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Summary

Germany’s immigration system limits long-term admittance to skilled workers to the extent that they are needed by German employers and to entrepreneurs investing in Germany.  Residence permits are first granted on a temporary basis (usually for one to three years), but they can be renewed as long as the conditions for their granting continue to exist.  For aliens admitted as workers, this means that they must be employed, law-abiding, and not in danger of becoming a burden for Germany’s social services.  Generally, aliens can become permanent after having resided in Germany for five years and if they live up to the requirements of being self-supporting and integrate into the German way of life.  For highly skilled workers, the path to permanency is shorter.

Germany is a Member State of the European Union (EU), and its immigration system applies to citizens from third (non-EU) countries.  Citizens and long-term residents of EU countries have the right to reside and work in Germany.  Since 2011 this freedom of movement has also applied to the East European countries.  Prior to 2011 Germany admitted unskilled seasonal workers from Eastern Europe for short periods of time through programs based on bilateral agreements, but these have become obsolete with EU expansions in Eastern Europe. 

Germany aims at controlling immigration through a detailed system of visas and permits.  Any entry into Germany requires a visa or residence permit, and any entry into Germany without a visa or residence permit or any overstaying the period permitted by the visa or permit is a criminal offense and may lead to deportation.

The much-used Schengen visa is issued by any Member State of the Schengen Agreement and entitles the holder to travel throughout the Schengen area (most of the European Union and some contiguous countries).  A Schengen visa entitles the holder to remain in the Schengen area for three months within a six-month period.  Tourist visas are generally Schengen visas.

German residence permits can be granted for a variety of purposes, including study, research, family reunification, employment, and entrepreneurial activity.  The terms of the permits are tailored to the envisioned purpose, and a strict dividing line is drawn between merely temporary purposes and those that can lead to a permanent status in Germany.

The path to citizenship is gradual, requiring a lawful residence of six to eight years, depending on the degree of integration of the immigrant.  Also required is a permanent residence permit which, depending on the desirability of the immigrant, is granted after thirty-three months to five years of temporary status.  Throughout this path to permanency and then citizenship a high degree of acculturation is required, as is a solid status of financial self-sufficiency, which includes adequate health insurance and housing.

As a member of the Schengen regime, Germany is surrounded by other Schengen countries.  Consequently, Germany has no border controls on the internal borders within the Schengen area and relies largely on the border controls exercised by the Schengen members having an external border.  The only external borders for which Germany is responsible are the maritime border on the North Sea and the Baltic Sea, and international airports.  Despite the absence of systematic border checks at the borders with neighboring countries, Germany still maintains a Federal Police Force, whose mission includes the protection of German borders against the illegal entry of aliens who have been able to circumvent the border controls of another Schengen member country.

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Immigration System

Immigration Policy

In the 1960s, Germany recruited and admitted large numbers of foreign workers in order to increase German industrial production.  At the time it was generally assumed that the then admitted “guest workers” would eventually leave.[1]  Instead, these workers, most of them Turkish, remained in Germany and brought their families, so now about ten percent of the German population has a migrant background.[2]  Since 1973 Germany has pursued an immigration policy that limits immigration to skilled or highly skilled workers[3] and admits unskilled workers only for short periods, thus preventing them from becoming permanent or bringing their families.[4] 

The current immigration system is based on the Residence Act of 2004.[5]  This was the first German legislation that embraced the integration of Germany’s immigrant population.  Prior to 2004, Germany had adhered to the slogan “Germany is not a country of immigration.”[6]  As compared to previous legislation, the Residence Act of 2004 promotes integration by shortening the periods of residence required before granting permanent status and by requiring language skills and acculturation for renewals of residence permits. 

EU Citizens

German immigration law distinguishes between non-Germans who are citizens from Member States of the European Union (EU) and those who originate from third (non-EU) countries.  Citizens of Member States enjoy freedom of movement in Germany.[7]  They are entitled to take up residence in Germany if they pursue a gainful occupation there, study or look for work, or are financially independent.[8]  After five year’s lawful residence they are entitled to a permanent residence permit.  The bulk of the provisions of the Residence Act does not apply to EU citizens.  Instead, it applies only to citizens of third countries, as discussed below.

Third Country Citizens

Visas and Residence Permits

Germany’s immigration system is based on the concept that any entry into the country requires not only a valid passport[9] but also a visa or residence permit.[10]  Entering the country without a valid visa or permit is a criminal offense, as is the overstaying of a visa or permit.[11] Such conduct may lead to deportation.[12]

A visa for new entrants will often be given in the form of a Schengen visa.[13]  It entitles the holder to travel throughout the Schengen, which comprises twenty-three EU Member States and some other adjacent countries.[14]  Schengen visas are granted for three months out of a six-month period.  They serve as tourist visas and grant short-term entry to business travelers.

