With the introduction of Section 104c of the Residence Act, there has been a new option for obtaining a residence permit since 31 December 2022 - the right of residence by opportunity.
Foreigners who have lived in Germany for at least 5 years on 31 October 2022 with a tolerated or permitted status can benefit from the new regulation. The residence permit will then be issued for a limited period of 18 months. This period is intended to provide a one-off opportunity to fulfil all the requirements for the issue of a permanent residence permit in accordance with Section 25a or Section 25b AufenthG as part of a secure stay. If this does not happen, the person will revert to their previous status after the 18 months have expired.
Requirements and application according to § 104c AufenthG
The requirements under Section 5 AufenthG, such as a secure livelihood, clarification of identity or the obligation to have a valid passport, do not have to be met for a residence permit under Section 104c AufenthG to be issued - rather, the 18 months are intended to clarify aspects such as these.
According to para. 2, unmarried children who are minors, spouses or life partners who live in the same household as the holder of a residence permit pursuant to Section 107c para. 1 AufenthG may also apply for a residence permit.
The specific requirements for the issue of a residence permit in accordance with Section 104c AufenthG are permanent tolerated, permitted or residence granted by a residence permit in the Federal Republic of Germany for at least 5 years as of 31 October 2022 and commitment to the free and democratic basic order of the Federal Republic of Germany. Furthermore, the applicant must not have been convicted of an intentional criminal offence committed in Germany, with the exception of convictions of no more than 50 daily sentences or no more than 90 daily sentences for criminal offences under the Residence Act or Asylum Act that can only be committed by foreigners, or convictions under juvenile criminal law with the exception of the imposition of juvenile sentences. Furthermore, they must not have repeatedly made false statements or misrepresented their identity and thereby causally prevented their deportation.
Opportunities and challenges of the right of residence
It is also necessary to submit an application for a residence permit on humanitarian grounds in accordance with Section 81 (1) AufenthG. This application does not have to specify the standard on the basis of which the residence permit is to be issued. As a result, courts are already dealing with the application of Section 104c AufenthG, for example the Schwerin Administrative Court (judgement of 24.01.2023 I A 1110/21 SN). Although the plaintiff from Mauritania, who had been living in Germany with a tolerated status since 2015, had already submitted the application for a residence permit in September 2020, the court interpreted this as not referring to a specific basis for the claim. The court upheld the claim on the basis of Section 104c AufenthG.
§ Section 104c AufenthG is a mandatory provision, meaning that a residence permit must generally be granted if the requirements are met. However, in the case of atypical circumstances, a decision must be made at the discretion of the authorities in exceptional cases.
While the new regulation offers many people the opportunity to end a longstanding tolerated stay and obtain a residence permit, problematic aspects can also be recognised. For example, the cut-off date regulation means that people who fulfil the requirements for obtaining a visa a short time later can no longer benefit from it without being able to influence this. In addition, issues such as securing a livelihood or clarifying identity are merely postponed. In many cases, however, this will be easier during the period of secured residence than during the period of merely tolerated or authorised residence.
Sources:
- VG Schwerin, judgement of 24.01.2023, ref.: I A 1110/21 SN
- Nachtigall: Opportunity right of residence - Actual opportunity for tolerated persons? ZRP 2022, 184
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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