Immigration Lawyer Cologne Archive - MTH Rechtsanwälte Köln
Rechtsanwalt Tieben

Rechtsanwalt Helmer Tieben
Beratung unter:
Tel.: 0221 - 80187670

Tag Archive: Immigration Lawyer Cologne

  1. German Immigration Law: The different family reasons to get a residence title to reside in Germany.

    16 Comments

    The provisions regarding the entry of foreigners into Germany for family reasons are laid down in Chapter 6 of the German Immigration Act.

    Children or spouses of foreigners living in Germany are eligible to apply for either a temporary residence title (Temporary Residence permit) or a permanent residence title (Niederlassungserlaubnis) if the conditions are met.

    If the foreigner gets the residence title because of family reasons he is not only entitled to move and reside in Germany, he is generally also entitled to work there.

    Not only spouses of foreigners living in Germany or of Germans are entitled to get a residence title. Members of a civil partnership (gay marriage) are also entitled to get a residence title, if the foreign civil partnership is comparable to the German civil partnership (Eingetragene Lebenspartnershaft) and the conditions of the specific residence title are met.

    Not only family members or spouses of foreigners living in Germany are eligible to get a residence title for family reasons. Of course also foreign family members or spouses of Germans are eligible to get a residence title (German Visa, German temporary residence permit or the German permanent residence permit).

    German_Residence_Titles

    Please find below a list of the family reasons to get a residence title in Germany according to the German Immigration Act:

    – Temporary Residence permit for foreign spouses of German nationals according to section 28 para 1 sentence 1 no. 1 German Immigration Act.

    – Temporary Residence permit for foreign minor children of German nationals according to section 28 para 1 sentence 1 no. 2 German Immigration Act

    – Temporary Residence permit for foreign parents of a German national child who are entitled to the custody and care of the child according to section 28 para 1 sentence 1 no. 3 German Immigration Act

    – Temporary Residence permit for foreign parents of a German national child who are not entitled to the custody and care of the child according to section 28 para 1 sentence 4 German Immigration Act

    – Temporary Residence permit for other family members of German nationals according to section 28 para 4 German Immigration Act

    – Permanent residence permit for foreigners having a German temporary residence permit if the family cohabitation persists at least three years according to section 28 para 2 sentence 1 German Immigration Act.

    – Temporary Residence permit for the reunion of foreign national with his foreign spouse already living in Germany according to section 30 para 1 German Immigration Act

    – Temporary Residence permit for the reunion of foreign national with his foreign spouse already living in Germany according to section 30 para 2 German Immigration Act

    – Temporary Residence permit for the reunion of foreign national with his foreign spouse already living in Germany according to section 30 para 3 German Immigration Act

    – Temporary Residence permit for the reunion of a foreign national with his foreign spouse holding an EU Blue Card in Germany according to section 30 para 1 sentence 1 no. 3g German Immigration Act

    – Temporary Residence permit for a foreigner living in Germany after separation from his spouse according to section 31 para 1, 2, 4 German Immigration Act

    – Temporary Residence permit for a foreigner living in Germany after separation from his spouse according to section 31 Abs. 1 German Immigration Act

    – Temporary Residence permit for a foreigner living in Germany after separation from his spouse according to section 31 Abs. 2 German Immigration Act

    – Temporary Residence permit for a foreigner living in Germany after separation from his spouse according to section 31 Abs. 4 German Immigration Act

    – Permanent residence permit for a foreigner living in Germany after separation from his spouse, if the foreigner already hold a permanent residence permit according to section 31 para 3 German Immigration Act

    – Temporary Residence permit for minor children of foreigners, which are holding either a Temporary Residence permit according to section 25 para 1 or 2 or a permanent residence permit according to section 26 para 3 German Immigration Act according to section 32 para 1 no. 1 German Immigration Act

    – Temporary Residence permit for minor children of foreigners, which are holding either a Temporary Residence permit or a permanent residence permit or a permit for long-term residence status (EC) and have centered their life in Germany according to section 32 para 1 no. 2 German Immigration Act

    – Temporary Residence permit for at least 16 year old minor children of foreigners, which are holding either a Temporary Residence permit or a permanent residence permit or a permit for long-term residence status (EC) according to section 32 para 2 German Immigration Act

    – Temporary Residence permit for minor children of foreigners holding a temporary Residence permit according to section 38 a according to section 32 para 2a sentence 1 German Immigration Act

    – Temporary Residence permit for minor children (not older than 16) of foreigners, which are holding either a Temporary Residence permit or a permanent residence permit or a permit for long-term residence status (EC) according to section 32 para 3 German Immigration Act

    – Temporary Residence permit for minor children in hardship cases according to section 32 para 4 German Immigration Act.