In contrast to the Schengen visas, the German titles permitting a sojourn for a specific purpose are called residence permits.  These are granted under various conditions and for varying periods of time, depending on the purposes for which they are granted.  Among these purposes is study or research in Germany, entrepreneurial activity, employment, and refuge or asylum.[15]

Permits that give the applicant the right to work in Germany are generally only given to skilled workers, and only if there is an actual need for the employee;[16] highly skilled workers are admitted under preferential conditions.[17]  In the past, permits for unskilled temporary guest workers (mostly seasonal workers) were given under arrangements between the German Federal Employment Office and authorities in East European countries.  Since 2011 these arrangements have become obsolete owing to enlargements of the European Union in 2004 and 2008.[18]  Since then, East European workers have enjoyed freedom of movement in Germany. [19]

Generally residence permits for new entrants are granted as temporary permits[20] for periods of one to three years.[21]  Renewals are possible and permanent status may be granted after five years of temporary status.[22]  Throughout the resident’s sojourn in Germany, he must be financially self-sufficient and make an effort to become integrated.  These requirements, which also apply to naturalization, are described below (Part II(D) Financial Self-sufficiency, and Part II(E), Integration).

Refugees

Germany grants asylum as a constitutional right to those persecuted in their country of origin, yet limits this rights to petitioners who reach Germany without traversing another Member State of the European Union or the Schengen Agreement.[23]  In addition, Germany also allows refugees to remain in Germany, at least temporarily, if they do not technically qualify for asylum but still require protection according to EU and international law standards.[24]

Family Reunification

The immigration of spouses and children of resident aliens is possible albeit limited to aliens of a somewhat solidified status. [25]  Spouses of aliens may be granted a residence permit only if the alien resides in Germany under a residence permit that is intended to be applicable for at least one year.[26]  Dependent children will be admitted only if both of the parents or the parents with sole custody have a German residence permit and the center of the child’s life is being moved to Germany.  The duration and renewability of residence permits for children and spouses who join a resident alien are strongly tied to the person and the status of the originally admitted sponsoring alien.[27]

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Path to Citizenship

Birthright Citizenship

In Germany birthright citizenship is an exception to the generally applicable rule of jus sanguinis, that is, acquisition of citizenship by descent from a German parent.[28]  Birthright citizenship applies to the children born in Germany to alien parents if one parent has been a lawful resident of Germany for at least eight years and also has a permanent residence permit.[29]  In essence, birthright citizenship is only granted to the children of aliens who have a parent who qualifies for naturalization.  Birthright citizenship, however, is granted conditionally to those who acquire another nationality at birth.  They lose the German citizenship unless they opt to relinquish the other citizenship after reaching majority.  To make this choice, the law grants the young dual citizen a period of five years from the time he reaches the age of eighteen until he is twenty three years old.[30]

Requirements for Naturalization

An alien who has lawfully resided for eight years in Germany is entitled to become a German citizen, provided he is a permanent resident at the time of application and lives up to various statutory criteria that purport to establish that the applicant is law-abiding, integrated, not a dual citizen, and self-supporting.[31]  Throughout the entire period during which an alien resides in Germany on his path to permanent status and/or citizenship, German law is very insistent that he not become a burden to society, not endanger the country and its inhabitants, and be socially and linguistically integrated.  Each renewal of a residence permit as well as the granting of a permanent residence permit are dependent on the continued existence of these conditions, which are very similar to those required for becoming permanent (see above part I Immigration).

Statutory Waiting Period

During the eight-year waiting period for the right to be naturalized, the alien must have been a legal immigrant; periods during which the alien petitioned for asylum may count only if asylum has been granted.[32]  Germany has no special programs for converting illegal immigrants into legal ones.  In each individual case, a residence permit would have to be issued according to the generally prevailing criteria, yet it is possible that offenses against immigration law[33] that call for deportation may prevent an alien from being admitted as a legal resident [34]

The statutory waiting period can be shortened to seven years for applicants who have successfully taken a governmentally offered course on integration.  For applicants having a greater degree of integration, in particular a superior knowledge of German, the period can be reduced to six years.[35]  Shorter periods of residence suffice for the spouse and children who are to be naturalized with the applicant.[36]  Spouses qualify if they have resided in Germany for four years and have been married to the applicant for two years.[37]

Moreover, the German authorities have discretion to naturalize someone who has resided in Germany for less than eight years.[38]  It appears that this period can be shortened in individual cases to three years, particularly in the case of economically desirable applicants.[39]

Financial Self-Sufficiency

For the purpose of naturalization, the law describes the financial self-sufficiency of the applicant by stating that he must be able to support himself and his dependents without requiring unemployment or welfare benefits.[40]

