ChAR § 104c Residence Act Problems and Solutions from Practice

In January 2023, I reported to you about the new opportunity residence law for foreigners.

Now, about half a year later, I report to you on the problems we have in practice and what we can do:

1. duration of proceedings:

with some immigration authorities it takes six months or longer. They can file a lawsuit as early as three months after filing the application and thus build up pressure.

2. turn away:

the Foreigners’ Registration Office does not even accept the application and tells you that your application has no chance of success.

Insist on your request, simply submit the request in writing or by email. There is no formal requirement for an effective application. Also, you do not have to fill out a specific form to apply.

3. unauthorized requests:

as explained in our previous video, the requirements for the Opportunity Residence Permit are very low. Nevertheless, immigration authorities require documents that are not required by law.
These include, for example, passport or German language skills. You may reject such requests. Just show the case worker our video or the legal text of § 104c AufenthG.

4. expiry of the toleration upon presentation of the passport:

the Duldung is a prerequisite for the issuance of the Chance Residence Permit. Often the toleration was granted because the foreigner did not cooperate in obtaining a passport, although this would be reasonable for him.
The following has now happened with some foreigners authorities: If the foreigner presents his passport in anticipation of receiving the opportunity residence permit, the foreigners authority has canceled the toleration and rejected the opportunity residence permit, because there is no longer a toleration.
This is, of course, wrong. This is because the toleration could be granted under a different legal basis.

5. QUESTIONING on the Liberal Democratic Basic Order:

The Chance Residence Permit requires that you CONFESS to the Liberal Democratic Basic Order.
The vast majority of immigration authorities have a form for this purpose, which you sign, thereby making a DECLARATION.
However, the Foreigners’ Registration Office in Gelsenkirchen turns it into a TEST with 19 questions and four possible answers each, between which you are supposed to choose.
This approach is problematic in several respects and is contrary to the law:
The TEST is not covered by the wording of the law. The Aliens Department justifies its action by saying that it wants to make sure that the confession is meant seriously and that you understand what you are making your statement about.
This is arbitrary and fictitious. Who says how many questions I have to answer correctly?
And elsewhere in the law, namely for naturalization, the completion of a test is required in addition to a CERTIFICATE.
If that is not EXPRESSLY in the law, as it is with the Opportunity Residence Permit, it cannot be introduced through the back door.
Also, the way the test is conducted is problematic. It increases the probability that you will not pass the test. Because the questions are only available in German. However, knowledge of German is not a prerequisite for the Chancen residence permit.
So you can make use of a translator. However, there are many technical terms involved, so misunderstandings are bound to occur, especially since the test is conducted under time pressure.
This was a nice example of the creativity of an immigration office.
Now we come to the climax:

6. INVESTIGATION for passportlessness:

a general requirement for the issuance or extension of a residence permit is that you are not under investigation by the public prosecutor’s office.
Only after the investigation procedure has been completed may the Aliens Department decide on your application. This also applies to the opportunity residence permit
Now in some municipalities – in the south of our republic – the public prosecutor’s office has surprisingly become active and opened preliminary proceedings against foreigners who have applied for the opportunity residence permit.
Presumably, the foreigners authority had simply filed criminal charges when the foreigner applied for the opportunity residence permit.
The charge: staying in Germany without having a passport or passport substitute or taking care to obtain one. This may be punishable under the law.
The problem with this is that such investigations can last for many months, and the outcome is uncertain. Thus, the chancen residence law, which is supposed to offer a simple and quick solution, becomes a distant prospect.
The typical group of people for the opportunity residence permit, namely the passportless, is practically excluded. This undermines the purpose of the law, which is to build a bridge to legal residence for the foreigner and to integrate him or her.
I would like to clarify: of course, an officer must act lawfully and inform the prosecutor’s office if he suspects a crime. But for this to happen at the very moment when the foreigner is invoking his right does not seem proportionate.

Dear viewers, thank you for tuning in. If you have any questions, please feel free to contact us. I would be pleased to welcome you here again soon, your lawyer Simon Sonnenberg