Definition and significance of the obligation to leave (Ausreisepflicht)
Die Obligation to leave (Ausreisepflicht) is a central concept in German residence law and refers to the legal obligation of a foreign national to leave the federal territory if further residence is not or no longer permitted. The obligation to leave is part of the residence law system of the Residence Act (AufenthG) and is governed in the Federal Republic of Germany by the provisions of national and European law.
The obligation to leave arises in particular after the rejection of a residence permit, the loss or revocation of an existing permit, as well as after the final rejection of an asylum application or the unsuccessful completion of an asylum procedure.
Legal basis for the obligation to leave
Residence Act (AufenthG)
The main statutory basis is the Residence Act, in particular section 50 AufenthG. According to section 50(1) AufenthG, a foreign national is required to leave the country if they do not have a valid residence permit (visa, residence permit, settlement permit or another residence permit), or if their residence permit has expired, been revoked or withdrawn.
Asylum Act
For asylum seekers, the Asylum Act (AsylG) regulates the obligation to leave after rejection of their asylum application or upon the final legal conclusion of the proceedings (section 34 AsylG).
Requirements under EU law
EU law, in particular the Return Directive 2008/115/EC, also establishes common standards and procedures in member states for the return of third-country nationals staying illegally. These regulations have a direct impact on German law.
Arising and commencement of the obligation to leave
The obligation to leave arises as soon as a foreign national no longer possesses a legal residence permit. As a rule, the obligation is confirmed by an administrative decision, for example by a so-called expulsion order. The decisive criterion is the lawfulness of the stay; if this is not given, leaving the federal territory is mandatory.
The relevant point in time for the commencement of the obligation to leave is frequently the point
- at which a residence permit has been finally rejected,
- withdrawn, or
- revoked,
or the date of completion of an unsuccessful asylum procedure.
Deadlines and modalities for departure
Deadline for departure
As a rule, when notifying someone of the obligation to leave, a deadline for voluntary departure is set (section 50(2) AufenthG). This is usually seven to thirty days, but may be shortened or extended in individual cases— for example, for humanitarian, family, or health reasons. If immediate departure appears necessary (for example, in case of danger to public safety and order), the authority may shorten this period or issue a deportation warning.
Voluntary departure versus deportation
Voluntary departure is initially given priority. Only after the legal or official deadline has expired and the obligation to leave remains in effect can forced return (deportation) take place.
Legal consequences of non-compliance with the obligation to leave
Enforcement measures: Deportation
If the obligation to leave is not fulfilled, the competent foreign nationals’ authority may order deportation (section 58 AufenthG). The deportation takes place to the country where the person is permitted to enter or from which they entered. Exceptions apply if there is imminent danger to life, limb, or freedom.
Entry and residence bans
Violation of the obligation to leave may result in a temporary or permanent ban on re-entry and residence in Germany or in the entire Schengen area (section 11 AufenthG).
Criminal and administrative penalty provisions
Unauthorised stay after the deadline for departure is deemed an administrative offence (section 95(1) AufenthG) and can be punished by a fine or, in particularly serious cases, by imprisonment.
Exceptions and grounds for suspension
Legal and factual obstacles to deportation
In certain cases, the enforcement of the obligation to leave is suspended. Obstacles to deportation under sections 60 et seq. AufenthG (e.g. impending torture, life-threatening illness, severe family hardship) do not lead to the granting of a residence permit, but suspend the forced enforcement of the obligation to leave (toleration under section 60a AufenthG). Individuals affected remain obliged to leave even during toleration.
Hardship regulations
In addition, there are special hardship provisions (section 23a AufenthG) that allow the state governments to grant a residence permit for humanitarian reasons in exceptional personal circumstances.
Termination of the obligation to leave
The obligation to leave generally ends upon
- actual departure from Germany,
- obtaining a new residence permit,
- granting of a residence permit in the federal territory by other legal means, or
- the death of the person concerned.
A toleration (Duldung) does not interrupt the obligation to leave, but only suspends its forced enforcement.
Procedural aspects
Legal remedies
Affected persons can lodge legal remedies, in particular objections or legal actions before the administrative courts (§ 80 VwGO), against measures terminating residence and the determination of the obligation to leave. Lodging such remedies usually has suspensive effect unless the authority orders immediate enforcement.
Administrative responsibility
Responsibility for implementing measures to enforce the obligation to leave generally lies with the local foreign nationals’ authorities. In security-relevant cases, police authorities or the Federal Office for Migration and Refugees may also be involved.
International and European law aspects
In addition to national regulations, the obligation to leave is strongly shaped by European requirements. In particular, the Return Directive and the Dublin procedure in the asylum sector provide binding rules, especially regarding deadlines, modalities for departure, and the protection of vulnerable groups.
