance (especially health insurance ) and the expenses for general living needs (food) without having to rely on public funds (Section 2 Paragraph 3 of the Residence Act). With a few exceptions, the person's livelihood must always be secured.
Enough money to live
In order to secure a livelihood, there must be a positive prognosis that the foreigner's livelihood will be secured in the long term in the future without recourse to other public funds. This requires a comparison of the expected maintenance requirements with the resources available in the long term . In this case, both the determination of the available income and the maintenance requirements for employable foreigners and persons living with them in a community of need are generally based on SGB II (BVerwG, August 26, 2008, 1 C 32.07, guiding principle 1; BVerwG November 29, 2012, 10 C 4.12, marginal no. 25). However, the decisive factor is not whether social benefits are actually received, but only whether there is an entitlement (BVerwG, August 26, 2008 - BVerwG 1 C 32.07, marginal no. 19 ff.). The immigration authorities will therefore always calculate the need “fictitiously”, regardless of whether social benefits are actually received (even if the foreigner waives social benefits).
How is the needs of the community of need determined?
To determine the total requirement, the expenses of the entire community of need must be added together. The following groups of people belong to the community of need:
person living in a partnership (regardless of any marriage),
unmarried children under 25 years of age, as long as they are not economically independent,
Parents of unmarried children under 25 years of age,
Partner of the parents of unmarried children under 25 years of age.
How much does a foreigner need to earn a living?
The amount of a foreigner's needs is based on the standard rates of Section 20 SGB II, Section 27a, 28 SGB XII . These are the following amounts in 2024:
Needs of single people (subsistence): 563.00 euros
Spouse’s needs (subsistence): 1,012.00 euros
Needs for persons up to and including 5 years (subsistence): 357.00 euros
Needs for persons aged 6 to 13 years (subsistence): 390.00 Euro
Needs for persons aged 14 to 17 years (subsistence): 471.00 Euro
Needs of adults in a community of need (subsistence security): 451.00 euros
The rent including the operating costs must then be added to the social security requirement. The rental agreement must be submitted to the immigration authorities for this purpose. In the case of subletting agreements, permission to sublet may also be required (VG Berlin, May 19, 2014, 5 K 187.13 V). In the case of free housing, the immigration authorities usually set the “local” rent (OVG Berlin-Brandenburg, April 14, 2010, 11 S 12.10). The rental agreement must meet certain criteria in terms of size and rental period.
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 29.11.2012, 10 C 4.12). The income usually comes from the employment contracts, but other sources of income are also conceivable (e.g. rental or capital income). If the income fluctuates (e.g. for the self-employed), the average income of the last 6 months must be calculated. The exact calculation of the cost of living can be very laborious (especially in complicated cases). If in doubt, a lawyer specializing in immigration law should be consulted , as the immigration authorities often fail to take into account many circumstances that are favorable 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 the stay will be secured in the long term (BVerwG 29.11.2012, 10 C 4.12). In particular, career opportunities must be taken into account against the background of the foreigner's (possibly particularly good) education. According to the case law, the time horizon to be used is 1 year (ECJ, case Mimoun Khachab, judgment of 21.04.2016, C-558/14).
Apartment
How big does my apartment have to be?
The law basically requires that a foreigner has "sufficient" living space available. According to case law, this is the case if 12 m² is available for each family member over 6 years of age and 10 m² for each family member under 6 years of age . According to case law, a reduction of 10% of these values is harmless (OVG Berlin-Brandenburg, 25.03.2010, OVG 3 B 9.08).
How do I prove housing costs if I own my own home?
In the case of home ownership, it is usually not the rental agreement that needs to be proven, but the monthly loan repayment including the housing benefit to be paid to the property management company.
health insurance
Is travel health insurance enough to get a visa?
Whether travel health insurance is sufficient for a visa application depends on whether you are applying for a Schengen visa or a permanent visa. Travel health insurance is sufficient for a Schengen visa, but not for a permanent visa.
What type of health insurance do I need for a D visa?
To apply for a D visa, you need “substitutive” health insurance . This means that your health insurance must offer at least the same benefits as the statutory health insurance in Germany (Section 2 Paragraph 3 Sentence 3 of the Residence Act).
Is statutory health insurance sufficient to apply for a D visa?
Yes, insurance in the statutory health insurance system is sufficient to apply for a permanent visa in Germany (Section 2 Paragraph 3 Sentence 3 of the Residence Act).
Which health insurance is the most commonly used health insurance?