    – Temporary Residence permit for minor children of a foreigner holding a Blue Card according to 32 para 1 no. 1a German Immigration Act

    – Temporary Residence permit for children born in Germany according to § 33 German Immigration Act

    – Temporary Residence permit for children born in Germany if one of the parents is holding either a Temporary Residence permit or a permanent residence permit or a permit for long-term residence status (EC) according to section 33 sentence 1 German Immigration Act.

    – Temporary Residence permit for children born in Germany if one of the parents is holding either a Temporary Residence permit or a permanent residence permit or a permit for long-term residence status (EC) according to section § 33 sentence 2 German Immigration Act

    – Temporary Residence permit for children after separation from their parents according to section 34 para 2 German Immigration Act.

    – Permanent residence permit for foreign minor children according to section 35 German Immigration Act

    – Permanent residence permit for foreign minor children holding a temporary residence permit for family reasons for 5 years at the time they become 16 years old according to section 35 para 1 sentence 1 German Immigration Act

    – Permanent residence permit for foreign minor children holding a temporary residence permit for family reasons for 5 years at the time they become 18 years old according to 35 para 1 sentence 2 German Immigration Act

    – Temporary Residence permit for the parents of foreign minor children according to section 36 para 1 German Immigration Act

    – Temporary Residence permit for other family members of foreigners in hardship cases according to section 36 para 2 German Immigration Act.

    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.

     

  2. German Law: Sample agreement to purchase real estate in Germany

    Leave a Comment

    The preparation of the agreement to purchase real estate is the most important part of the acquisition process regarding real estate in Germany. The agreement should generally contain the following major components:

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

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

    – the 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.

    – the declaration about any governmental restrictions imposed on the object.

    – the declaration about any liens/encumbrances.

    – the declaration about required municipal decisions.

    Sample Agreement:

    (1) Land Registry data

    a) After instruction by the notary, the parties agree that none of them is acting as part of a professional or commercial activity (regarding s 14 BGB).

    b) The seller is registered as the owner of the immovable property in the land register described as follows:

    District Court of XXX, Land registry of XXX, Journal XXX,
    Local Subdistrict XXX, Field XXX, Land parcel XXX

    connected with the severalty ownership of the apartment Type XXX, ground floor, in the partition plan named No. XXX

    The notary reviewed the land register and found:

    Division II: XXX
    Division III: XXX

    The burdens in Division XXX are not accepted by the buyer and will be deleted, which is hereby approved and applied for by both parties.

    (2) Purchase

    The Seller hereby sells to the buyer the property described under No. (1) together with all components and accessories.

    (3) Purchase Price

    The purchase price is EUR XXX (In words: Euro XXX).

    The purchase price is due at the XXX with no interest accruing until then.

    However, the price is not due before the maturity conditions agreed upon in No. (4) are fulfilled.

    The payments shall be paid:

    a) an amount of ……. (in words ……) shall be paid to the court cashier of the district court XXX in order to delete the burdens listed in Division XXX

    b) an amount of ……. (in words ……) shall be paid to the notary for the settlement of his invoice regarding the enforcement of this purchase agreement and the safekeeping of the cancellation documents regarding the burdens in Division XXX

    The seller warrants that the purchase price reduced by the amounts described under a) and b) will be sufficient for the property to be released from encumbrances.

    (4) Maturity conditions

    The maturity of the purchase price depends on the written notification of the buyer by the notary that
    a) the approvals and certificates are available which are necessary for the validity of the purchase contract (except the tax clearance certificate).

    b) the existence of a priority notice in the land register in order to secure the title of the buyer in the land, ranking after the loads described in No. 1 of this dead or other loads, the buyer was involved.

    c) the exemption of the Object of Purchase from any and all mortgages and other rights entered into the land register, which are of higher rank than the priority notice for conveyance, is assured with purchase price funds, because the notary is in possession of all necessary documents.

