Questions and answers about the residence status of threatened researchers in Germany

German residence law generally stipulates that information about the purpose of the stay that would justify the later right of residence must already be provided when applying to the German mission for a visa. In the case of a stay for research purposes, a ‘national visa’ must be obtained from the German mission abroad. The purpose of the stay must be specified and substantiated (proof of research projects, qualifications and the hosting agreement). Evidence must furthermore be provided of an assured means of providing subsistence, if necessary, and of health insurance cover.

The same applies if the research project is to be conducted in the form of a service or employment relationship or within the scope of a degree.

No, the fact that a person is threatened by war or persecution unfortunately has no bearing on visa rights. There is no visa for asylum application or the implementation of the protection procedure.

This is possible in principle. Under certain conditions, the purpose of the stay can be changed without having to go through the visa procedure again (see 2.b).

One of the main reasons for issuing an entry visa is that of family reunification if the researcher in question already has nuclear family members (e.g. spouse or registered partner) in Germany. Visas may also be issued on other grounds. This also applies if the individual's nationality exempts them from requiring a visa and they can therefore enter Germany without one.

That depends where the person is located. If he/she is still in another country, see the answer to question 1.e. If he/she has entered Germany as a refugee without a visa, please see the answer to question 2.b.

Applications for a national visa for a research stay can also be submitted in a country other than the applicant’s home country if he/she has a general legal right of residence in said country. However, the embassy requires evidence of this (e.g. the residence permit and confirmation of place of residence). In transit countries in which the United Nations High Commissioner for Refugees (UNHCR) operates refugee camps, it usually suffices to provide the embassy with evidence that the person has registered as a refugee in said country.

The German embassy in Damascus has closed. Syrian nationals can apply for a visa at the German missions in the neighbouring countries of Turkey, Lebanon and Jordan. If they have been outside Syria for more than six months, they can also apply for the visa in the country in which they are located. If they have resided there for less time, they should contact the local German mission to request that the application be processed as an exception (see also http://www.damaskus.diplo.de/).

Following the implementation of the European Union's REST Directive (Directive (EU) 2016/810), such individual may, under Section 20 (5) AufenthG, undertake a research stay in the Federal Republic of Germany when they have resided in other Member State for at least two years following their recognition and fulfil the requirements for acceptance in a research programme under Section 20 (1) AufenthG.

Persons who cross into the FRG illegally are required to leave the country. This is not prejudicial however when an asylum application is made. In cases where an individual, after having illegally entered the FRG, wants to receive a residence permit pursuant to Section 16, 18 or 20 AufenthG, this is not possible due to having illegally entered the FRG (for lack of the required visa).

The possession of a passport is a requirement for the visa procedure. Therefore, it is not possible for researchers in such cases to enter Germany with a visa. There is the possibility that the individual receives recognition as a refugee in a transit country and is then issued a refugee's passport by the authorities there.

Another route could be the submission of an application to the German mission in the individual's home country for a travel document for foreigners. However, not only does the applicant have to satisfy all visa requirements, the Federal Office for Migration and Refugees (BAMF) must also approve the issue of the travel document. Persons taking this route must fulfil many requirements; without the legal support of an advocacy service, they have few prospects for success.

There are various residence regulations that enable foreign researchers to conduct research projects. The following come into consideration:

• The residence permit for research purposes in accordance with Section 20 of the German Residence Act (AufenthG); this is the German implementation of the EU Directive on Researchers (Directive 2005/71/EC of 12 October 2005) and, most recently, the REST Directive (EU) 2016/801.
• A residence permit for employment in accordance with Sections 18 and 19a AufenthG if the project takes place within the scope of an employment relationship
• A residence permit for study purposes in accordance with Section 16 AufenthG if the research project takes place within the scope of doctoral studies, for example

It is difficult but not impossible to change the purpose of a stay without leaving the country and conducting a new visa procedure. Here, the legal situation has improved since August 2017 following the transposition of EU Directives in Sections 16 and 20 AufenthG. Although Section 5 (2) AufenthG which allows the authorities to waive a new visa procedure only in exceptional cases is still in effect, the new legal situation under Section 16 and 20 AufenthG establishes such an exception because applicants to a university course and researchers are now entitled to a residence permit when they meet the respective requirements. This has the effect that the respective authorities may decide at their discretion whether to permit a subsequent vis procedure. Here the possibility of the applicant returning to his/her home country and his/her endangerment in the event of a return would have to be taken into account as a fundamental reason for waiving a subsequent visa procedure. Another reason could be the threat of family separation (especially when children are involved) when family unity were to be affected by a protracted visa procedure.