The most commonly used health insurance is the Techniker Krankenkasse (TK). The Techniker Krankenkasse offers an uncomplicated online registration (not an affiliate link).
Is expat insurance or incoming insurance sufficient to apply for a visa for Germany?
No, expat or incoming insurance is not sufficient for a permanent stay in Germany, as expat and incoming insurance usually does not cover the scope of services of statutory health insurance (see Section 2 Paragraph 3 Sentence 3 of the Residence Act). However, this depends on the insurance.
2.3 No previous convictions or interest in deportation
The granting 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 used against a residence permit if the conviction is no longer recorded in the Federal Central Register (BVerwG, judgment of July 12, 2018 - 1 C 16.17, para. 22 ff). The processing 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 violations (e.g. in traffic) can be enough to thwart the extension of a residence permit. The limit here, however, is proportionality. In Berlin, there is also a " minority threshold ": the Berlin authorities only assume an interest in deportation if the applicant has been sentenced to a prison sentence or youth sentence of more than three months or to a fine of more than 90 daily rates in the last three years. However, the Berlin standards do not apply nationwide, so other authorities can refuse to extend a residence permit even for lesser penalties.
2.4 Entry with the correct visa
In principle, it is also necessary that the applicant has entered the country with the required visa (Section 5 Paragraph 2 of the Residence Act). 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 to the immigration authorities for a visa for employment purposes. The legislator has therefore provided for the visa as a control instrument for migration . A visa is therefore required even if the applicant is already in Germany. This of course only applies to the initial issue of a new residence permit and not to the extension of a residence title (Section 39 No. 1 of the Residence Ordinance).
When can a residence permit be applied for without a visa?
However, the law provides for various exceptions to the visa requirement. These are mainly the following:
Applying for an extension instead of an initial grant,
permanent exemption from the requirement of a residence permit (e.g. former Union citizens and diplomats),
The eligibility requirements arise after entry (e.g. marriage to a German, birth of a German child, job offer as a skilled worker),
Holding residence permits from other Schengen states (especially Blue Card)
Which foreigners do not have to go through a visa process?
However, entry with the correct visa is generally not required if a residence permit can be applied for in the country (§§ 39 ff. Residence Ordinance). Of particular practical relevance here is the possession of a Blue Card from another European country (§ 39 No. 7, 7a Residence Ordinance) and the extension of an ICT card (§ 39 No. 8 Residence Ordinance).
Furthermore, nationals of certain countries do not have to complete the visa procedure in order to apply for a residence permit in the country (so-called Best Friends countries , Section 41 Residence Ordinance). These primarily include the following nationalities: Australia, Israel, Japan, Canada, Republic of Korea, New Zealand, United Kingdom of Great Britain, Northern Ireland and United States of America (USA). Under certain conditions, this also applies to the following nationalities: Andorra, Brazil, El Salvador, Honduras, Monaco and San Marino.
Are there ways to avoid the visa process?
Yes, the visa procedure can be waived if it is “ unreasonable ” or if there is a so-called entitlement case. The immigration authorities can then, at their discretion, refrain from catching up on the visa procedure.
This is possible in the following case groups:
there is a legal right to be granted a visa (Section 5, Paragraph 2 of the Residence Act),
the subsequent visa procedure is unreasonable for the applicant (Section 5, Paragraph 2, Sentence 2 of the Residence Act),
a humanitarian residence permit is applied for (Section 5 Paragraph 3 of the Residence Act).
When is it “unreasonable” to repeat a visa procedure?
It is unreasonable to carry out the visa procedure retroactively in particular in the following cases:
Illness, pregnancy, disability of the applicant,
no travel connections available,
Existence of deportation bans,
Presence in Germany is mandatory (e.g. childcare),
No appointments available for visa applications.
There is probably no unreasonableness in the following cases:
the trip causes high costs,
there is a job offer,
a new apartment must be rented,
Completion of compulsory military service (OVG Berlin-Brandenburg, decision of 06.03.2008 OVG 11 S 43.07),
temporary separation from the spouse (OVG Berlin-Brandenburg, decision of 05.03.2007, OVG 2 S 19.07).
If the immigration authorities request that the visa procedure be completed later, an application for advance approval for the visa to be issued should be made to the immigration authorities in return in order to speed up the visa procedure (see Section 31 Paragraph 3 of the Residence Ordinance). Although the immigration authorities rarely cooperate in this regard, they are obliged under case law to counteract an excessively long visa procedure (OVG Bremen, December 21, 2011, 1 B 246/11).