    (5) Delay of payment, withdrawal

    a) The buyer is in delay of payment, if he doesn`t pay the purchase price within one week after receipt of the notice of the notary that the payment is due. The notary has pointed out, that the interest rate in case of delay of payment is five percentage points above the base interest rate for one year and the base rate can change at the 01.01. and 01.07. of each year. Claims for further damages because of the delay of payment are not excluded by the payment of the interest.

    b) If one of the parties of the agreement withdraws from the agreement because of contractual or statutory rights, the resulting costs will occur to that party which is responsible for the withdrawal.

    […..]
  3. European Court of Justice: Periods of residence in a member state before the accession of that State to the EU must be taken into account.

    Leave a Comment

    European Court of Justice (ECJ), 21.12.2011, C-425/10, C-424/10

    The ECJ held in a preliminary ruling procedure (Case C-425/10, C-424/10) that periods of residence completed by a national of a non-Member State before the accession of that State to the EU must be taken into account in calculating the five-year qualifying period, provided they were completed in compliance with the conditions laid down by EU law

    Facts of the case: Mr Ziolkowski and Mrs Szeja, Polish nationals, arrived in Germany before the accession of Poland to the European Union – in 1988 and 1989 respectively – and were granted a right of residence on humanitarian grounds, which was duly extended in accordance with German law.

    In 2005, after the accession of Poland to the European Union, they applied for permanent residence in Germany under the Directive on free movement of persons1, which was refused on the grounds that they were not in employment and were unable to prove that they had sufficient resources to support themselves.

    They challenged that refusal on the part of the German authorities before the competent national courts.

    The Bundesverwaltungsgericht (Federal Administrative Court, Germany), before which the disputes were brought, asks the Court of Justice in a preliminary ruling procedure, in essence, whether periods of residence completed in the territory of the host Member State in compliance with national law alone may be regarded as periods of legal residence within the meaning of European Union law.

    The Court is also asked whether periods of residence completed by nationals of a non-Member State before the accession of that State to the European Union must be taken into account in calculating the five-year period of residence necessary for acquiring a right of permanent residence.

    European Court of Justice: The Court interprets, first, the term ‘legal residence’ in the Directive. It points out that the Directive does not give any guidance on how the terms ‘who have resided legally’ in the territory of the host Member State are to be understood.

    Similarly, the Directive does not contain any reference to national laws. It follows that those terms must be regarded as designating an autonomous concept of EU law, which must be interpreted in a uniform manner throughout the Member States.

    The Court states that the meaning and scope of terms for which EU law provides no definition must be determined by considering, inter alia, the context in which they occur and the purposes of the rules of which they form part.

    The Court points out that the Directive aims, inter alia, to promote the exercise of the right of European citizens to move and reside freely, subject to the restrictions laid down by EU law.

    The Directive sets out the conditions under which Union citizens and their family members may move and reside freely in the Member States and the conditions which they must satisfy in order to acquire the right of permanent residence.

    Moreover, the aim of the Directive is to remedy a sector-by-sector piecemeal approach to the right of permanent residence.

    With regard to its overall context, the Directive introduces a three-level system, each level reflecting the duration of the period of residence in the host Member State, the final level corresponding to the right of permanent residence, which was introduced for the first time by the Directive.

    In essence, that system reproduces the stages and conditions set out in the instruments of European Union law and case-law preceding the Directive. Thus, first, it provides that a Union citizen has the right to reside in the host Member State for a period of up to three months, subject only to the requirement to hold a valid identity card or passport.

    Next, in order to acquire a right of residence for a period of more than three months, it is necessary to satisfy certain conditions. In order to be granted that right, Union citizens must, inter alia, be workers or self-employed persons in the host Member State or have sufficient resources for themselves and their family members not to become a burden on the social assistance system of that State and have comprehensive sickness insurance cover in that State2.

    Lastly, the Directive introduces a right of permanent residence for Union citizens who have resided legally for a continuous period of five years in the host Member State.

