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Tag Archive: German Immigration Law

1. German Immigration Law provides four ways for foreigners to obtain a Residence Permit in order to work or invest in Germany

   Oktober 14, 2011 1:00 pm 7 Comments

   Inhaltsverzeichnis:

   • 1. Temporary Residence permit („Aufenthaltserlaubnis“) according to s 18a, 18b, 18g German Residence Act
   • 2. Temporary Residence permit („Aufenthaltserlaubnis“) according to s 21 German Residence Act
   • 3. Temporary Residence permit („Aufenthaltserlaubnis“) for research purposes according to s 18d German Residence Act
   • 4. Temporary Residence permit („Aufenthaltserlaubnis“) for investors planning to invest in Germany according to s. 7 (1) German Residence Act

   The UK, Australian or Canadian immigration system consists of a points based system that scores applicants on various criteria to assess their eligibility to obtain work or study visa in these countries.

   The UK recently reformed Tier 1 and 2 of its Point based system by introducing various amendments.

   The UK therefore created a new prospective entrepreneur category or created a new category in Tier 1 of the Points-Based System for “exceptionally talented economic migrants“.

   They also implemented changes to the Tier 1 categories for Entrepreneurs and Investors in order to attract foreigners willing to invest money in the UK.

   In Germany no such flexible points system exists. This is mainly because of political reasons but also because of the civil law background of the German Immigration Law.

   However, in recent years the German immigration law became more liberal and flexible in order to motivate more well-qualified people to come to Germany and live and work here.

   The German residence act generally differentiates between three different kinds of resident titles:

   – the visa
   – the temporary residence permit (“Aufenthaltserlaubnis”).
   – The permanent settlement permit (“Niederlassungserlaubnis”).

   

   Generally the German Immigration Law provides four ways for foreigners to obtain a Residence Permit in order to work or invest in Germany.

   1. Temporary Residence permit („Aufenthaltserlaubnis“) according to s 18a, 18b, 18g German Residence Act

   According to section 18a, 18b or 18g of the German German Residence Act (Aufenthaltsgesetz) a foreigner might get a temporary residence permit if he takes up a job in Germany.

   In this case the foreigner would have to go to the German embassy in his home country in order to file an application for the work visa and he would have to produce several documents like his passport, his CV, the employment confirmation of his future employer in Germany (e. g. a draft work contract) or his university degree etc.

   The embassy will pass the case on to the Federal Office of Administration (Bundesverwaltungsamt) in Cologne which will contact the responsible immigration authority (e. g. if he wants to take up a job in Hamburg, the immigration authority in Hamburg will be responsible for the case).

   Since 2020 the Federal Employment Agency (Bundesagentur für Arbeit) will not search for privileged German applicants before the residence title is granted to the foreigner, if the foreign applicant has a university degree or a vocational degree.

   If the other requirements are fulfilled (sufficient means of subsistence, identity is clarified, etc.) the embassy will issue the residence permit to the applicant.

   2. Temporary Residence permit („Aufenthaltserlaubnis“) according to s 21 German Residence Act

   According to s 21 of the German Residence Act a foreigner might also qualify for a temporary residence permit if he starts to work in Germany on a freelance basis.

   The residence title according to s 21 German Residence Act may only be granted, if

   1. an overriding economic interest or a special regional need applies,

   2. the activity is expected to have positive effects on the economy and

   3. personal capital on the part of the foreigner or a loan undertaking is available to realise the business idea.

   There is no minimum amount of investment or job creation requirements anymore. The authorities are just checking, if the business idea is feasible and if the targeted business is likely to suceed. The feasibility of the business idea depends on various factors. Most crucial is the business plan of the applicant.
   

   The Assessment of the prerequisites shall focus in particular on the viability of the business idea forming the basis of the application, the foreigner’s entrepreneurial experience, the level of capital investment, the effects on the employment and training situation and the contribution towards innovation and research.

   The competent bodies for the planned business location, the competent trade and industry authorities, the representative bodies for public-sector professional groups and the competent authorities regulating admission to the profession concerned shall be involved in examining the application.

   3. Temporary Residence permit („Aufenthaltserlaubnis“) for research purposes according to s 18d German Residence Act

   According to s 18d German Residence Act a foreigner shall be granted a residence permit for research purposes where

   a. he or she has concluded an effective admission agreement for the purpose of carrying out a research project with a recognized research establishment in Germany,

   b. the recognized research establishment has undertaken in writing to bear the costs accruing to public bodies up to six months after termination of the admission agreement for

   aa) the foreigner’s subsistence during an unlawful stay in a Member State of the European Union and

   bb) deportation of the foreigner.

   4. Temporary Residence permit („Aufenthaltserlaubnis“) for investors planning to invest in Germany according to s. 7 (1) German Residence Act

   As mentioned above the UK recently implemented changes to its immigration system in order to enable wealthy investors to settle in the UK.

   Foreigners investing a certain amount of money may apply for settlement after some years.

   The German Residence Act in contrast provides no specific provision regarding the settlement of wealthy foreigners planning to invest in Germany.

   Therefore each case has to be assessed individually by applying the general provision regarding the German temporary residence permit, namely s 7 (1) German Residence Act.

   Section 7 (1) German Residence Act states: “In justified cases, a residence permit may also be issued for a purpose of residence which is not covered by this Act.”

   Each German immigration office has therefore got a very wide scope of administrative discretion regarding each application of investors planning to invest and settle in Germany.

   You will find an overview here

   German Law Firm providing legal advice on German Immigration Law worldwide

2. German Immigration law: Requirements to get a permanent settlement permit in Germany

   März 7, 2011 1:41 pm Leave a Comment

   In order to enter and reside in Germany, foreigners must have a permission in the form of a residence permit.