When does a claim arise that makes it possible to circumvent the visa procedure?
A claim always exists when a residence permit “is” to be issued, i.e. the immigration authorities have no discretion. This is the case, for example, with all skilled immigration permits (especially the EU Blue Card). Even in these cases, however, all other requirements must be met without the immigration authorities having any discretion (so-called “ strict legal entitlement ”). According to the Federal Administrative Court, such a strict legal entitlement only exists if all mandatory and regular factual requirements are met (BVerwG, judgment of December 10, 2014, 1 C 15.14). Even a “should” regulation does not change this (BVerwG, judgment of December 17, 2015, 1 C 31.14). Even minor violations of the law prevent the emergence of a claim, since in these cases the immigration authorities must examine an interest in deportation (BVerwG, judgment of 10.12.2014, 1 C 15.14).
2.5. Expiry of the residence permit
As a rule, the residence permit can only be issued if there is no reason for it to expire. Even if all the general requirements for issuing the permit are met, there must be no circumstances that would cause the residence permit to expire. The most common reasons for expiration are presented below.
When does my residence permit expire?
The residence permit expires according to Section 51 AufenthG in the following cases:
Expiry of the period of validity
Occurrence of a resolutive condition (e.g. termination of studies, loss of health insurance coverage, use of benefits under SGB II, SGB XII, Asylum Seekers Act)
Withdrawal and revocation
Expulsion and deportation order
Departure for non-temporary reasons
Departure for more than 6 months
retroactive time limitation
Special provisions for certain humanitarian titles
Particularly relevant here are the reasons for expiration of a residence permit for more than 6 months (Section 51 Paragraph 1 No. 7 of the Residence Act) and for leaving the country for a non-temporary reason (Section 51 Paragraph 1 No. 6 of the Residence Act). Exceptions apply in particular to long-term residence with a settlement permit, for holders of an EU Blue Card or a permanent EU residence permit (and their family members) and for spouses of Germans.
What is a “non-temporary reason” (cause for termination)?
A residence permit expires if the foreigner leaves Germany for a " non-temporary reason ". The residence permit then expires immediately (and not after 6 months), so the reason for expiration of leaving for a non-temporary reason is independent of the period of time ( Section 51 Paragraph 1 No. 6 of the Residence Act ).
As a rule, the "non-temporary reason" has an objective and a subjective element. While the objective element refers to "hard facts" such as an ongoing employment relationship, a registered residence, family ties and the existence of banking and insurance contracts in Germany, the subjective element of leaving Germany for a "non-temporary reason" refers to the will to return to Germany.
Does the residence permit expire if a new residence permit is issued?
No. If another AT is subsequently issued, the original title remains valid until it expires. In particular, the authority may not destroy or confiscate the eAT.
What special reasons for termination apply to students?
For students, the additional provisions for the residence permit often play a special role. The residence permits according to Section 16b AufenthG usually contain one of the following additional provisions:
Expires upon completion of study preparatory measures
Expires upon completion of a university course at a (specific) German university
Expires upon completion of studies at a German university without a degree
Expires upon completion of studies in subject A at B University
What special reasons for termination apply to self-employed persons?
There are also special reasons for the expiration of a residence permit for self-employed persons and freelancers, which render it invalid. The following additional provisions are particularly important here:
Expires when health insurance coverage ceases.
Expires when benefits are claimed under SGB II or SGB XII.
How can I prevent my residence permit from expiring?
In most cases, the expiration itself cannot be prevented directly. However, it is possible to apply for a new residence permit before it expires. Due to the so-called “fictitious effect”, the stay is then still permitted even though the actual residence permit has expired (see also VISAGUARD article on applying for a fictitious certificate ). If the application is submitted late, the foreigner is generally required to leave the country (Section 50 of the Residence Act). However, due to the so-called “tolerated deportation” the foreigner can stay in Germany with tolerated status until a decision has been made on the granting or extension of the residence permit (Section 81 Paragraph 3 Sentence 2 of the Residence Act). However, a new visa procedure is often then necessary if the immigration authorities do not exercise their discretion in a positive way (see Section 85 of the Residence Act).
What is the difference between expiration and subsequent reduction of a residence permit?
In some cases, the residence permit does not expire, but its period of validity is subsequently shortened (Section 7, Paragraph 2, Sentence 2 of the Residence Act). The immigration authorities have this option if a condition for issuing the residence permit has subsequently ceased to apply (e.g. job loss or divorce from the wife). However, the residence permit may not be shortened to a point in the past, but only to a point in the future. Otherwise, it is withdrawn or revoked, which is tied to specific conditions.