One restriction is to be mentioned here: persons who are in the process of having an asylum application decided or whose deportation has been temporarily suspended following the conclusion of their asylum procedure may not invoke Section 16 or 20 after entering the FRG.

No, visa applications cannot be submitted in Germany. If a new visa procedure is required, the person would have to leave the country and have an interview at the German mission abroad.

The solution here is to waive the required visa procedure in accordance with Section 5 (2) AufenthG (see 2.b above) and permit the stay without a subsequent visa procedure. In accordance with Section 5 (2) sentence 2 AufenthG, this can be a good argument to put to the foreigners authority in the case of a threat of persecution or civil war in the country of origin.

When the research work is to be conducted within the framework of an employment contract as set forth in Section 18 AufenthG, the foreigners authority must approve the economic activity being undertaken. When the employment involves scientific work as defined in Section 5 of the Ordinance on the Admission of Newly-Arrived Foreigners for the Purpose of Taking up Employment (Employment Ordinance - BeschV) (scientific personnel, researchers, inter alia, who do not fall under Section 20 AufenthG), the approval of the foreigners authority is not required. The foreigners authority checks only if the necessary proof from the employer (employment contract) exists, whether the individual's subsistence is secure, and whether the administrative criteria have been met (entry with the correct type of visa, valid passport, among other things). Proficiency in German is not a decisive factor for the foreigners authority in this connection. The position (in this case, the research facility as well) is specified in the residence permit because the employment is being permitted for precisely this function. This means that the foreigners authority has to be brought in whenever there is a change in the individual's position.

The same applies when a (former) researcher is hired by an undertaking in connection with his/her training (without conducting research work there). In such cases, when there is a corresponding minimum income, the more favourable provisions for an EU Blue Card pursuant to Section 19a of the AufenthG are to be additionally applied.

Persons who are at risk of persecution for political or other relevant reasons in their country of origin may be entitled to asylum [Article 16a of the German Basic Law (GG)] and/or refugee status [Section 3 of the German Asylum Act (AsylG)] in Germany.

If they are not being persecuted but face a major threat in their home country (e.g. within the scope of a domestic armed conflict) as defined by Section 4 AsylG, they may be entitled to receive subsidiary protection.

The above is, however, subject to the precondition that the persecuted persons reside in the Federal Republic of Germany. Recognition of an asylum application results in an independent right of residence in Germany.

It is only possible to apply for asylum and the international protection status by means of an asylum procedure at the BAMF, which is the only office that can grant these. For details of the asylum procedure, please visit: https://www.bamf.de/EN/Themen/AsylFluechtlingsschutz/AblaufAsylverfahrens/ablaufasylverfahrens-node.html.

In 2018, recently submitted asylum applications will be processed within a significantly shorter period of time than in 2015 and 2016. This is already apparent from the fact that now with the first interview at BAMF the individual is also given an appointment for registration soon thereafter, and the hearing regarding the reasons for persecution is often held within a few days as well. The decision on the application is then issued within a few weeks or months.

People who are recognised as being entitled to protection will receive a residence permit (depending on the protection status) in accordance with Section 25 (1) or (2) (1st or 2nd alternative) AufenthG. This entitles them to all social benefits, just like Germans. If, however, they receive fellowships, these must be disclosed to the social authorities and offset in line with social security regulations.

Asylum seekers cannot choose their place of residence within Germany. This begins immediately upon submission of an application: applicants are distributed nationwide and – in a second step – within the federal state that is responsible for them. Justified interests can, however, be considered in this regard, and these can include research work or participation in university activities. Employment is permitted with the approval of the foreigners authority after three months of authorised residence. If complete self-subsistence is ensured, e.g. through employment or a fellowship, this condition of fixed abode must also be repealed.

