Germany passes 'opportunity right of residency' law

The German parliament has passed a new law that will make it easier for foreigners with a short-term 'tolerated stay' permit (Duldung) to get a residency permit.

The German Bundestag voted in favour of changes to migration law – mainly the introduction of the so-called "Chancenaufenthaltsrecht" (opportunity right of residency) – on Friday (November 2).

This policy -- which is aimed at foreigners with a "tolerated stay" permit (Duldung) -- is part of a larger plan of the government coalition of center-left SPD, the Greens and pro-business FDP to reform German migration law.

The new 'opportunity' for migrants on 'tolerated stay'

Foreigners who have been living in Germany for at least five years by October 31, 2022 will now get 18 months of "opportunity right of residency" to fulfil the requirements for a residency permit, provided they did not commit any crimes. This means that for a year and a half, they are given legal status, which will allow easier access to the labor market. This, in turn, makes it easier for these migrants to fulfil the criteria to receive a long-term stay permit.

For older adults, these criteria, which are part of the Residency Act, are mainly German language skills (A2), proof of identity, and being able to pay their own living expenses (though there are some exceptions to this, mainly if they are attending school or university, or raising children alone).

The law seeks to give people with a "Duldung" (which translates to tolerated stay -- a short-term suspension of deportation) an additional path out of limbo.

In theory, a Duldung means that a person is still obliged to leave the country, but that a deportation is not possible for the moment. It is usually only valid for a short time: often one, three or six months and needs to be renewed each time. If the deportation is still not possible, the Duldung will be extended. However, when the Duldung expires, the person can be deported immediately and without notice. Only those who've had a Duldung for more than one year will be given a month's notice.

For people with a "Duldung", joining the labour market can also be much more difficult than for foreigners with residency rights as they face more bureaucratic hurdles.

The new "opportunity right of residency" permit cannot be extended, meaning that if people do not fulfil the requirements for a residency permit within a year and a half, their status will go back to "Duldung".

What are the requirements that need to be fulfilled?

Germany's existing legislation already allows foreigners a path from a "tolerated stay" to a residency permit – irrespective of the new opportunity right of residency. The criteria for this are listed in §25a and §25b of the German Residence Act, including a wait period.

On Friday, the government also shortened these wait periods. For older adults, it is now six years instead of eight; and four years instead of six if they are living with underage children.

For young people, the wait time was reduced to three years (before: four). The age limit for people considered "young" was also extended on Friday: From 21 to 27 years.

However, there is a caveat. Young people will now be required to have a "Duldung" for at least a year without a break before they can apply for a residency permit.

This requirement – put into the law at the demand of the pro-business FDP (known to be less migrant friendly in its policies compared to coalition partners Greens and SPD) – has been criticized by migrant and refugee advocates, like Pro Asyl. The organization in a statement said this measure gives "migration authorities a year-long opportunity after an asylum procedure and possible asylum court case to take measures to end someone's stay in Germany… This means: A year more that young people have to live in fear of being deported."

How many migrants will be affected by 'opportunity right of residency'?

The total number of people in Germany on a "tolerated stay" permit was just over 242,000 at the start of 2022, according to the German government. The number of those who had been in the country for over five years at that point was nearly 137,000.

The government has said that they expect 98,000 persons to apply for the "opportunity right of residency" permit, and that only 33,500 people will get long term residency through the new measure.

The measures passed in the Bundestag on Friday also included changes aimed at simplifying asylum procedures -- including the decision that the German asylum office BAMF will no longer run regular checks on whether people's international protection status is still founded. Instead, they will do so only if there is a specific reason to do so (like a significant improvement of the security situation in people's home country).

More changes to migration law expected in 2023

The new changes to migration law are part of the German government's plan to reform German migration policy. The government coalition of center-left SPD, the Greens and the pro-business FDP that took office last fall is generally seen as moderately more left-leaning than the previous centrist coalition of the conservatives (CDU/CSU) and SPD. This is particularly the case when it comes to plans to open Germany to more skilled foreign workers.

Labour minister Hubertus Heil (SPD) and others have said that they want to pass a number of 'migration packages'. Among the policies they want to introduce is the "opportunity card" -- which would give foreigners who fulfil certain criteria (likely work experience and German language skills) the chance to come to Germany to try to find a job. The government is currently working on drafting a bill on this and other migration measures, a vote on this is expected to take place early next year at the earliest.

SOURCE: InfoMigrants


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