Settlement permit for students?

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Settlement permit for students?

In this column, Angelika, a lawyer in our team, addresses legal questions. Today we are talking about a student’s request to obtain a settlement permit, if possible, already during his studies which was rejected at the first attempt. Is there perhaps still a chance? Or does he now have to worry about his future?

Question:

“Dear Sir or Madam,

I am a Syrian refugee and have been in Germany for 3 years. I have obtained a German C1 certificate, and I am a 2nd semester student at a university. I had my residence permit extended a few days ago and it was extended again for 3 years. The officials rejected my application for a settlement permit and said that I will only get it when I graduate and then have a job in Germany (although I currently have a part-time job in addition to BAföG).

My question to you is: If new laws are passed in the coming months or years – will I have to fear deportation to Syria? This could cause me to drop out of university!!! I ask you for help because I am very worried about this now.”

Answer

Dear Reader, 

First of all, we think it is great that you have been able to get your C-1 certificate in German, that you are studying and have a part-time job.

Currently no deportations to Syria

At the moment there are no deportations from Germany to Syria! In the media there is always talk about „deportations“, but legally those are voluntary, supported repatriations. Those returning to Syria are doing so voluntarily. 

Here is the answer of the Federal Ministry of the Interior from 20.2.2019 to a question of the left-wing faction, Ulla Jelpke:

„In 2018, the voluntary departure of 437 people to Syria was refinanced by the Federal Office for Migration and Refugees (BAMF). It should be noted here that this is a preliminary number of persons. Final statistics are expected to be available at the end of the first quarter of 2019. The BAMF was only able to record voluntary departures for which an application for refinancing was submitted to the BAMF by the responsible federal state […] In principle, reference is made to the decision of the 209th Conference of Interior Ministers (IMK) of November 30, 2018, according to which there will continue to be no repatriations to Syria.

Syrian nationals are also not encouraged in any way by federal authorities to leave the country voluntarily. Refinancing of voluntary departure will nevertheless take place. In deference to the autonomous, voluntary decision of these people, federal states fund these departures to the extent of REAG/GARP (Reintegration and Emigration Programme for Asylum-Seekers in Germany= REAG, Government Assisted Repatriation Programme=GARP) – and, if necessary, benefits from Starthilfe-Plus. The BAMF reimburses this on a pro-rata basis.“

With respect for voluntary decisions

The following benefits are available for voluntary repatriation to the country of origin:

  • Travel expenses
  • Financial support for the trip: 200 €/p.p. for those 18 and older (100 €/p.p. for those under 18)
  • Additional medical expenses: maximum €2,000 for up to three months after arrival in the destination country
  • One-time financial starting aid: 1.000 €/p.p. for those 18 years and older (500 €/p.p. under 18 years)

We assume that you have a residence permit according to § 25 (5) Residence Act, i.e. that you are a recognized refugee. Then the settlement permit is based on § 9 (2) Residence Act:

“(2) A foreigner is to be granted a permanent settlement permit if

  1. the foreigner has held a temporary residence permit for five years,
  1. the foreigner’s subsistence is secure,
  1. the foreigner has paid compulsory or voluntary contributions into the statutory pension scheme for at least 60 months or furnishes evidence of an entitlement to comparable benefits from an insurance or pension scheme or from an insurance company; time off for the purposes of child care or nursing at home are to be duly taken into account,
  1. there are no reasons of public safety or order which would rule out granting such a permit, taking into account the severity or the nature of the breach of public safety or order or the threat posed by the foreigner, with due regard to the duration of the foreigner’s stay to date and the existence of ties in the federal territory,
  1. the foreigner is permitted to be in employment, if he or she is an employee,
  1. the foreigner possesses any other permits required for the purpose of the permanent pursuit of his or her economic activity,
  1. the foreigner has a sufficient command of the German language,
  1. the foreigner possesses a basic knowledge of the legal and social system and the way of life in the federal territory and
  1. the foreigner has sufficient living space for himself or herself and for family members living together in the same household.”

No settlement permit for students?

