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On 04th march 2022 the EU agreed to receive people from Ukraine seeking protection swiftly and unbureaucratically under EU Directive 2001/55/EC (see the EU Council Decision in German and in English)
The following groups of persons who have been displaced from Ukraine since 24 February 2022 as a result of Russia’s military invasion are to receive a residence permit according to section 24 of the German Residence Act (AufenthG), as announced by the Federal Ministry of the Interior (see: Communication of the Federal Ministry of the Interior (BMI) on the implementation of section 24 of the German Residence Act (AufenthG) of 14 March 2022 and of 14 April 2022):
- Ukrainian nationals who had their residence in Ukraine before 24 February 2022
- Stateless persons and nationals of third countries other than Ukraine who enjoyed international protection or equivalent national protection in Ukraine before 24 February 2022
- Family members of the two groups of persons mentioned in (1) and (2) above
- Stateless persons and nationals of third countries who can prove that they were residing lawfully in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law and who are unable to return safely and permanently to their country or region of origin
- Other non-Ukrainian third-country nationals who can prove that they were residing in Ukraine lawfully for more than a temporary short stay (i.e. longer than 90 days) and who cannot return safely and permanently to their country or region of origin
- Other non-Ukrainian third-country nationals who can credibly demonstrate that they were residing lawfully in Ukraine for more than a temporary short stay but were not yet able to obtain their protection status or a permanent residence permit as of 24 February 2022 and who cannot return safely and permanently to their country of origin. e.g. students; employed persons who were residing lawfully in Ukraine not for short-term gainful employment purposes
Hence, the above mentioned persons do not have to apply for asylum!
Ukraine means the entire territory of Ukraine, including Crimea and the so-called Donetsk and Luhansk People’s Republics.
Non-Ukrainian nationals who resided in Ukraine before 24 February 2022
Non-Ukrainian nationals who lived in Ukraine before the attack by Russian troops and who fear reprisals, persecution or a life of (economic) hardship in their country of origin should not let themselves be rushed into applying for asylum. Instead, they should insist that the local foreign citizens’ authority issues them with a provisional residence document (Fiktionsbescheinigung) stating that a residence title has been applied for under section 24 of the German Residence Act.
Non-Ukrainian nationals who were residing lawfully in Ukraine before 24 February 2022 with a valid permanent residence title issued in accordance with Ukrainian law and who can provide evidence of this, can be assumed prima facie, according to the Communication of the Federal Ministry of the Interior (BMI) of 14 April 2022 (no 2) to have a significant connection with Ukraine – irrespective of their country of origin – and thus to be unable to return safely and permanently to their country of origin because their ties with Ukraine are closer than those with their country of origin. They will normally receive a residence permit according to section 24 of the German Residence Act (AufenthG).
The following applies to non-Ukrainian nationals who were residing lawfully in Ukraine before 24 February 2022 with a valid temporary residence title issued in accordance with Ukrainian law and who can provide evidence of this:
For persons from Afghanistan, Eritrea and Syria, it can be assumed that they are unable to return safely and permanently to their country of origin, for which reason they are also granted a residence permit in accordance with section 24 of the German Residence Act (AufenthG).
However, for all other third-country nationals with a valid, temporary Ukrainian residence title, the foreign citizens’ authorities should check in each individual case, taking account of the general situation in the country of origin as well as the individual submissions, whether a deportation ban applies pursuant to section 60 paragraphs (5) and (7) of the German Residence Act (AufenthG), which rules out the possibility of “a safe and permanent return” and forces the authorities to grant a residence permit pursuant to section 24 of the German Residence Act (AufenthG).
Important note: If there is a reasonable prospect that a different residence title can be granted, the foreign citizens’ authorities must postpone checking the possibility of a safe and permanent return for the time being. Non-Ukrainian nationals who have a valid, temporary Ukrainian residence permit should therefore find out whether they can be granted an alternative residence title – e.g. for studying, training or as a skilled worker. For non-Ukrainian third-country nationals who do not have temporary protection under section 24 of the German Residence Act (AufenthG), but for whom alternative residence-law options exist – for example, for studying, training or as a skilled worker – a belated visa procedure from outside Germany is not necessary. This means that they can apply for a relevant visa in Germany without having to travel to their country of origin (in order to apply over the German embassy in their origin country).
