Definition and scope of foreign nationals law
Das Foreign nationals law refers to the area of law that governs the legal relationship between the state and persons without German citizenship (foreign nationals). It includes provisions concerning entry, residence, employment, integration, and termination of the stay of foreigners in Germany. Foreign nationals law is part of special administrative law and is shaped primarily by national legislation, European directives, and international treaties.
Legal sources of foreign nationals law
Foreign nationals law is based on a tiered system of legal sources:
National legal foundations
- Basic Law (GG): Contains fundamental provisions, such as Article 16a (right of asylum) and Article 116 (definition of German citizenship).
- Residence Act (AufenthG): Central law regarding the residence, employment, and integration of foreign nationals.
- Freedom of Movement Act/EU (FreizügG/EU): Regulates freedom of movement for EU citizens and their family members.
- Asylum Act (AsylG): Regulations on asylum procedures.
- Nationality Act (StAG): Provisions on naturalisation and citizenship.
- Employment Regulation, Integration Act, and ancillary laws: Provisions for specific residence law situations.
European legal foundations
- EU law (e.g. directives and regulations on freedom of movement, asylum, family reunification, Blue Card): Directly and indirectly impacting national law.
- Schengen Agreement: Regulations on the European area without internal borders and visas.
- Dublin Regulation: Assignment of responsibility for asylum procedures at the EU level.
International legal regulations
- Human rights conventions (e.g. ECHR, Geneva Refugee Convention): Minimum standards for the protection of foreigners and refugees.
Material scope
Entry and residence
Foreign nationals law in particular regulates:
- Visa requirements and types: Different types of visas for short stays (Schengen visa), national visas for longer stays, reasons and requirements.
- Issuance and extension of residence permits: Residence permit for humanitarian, family, educational, employment, or political reasons pursuant to § 4 AufenthG.
- Extension, rejection, as well as revocation and withdrawal of residence permits: Examination of the respective legal requirements.
Employment and integration
Foreign nationals law determines:
- Requirements for taking up employment: Labor market access, approval procedures of the Federal Employment Agency, EU Blue Card, settlement permit.
- Integration measures: Participation in integration courses, promotion of family reunification, language support.
Termination of residence
Foreign nationals law regulates:
- Expulsion: Order to leave the country due to endangerment of public security or serious criminal offenses (§§ 53-55 AufenthG).
- Deportation: Actual enforcement of the obligation to leave the country.
- Prohibition of deportation and toleration: Conditions under which foreigners may not be expelled temporarily.
Basic principles of foreign nationals law
Differentiation based on residence status
Foreign nationals law differentiates according to residence status and purpose, for example:
- Short-term stay (tourism, business trips)
- Long-term stay (studies, employment, family reunification)
- Humanitarian residence (asylum, subsidiary protection, tolerated stay)
Citizenship and equal treatment
The principle of equal treatment and the prohibition of discrimination are decisive core principles, but do not preclude different regulations depending on country of origin and purpose of residence.
Administrative practice and authorities
Implementation is carried out by various bodies such as foreign nationals authorities, the Federal Office for Migration and Refugees (BAMF), the Federal Police, and the judiciary (administrative courts). Cooperation and responsibilities are governed by federal and state law.
Procedures in foreign nationals law
Administrative procedure
The key acts (e.g. issuance of a residence permit) are usually taken in an administrative procedure pursuant to the provisions of the Administrative Procedure Act.
Legal remedies
Against adverse measures (e.g. rejection of an application, expulsion order, deportation warning), the administrative legal process is available (objection, judicial review before administrative courts).
Special features
Certain decisions, especially in asylum procedures, result in special forms of legal protection, such as interim relief in accordance with § 80 Sec. 5 VwGO.
Foreign nationals law in relation to neighbouring areas of law
Foreign nationals law is directly connected to:
- Nationality law
- Asylum law
- Social law: Entitlement to benefits such as social assistance, child benefit, basic income support.
- Employment law: Access to the German labour market, employee rights.
- Family law: Family reunification, marriage, child law.
Recent developments and changes in foreign nationals law
Foreign nationals law is constantly evolving, shaped by social, political, and European as well as international legal developments. Recent changes include:
- Advancement of the Skilled Immigration Act
- Improvements in the integration of immigrants
- The reform of citizenship law
- Digitalisation of application and administrative procedures
Summary
Foreign nationals law in Germany forms the legal foundation governing entry, residence, integration, and termination of stay for persons without German citizenship. It is complex, encompasses numerous provisions extending beyond national borders, and is subject to constant change. Implementation is carried out by numerous authorities in close coordination with European and international requirements. Comprehensive and precise knowledge of the legal provisions is essential for any legal assessment in the field of foreign nationals law.
Frequently asked questions
How long does it take to process a visa application in Germany?
The processing time for a visa application for Germany depends largely on the type of visa applied for (Schengen visa, national visa, e.g. for studies, employment, family reunification), on the workload of the respective German diplomatic mission, and on the completeness and accuracy of the submitted documents. For Schengen visas, the standard processing time is usually 7 to 14 calendar days from the date of application. For national visas, however, longer processing periods should be expected, which depending on the purpose of stay (e.g. studies, employment, spouse reunification) may range from several weeks to several months, as the approval of the relevant foreigners authority in Germany is often required. Delays may particularly occur if additional information is requested from the applicant or supplementary documents need to be submitted. Individual factors (citizenship, security checks, current political situation) can also play a role. The current status of processing can be checked with the respective diplomatic missions or on their websites; legally binding deadlines generally do not exist, except in individual cases where the consultation requirement under Art. 22 EU Visa Code applies.