The above statements and the statements made under point g do not apply to people from ‘safe’ countries of origin (please see the next question). As a rule, asylum applicants from a safe country of origin are barred from taking up employment and from free movement. They are also subject to the more restrictive obligation to live in an initial reception centre. Restrictions in the area of social benefits also apply.

Under German law, the Western Balkan countries, Ghana and Senegal are categorised as safe countries of origin (see the list in the annex to Section 29a AsylG). It was the intention of the legislature that asylum applicants from these countries do not submit an asylum application. These persons are no longer distributed on a decentralised basis. During their entire asylum procedure, they live in a central initial reception centre and are subject to restrictions on their mobility. Further, they may not engage in gainful activity or take up vocational training/an apprenticeship.

Germany's federal government plans to expand the group of safe countries of origin in 2018 to include Morocco, Tunisia and Algeria. Since this type of decision requires the approval of the Bundesrat (Germany's upper house), this expansion will depend on political agreements between Germany's federal states.

Yes, working as a researcher during an asylum procedure is, in principle, possible. If said activity is conducted within the scope of employment, the foreigners authority must have provided a work permit. The hurdles here have, however, been reduced because the so-called labour-market priority test (where priority is given to German and privileged foreign workers when filling jobs) is dispensed with in most regions in Germany (see the annex to Section 32 BeschV).

A work permit is required for internships that fall under the Minimum Wage Act. This applies in particular to internships with a duration of more than three months and internships that are not part of a vocational training programme within the meaning of the Minimum Wage Act.

Restrictions on employment exist for people from ‘safe’ countries of origin, who are prohibited from undertaking any form of employment.

This change can be undertaken by simply applying for asylum. If the person in question still has a valid residence permit in accordance with Section 18 or 20 AufenthG, i.e. if this has not yet expired or been repealed, he/she can even make an asylum application in writing to the BAMF head office in Nuremberg. This offers the benefit that the person concerned will not be sent to a different area of Germany as part of the nationwide distribution of asylum seekers and will not have to move into an initial reception centre. He/she can instead remain living at his/her previous place of residence. If a person intends to apply for asylum, this application should therefore be made in plenty of time before the residence permit expires.

It is not possible to change from the asylum procedure to a residence permit under Section 18 AufenthG prior to the end of the asylum procedure.

Under Section 10 (1) AufenthG, a residence permit may not be issued prior to the conclusion of an asylum procedure unless the individual is legally entitled to it. This is presently the case for the two types of residence permit pursuant to Section 16 AufenthG (Further education) and Section 20 (Research). This legislation has explicitly excluded from access to these types of residence permits persons whose asylum procedure is ongoing or whose deportation has been temporarily suspended after their asylum application was rejected or withdrawn.

There are three possible outcomes of the asylum procedure, namely the positive outcome of recognition, the negative outcome of the application being rejected and the withdrawal of the asylum application (this is possible at any time), which has the same consequences as a rejection. For threatened researchers, switching from an asylum procedure to residence pursuant to Sections 16 or 20 AufenthG is possible prior to exiting the country only when they have been recognised by the BAMF.

aa) If the asylum application has been rejected or withdrawn

Unless other reasons apply, anyone whose asylum application has been rejected must leave the country at the end of the procedure. The same applies if the asylum application has been withdrawn.

If deportation is not possible on the grounds of fact or law, usually due to a lack of repatriation documents, it will be temporarily suspended until the impediment ceases to exist.

Persons whose deportation has been temporarily suspended have no entitlement to the rights established in Section 20 AufenthG; this is explicitly excluded by law [Section 20 (7) no. 3 AufenthG]. It is also difficult to obtain access to a residence permit in accordance with Section 18 AufenthG without leaving the country again.

bb) If asylum has been granted

The right of residence of recognised refugees or beneficiaries of subsidiary protection [in accordance with Section 25 (2) AufenthG] is not linked to a specific purpose. These persons have a right to remain in Germany; it does not matter whether they conduct research or other activities (or even receive social benefits). They are entitled to remain on the grounds of the proven threat in their country of origin and have access to all social benefits available to Germans.

Persons who have received (Section 60 (5) and (7) AufenthG) national protection against deportation (e.g. on humanitarian grounds) may remain in the Federal Republic and have the right to study, conduct research or work at a research institution.

