We would like to report on the danger that the hard-earned residence permit can simply expire without you noticing. And when you realize it, it’s too late.
Imagine the following situation: the daughter has been living in Germany for many years with a residence permit for family reunification. After graduating from high school, she will go to London for a bachelor’s degree, after which she plans to continue studying for a master’s degree in Germany. While still studying in London, she applies in Germany for an extension of her residence permit or the granting of a settlement permit. But because she has moved abroad to study, she is surprised to learn that her residence permit is gone.
The consequences: to visit the family, she needs Schengen visas. In order to continue studying in Germany, she will need to apply for a residence permit for study purposes. And the waiting period for the settlement permit starts all over again.
So much for the shortage of skilled workers.
And why did this happen? § Section 51 of the Residence Act states: the residence permit and even the settlement permit of a foreigner can expire if the foreigner
- Spent too long abroad, i.e. exceeded the legal time limits for return travel, or
- has moved the center of his life abroad
The special feature: the extinction occurs by operation of law. A decision by the foreigners authority with a hearing is not required. Often, only an informal communication is made. Or worse, you only notice it when customs stops you at the airport because your residence permit is cancelled.
Mostly, however, the problem arises when you want to extend your residence permit or when you apply for family reunification at the German Embassy abroad. Then the German Embassy checks whether the residence permit of the foreigner living in Germany is still valid.
The entry and exit stamps in the passport, if there are any, provide initial clues. Or bank statements are requested to check whether you pay or withdraw money in Germany with EC card / credit card.
But how exactly are these conditions to be understood, which lead to the extinction? And what can be done about it?
1. exceeding the legal deadline for return
German law stipulates that foreigners must return to Germany within a certain period of time, otherwise the residence permit and also the settlement permit expire automatically. This period is usually 6 months, for certain residence titles such as EU Blue Card 12 months since the last departure.
It is therefore not the case, as is often erroneously assumed, that you have to stay in Germany for at least six months in a calendar year. But the time limit is always recalculated from the last departure.
This provision has become particularly relevant in practice since the outbreak of the Corona pandemic. Many foreigners have been unable to return to Germany in time due to cancelled flights, travel restrictions and lock downs, and have lost their residence permits as a result.
But they could have done something if there was a threat of exceeding the return deadline. You have the option of applying for an extension of the time limit at the Aliens’ Registration Office at your place of residence. The request must be made before the deadline expires, for example in writing by fax.
Of course, other problems lurk here. For example: the foreigners authority does not answer and the exceeding of the return deadline is approaching. At the latest then it is time to call in the lawyer.
It is important for us that you have the problem in mind and take care of the application for the extension of the deadline in time.
If, for example, a German employer sends the foreigner abroad for a limited period of time, the exceeding of the deadline is foreseeable and can be planned. It is convenient to apply for an extension of the time limit even before the assignment, and experience shows that it is often denied.
Let us now turn to the second reason for extinction:
2. transfer of the center of life
The law stipulates: the residence permit expires if the foreigner leaves for a reason that is not temporary in nature.
Unfortunately, this is a very vague legal term, especially given its scope. You can rewrite it as relocation of the center of life, but that is no better.
Concrete clues from practice are more helpful, for example
Taking up employment abroad; by this I do not mean secondment, but local employment abroad
Taking up studies abroad; case law regularly regards this as a transfer of the center of life; I find this problematic because the study abroad is comparable to the posting. The study program is also limited in time, and in most cases the intention is to return to Germany afterwards.
Other facts in favor of the transfer of the center of life:
Significantly longer periods of stay in always the same foreign country compared to the domestic country; thus a typical case when one always travels back to Germany for a few weeks to meet the deadline and then travels back to the home country for almost half a year.
Lack of residence, lack of health insurance in Germany
Here, too, you should contact a lawyer at the latest before you give information to the foreigners authority without thinking. Because it makes a difference, for example, whether you say:
I traveled abroad to care for a family member for as long as they needed care; then: residence permit expired;
Or whether they say:
I traveled abroad to organize care for a family member. Then: residence permit not yet expired.
There is one exception. If you have a settlement permit and have been in Germany for 15 years, your residence permit will no longer expire. The further requirement: the livelihood must be secured. Unfortunately, it is disputed which point in time is to be taken as the point at which the livelihood must be secured. At the time the residence permit expires? Or if re-entry is intended? or always?
Incidentally, according to the coalition agreement, the German government plans to abolish these extinction provisions. This is intended to improve the retention of skilled workers and integrated foreigners in particular. Unfortunately, the abolition did not take place with the Migration Package I. This I had introduced to you with a previous video.
Dear readers, if you have any questions, please feel free to contact us.
Thank you for visiting our site. I look forward to welcoming you here again soon, your lawyer Simon Sonnenberg