Under which conditions can a residence permit be extended?
The extension of a residence permit pursuant to the Residence Act (AufenthG) requires that the original purpose of residence still exists and that the other issuance requirements continue to be fulfilled. This regularly includes proof of sufficient means of subsistence (§ 5 Sec. 1 No. 1 AufenthG), existing health insurance coverage, as well as, where necessary, proof of adequate housing or other specific requirements for the particular residence title (e.g. progress in studies, continued employment relationship). The application for extension must be submitted in good time before the current residence permit expires to the competent foreigners authority. If there are doubts as to whether the requirements for issuance are still met (e.g. loss of job, separation from spouse in case of spousal reunification), the authority may reject the extension. Certain residence permits (e.g. for educational purposes, EU Blue Card) are governed by special rules concerning the possibility of extension and the maximum duration of stay. If the application is filed in due time, the residence permit is considered valid until the authority decides (§ 81 Sec. 4 Sentence 1 AufenthG).
What rights do holders of a residence permit have regarding employment?
Whether and to what extent holders of a residence permit may engage in gainful employment in Germany depends on the type of residence permit and the attached conditions. The Residence Act fundamentally distinguishes between residence titles that expressly permit employment (e.g. residence permit for employment, EU Blue Card) and those where employment is excluded or only permitted to a limited extent (e.g. residence permit for educational or study purposes). The respective work authorization is expressly stated in the residence permit (“employment permitted” or “employment permitted/restricted to a certain employer/type of occupation”). Without explicit authorisation, employment is generally not allowed and may have residence law consequences. Furthermore, holders of a residence permit may, if the requirements are met, claim an unrestricted right to choose their profession under Article 12 GG, especially when an extension after several years or a change of status is being considered.
How are foreign qualifications recognized in the context of residence law?
For the granting of certain residence titles, for example for qualified employment, recognition of foreign professional or academic qualifications is a mandatory legal requirement. Recognition is granted in Germany by the competent authorities or chambers, such as the Central Office for Foreign Education (ZAB) for academic degrees or the respective state authorities for regulated professions. The Recognition Act (AnerkG) and the applicable specific laws govern the assessment procedure and requirements for equivalence. For residence purposes under §18a, §18b, or §18d AufenthG, submission of a positive equivalence assessment is normally required. The outcome of this recognition process is decisive for the residence law review and, where equivalence is lacking, may result in the application for a residence title being rejected. Additionally, adjustment measures (e.g. adaptation courses) may be required.
What legal options exist if a visa or residence permit application is rejected?
If an applicant receives a notice of rejection for a visa or residence permit, it is generally possible to lodge a legal remedy against it. For decisions of German diplomatic missions, an objection can usually be filed within one month of notification; alternatively, depending on the specific administrative procedure and country, a lawsuit may be filed with the administrative court (in some cases, the objection procedure is omitted). Decisions of domestic authorities are generally subject to judicial review by bringing an action before the administrative court. The general administrative procedural rules of the Administrative Court Procedure Code (VwGO) apply. For certain visa law procedures (e.g. Schengen visa), there are special features regarding the so-called remonstration procedure: here, an explicit remonstration must first be submitted to the diplomatic mission, and only after a (negative) decision on this, if necessary, legal action may be taken. During the appeal process, there is generally no suspensive effect in residence law; that is, the stay is generally not legalised during this period unless the court specifically orders otherwise.
When can a foreign national apply for a permanent residence permit (settlement permit) in Germany?
The settlement permit is a permanent residence title that, pursuant to § 9 AufenthG, can be applied for under certain legal conditions. The key requirements include possession of a residence permit for at least five years (in special cases, such as highly qualified persons, earlier), independent securing of livelihood, proof of adequate knowledge of the German language (generally at B1 level), basic knowledge of the legal and social system, sufficient living space, as well as the payment of pension insurance contributions for at least 60 months. In addition, the general requirements of the Residence Act must be met; any criminal offences may lead to refusal. There are special or facilitated regulations for particular groups (e.g. spouses of German citizens, recognised refugees). The settlement permit entitles the holder to employment without restrictions and confers a permanent right of residence in Germany, but can be revoked in the event of serious violations.
What are the legal consequences of a deportation warning for a foreign national?
A deportation warning is usually issued by the immigration authority when a foreign national no longer possesses a valid residence permit and is not willing to leave the country voluntarily (§ 59 AufenthG). The warning presupposes an obligation to leave the country, which exists either by law or through an administrative act by the authorities. In the deportation warning, a deadline is set for the foreign national to voluntarily leave the federal territory. After the expiration of this deadline, forced deportation may take place. Upon delivery of the deportation warning, a statutory deportation protection period of seven days typically begins (§ 59 para. 1 sentence 8 AufenthG). The affected foreign national may file a lawsuit against the deportation warning and, if necessary, submit an urgent application (application for the restoration of suspensive effect) to the administrative court. During the legal proceedings, a deportation ban or temporary right to remain may apply under certain conditions (e.g., tolerated stay according to § 60a AufenthG). The deportation warning is a formal administrative act that is generally associated with the loss of any legal basis for residence and may entail further immigration law measures, such as entry bans.