Persons whose deportation has been temporarily suspended can also conduct research activities. If this is classed as a form of employment, approval is required from the foreigners authority. Tolerated persons are also permitted to undertake employment. An exception exists if the foreigners authority justifiably believes that the tolerated person is not making reasonable efforts to help obtain the repatriation documents. In such a case, employment can be prohibited. The same applies to tolerated persons from a safe country of origin whose asylum application has been rejected.

A recommendation depends on the probability of an asylum or refugee application being accepted as well as how long-term and secure the research project and the personal prospects of the researchers are. However, it is also important to consider the foreign researcher’s plans to return to his/her home country. Visits to the home country regularly lead to a loss of asylum or refugee status in Germany. This exclusion does not apply to beneficiaries of subsidiary protection or persons for whom a national deportation ban applies on humanitarian grounds (Section 60 (5) and (7) AufenthG).

aa) During an asylum procedure

If asylum seekers are not in employment subject to mandatory insurance contributions, they will receive medical benefits in accordance with the Asylum Seekers’ Benefits Act (AsylbLG). Depending on the federal state, in the first 15 months these benefits are restricted to the treatment of acute conditions. Once these first 15 months have elapsed, asylum seekers receive medical benefits in accordance with the general catalogue of benefits and services.

bb) Following recognition

Persons whose right to protection has been recognised are able to access all medical services that are available under law to Germans without an income.

cc) Persons whose deportation has been temporarily suspended

Researchers whose deportation has been temporarily and who are not in employment subject to mandatory insurance contributions will receive benefits in accordance with the provisions of the AsylbLG; they are equal to asylum seekers in this regard.

aa) Persons who receive social benefits in connection with Sections 16 or 18 AufenthG

It is important to note that researchers who have been granted a residence permit pursuant to Section 16 or 18 AufenthG in order to work on a research project must be able to independently support themselves (e.g. by means of employment, cost absorption or fellowships). The loss of these means of subsistence and, in particular, the associated receipt of social benefits will pose a risk to the right of residence. In such a case, we recommend getting in touch with an advisory body without delay.

When the individual's subsistence is not sufficiently secure, the state intervenes within the framework of social assistance to which the individual is also entitled. This, however, has a detrimental effect on the stay.

bb) In the case of persons in a research project under Section 20 AufenthG

When the research institution assumes the costs, there is no case for social assistance because the research institution generally has to bear the costs. Self-financed researchers or researchers who finance themselves through a fellowship or grant could find themselves in a situation where these funds are no longer sufficient. In such cases it is legally possible to draw social benefits. However, given the lack of a secure subsistence, this would have a negative effect with regard to matters relating to residence regulations.

cc) In the case of persons applying for asylum, persons entitled to protection (recognised) and persons whose deportation has been temporarily suspended

In the case of all persons who have received a right of residence as the result of an asylum procedure or been granted protection, the receipt of social benefits will not be detrimental to the right to remain. The same applies to persons whose deportation has been temporarily suspended; they may receive social benefits.

It must, however, be noted that the receipt of fellowships or payments from third parties must be offset against the social benefits. In such a case, the entitlement to receive benefits can be fully or partially lost. Persons who receive social benefits are furthermore obliged to disclose the receipt of such payments (or fellowships) to the social authorities. The latter is essential to note as criminal charges of attempted benefit fraud may otherwise ensue.

Questions may be asked at any social counselling office, whether it be operated by a charitable organisations, church or welfare office.

Threatened researchers who have been officially recognised as refugees or as persons who are eligible for subsidiary protection are entitled to child benefit. This also applies to persons who are subject to a national deportation ban (protection on humanitarian grounds) pursuant to Section 60 (5) and (7) AufenthG when the individual has resided for at least three years in Germany.

Researchers who reside in Germany pursuant to Section 18 or 20 AufenthG are also entitled to receive child benefit. The legal restrictions set forth in Section 1 (3) no. 2b BKGG (Federal Child Benefits Act) are normally not relevant to researchers: individuals who are employed in a qualified position are not subject to a maximum limit and can therefore draw child benefit.