Historical development and significance in migration law
The obligation to leave reflects the tension between the state’s sovereign interest in migration control and obligations under international law. In recent years, its practical significance has increased considerably due to intensifying migration movements, European harmonization, and debates regarding integration policy. Measures to promote voluntary departure are becoming increasingly important, as are legal improvements in identifying and protecting particularly vulnerable persons.
Summary: The obligation to leave is a central instrument of the residence law system of the Federal Republic of Germany for managing and ending the stay of persons required to leave. It is characterised by extensive national and European regulations and is subject to numerous procedural and fundamental guarantees to take account of both the interests of the state and the rights of the persons concerned.
Frequently asked questions
Which deadlines must be observed in the case of an obligation to leave?
The deadlines for departure are basically governed by section 59 AufenthG (Residence Act). If a person is subject to an obligation to leave, they are usually given a so-called deadline for departure, which generally amounts to seven to thirty days. The specific deadline depends on the individual case— for example, whether the person can depart voluntarily or is facing deportation. Certain circumstances, such as ongoing legal remedies (e.g. objection to the rejection decision) or serious health problems, can extend the deadline accordingly or result in so-called ‘toleration’ under section 60a AufenthG. If the deadline is not met, forced enforcement of the obligation to leave may be imposed, usually by deportation. The exact calculation and notification of the deadline is carried out by the foreign nationals’ authority and is communicated to the person concerned in writing together with the corresponding notification of return.
What happens if the obligation to leave is not fulfilled?
If a person does not comply with their obligation to leave within the prescribed period, various legal consequences may arise. After expiry of the deadline, the competent foreign nationals’ authority may order deportation, i.e., forced enforcement of departure. This can also involve residence-terminating measures such as an entry and residence ban in accordance with section 11 AufenthG. In addition, the person concerned may face criminal consequences under section 95 AufenthG, particularly if they reside illegally in the federal territory or are obliged to leave Germany. In some circumstances, detention may also be ordered to secure deportation under the provisions of preventive detention (section 62 AufenthG), especially if there is a risk of flight or if identity or nationality has not been unequivocally established.
Are there exceptions to the obligation to leave?
German residence law does indeed provide for exceptions and temporary suspensions to the obligation to leave. Of particular note is the so-called ‘toleration’ under section 60a AufenthG. This is granted if deportation is temporarily impossible for legal or factual reasons, for example due to a deportation ban, lack of travel documents, health-related obstacles, or serious personal circumstances. However, a toleration is not a residence permit and does not prevent the fundamental obligation to leave, but merely postpones it temporarily. Initiating various legal remedies, such as filing an objection or legal action against a rejection notice, can also cause the obligation to leave to be suspended during pending proceedings.
What options exist for voluntary departure?
Persons who are obliged to leave are explicitly encouraged to return voluntarily to their country of origin in order to avoid enforcement measures and additional periods of re-entry bans. The return journey can be organised independently or supported within the framework of return assistance programmes. There are advisory services and return assistance programmes available at federal and state level, such as the “REAG/GARP” programme (Reintegration and Emigration Programme for Asylum-Seekers in Germany / Government Assisted Repatriation Programme), which covers travel costs and, if necessary, provides start-up assistance in the home country. Voluntary departure is in principle still possible during ongoing measures that terminate residence (such as a deportation warning), provided the requirements for a self-directed return are met and the return takes place within the period set.
What legal remedies are available against the order to leave?
Against the order to leave or against the associated administrative act (such as the rejection notice on an asylum application or a residence permit application), the person concerned has various legal remedies. After service of the decision, they may file an objection with the issuing authority or possibly file a lawsuit directly with the competent administrative court, depending on the individual order and the relevant state law. These legal remedies generally have suspensive effect, meaning the obligation to leave must not be enforced until a decision is made in the respective proceedings. An application for interim legal protection (section 80(5) VwGO) may also be filed to prevent enforcement measures, if the legal remedy does not already have suspensive effect.
What impact does the obligation to leave have on entitlement to benefits under the Asylum Seekers’ Benefits Act?
Once the obligation to leave is binding and not subject to appeal, eligibility for benefits under the Asylum Seekers’ Benefits Act (§§ 1, 2 AsylbLG) may change or be reduced. As a rule, benefits are limited to the amount required to cover the physical minimum subsistence level (so-called analogous benefits), as the duty to leave entails a duty to cooperate in one’s own departure. If the obligation to leave is not fulfilled, this may result in reductions or complete cessation of benefits (§ 1a AsylbLG) if refusal to leave is assessed as conduct attributable to the individual. In specific cases, sanctions may be waived, for example in the case of current incapacity to travel for health reasons.
