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

1. Entry into Germany

a) Which visas enable researchers to enter Germany for research purposes?

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 embassy abroad. The purpose of the stay must be specified and evidenced (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.

b) Can researchers who are threatened in their country of origin receive a special visa for entering Germany?

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.

c) Can researchers who are threatened in their country of origin enter Germany on a different visa and later conduct research in Germany?

This is possible in principle. Under certain conditions, the purpose of the stay can be changed without a subsequent visa procedure being required (see 2.b).

One of the primary grounds for obtaining an entry visa is that of family reunification if the applicable researcher 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 people’s nationality exempts them from requiring a visa and they can therefore enter Germany without one.

d) What possibilities exist if researchers had to leave their home country prior to applying for a visa or residence permit as a result of extreme danger?

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.

e) Is it possible to apply for a visa in a third country?

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 UNHCR operates refugee camps, it usually suffices to provide the embassy with evidence that the person has registered as a refugee in said country.

f) What special conditions apply for visa applications from Syrian nationals?

The German embassy in Damascus has closed. Syrian nationals can apply for a visa at the German embassies 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 embassy to request an exceptional referral (see also www.damaskus.diplo.de).

2. Residence permit for research purposes

a) Which residence permits enable people to stay in Germany for research purposes?

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)
  • 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

b) Is it possible to apply for this kind of residence permit in Germany if a person has already entered the country on a different visa (not issued for the purpose of research)?

It is difficult but not impossible to change the purpose of a stay without leaving the country and conducting a new visa procedure. In this regard, Section 5 (2) AufenthG applies. This stipulates that the authorities can waive the need for a new visa procedure if a person is entitled to receive the applicable residence permit or if “special circumstances relating to the individual case concerned render a subsequent visa procedure unreasonable”. The decision will be made at the discretion of the foreigners authority. A good reason for a subsequent visa procedure being waived can be an existential threat in the country of origin. In practice, a common reason for waiving the visa procedure is the threat of family separation (especially where children are involved) as a result of a long visa procedure.

People applying for a residence permit in accordance with Section 20 AufenthG may benefit from the fact that researchers are entitled to receive a visa once they have fulfilled the legal requirements. The foreigners authority must also take this into account when making its discretionary decision.

c) Is it possible to start a new visa procedure after a person has entered Germany, especially if the person’s return to his/her home country would be a significant risk?

No, there is no visa procedure in Germany. If a new visa procedure is required, the person would have to leave the country and have an interview at the German embassy abroad.

The solution here is to waive the need for a 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.

3. Threatened researchers’ rights as a result of the regulations on asylum and refugee protection

a) What asylum-related protection status applies for researchers who are persecuted or face major threats in their country of origin?

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. The aforementioned cases of recognition result in an independent right of residence in Germany.

b) How is asylum or international protection status (refugee status and subsidiary protection) conferred?

It is only possible to apply for asylum and the international protection status by means of an asylum procedure at the Federal Office for Migration and Refugees, which is the only office that can grant these. For details of the asylum procedure, please visit: http://www.bamf.de/DE/Fluechtlingsschutz/AblaufAsylv/ablauf-des-asylverfahrens-node.html;jsessionid=208A1B06C1FEE0023653F73B4127427A.1_cid368.

c) What rights of residence and social entitlements do recognised refugees have?

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.

d) Which important restrictions must be considered during an asylum procedure?

Asylum seekers cannot choose their place of residence within Germany; they are distributed nationwide and – in a second step – within the federal state. Justified interests can, however, be considered in this regard, and these can include research 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 this employment activity or a fellowship, this condition of fixed abode must also be repealed.

The above statements and the statements made under point e do not apply to people from ‘safe’ countries of origin (including the countries of the Western Balkans, Ghana and Senegal); these people are excluded from many social rights (mobility, work, vocational training) during the asylum procedure.

e) Can threatened researchers who do not have a residence permit for research purposes conduct research activities as asylum seekers during the asylum procedure?

Yes, research activity 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. Restrictions on employment exist for people from ‘safe’ countries of origin, who are prohibited from undertaking employment.

f) How can you change from having a residence permit in accordance with Section 18 or 20 AufenthG to being granted asylum?