Individuals who hold a residence permit for students cannot receive child benefit.

The family benefits department at local employment offices provides advice. Furthermore, all advisory centres for these issues are also in a position to provide youth counselling and parental guidance (PRO FAMILIA, associations that support single parents, churches, etc.).

aa) For threatened researchers with an ongoing asylum procedure

Asylum seekers have no right to return to Germany if they leave the country during an ongoing asylum procedure. On exceptions, special arrangements can be made with the foreigners authority for a specific reason. Stays in third countries are not permitted.

bb) For threatened researchers with a right to asylum or protection status (refugee status, subsidiary protection)

Upon recognition, persons entitled to protection receive a residence permit in accordance with Section 25 (1) or (2) AufenthG. In the case of persons who have received national protection against deportation (e.g. on humanitarian grounds) the relevant provision is Section 25 (3) AufenthG. All persons holding a passport may re-enter Germany at any time while their right of residence is valid. It must, however, be noted that the regulations on the right of residence in the third country must be observed. The German residence permit can furthermore lapse, depending upon the type of protective status held, if a person is absent from Germany for more than six months.

The passport needed for travel (including to other EU countries) is issued to recognised refugees without administrative hurdles in the form of a "refugee's passport". Persons eligible for subsidiary protection and persons who are subject to a national deportation ban require special reasons in order to receive a "travel document for foreigners" (Section 5 AufenthVO). They are otherwise to be referred to their embassy or consulate to obtain a national passport.

cc) Threatened researchers with residence permits in accordance with Sections 18 or 20 AufenthG

Both residence permits entitle the person to re-enter Germany. Section 20 AufenthG (but not stays under Section 18 AufenthG) offers the additional benefit that it already authorises stays (of up to 180 days in a 360-day period) in other EU states to conduct elements of the research project without a separate application having to be submitted in the other EU state. This extended period of mobility results from the EU's REST Directive from the year 2016 (Directive E 2016/801).

The same Directive also provides for facilitated procedures for permitting the individual to conduct research work for more than six months in other EU countries.

If the country where the research is to be conducted is outside the EU, researchers with a residence permit in accordance with Section 20 – as well as those with one in accordance with Section 18 – must observe the regulations on the rights of residence in said country.

Please always remember that an absence of more than six months without the consent of the German foreigners authority will always result in the forfeiture of the residence permit in Germany.

aa) During the asylum procedure

There is unfortunately no right to family reunification during the asylum procedure. An asylum seeker’s spouse and children have no right to follow the asylum seeker to Germany. An exception only applies if the family members already reside in another EU state, Switzerland or Norway as asylum seekers. In such a case, the remaining family members can be granted the right to move to Germany in order for a joint asylum procedure to be conducted.

bb) With a right to asylum or international protection (refugee status or subsidiary protection)

This protection status makes family reunification possible in principle. However, this right is suspended for beneficiaries of subsidiary protection until 31/07/2018. One special feature in relation to family reunification in the case of persons entitled to protection is that, with regard to the preconditions that must be met, the need for an assured means of providing subsistence is waived.

According to the plans of the new Federal Government, a quota will apply to the number of family reunifications for persons who are eligible for subsidiary protection, probably after 31 July 2018. All other persons entitled to protection – with the exception of recognised refugees – do not have a right to family reunification.

cc) With a right of residence in accordance with Section 18 or 20 AufenthG

Family reunification is possible but depends on an assured means of providing subsistence without receiving social benefits (transfer benefits). This assured subsistence can also be achieved through a fellowship if this provides the necessary basic amounts.

When a passport is taken away by the foreign diplomatic mission or has been declared invalid, this has no effect on the individual's residence status because he/she can with good reasons receive a document to be used in place of a passport or a travel document for foreigners from the German foreigners authority. Grounds for issues such a travel document are given when the individual is no longer able to receive the passport from his/her foreign diplomatic mission (embassy or consulate) under reasonable conditions.

The answer to question h) applies here as well. A residence permit can also be extended when the individual holds a travel document for foreigners as mentioned above.

In the case of a settlement permit, it depends upon the individual's residence status.

Recognised refugees receive, in accordance with C 1, a settlement permit when they have already resided for at least three years in the Federal Republic, the greater part of their subsistence is assured and they are proficient in German.