In order to obtain a permanent residence permit (which is required for naturalization), an applicant must also be able to support himself, and this requirement is only met if he carries adequate health insurance by either being insured in the statutory (social) health insurance scheme or carrying private health insurance.[41]  In addition, the applicant must have accumulated sixty months of enrollment in the statutory old-age pension system (social security) or made equivalent contributions to a private old-age pension system.[42]  The sixty months of contributions to the social security system allow an enrolled person to become vested in the system, thus guaranteeing that he will receive an old-age benefit.[43]  Moreover, to become a permanent resident, an applicant must have sufficient housing for himself and his dependants.[44]

Integration

A prerequisite for naturalization is the willingness of the alien to renounce his former citizenship. [45]  In addition, he must have a sufficient knowledge of the German language and must also be knowledgeable about the German legal and political system and the German way of life.[46]  Aliens are also required to work toward this degree of integration throughout their sojourn in Germany.  A certain degree of integration is required for a renewal of a temporary residence permit,[47] and even more integration is required for a permanent residence permit.[48]  The vehicle for acquiring the required knowledge and level of skills is governmentally sponsored integration courses.[49]

Various integration courses are offered by the Federal Office on Migration.[50]  They include language instruction, civics education, and social and cultural education.  Some courses are geared to particular professions and to audiences of various educational backgrounds.  Certificates are granted to those who pass the courses, and these are important documents for residence permit extensions and improvements and for naturalization.

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Border Protection

Germany is a member of the Schengen Agreement[51] and surrounded by other Schengen countries.  Consequently, Germany’s borders with these countries are all internal borders within the meaning of the Schengen regime, and for these Germany does not maintain border checkpoints.  Instead, Germany relies on the Schengen countries with external borders to enforce immigration and customs laws.  Germany’s only external borders are the maritime coast on the North Sea and the Baltic Sea and international airports throughout the country.[52]

On her external borders, Germany is obligated to live up to the Schengen regime by checking the visa status of entrants and issuing Schengen visas to new entrants who qualify.[53]  For these and other purposes, Germany contributes to and makes use of Schengen databases, particularly the Schengen Information System (SIS)[54]and the Visa Information System (VIS).[55]  The German Federal Police are in charge of the external border controls.[56]

Although Germany relies on other Schengen countries to protect its internal borders, the German Federal Police still have the mission of protecting the borders against various forms of illegality.[57]  The methods by which the Federal Police guard against the entry of illegal immigrants are somewhat limited because systematic border controls at checkpoints are no longer possible under the Schengen regime.  Instead, the Federal Police may conduct random checks of entrants into the border areas to avert potential dangers; the border areas are defined as reaching thirty kilometers into the country from a border with a neighboring state and fifty kilometers land-inward from a maritime border.[58]

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Edith Palmer, Chief
Foreign, Comparative and
International Law Division II
March 2013

 

[1] Anwerbung von Arbeitskräften, Bundesministerium des Inneren, http://www.zuwanderung.de/ZUW/ DE/ Zuwanderung_hat_Geschichte/Anwerbung/Anwerbung_node.html#doc921694bodyText3 (last visited Feb. 20, 2013).

[2] H. Hartnell, Citizenship and Migration in the European Union and Germany, 24 Berkeley J. Int’l L. 330 (2006).  Work-related immigration was not the only path by which foreigners flocked to Germany.  Many refugees and asylum seekers also came to Germany and were able to remain there.  Id.

[3] Martin Strunden & Michaela Schubert, Deutschland gibt sich Blue-Card “Plus, Zeitschrift für Ausländerrecht und Ausländerpolitik [ZAR] 270 (2012); Günter Renner, Ausländerrecht in Deutschland 25 (1998).

[4] Anwerbung, supra note 1; Jan Bergmann et al., Ausländerrecht 412 (9th ed. 2011).

[5] Aufenthaltsgesetz [AufenthG] [Residence Act], July 30, 2004, Bundesgesetzblatt [BGBl.] I at 1950, repromulgated Feb. 25, 2008, BGBl. I at 162, as amended, § 18(2) & (3), current version at http://www.gesetze-im-internet.de/aufenthg_2004/index.html.

[6] Ulrike Davy, Integration of Immigrants in Germany: A Slowly Evolving Concept, 7 Eur. J. Migration & L. 123 (2005). 

[7] Consolidated Version of the Treaty on the Functioning of the European Union [TFEU], 2012 Official Journal of the European Union (O.J.) (C 326) 47, art. 21, http://eur-lex.europa.eu/LexUriServ/LexUri Serv.do? uri=OJ:C:2012:326:0047:0200:EN:PDF.