This change is simply possible by 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 head office of the Federal 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.

g) How can you change to a permit under Section 18 or 20 AufenthG during the asylum procedure?

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

In accordance with Section 10 (1) AufenthG, it is not possible for a residence permit to be granted prior to the conclusion of an asylum procedure unless there is a legal entitlement to this. The latter is, however, the case with Section 20 AufenthG: if the researchers fulfil all the preconditions of Section 20 AufenthG, the authority must grant the permit.

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.

h) How can you change to having a residence permit in accordance with Sections 18 and 20 AufenthG after an asylum procedure?

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, the person will be tolerated until the impediment ceases to exist.

Tolerated persons 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. The 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.

i) Can tolerated persons conduct research activities?

Tolerated persons (for a definition: see 2.h aa above) 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 generally applies to tolerated persons from a safe country of origin whose asylum application has been rejected.

j) What status should a host institution recommend to threatened researchers?

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.

4. Stays at the host institution in Germany

a) Does the resident status affect the health insurance cover?

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.

bb) Following recognition

People 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) Tolerated persons

Tolerated researchers 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.

b) What do threatened researchers have to consider in relation to the receipt of social benefits or fellowships during their stay?

aa) No receipt of social benefits in the case of Sections 18 and 20 AufenthG

It is important to note that researchers who have been granted a right of residence to conduct research activities 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.

bb) In the case of persons applying for asylum, persons entitled to protection (recognised) and tolerated persons

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 tolerated persons; 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.

c) What rules on the residence status need to be considered if a short stay in a third country is planned for academic purposes?

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.

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

Persons entitled to protection have a residence permit in accordance with Section 25 (1) or (2) AufenthG; they 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 will furthermore be revoked if a person is absent from Germany for more than six months.

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

Both residence permits entitle the person to re-enter Germany. Section 20 AufenthG offers the additional benefit that it already authorises stays (of up to three months) 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 results from the EU Directive on Researchers, which facilitates the mobility of researchers. If the third country 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 revocation of the residence permit.

d) What prospects do threatened researchers have if they want their spouse or children under the age of 18 to follow them to Germany from their home country?

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 18/03/2018. 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.

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.

5. After the end of the funding at the host institution

a) For how long are the residence permits in accordance with Sections 18 and 20 valid?

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.

b) How much time does a person have to apply for a new residence permit when the funding ends?

The law does not make any specifications in this regard. We recommend getting in touch with the foreigners authority in good time to discuss alternative rights to remain.

c) Is there a limit on the validity of asylum or international protection (refugee status and subsidiary protection)?

Yes, all protection-based permits can be revoked by the Federal Office 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 then 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).

d) Which residence permits authorise persons to move their place of residence to other EU states?

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 three-month research stay in other EU states. If, however, the research project in another EU state lasts for more than three months, a residence permit must be applied for in the applicable state.

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

e) Can persons move their place of residence to other EU states if they have been granted asylum or international protection (refugee status or subsidiary protection)?

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.

Please again note that the German residence permit will be revoked in the event of an absence of over six months.

The Federal Office for Migration and Refugees (BAMF) Citizens’ Advice Service 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/SiteGlobals/Functions/WebGIS/DE/WebGIS_Auslaenderbehoerde.html


Legal advice: Dr. Stephan Hocks (lawyer)
Last updated: 24/03/2017

*This list of questions and answers provides non-binding information about the residence-related options for the acceptance and support of threatened researchers at German universities and research institutions. The list was created to the best of our knowledge but does not claim to be exhaustive. As legal decisions furthermore depend on many individual circumstances, this list cannot act as a substitute for legal advice. We do not accept any liability for the information being accurate and up to date. We advise you to contact suitable advisory bodies and/or the foreigners authorities. Please also note that many regulatory decisions are left to the discretion of the authorities and people are only entitled to a certain decision on exceptions. This means that the ability to predict an authority’s decision is very restricted.

Contact

SAR Germany Section – Secretariat
Dr. Barbara Sheldon
Head of Strategic Planning Division
Tel.: +49 (0)228 833 109

Frank Albrecht
Programme Director, Philipp Schwartz-Initiative
Tel.: +49 (0)228 833 122

E-mail: schwartz-initiative(at)avh.de

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