    With regard to the specific context of the Directive, under a number of its provisions the period of residence prior to the acquisition of the right of permanent residence must comply with conditions in keeping with the requirements of the Directive.

    In the light of those objectives and the Directive’s overall and specific context, the Court considers that, for the purpose of the acquisition of a right of permanent residence, the term ‘legal residence’ must be construed as a period of residence which complies with the conditions laid down in the Directive (namely, the person concerned must be a worker or self-employed person in the host Member State or have sufficient resources and sickness insurance cover for himself and his family members). Consequently, a period of residence which complies with the law of a Member State but does not satisfy those conditions cannot be regarded as a ‘legal’ period of residence within the meaning the meaning of the Directive concerning permanent residence.

    The Court therefore finds that that term must be interpreted as meaning that a Union citizen who has been resident for more than five years in the host Member State on the sole basis of the national law of that State cannot be regarded as having acquired the right of permanent residence if, during that period of residence, he did not satisfy the conditions laid down in the Directive.

    Second, the Court considers whether periods of residence completed by a national of a non-Member State in the territory of a Member State before the accession of that non-Member State to the European Union must be taken into account in calculating the period required for the acquisition of a right of permanent residence.

    The Court states that the Act of Accession of a new Member State is based essentially on the general principle that the provisions of EU law apply immediately and in their entirety to that State, in the absence of express derogations in the transitional provisions.

    As regards, in particular, the provisions on citizenship of the European Union, the Court has already held that they are applicable as soon as they enter into force and must be applied to the present effects of situations arising previously.

    In the present case, the Court observes that there is no transitional provision in the Act of Accession concerning the application to Poland of the provisions on freedom of movement of persons, except for certain rules concerning freedom of movement for workers and freedom to provide services.

    Consequently, the provisions on permanent residence can be relied upon by Union citizens and be applied to the present and future effects of situations arising before the accession of Poland to the EU.

    The Court finds that periods of residence completed by a national of a non-Member State in the territory of a Member State before the accession of the non-Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence, provided those periods were completed in compliance with the requirements of the Directive.

    Source: Court of Justice of the European Union

    German lawyers provide legal advice on German Immigration Law worldwide

  4. German Immigration Law: The Immigration of Jewish citizens from the former soviet union countries to Germany.

    1 Comment

    The possibility of the Immigration of Jewish citizens from the former Soviet Union countries to Germany exists since 1991.

    Basis for this Immigration is a resolution of the Conference of the Ministers of the Interior from the 9th January 1991, which rules that the HumHAG (Law over measures for in the context of humanitarian relief work accepted refugees) is also applicable on Jewish emigrants.

    Since 2005 the HumHAG has been abolished according to article 15 para 3 No. 3 of the Zuwanderungsgesetz and the rules regarding the admission of the Jews from the former USSR countries except Estonia, Latvia and Lithuania are laid down in s 23 (2) AufenthG (German Immigration Act).

    Jewish Immigrants need to fulfill special acceptance criteria in order to obtain a residence permit. According to s 23 (2) AufenthG the applicants must:

    • be nationals of a successor state of the former Soviet Union or have lived there as a stateless person since at least 1 January 2005

    • be of a Jewish nationality or have at least one Jewish parent and not profess any other religion

    • have German-language skills that satisfy at least the A1 level of the Common European Framework of Reference for Languages (This also applies to family members with exceptions applicable to children who have not yet had their 15th)

    • prove that they will be accepted in a Jewish community in Germany (the Federal Office for Migration and Refugees (BAMF) will obtain official documentation from a certificate supplied by the Zentrale Wohlfahrtsstelle der Juden [Central Welfare Office for Jews].

    • submit a positive integration prognosis (the BAMF will issue this based on the application)

    The criteria listed above are only general criteria. Thus, in certain hardship cases applicants don´t need to have language skills in order to get a residence permit/visa for Germany.

    However, in many cases especially a negative integration prognosis will be the reason, by which the embassy (or the BAMF) denies the grant of the residence permit/visa.

    In conclusion, each application has to be prepared carefully in order to apply succesfully.

    German lawyers provide legal advice on German Immigration Law worldwide