Definition and Interpretation of the Term ‘Foreigner’
The term ‘foreigner’ is a central legal concept in German law and refers to persons who do not possess German citizenship. Foreigners law encompasses all statutory provisions relating to the rights and obligations of such persons. The precise definition and legal treatment of the term is governed in various statutes, especially in the Residence Act (AufenthG).
Distinction from Other Legal Terms
In contrast to the foreigner, the ‘German’ within the meaning of the Basic Law for the Federal Republic of Germany is defined in Article 116(1) of the Basic Law (GG) as someone who possesses German citizenship or is recognized as a refugee or expellee of German ethnic origin. Persons who do not have German citizenship are considered foreigners in Germany, regardless of their origin, residence, or other characteristics.
Another term that needs to be distinguished is ‘Union citizen’: Citizens of other member states of the European Union hold a special status, as they enjoy far-reaching freedom of movement rights under European law.
Legal Foundations and Regulations
Residence Act (AufenthG)
The German Residence Act forms the core regulation of foreigners law. It not only defines the term ‘foreigner’ (§ 2(1) AufenthG), but also regulates in detail the entry, stay, employment, and settlement of foreigners. The law distinguishes between different types of residence permits, residence titles, and tolerated status.
EU Law Provisions
Union citizens, i.e., nationals of other EU member states, are formally considered foreigners under German law, but they enjoy privileged rights on the basis of the Freedom of Movement Directive (Directive 2004/38/EC). The Freedom of Movement Act/EU (FreizügG/EU) governs these special requirements for Union citizens and their family members.
Subsidiary Protection Categories
In addition to nationals and Union citizens, German law recognizes various other special groups among foreigners, such as beneficiaries of protection under the Geneva Refugee Convention, asylum seekers, and stateless persons. Each group is subject to specific residence law regulations, e.g., under the Asylum Act.
Residence Titles and Residence Status
Basic Forms of Residence Law
Foreigners generally require a residence title to enter and stay in Germany, with only a few exceptions (such as Union citizens). The most important forms include:
- Visa: A temporary and purpose-bound residence title, issued for specific purposes such as tourism, employment, studies, or family reunification.
- Residence Permit: Temporary residence title for defined purposes of stay, such as education, employment, or humanitarian reasons.
- Settlement Permit: Permanent residence title which may be granted after a prolonged lawful stay and fulfillment of certain integration requirements.
- EU Long-term Residence Permit: For third-country nationals entitled to long-term residence, also with special rights.
Tolerance and Temporary Residence Permit
Tolerance (Duldung) is a special category. It applies to foreigners whose deportation is temporarily suspended (§ 60a AufenthG), for example, due to international law, humanitarian, or personal reasons. The temporary residence permit is a provisional status granted during the asylum procedure.
Rights and Obligations of Foreigners
Fundamental Rights
Foreigners also enjoy fundamental rights in Germany. The Basic Law guarantees human dignity, the right to life and physical integrity, and equality before the law. However, some rights are explicitly reserved for German nationals, such as the right to vote.
Employment
The taking up of employment for foreigners is subject to specific requirements. The rules vary depending on residence status and country of origin. The issuance of a work permit is generally tied to the residence title.
Integration Obligations
Some groups of foreigners, particularly those with permanent residence permits, are required to attend integration measures such as integration courses. Participation is often a prerequisite for subsequent permanent residence or naturalization.
Social Law Status
Foreigners are generally treated equally under German social law, but are subject to restrictions depending on their residence status, for example regarding access to social benefits, child benefit, or housing entitlement.
Other Relevant Regulations
Registration Requirements and Identification Requirement
According to the Federal Registration Act, foreigners are required to register with the registration office. There is also an obligation to carry a valid passport or passport substitute document.
Criminal and Administrative Law
Violations of residency law requirements may constitute administrative or criminal offences, such as unauthorized residence, working without a permit, or lack of valid identification documents.
Expulsion and Deportation
The termination of residence by foreigners is regulated in §§ 53 et seq. of the Residence Act. Reasons include, among others, criminal acts, threats to public safety, or lack of a residence permit. The order usually covers expulsion, deportation, and, if applicable, a ban on entry and residence.
Personal Subgroups
Stateless Persons and Third-Country Nationals
Stateless persons have no nationality and, along with third-country nationals (non-EU foreigners), are subject to the Residence Act, with some specialized provisions.
Tolerated and Protected Persons
If a residence title cannot be granted for humanitarian or international law reasons, special protection mechanisms apply, such as tolerance regulations (§ 60a AufenthG) or residence under § 25 AufenthG (humanitarian or international law reasons).
Development and Significance in Context
Demographic and Societal Significance
The legal status of foreigners in Germany is both a key migration issue and an important factor for the labor market, education, and demographic development. Ongoing legal reforms reflect social and political changes.
International Law
Administrative law concerning foreigners is also subject to international requirements, such as those enshrined in international agreements, the European Convention on Human Rights, and conventions for the protection of refugees.
Literature and Further References
- Residence Act (AufenthG)
- Freedom of Movement Act/EU (FreizügG/EU)
- Federal Registration Act (BMG)
- Asylum Act (AsylG)
- Basic Law (GG), especially Art. 116 GG
- Geneva Refugee Convention
This article provides a comprehensive overview of the legal significance and structure of the term ‘foreigner’ under German law. For more detailed information, it is recommended to consult the statutes and official materials cited.