If it is known that the immigration authorities are checking whether a residence permit has expired or is being subsequently shortened, a new residence permit should be applied for in good time in order to trigger the so-called fictitious effect (Section 81, Paragraph 3 and 4 of the Residence Act) and thus enable legal residence. If you receive a corresponding letter from the immigration authorities, it is advisable to contact a lawyer specializing in immigration law in Germany .
Will my residence permit expire if I commit a crime?
No, committing a crime does not generally lead to the expiration of a residence permit. However, crimes can constitute a so-called “ground for deportation” . Under certain circumstances, the immigration authorities can then issue a so-called deportation order. If this deportation order takes effect, the residence permit expires (Section 51 Paragraph 1 No. 5 of the Residence Act).
3. Appointment at the immigration office
If you meet all of the above requirements and your residence permit has not expired, you can make an appointment at the immigration office . However, appointments at both immigration offices (especially in Berlin) are difficult to get, so you should try to book an appointment as early as possible.
3.1 Appointment at the immigration office
In most cases, appointments at the immigration office can be booked online. However, this is only possible in cases where the immigration office also provides an online appointment booking system. The following large immigration offices, among others, provide an online appointment booking system or can be booked by telephone:
Make an appointment by telephone with the Hamburg immigration office ,
Online appointment system of the Heilbronn immigration office .
However, many immigration authorities no longer offer appointments online . In this case, you must resort to other application options. You can find details on the website of your respective immigration authority (see, for example, the online services of the Frankfurt am Main immigration authority ). If in doubt, a lawyer specializing in immigration law can advise you on this .
3.2 Appointment at the Berlin Immigration Office (LEA)
There is a special feature regarding appointments at the immigration office in Berlin (State Office for Immigration). The Berlin immigration office no longer offers the option of booking appointments (see VISAGUARD article: Abolition of the appointment booking system at the State Office for Immigration ). The main reason for the abolition of online appointment booking at the Berlin immigration office was that the system was being massively abused by bot users. In Berlin, bot users had booked all appointments at the immigration office in advance and then sold these appointments in Facebook groups, usually for a fee of 50 - 100 euros. This black market had become so large that the State Office for Immigration and its head, Mr. Mazanke, ultimately decided to completely abolish the online appointment system at the Berlin immigration office.
Since the abolition of the online appointment system at the State Office for Immigration in Berlin, appointments can no longer be booked online (see also the press release from the Berlin Immigration Office dated August 6, 2024 ). Appointments are now only made by the individual clerks . In concrete terms, this means that you can only get an appointment at the State Office for Immigration (LEA) in Berlin if your personal clerk at the LEA makes one for you. To do this, you must submit an application using the State Office for Immigration's contact form . You must enter your details and upload the necessary documents in the contact form. The documents and data are then sent internally at the Berlin Immigration Office to your clerk. They will check your details and then book an appointment for you or contact you by email to arrange an appointment.
If you do not receive a response from the Berlin immigration office, although you urgently need an appointment, you can hire one of our independent VISAGUARD lawyers .
4. Extension of residence permit
The above statements apply not only to the initial granting of a residence permit, but also to its extension. In this respect, the same regulations apply to the extension of the residence permit as to the granting of the residence permit (see Section 8 Paragraph 1 of the Residence Act ) . Nevertheless, there are always numerous unanswered questions when extending the residence permit, which are answered below.
What special features apply when extending a residence permit?
According to the Residence Act, the regulations governing the granting of a residence permit also apply to the extension (Section 8 of the Residence Act). As a rule, no special steps are required for the extension.
Do I have to provide my biometric data (fingerprints) again when extending my residence permit?
From a purely legal perspective, submitting biometric data again is completely unnecessary. However, many authorities consider submitting fingerprints to be routine, so the clerks will take the fingerprints again when extending a residence permit.
Do I have to submit a new declaration of employment when renewing my residence permit?
A new declaration of employment relationship only needs to be submitted when extending the residence permit if the work permit also needs to be renewed or if new approval from the Federal Employment Agency is required. This usually only applies to residence permits for work purposes.
How much does it cost to extend a residence permit?
The cost of extending a residence permit depends on the type of residence permit (see §§ 45, 46 AufenthV):
the extension of a residence permit, an EU Blue Card or an ICT card costs 93 - 96 euros (depending on the duration of the extension),
the extension with a change of the purpose of stay costs 98 euros,
the extension of a D visa costs 25 euros,
The extension of a Schengen visa costs 60 euros.