If, within the framework of the examination under section 24 of the German Residence Act (AufenthG), non-Ukrainian third-country nationals present any circumstances to the foreign citizens’ authority that meet the requirements of section 13 of the German Asylum Act (Asylgesetz – AsylG) – e.g. (imminent) political persecution or a serious and individual threat to their life or physical integrity by reason of indiscriminate violence in situations of international or internal armed conflict – they should be asked to apply for asylum with the Federal Office for Migration and Refugees (BAMF). By claiming individual grounds within the meaning of section 13 of the German Asylum Act (AsylG), the applicants in question will be granted equal status to persons who are in the asylum procedure. The foreign citizens’ authority (Ausländerbehörde) must point this out to applicants in advance.
If, however, submissions of the persons in question on the possibility of a safe and permanent return to the country of origin do not meet the requirements of section 13 of the German Asylum Act (AsylG) and if, in addition, the foreign citizens’ authority cannot determine by its own knowledge whether a safe and permanent return is possible, in particular if the persons in question state that they belong to a vulnerable group (single women with small children, persons with disabilities), cite medical grounds (diseases) or state that their income is below the minimum subsistence level, the Federal Office for Migration and Refugees (BAMF) can/should be involved pursuant to section 72 para. (2) of the German Residence Act (AufenthG) (see Communication of the Federal Ministry of the Interior (BMI) of 14 April 2022, no. 4.4).
Important note: Non-Ukrainian third-country nationals or stateless persons who cannot obtain temporary protection under section 24 of the German Residence Act (AufenthG) or any other residence title should find out about the prospects of success of an asylum application or other residence law options!
Persons who are in an ongoing asylum procedure in Ukraine
Persons who refuse temporary protection under section 24 of the German Residence Act (AufenthG) or do not meet the requirements but who submit an explicit application for asylum in Germany will undergo the regular asylum procedure. An ongoing asylum procedure in Ukraine will have no impact on this. The granting of refugee status in Ukraine would (only) mean that there would be a deportation ban to the country or region of origin, section 60 paragraph (1) sentence 2 alt. 3 and sentence 3 of the German Residence Act (AufenthG).
Ukrainian nationals who entered Germany/ the EU before 24 February 2022:
- Ukrainian nationals who are already residing in the Federal Republic of Germany with a residence title can apply for a residence permit according to section 24 of the German Residence Act (AufenthG) if the requirements for the extension of the existing residence title are no longer met.
- Ukrainian nationals who fled Ukraine not long before 24 February 2022, i.e. no more than 90 days before 24 February, or who were on EU territory shortly before that date (e.g. on holiday or for work) and who cannot return to Ukraine by reason of the armed conflict, may also apply for a residence permit under section 24 of the German Residence Act (AufenthG).
- Ukrainian nationals who applied for asylum prior to the issuance of a residence permit according to section 24 of the German Residence Act (AufenthG) (also before 24 February 2022) must undergo the asylum procedure, however procedures in the phase until issuance of the residence permit under section 24 of the German Residence Act (AufenthG) are currently being suspended by the Federal Office for Migration and Refugees (BAMF). Ukrainian nationals who have applied for asylum (also before 24 February) but are not seeking temporary protection under section 24 of the German Residence Act (AufenthG) will accordingly be processed exclusively in the asylum procedure and by the Federal Office for Migration and Refugees (BAMF)
- Ukrainian nationals who are already residing in Germany on the basis of a temporary suspension of deportation can also apply for a residence permit according to section 24 of the German Residence Act (AufenthG) if the previous reason for the temporary suspension of deportation no longer applies. A temporary suspension of deportation according to section 60a paragraph (2) sentence 1 of the German Residence Act (AufenthG) may no longer apply if deportation is no longer impossible in fact or in law, but not if the reason for the temporary suspension of deportation no longer applies solely or primarily due to a lack of cooperation of the person concerned or a decision based on his or her own free will. A temporary suspension of deportation under section 60a paragraph (2) sentence 1 of the German Residence Act (AufenthG) due to missing travel documents as well as a temporary suspension of deportation for persons whose identity is not verified (section 60b of the German Residence Act (AufenthG)) are excluded from this as far as travel documents are still missing or the person’s identity has still not been verified. If the previous reason for the temporary suspension of deportation still applies, the period of temporary suspension should be generous and should be accompanied by permission to engage in gainful employment, whereas legally existing bans on gainful employment must be observed.