[8] Freizügigkeitsgesetz /EU, July 30, 2004, BGBl. I at 1950, as amended.

[9] AufenthG § 3.

[10] AufenthG § 4.

[11] Id. § 95.

[12] AufenthG §§ 54–55.

[13] Council Regulation (EC) No. 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, O.J. (L 81) 1.

[14] Regulation (EC) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), Sept. 9, 2009, O.J. (L 243) 1.

[15] AufenthG §§ 16–21.

[16] AufenthG §§ 18–19a.

[17] AufenthG §§ 18–19a, as last amended by Gesetz zur Umsetzung der Hochqualifizierten-Richtlinie der Europäischen Union [Act on the Transformation of the European Union Directive on Highly Qualified Employment], June 1, 2012, BGBl. I at 1224.  This Amending Act brought many changes that allow highly qualified workers to be admitted to Germany, to look for work there, and to become permanent after reduced waiting periods.  See Strunden & Schubert, supra note 3.

[18] In 2004 the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovakia, and Slovenia became Member States of the European Union.  In 2008, Bulgaria and Romania were admitted.  See From 6 to 27 Members, European Commission, http://ec.europa.eu/enlargement/policy/from-6-to-27-members/index _en.htm (last visited Mar. 18, 2013).

[19] Rainer Schlegel, Arbeitnehmerfreizügigkeit für EU-8 seit Mai 2011, Arbeit und Recht 384 (2011).

[20] AufenthG § 7.  In exceptional cases a highly qualified worker may start out with a permanent residence permit: AufenthG § 19.

[21] AufenthG §§ 17 & 21.

[22] AufenthG §§ 8 & 9.

[23] Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [Basic Law], May 23, 1949 BGBl. 1, as amended, § 16a, translation at http://www.gesetze-im-internet.de/englisch_gg/index.html.  For the Schengen Agreement, see Schengen Area, European Commission, Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/index_en.htm (last visited Mar. 18, 2013).

[24] AufenthG § 60. 

[25] AufenthG, §§ 30–34.

[26] AufenthG § 30(1)(3)(e).

[27] AufenthG §§ 31& 34.

[28] StAG § 4(1).

[29] StAG § 4(3).

[30] Staatsangehörigkeitsgesetz [StAG] [Citizenship Act], July 13, 1913, Reichsgesetzblatt 583, as amended, § 10, http://www.gesetze-im-internet.de/rustag/.

[31] StAG § 29.

[32] Manuel Manhart, Wirtschaftliche Hürden für Einbürgerungsbewerber, ZAR 239 (2012).

[33] AufenthG § 95.

[34] AufenthG §§ 11, 51, 52, and 53.

[35] StAG § 10(3).

[36] StAG § 10(2).

[37] Kay Hailbronner & Günter Renner, Staatsangehörigkeitsrecht 573 (4th ed. 2005).

[38] StAG § 8.

[39] Manhart, supra note 32.

[40] StAG § 10(1) (no. 3).

[41] AufenthG, § 9(2) (no. 2) in conjunction with § 2(3).

[42] AufenthG § 9(2) (no.3).

[43]  Bergmann, supra note 4, at 253.

[44] AufenthG § 9(2) (no.9) in conjunction with § 2(4).

[45] StAG § 10(1)(4).

[46] StAG § 10(1)(6) & (7).

[47] AufenthG § 8(3).

[48] AufenthG §§ 9(2) (nos. 6 & 7), 9(3).

[49] AufenthG § 43.

[50] Integration Courses—What are They?  Federal Office for Migration and Refugees, http://www.bamf. de/EN/Willkommen/DeutschLernen/Integrationskurse/integrationskurse-node.html (last visited Mar. 4, 2013).

[51] Schengen Area, EUROPA, European Commission, Home Affairs http://ec.europa.eu/home-affairs/policies/ borders/borders_schengen_en.htm (last visited Feb. 20, 2013).  The Schengen area includes the EU Member States Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, as well as Sweden, Norway, Iceland, and Switzerland. 

[52] Michael Drewes et al., Bundespolizeigesetz 126 (4th ed. 2010).

[53] Regulation (EC) No. 562/2006, March 15, 2006, 2006 O.J. (L 105) 1, http://eur-lex.europa.eu/Result. do?T1= V2&T2=2006&T3=562&RechType=RECH_naturel&Submit=Search.  

[55] Visa Information System (VIS), European Commission, Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/visa-information-system/index_en.htm (last visited Mar. 4, 2013).

[56] Bundespolizeigesetz [BPolG] [Federal Police Act], Oct. 19, 1994, BGBl. I at 2978, as amended, § 2.

[57] Drewes et al., supra note 52, at 40.

[58] BPolG § 2(2)(3).

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Last Updated: 02/28/2014