How long does it take to extend my residence permit?
The extension of the residence permit must generally be completed within 3 months (see Section 75 VwGO). However, the fictitious certificate must be issued immediately (Section 81 Paragraph 3, Paragraph 5 AufenthG).
What happens if my residence permit is not renewed before my old residence permit expires?
If your residence permit expires before you have received a new one, you must apply for a fictitious certificate from the immigration authorities.
Do I have to pay double fees if I apply for and receive multiple residence permits?
No, double fees only have to be paid when issuing multiple residence permits if multiple plastic cards (eAT) are also issued. This is usually not the case.
5. Residence permit to settlement permit
If you have received a residence permit and then lived in Germany for a certain period of time, you can apply for a settlement permit. The settlement permit is valid indefinitely and allows you to stay in Germany forever . As a rule, to apply for a settlement permit you must have lived in Germany for 5 years with a residence permit and have B1 language skills.
For further information on the settlement permit, please see our VISAGUARD guides on applying for a settlement permit .
6. FAQ (Residence Permit Guide)
Can I apply for a residence permit?
Whether you can apply for a residence permit depends on whether you meet the requirements for the respective residence permit.
What are the requirements for obtaining a residence permit?
The requirements for obtaining a residence permit vary depending on the purpose (e.g. work, study, family) and type of residence permit (e.g. temporary or permanent).
I would like to apply for a residence permit. What do I have to do?
If you want to apply for a residence permit, you must first find out which residence permit is responsible for you. This depends on your place of residence (Sec. 3 (1) No. 3 AufenthG). Once you have found out which immigration authority is responsible for your case, you need to check the authority's website to see which documents are required for the application and how you need to submit them.
Does my residence permit expire when my passport expires?
No, the residence permit can also be valid independently of the passport (see reverse conclusion from § 52 Para. 1 No. 1 AufenthG). In most cases, however, the residence card (electronic residence permit (eAT)) is linked to the validity of the passport. If the passport expires, it is therefore not necessary to apply for a residence permit, but only to transfer the residence permit to the new passport.
In which cases does the passport requirement not apply?
The passport requirement does not apply in cross-border rescue cases (§ 2 AufenthV) and for people under the age of 16 if they are registered in their parents' passports.
Is the passport requirement the same as a passport?
No, the passport requirement can also be fulfilled by other passport documents (Section 3 (1) sentence 2 AufenthG). Of particular relevance here is the substitute identity document, e.g. a travel document for foreigners.
When can I be issued a travel document for foreigners?
A travel document for foreigners can always be issued if obtaining a passport is “unreasonable”. The immigration authorities regularly set very high requirements for this reasonableness. In particular, it is reasonable to apply for a new passport at the home embassy, even if this embassy demands immense costs for this (this is particularly the case for Syrians).
When is it unreasonable to issue a passport?
According to the case law of the Federal Administrative Court, a “graduated” ratio of cooperation efforts is to be applied when clarifying identity. If a passport cannot be obtained, further documents must first be obtained in order to clarify the identity. However, if further documents cannot be obtained either, any means of clarifying identity is ultimately possible (BVerwG, judgment of 23.09.2020 - 1 C 36.19). However, reasonableness must be assessed individually in each case.
Are so-called “proxy passports” also recognized?
Occasionally, passports are issued in the home country without the presence of the applicant (so-called proxy passports). These proxy passports are then not signed by the applicant. If the foreigner's home country law does not expressly recognize this type of passport issue, these passports are generally not valid.
Do refugees have to apply for a passport at their embassy?
Although asylum seekers are not generally exempt from the passport requirement, it is usually not reasonable to apply to the embassy of the country of persecution. This applies in any case as long as the political persecution or the reason for flight continues.
What is a laissez-passer?
A laissez-passer is a travel document that can be used as a temporary passport. It is usually issued by immigration authorities to foreigners without a passport to enable deportation.
When is the livelihood secured?
The livelihood of a foreigner is secured if the income fulfills the “need” under social law. First of all, the needs of the community of need according to SGB II must be determined (BVerwG, judgment of 26.08.2008, 1 C 32.07). If the comparison of the income and the need shows a gap, the livelihood is not secured (BVerwG, 22.05.2012, 1 C 6.11).
What are the exceptions to the obligation to ensure subsistence?