   Under the Immigration Act, there are two types of residence permits in Germany: the temporary residence permit (“Aufenthaltserlaubnis”) and the permanent settlement permit (“Niederlassungserlaubnis”).

   

   This article seeks to examine the requirements a foreign national has to satisfy in order to get the permanent settlement permit (“Niederlassungserlaubnis”):

   1.) Requirements according to s 9 (2) Residence Act (“Aufenthaltsgesetz”, “AufenthG”)
   According to section 9 (2) Aufenthaltsgesetz usually a foreigner shall be granted the settlement permit, if

   1. he or she has held a residence permit for five years,

   2. his or her livelihood in Germany is secure,

   3. he or she has paid compulsory or voluntary contributions into the statutory pension scheme for at least 60 months or furnishes evidence of an entitlement to comparable benefits from an insurance or pension scheme or from an insurance company; time off for the purposes of child care or nursing at home shall be duly taken into account,

   4. he or she has not been sentenced to a term of youth custody or a prison term of at least six months or a fine of at least 180 daily rates due to an intentionally committed offence,

   5. he or she is permitted to be in employment, insofar as he or she is in employment,

   6. he or she is in possession of the other permits which are required for the purpose of the permanent pursuit of his or her economic activity,

   7. he or she has an adequate knowledge of the German language,

   8. he or she possesses a basic knowledge of the legal and social system and the way of life in the Federal territory and

   9. he or she possesses sufficient living space for himself or herself and the members of his or her family forming part of his or her household.

   2.) Requirements according to s 19 AufenthG
   However, there is another way to get the permanent settlement permit, if the person applying is a highly qualified person pursuant to s 19 AufenthG.

   According to s 19 (2) AufenthG highly qualified persons are scientists with special technical knowledge, teaching personnel in prominent positions or scientific personnel in prominent positions or specialists and executive personnel with special professional experience who receive a salary corresponding to at least twice the earnings ceiling of the statutory health insurance scheme.

   To be classified as a highly qualified person by the immigration office, the decisive document will be the recommendation letter issued by the employer or by the university of the person applying:

   If the person is for example employed by a university in Germany, the recommendation letter has to contain certain key topics in order to convince the immigration office to issue the residence title.

   German law firm offering legal advice on German immigration law.

3. Acquisition of real estate in Germany/Real estate purchase in Germany

   Februar 13, 2011 6:26 pm Kommentare deaktiviert für Acquisition of real estate in Germany/Real estate purchase in Germany

   Inhaltsverzeichnis:

   • A.) Real estate contract
   • B. Conveyance of the real estate by registration in the Land Registry
   • C. Tax
   • 1. Real property transfer tax
   • 2. Real estate tax
   • 3. Value Added Tax (VAT)

   The acquisition of real estate in Germany follows a course that is very different from the acquisition of movable property. This article seeks to examine the legal and tax issues that are arising or could arise on real estate transactions.

   There are no restrictions regarding the acquisition of real estate by foreigners. However, foreign companies must prove their legal existence and the power of representation of those persons acting for the company.

   Generally two steps are necessary in order to purchase real estate in Germany. The first step will be the conclusion of the real estate contract, the second step will be the conveyance of the property, i. e. the transfer of the interest in the real property from the seller to the buyer through the registration of the interest in the land register.

   A.) Real estate contract

   The preparation of the real estate contract is the most important part of the acquisition process. The real estate contract should contain the following major components:

   – the exact description of the character, location, size and usability of the object.

   – the exact price (inclusive of all duties, etc.)

   – payment terms (payment date etc.)

   – priority notice of conveyance (in order to secure the buyer’s title in the real property)

   – the conditions of the change of ownership and possible risks of liability

   – costs of the land survey (if land survey is necessary)

   – development and adjoining property charges

   – declaration about any governmental restrictions imposed on the object.

   – declaration about any liens/encumbrances

   – declaration about required municipal decisions

   Pursuant to s 873 (2) German Civil Code (Bürgerliches Gesetzbuch), the parties of the real estate contract are bound by the contract only if the declarations are recorded by a notary, or made before the Land Registry, or submitted to the Land Registry, or if the person entitled has delivered to the other person an approval of registration that satisfies the provisions of the Land Register Act.

   Thus, the parties to the real estate contract have to express their will to sell and buy in front of the notary, in this way binding themselves to their own statements.

   The notary will then proceed by concluding the contract, which has to be in written form, under penalty of nullity.

   B. Conveyance of the real estate by registration in the Land Registry

   The transfer of the ownership of the real estate will be accomplished, when the contract of the parties and their will of conveyance is entered in the land registry.

   The formalities and requirements for registration in the land registry are the same throughout Germany and there is a land register in every local district.

   However, in order to secure the vendee’s land title in the time period between the conclusion of the contract in front of the notary and the entry into the land registry, the vendee has got an expectancy right if the vendee has presented a formal request for registration or if a priority notice has been entered into the land register.

   For the registration of the title transfer or the priority notice of conveyance a registration fee must be paid to the local court.

   C. Tax

   1. Real property transfer tax

   When domestic real estate is sold or changes owner, a one-time real property transfer tax (land transfer tax) of 3.5 percent of the purchase price is levied if the purchase price or consideration exceeds EUR 2,500. Real property transfer tax is usually paid by the buyer. In Hamburg and Berlin, the rate is 4.5%.

   2. Real estate tax

   German property is subject to a real estate tax, levied annually. The tax base is the ‘assessed value’ and the tax depends on several factors like location, size, use and the local municipal coefficient, etc.

   3. Value Added Tax (VAT)

   Real property transactions are generally not subject to the German VAT. However, an entrepreneurial seller is entitled to treat the transaction as taxable.