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  1. 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.

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    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

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

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    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”).

    German_Residence_Titles

    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

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  3. German Immigration Law: Specific purposes to get the German temporary residence title (Aufenthaltserlaubnis)

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    The German law on residence, employment and integration of foreigners (German residence act, Aufenthaltsgesetz, AufenthG) governs the conditions and procedures for the entry, residence, exit or the removal of foreign nationals in the German territory, as well as the status of long-term residents.

    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”).

    German_Residence_Titles

    For each of these residence titles, the following general conditions have to be fulfilled by the applicant according to section 5 (1) of the German residence act:

    – sufficient means of subsistence during the period of stay.
    – the identity and nationality of the applicant has to be clarified.
    – the applicant has to have a valid and recognized travel document (passport).
    – the absence of reasons for deportation (criminal convictions are an example for a reason for deportation).
    – there are no other reasons endangering the interests of the German state.

    Moreover, the temporary residence title (“Aufenthaltserlaubnis”) is only granted for s specific reason.

    This article intends to give an overview of these different kinds of reasons to get the temporary residence title.

    A.) Temporary residence permit for humanitarian reasons

    There are several ways for a foreign person to get a German temporary residence permit because of humanitarian reasons:

    – According to s 25 of the German residence act a foreign person might get a temporary residence permit, if the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees) testified the refugee or asylum status of the foreign person.

    – According to s 25 of the German residence act a foreign person might get a temporary residence permit, if the departure of the foreign person is not possible because of specific personal reasons of the person.

    – According to s 23 of the German residence act a foreign person is also entitled to get a temporary residence permit, if the person has the right of abode because of political or humanitarian reasons.

    – The foreign person might also get the temporary residence permit, if his or her deportation is forbidden because of the conditions in his or her home country (e. g. a war situation).

    B.) Temporary residence permits for study purposes

    There are various ways for a foreign person to get a German temporary residence permit for study purposes:

    According to s 16a of the German residence act a foreign person might be entitled to get a temporary residence permit if the person wants to do a vocational training (Ausbildung) in Germany.

    – According to s 16b of the German residence act a foreign person might be entitled to get a temporary residence permit if the person wants to apply for studies, wants to take up studies or wants to prepare for studies in Germany (e. g. a language course).

    – According to s 16e of the German residence act a foreign person might be entitled to get a temporary residence permit if the person wants to do a study related internship in Germany (e. g. a language course).

    – According to s 16f of the German residence act a foreign person might get a temporary residence permit if the foreign person wants to take a language course without the intention to study.

    – According to s 17 of the German residence act the foreigner might get the temporary residence permit if he or she wants to search for a place at the university or a vocational training.

    C.) Temporary residence permits to work (Employment or freelance/self employment)

    The foreigner might get the temporary residence permit if he or her takes up a job in Germany or wants to start a business:

    – According to s 18a of the German residence act a foreign skilled worker (vocational training) or according to section 18b of the German residence act (university graduate) might get the permit in order to work in Germany.

    – According to the sections 18d – 18f of the German residence act a foreign researcher or scientist might get the permit in order to work in Germany.

    – According to s 18g of the German residence act a foreign person might get the EU Blue Card Germany (also a temporary residence permit) to work in Germany.

    – According to s 20 of the German residence act a foreign person might get a temporary residence permit to look for a job in Germany.

    – According to s 21 of the German residence act a foreign person might get the permit to start a business in Germany.

    D.) Temporary residence permit for family reasons

    There are also various ways for a foreign person to get a German temporary residence permit because of family reasons:

    – According to s 28 of the German residence act the foreign spouse of a German national, the child of a German national or the parents of a German child might get the permit if the German national has his or her habitual abode in Germany.

    – According to s 29 of the German residence act the foreign relatives of a foreigner might get the permit if the foreigner lives in Germany legally.

    – According to s 30 of the German residence act the foreign spouse of a foreigner might get the permit if the foreigner lives in Germany legally.

    – According to s 31 of the German residence act the spouse of a German national might receive an independent right of residence after living some time in Germany and might therefore be entitled to get the temporary residence permit.

    – The child of a foreign person living in Germany might be entitled to get the residence permit according to s 32 of the German residence act.

    – The parents or other relatives of a foreign child living in Germany might get the residence permit according to s 36 of the German residence act.

    – The foreigner might be entitled to get the residence permit if the foreigner has been living in Germany legally as a child.

    – Former German nationals might get the temporary residence permit according to s 38 of the German residence act.

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  4. Overview of German Residence titles like Visa, temporary residence title (“Aufenthaltserlaubnis”), permanent residence title (“Niederlassungserlaubnis”)

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    To stay in Germany legally, a foreign person needs a German residence title.

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

    – The visa (“Visum”) for a short visit, entry or stopover.
    – The temporary residence permit (“Aufenthaltserlaubnis”) for a specific reason,
    usually only for a temporary stay
    – The settlement permit (“Niederlassungserlaubnis”) which is usually
    permanent.

    German_Residence_Titles

    All of these residence titles are granted only after a successful official application procedure.

    A German Visa (“Visum”)

    All third country nationals (e. g. Egypt, Algeria, China, India, Lebanon, Morocco, Philipines, Indonesia, Thailand, Russia, Syria, Tunesia, Turkey, Ukraine, Belarus) who are subject to visa obligation to enter into Germany are obliged to present themselves personally at the German Embassy or Consulate in their home country.

    To apply for the Schengen Visa, the applicants must generally fill-in and personally sign a visa application form and provide further documents like:

    – A passport valid at least three months beyond the expiry date of the visa requested;
    – Passport photos.
    – Travel insurance of at least EUR 30.000.
    – Proof of economic means of support to cover the stay (e.g. credit cards, travellers’ cheques, etc.).
    – Proof of accommodation.
    – Supporting documents regarding the purpose of the visit.
    – Documentation regarding means of transportation and return to the country of origin/residence.
    – Documentation proving the social-professional status of the applicant (proof of employment, study certificate, etc);
    – Visa fees to be paid upon application

    B. German temporary residence permit (“Aufenthaltserlaubnis”)

    An Aufenthaltserlaubnis is a temporary residence permit, granted for a specific purpose. The Aufenthaltserlaubnis is generally valid for a year and is usually extended when the purpose of the stay persists.

    Apart from being extendable there are also other rights connected to the purpose of a stay, for example the right to work and the right to receive social security benefits.

    There are a lot of reasons to get the Aufenthaltserlaubnis, for example the immigration of spouses of German or foreign residents living in Germany (“Ehegattennachzug”), the immigration of family members of German or foreign residents in Germany (“FamiliennachzuG”), the immigration of highly qualified persons or the immigration because of humanitarian reasons.

    C. German permanent residence permit (“Niederlassungserlaubnis”)

    The German Niederlassungserlaubnis is a permanently valid residence title, which doesn`t have to be renewed during the stay of the foreigner.

    The Niederlassungserlaubnis will be granted for example, if the foreigner has had an Aufenthaltserlaubnis for five years, has sufficient income, accommodation and can show proof of 60 months of paid state pension contributions.

    Spouses of Germans can receive the Niederlassungserlaubnis after three years, if their marriage is still intact and they can show proof of sufficient income.

    German lawyers providing legal advice on German immigration law