In principle, it is not impossible for students to obtain a settlement permit. The first requirement of § 9 (2) Residence Act can be met if the required period of residence in Germany applicable in your case is 3 years. There are exceptions to the 5-year period if someone is already well integrated and economically independent (§26 (2) Residence Act).

As far as points 2 and 3 are concerned, the following applies:

According to § 2 (3) Residence Act the livelihood is secured if it can be paid for without using public funds. The livelihood is also secured when receiving benefits according to BAföG.

But: For the settlement permit it is important that the livelihood is secured prospectively in the long term. It must therefore be highly probable that no public funds will be used in the long term. BaföG is only granted for the period of study. After successful completion, it is not necessarily certain that graduates will find a job. The livelihood may be secured now, but it is not yet secured in the long term. (e.g. VG Munich; judgment of 22.03.2012; AZ: M 12 K 12.298). A so-called mini job (a form of marginal employment) would also not be sufficient, because it must usually be assumed that the employment is only intended to finance the studies and not to permanently secure the livelihood in the future.

Mini-job with pension insurance 

You can fulfill the third requirement: In principle, you must have paid 60 months of compulsory pension insurance contributions. If your mini-job is registered by your employer, a so-called 450 Euro job, it is subject to compulsory insurance in the statutory pension insurance. Employers pay a flat-rate contribution for their mini-jobbers. The mini-jobbers themselves pay an additional personal contribution. This allows them to benefit from the full protection of the statutory pension insurance. Therefore, if you have worked in a mini-job for 60 months, the third requirement would be met.

The information of the foreigner’s authority that you only have the chance to get a settlement permit after finishing your studies and then working for 2 years is based on the former § 18b Residence Act (as of 2019). 

„A foreigner who has successfully completed his or her studies at a state or state-recognized university or comparable educational institution within the territory of the Federal Republic of Germany will be granted a settlement permit if he or she has

  1. has held a residence title in accordance with §§ 18, 18a.19a or §21 for two years,
  2. holds a job appropriate to his or her degree
  3. has made compulsory or voluntary contributions to the statutory pension insurance scheme for at least 24 months or can provide evidence of expenses for an entitlement to comparable benefits from an insurance or pension institution or an insurance company, and
  4. the requirements of Section 9(2), first sentence, numbers 2 and 4 to 9 are met; Section 9(2), second to sixth sentences shall apply mutatis mutandis.“

Studies can be completed without haste

However, this regulation only applies after you have completed your studies at a German university and you are still at the beginning of your studies. Therefore, you can finish your studies without haste, then work in Germany for 2 years in your profession and then you should definitely get the unlimited settlement permit (according to the law as of 2019).

The laws in Germany can change, but a retroactive change is generally not possible, it would contradict the principle of legal security and the German legal system.

We wish you continued success with your studies. Perhaps it will work out with the unlimited settlement permit even before the completion of your studies….

This article was first published in German.

Niederlassungserlaubnis für Studierende?

Andere Kulturen und Menschen haben Angelika schon immer interessiert. Sie ist viel gereist und hat im Ausland gelebt. Als Rechtsanwältin ist sie auf Asyl- und Ausländerrecht spezialisiert. 2017 hat sie das Flüchtling-Magazin mit gegründet und ist seitdem für die Finanzierung und alle rechtlichen Aspekte zuständig. Bei kohero beantwortet sie die rechtlichen Fragen aus unserer Community. „kohero ist ein großartiges Medium für Geflüchtete und für Deutsche, um sich besser kennen zu lernen und die jeweils andere Kultur zu verstehen.“

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Andere Kulturen und Menschen haben Angelika schon immer interessiert. Sie ist viel gereist und hat im Ausland gelebt. Als Rechtsanwältin ist sie auf Asyl- und Ausländerrecht spezialisiert. 2017 hat sie das Flüchtling-Magazin mit gegründet und ist seitdem für die Finanzierung und alle rechtlichen Aspekte zuständig. Bei kohero beantwortet sie die rechtlichen Fragen aus unserer Community. „kohero ist ein großartiges Medium für Geflüchtete und für Deutsche, um sich besser kennen zu lernen und die jeweils andere Kultur zu verstehen.“

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