Frequently Asked Questions
What rights do foreigners have in Germany regarding residence and employment?
Foreigners in Germany are subject to residence law, which is essentially regulated by the Residence Act (AufenthG). To remain in Germany, they generally require a recognized and valid residence title, such as a visa, residence permit, or settlement permit. The type of residence title determines the scope of their rights, especially with regard to employment. As a rule, employment is only permitted if it is expressly authorized by a work permit or the corresponding residence title. Certain groups, such as EU citizens, enjoy significantly expanded rights within the framework of freedom of movement for workers and do not require an additional work permit. In contrast, third-country nationals require formal proof of authorization. Lack of a valid residence title can have labor law and criminal consequences; for persons with tolerated status (tolerance under § 60a AufenthG), special regulations apply. For example, they may have limited access to education and the labor market, depending on individual circumstances and administrative approval.
What obligations do foreigners have towards German authorities?
Foreigners are required to fulfill a number of statutory obligations. First, there is a registration duty under the Federal Registration Act, which requires notification of every change of residence within Germany or the initial taking up of residence. There is also an identification requirement: foreigners must always carry a valid passport or passport substitute and present it to the competent authorities upon request. In the context of residence law, notification obligations are particularly important: changes regarding purpose of stay, place of residence, or family status (e.g., marriage, divorce, or birth of children) must be reported to the immigration authorities without delay. Additionally, foreigners must comply with statutory cooperation obligations in administrative procedures, such as providing documents for identification purposes or applying for residence titles. Failure to comply with these obligations may result in administrative or criminal penalties, up to and including expulsion.
What legal remedies are available to foreigners against negative decisions by the immigration authorities?
Against decisions by immigration authorities, such as denial of a residence title or imposition of an obligation to leave the country, foreigners have access to various legal remedies. Firstly, an objection can be filed against the administrative act, provided that the respective federal state continues to apply the objection procedure (it has been abolished in some federal states). In the event of a legally binding negative decision, a lawsuit can be filed before the competent administrative court. The relevant deadlines for filing an objection or lawsuit must be observed (usually one month after service of the decision). In certain cases, such as an order for deportation, interim relief (urgent proceedings under § 80(5) VwGO) may be requested to obtain suspensive effect. It is advisable, especially in legally complex cases, to seek legal advice, as incorrect or late remedies can have significant negative consequences.
What special regulations apply to asylum seekers and refugees?
Asylum seekers and refugees are subject to a separate legal framework, primarily governed by the Asylum Act (AsylG), Residence Act, and the Geneva Convention Relating to the Status of Refugees. During the asylum procedure, applicants receive a temporary residence permit (Aufenthaltsgestattung) that entitles them to remain in Germany, although access to employment is limited. Recognized refugees under the Geneva Convention or persons with subsidiary protection are entitled to a residence permit, which grants them extensive rights, including access to the labor market, educational opportunities, and social benefits. Asylum seekers are also subject to residence restrictions, such as a residency requirement and, if applicable, accommodation in collective centers. There are also special provisions regarding family reunification, which is possible under certain conditions and deadlines and is regulated by the Residence Act.
Under what circumstances can a foreigner be expelled or deported?
Expulsion from Germany under § 53 et seq. Residence Act occurs when a foreigner commits serious or repeated breaches of legal provisions, particularly in the case of criminal offenses, threats to public safety, or deception regarding identity and nationality. The decision to expel is at the discretion of the authorities and always requires a balancing of interests. Deportation is the compulsory enforcement of the obligation to leave if the foreigner does not voluntarily depart after a final decision. As a rule, deportation must not take place if there are significant dangers to life, limb, or freedom in the destination country (protection from deportation, § 60 AufenthG). Where special personal circumstances exist, such as prolonged residence, integration, or family ties to German nationals or residents, the authorities must review proportionality and protection of private and family life. During the procedure, there is a right to be heard and, if necessary, to seek interim legal protection.
What should be considered in the case of marriage or partnership with a German citizen?
In the case of marriage or a registered civil partnership with a German citizen, a special right of residence may arise under § 28 AufenthG. The usual requirement is the existence and ongoing intention to maintain a marital or partnership-based household in Germany. Family reunification also requires that means of subsistence are secured, adequate living space is available, and usually basic German language skills at level A1. The right of residence may continue after separation, especially after at least three years of marital cohabitation in Germany or in cases of exceptional hardship (e.g., domestic violence). However, marriage alone does not guarantee a permanent residence title, as the general statutory requirements still apply. Spouses of German citizens are also subject to general cooperation obligations vis-à-vis the immigration authority.
What options do foreigners have for naturalization?
The naturalization of foreigners is governed by the Nationality Act (StAG). In principle, under certain conditions, there is an entitlement to naturalization after eight years of lawful residence (in special cases, such as successful completion of an integration course, after seven years). Key requirements include a secure income to support oneself, sufficient knowledge of German (at least level B1), knowledge of the legal and social order, a clean criminal record, and affirmation of the free democratic basic order. In addition, it is generally necessary to renounce one’s previous citizenship, although there are exceptions to this rule, for example for EU citizens or on grounds of international law. The process takes place upon application with the competent naturalization authority, and the applicant must provide comprehensive proof of the aforementioned requirements. Naturalization assurances are to be issued in writing; naturalization becomes effective upon the handover of the naturalization certificate.