The requirement of three years' prior residence applies to persons who are married to a German national. Otherwise, foreign nationals must have already resided legally in Germany for at least five years and be able to prove that their subsistence is ensured and that they have paid compulsory contributions into the social security system for 60 months. A further requirement is German language proficiency in accordance with B 1. Half of any periods spent studying in Germany under Section 16 AufenthG will be counted toward the required period of prior residence. Otherwise the general requirements arising from Section 9 AufenthG apply. The same also applies for the permanent residence status for the EU, which involves the same requirements as the settlement permit. With a view to internal mobility within the European Union, it is recommended that the individual apply for permanent residence status for the EU as well.

The validity of the residence permits generally depends on the activity on which they were based, i.e. the employment in the case of Section 18 and the research project in the case of Section 20 AufenthG. With Section 20 AufenthG, however, the permits have a minimum validity period of one year unless the research project is specified as being shorter than this from the outset.

aa) Researchers under Section 20 AufenthG

Following the successful conclusion of their respective research project, researchers in possession of a residence permit pursuant to Section 20 AufenthG may remain in Germany for nine months to seek employment that is commensurate with their training and qualifications (Section 20 (7) AufenthG). This provision is new and was established in 2017 to transpose an EU Directive.

bb) Researchers under Section 16 AufenthG

Following the successful completion of their studies, university graduates may remain up to 18 months (Section 16 (5) AufenthG) to seek a job offer that is commensurate with their training.

cc) Researchers holding a residence permit under Section 18 AufenthG

In this case, there are no special rules regarding an extra period for seeking employment. Individuals here must seek follow-on employment at an early point in time. In case of doubt an advisory body should be consulted sufficiently in advance of the end of the contract.

dd) Persons whose deportation has been temporarily suspended or who have permission to stay due to an asylum procedure or the recognition of their need for protection

In this case, residency is not tied to research activities and is to be extended due to the fact that it is not possible for the individual to exit Germany, the individual's asylum procedure or threats to the individual in his/her country of origin. The conclusion of the research activities has no effect on the individual's residency.

Yes, all protection-based permits can be revoked by the BAMF if the threat situation in the country of origin no longer exists. However, this must be determined in a formal process and is legally contestable. It should also be noted that the right of residence is not immediately revoked in such situations as the foreigners authority still has to take action after the protection status has been repealed and revoke the residence permit. The person may still be entitled to remain in Germany on other grounds (e.g. family, a long stay that has led to a permanent residence permit or stays as a result of employment or research).

The residence permit issued in accordance with Section 18 AufenthG does not authorise persons to move their place of residence to other EU states. A new application must be submitted in such states. This is not the case with permits issued in accordance with Section 20 AufenthG. Here, the residence permit already grants the holder the right to a six-month research stay in other EU states. If, however, the research project in another EU state lasts for more than six months, a residence permit must be applied for in the applicable state; however, under the new EU regulations, facilitated conditions apply.

Please note that an absence from Germany of more than six months will lead to the German residence permit being revoked.

As a rule, no. Persons entitled to asylum and recognised beneficiaries of protection have no direct right to intra-EU mobility; a residence permit must be newly applied for and approved in the other EU state. Only after five years of residence (and subject to an assured means of providing subsistence) does the Directive on Permanent Residence grant beneficiaries of protection from non-EU states the right to onward migration in the EU, although they still require a residence permit in the other EU state first.

An important exception here also arises from the European Union's REST Directive. When the individual is eligible for international protection and has resided in Germany for at least two years, he/she may go as a researcher to a host facility in another EU Member State when he/she meets the admission requirements.

In this case, the German residence permit will be revoked only after an absence of over six years.

The Citizens’ Advice Service of the Federal Office for Migration and Refugees (BAMF) provides advice on all general questions relating to immigration law. As the interpretation of legal provisions is a matter for states themselves, however, we recommend directing specific questions to the pertinent local foreigners authority. The foreigners authority responsible for your location can be found on the BAMF website: https://www.bamf.de/EN/Themen/AsylFluechtlingsschutz/AblaufAsylverfahrens/ablaufasylverfahrens-node.html