In the following cases, subsistence does not have to be secured or only partially secured:
- Family reunification with Germans
- Extension for spouses
- Independent right of residence for spouses
- Children, if parent has right of residence
- Former Germans
- Settlement permit for disabled persons
- Various humanitarian titles (spouse/minor children of refugees/persons entitled to asylum)
Is the livelihood also secured by a fixed-term employment contract?
Yes, fixed-term employment contracts are also suitable for securing a livelihood (OVG Berlin-Brandenburg, decision of 30.03.2016, OVG 2 N 65.13).
What is the maximum length of time foreigners are allowed to work to secure their livelihood?
According to the Working Hours Act (ArbZG), a maximum of 48 hours per week may be worked in Germany. If these working hours are exceeded, the livelihood is not “sustainably” secured according to case law (OVG Berlin-Brandenburg, decision of 30.03.2016, OVG 2 N 65.13). However, minor overruns of the maximum working hours in accordance with the ArbZG can be disregarded (OVG Berlin-Brandenburg, 26.5.2015, OVG 12 N 4.14).
Are overtime and tips to be included in the income calculation?
Yes, overtime is normally part of your income and can therefore be taken into account when calculating your livelihood (OVG Berlin-Brandenburg, decision of 10.01.2014, OVG 3 N 136/13). The same applies to tips (Sächs. OVG decision of 7.6.2010, 3 B 295/09).
How is the income of self-employed persons calculated?
Calculating the income of self-employed persons is much more difficult. In this respect, the tax assessment notices or the audit report from tax advisors must be submitted as proof, although these are only available for the previous years. The calculation of living expenses is further complicated by the requirement to provide a pension (BVerwG, 29.11.2012, 10 C 4.12, para. 27). Therefore, if, for example, self-employed persons apply for a settlement permit or naturalization, a lawyer for immigration law or social law should be consulted if necessary.
Is my livelihood secured by assets if I am not working?
In principle, your livelihood can also be secured by your own assets. Although the authorities often argue that the money can be spent, this argument is unlikely to apply to large assets. This applies in particular if the livelihood can be secured by capital gains (interest, pensions, rents), for example. However, this can only be assumed from several 100,000 or even millions.
Does a change of tax class have to be taken into account when calculating income?
Yes, the foreigners authority must take the changed tax class into account when changing the tax class (e.g. in the case of family reunification, OVG Berlin, 24.09.2002, 8 B 3.02).
Can foreigners apply for unemployment benefit?
Yes, unemployment benefit is an insurance benefit and not a “public resource” in the sense of a social benefit. It is therefore possible for foreigners to receive unemployment benefit (§ 2 Para. 3 S. 1 No. 6 AufenthG).
Are foreigners allowed to apply for social assistance?
No, it is generally not advisable for foreigners with a residence permit to receive social benefits. However, there are exceptions.
What kind of social assistance from foreigners can be taken into account for securing a livelihood?
The following benefits can be taken into account in accordance with § 2 Para. 3 AufenthG when securing the livelihood of foreigners:
- Child benefit (payable to all children up to the age of 25),
- Child supplement (benefit supplement for parents entitled to child benefit),
- Parental allowance (predecessor of parental allowance),
- Childcare allowance (formerly existing compensation for non-existent daycare centers),
- Parental allowance (benefit for bringing up children),
- Bafög and vocational training grants including “Meister-BaföG” (training grants),
- Pensions (old-age insurance),
- Health benefits (health insurance),
- Scholarships (support for gifted students),
- Unemployment benefit I (unemployment insurance),
- Benefits from the maintenance advance fund,
- Benefits for disabled persons and persons in need of care.
What special features apply with regard to previous convictions for settlement permits and family reunification?
There are special features regarding previous convictions for various residence permits. In this respect, according to § 9 Para. 2 No. 4 AufenthG, a special consideration takes place when issuing a settlement permit and in the case of family reunification, the existence of an interest in deportation is downgraded to a discretionary provision (§ 27 Para. 3 Sentence 2 AufenthG).
What “public interests” can be held against the granting of a residence permit?
A residence permit cannot be issued if there is a “public interest”. However, this is only the case in certain constellations, e.g. to prevent communicable diseases (e.g. Covid-19) or for political reasons.
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Procedural instructions for staying in Berlin (VAB) of the LEA
Literature: Bergmann/Dienelt/Samel, 14th edition 2022, Residence Act § 5
Literature: BeckOK AuslR/Maor, 42nd Ed. 1.7.2024, AufenthG § 5 Rn. 1 - 48