- In the case of Ukrainian nationals who are subject to a ban on entry and residence pursuant to section 11 of the German Residence Act (AufenthG) its revocation must be examined on application (cf. section 11 paragraph (4) sentence 1 et seq. of the German Residence Act (AufenthG)). Revocation is not possible in the case of an entry and residence ban pursuant to section 11 paragraph (5a) or paragraph (5b) of the German Residence Act (AufenthG).
Where can I apply for a residence permit according to section 24 of the German Residence Act (AufenthG)?
You can apply for a residence permit according to section 24 of the German Residence Act at the foreign citizens’ authority (Ausländerbehörde). The foreign citizens’ authority of the district or city in which you live is responsible for granting residence permits.
What rights do I have in Germany with a residence permit according to section 24 of the German Residence Act (AufenthG)?
With a residence permit according to section 24 of the German Residence Act (AufenthG) you not only have a right of residence but can also claim social benefits and health care. It will normally not be necessary to apply for asylum and in most cases it would not make sense to do so. I would therefore advise against applying for asylum if a residence permit can be granted according to section 24 of the German Residence Act (AufenthG).
Can I also obtain a residence permit other than the one according to section 24 of the German Residence Act (AufenthG)?
Yes. The general principles of residence law apply to other options or other co-existing rights of residence. Even after a residence title has been granted pursuant to section 24 of the German Residence Act (AufenthG), there are no restrictions on changing your residence status if the general requirements for the specific other residence title have been met. This applies, in particular, to residence permits according to sections 16a (vocational training), 18a and 18b paragraph (1) (skilled workers) of the German Residence Act (AufenthG).
In the case of other residence titles, the reasons for refusal under section 19f paragraph (1) number 2 of the German Residence Act (AufenthG) must be observed. Hence, no residence title pursuant to sections 16b paragraphs (1) and (5) (study purposes), 17 paragraph (2) (application for course of study), 18b paragraph (2) (EU Blue Card), 18d (research), 19e (participation in European voluntary service) of the German Residence Act (AufenthG) is granted to persons who reside in a member state of the European Union under the terms of an arrangement to provide temporary protection or who have filed an application for temporary protection status in another member state.
It remains unclear how the – in this respect contradictory – statement of the Federal Ministry of the Interior (BMI) is to be understood that “persons who have fled Ukraine and who hold protection status according to Directive 2001/55/EC” should be free to “apply for a residence permit according to sections 16a, 16b, 16c, 16e, 16f, 18a, 18b paragraph (1) or (2) or sections 18d, 18e, 18f or 19e of the German Residence Act (AufenthG)” without having to undergo the visa procedure (from outside Germany). This issue is still being clarified.
Where and how can I apply for asylum?
You can also apply for asylum with the Federal Office for Migration and Refugees (BAMF) in Germany at any time if you are being persecuted in your country of origin. The authority is located on the premises of the initial reception centres. However, a decision on your asylum application will probably take some time: Currently, the Federal Office for Migration and Refugees (BAMF) has imposed a stay on decisions regarding asylum seekers from Ukraine. This means that it is not deciding on asylum applications from Ukrainian nationals for the time being. How long this will last remains uncertain.
If you have already applied for asylum, you can still apply for and obtain a residence permit under section 24 of the German Residence Act (AufenthG). The asylum procedure would be suspended in these cases.
Important Note: This article has been prepared by mth Tieben & Partner for general information purposes only. Mth Tieben & Partner does not accept any liability to any person or organisation for the use or reliance of the information contained in this article. On any specific matter, kindly contact us by dialing 0221 – 80187670 or sending us an email to info@mth-partner.de
Lawyers in Cologne provide legal advice on German immigration law.
