Basics of deportation and residence law
The Residence Act (AufenthG) defines the legal framework for the residence, employment and integration of foreigners in Germany. It also stipulates the circumstances under which the German state can order and enforce the deportation of foreigners.
What does deportation mean?
The term deportation refers to the state-ordered procedure by which asylum seekers whose stay in Germany is not or no longer lawful are forced to leave the country. Section 58 of the Residence Act describes the circumstances under which deportation is carried out:
Enforceability of the obligation to leave the country: No deadline for departure granted, expired or voluntary fulfillment of the obligation to leave the country not ensured.
Monitoring of departure: Necessary for reasons of public safety and order.
Special conditions for unaccompanied minors: Ensure that they are handed over to family members or suitable facilities in the country of return.
Restrictions for holders of certain Residence permit: Holders of EU permanent residence permits or EU Blue Cards who enjoy international protection may only be deported to a Member State granting protection.
Prohibition of deportation according to § 60 AufenthG
Here we have summarized the basis for a ban on deportation according to § 60 AufenthG:
Protection from persecution: Deportation is prohibited if the life or freedom of the foreigner is threatened in the country of origin due to their race, religion, nationality, membership of a particular social group or political opinion.
Extended protection clauses: Additional prohibitions apply if the foreign national would be at risk of the death penalty, torture or other serious harm.
Criteria for the issue of a residence permit
The granting of a residence permit in Germany is based on various criteria that are intended to ensure that the foreigner's integration and residence meet the legal requirements:
Economic ties: Proof of permanent employment or a secure income.
Family circumstances: Presence of close family members already living in Germany.
Proof of integration: Mastery of the German language, knowledge of German society and legal system.
Legal requirements: Compliance with German laws and no serious criminal offenses.
Health conditions: Compliance with certain health requirements, if necessary.
These criteria serve to promote successful integration into German society and ensure security and social cohesion. It is important to know that the status of Tolerance permit is not Residence permit and, in contrast to this, offers significantly fewer opportunities to participate in life in Germany and the threat of deportation is still hanging in the air.
Frequent scenarios and bureaucratic hurdles
In Germany, the so-called bureaucratic madness means that highly qualified specialists who have received a significant offer from renowned companies such as Tesla are nevertheless at risk of deportation. This underlines the urgent need to optimize and speed up administrative processes.
Case study: Deportation despite job offer at Tesla
A young man from Nigeria, who has been living in Germany for several years with a Tolerance permit He was faced with a paradoxical dilemma that many foreign skilled workers experience in Germany: He needed a Residence permit to be able to work, but could only obtain this if he already had an employment contract. He sought the path from Tolerance permit to Residence permit.
Here are the specific challenges he faced:
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Bureaucratic hurdles: The Foreigners' office could not grant him Residence permit without an existing employment contract, and the Federal Employment Agency also had to give its approval, which complicated the process.
Studying and the challenge of finding a job
The young man originally came to Germany to study and successfully completed his Bachelor's degree. After graduating, he began looking for a suitable job in his field. However, despite his qualifications and efforts, he was initially unable to find a job.
Problems with the residence permit: With his Tolerance permit , the Nigerian was able to start and finish his studies. He therefore never had a Residence permit . After his studies, he needed a job in order to obtain a Residence permit . This step did not work out for the young man. He did not get a job because of his tolerated status.
The 18-month rule: In Germany, there are regulations that give graduates of German universities up to 18 months to find a job after graduation. During this time, they are allowed to take up any kind of employment to support themselves while they look for qualified work in their field of study. In this case, the young man was unable to find a job suitable for his degree within these 18 months.
Short-term solution and the turnaround by Tesla
As the 18-month period was coming to an end and he still hadn't found a job, the young man decided to enrol on a Master's degree course at short notice. This was a strategic decision in order to be able to stay in Germany legally. He didn't actually want to continue studying, he wanted to work.
Job offer from Tesla: Shortly after enrolling in the Master's program, he received a job offer from Tesla. This offer would normally have solved his problem, as he had an employment contract lined up. Tesla, as a renowned company, was willing to hire him, provided he could show a valid Residence permit .
Bureaucratic complications: The bureaucratic challenge was that the Foreigners' office could only issue an Residence permit for the start of work if an employment contract was already in place. However, Tesla was not able to formally sign the employment contract without the Residence permit already being in place to avoid legal problems, including possible penalties.
The Nigerian was also informed by Foreigners' office that he had to be deported due to his tolerated status. A Tolerance permit is not a legal Residence permit and therefore Foreigners' office has the right to initiate deportation proceedings.
Conclusion and solution
The young man's situation illustrates the often complex and contradictory requirements of German immigration laws. Although he was highly qualified and had a concrete job offer, the rigid bureaucratic structures initially prevented a simple solution.
The key solution would have been for Foreigners' office to issue a fictitious certificate under Section 81 of the Residence Act with a work permit, followed by approval from the Federal Employment Agency and the formal signing of the employment contract. These steps would have ultimately enabled him to start working at Tesla and receive his Residence permit accordingly.
Further cases of deportation despite job offer
The case of the Nigerian is not unique in Germany. The Süddeutsche Zeitung reported on a case of a refugee who was employed and received a deportation order and had to be deported despite having a job and an offer. Another article by SWR reports on an increase in deportations of refugees who have a job. The problem for tolerated refugees with a job offer or job is therefore occurring more frequently.
Role of Foreigners' office and the Federal Employment Agency
The Foreigners' office and the Federal Employment Agency play key roles in regulating and approving the employment of non-EU foreigners in Germany.
The Foreigners' office is primarily responsible for issuing the residence permit based on the permits and other relevant documents provided by the Federal Employment Agency.
The Federal Employment Agency checks whether local or EU citizens are available for the specific position (priority check, where applicable) and whether the employment conditions meet local standards. After a successful check, it issues an employment permit, which is then required by Foreigners' office in order to issue the Residence permit , which authorizes the person to take up employment.
The interaction between employers, the Federal Employment Agency and Foreigners' office is crucial for the successful employment of non-EU foreigners in Germany.
Here is a brief description of the cooperation and the possible problems:
Interaction:
Employer: Starts the process by making a job offer to a non-EU foreigner. The employer must ensure that the potential employee has the necessary qualifications and skills for the job.
Federal Employment Agency: Checks whether suitable candidates from Germany or the EU are available for the position offered (priority check, if necessary) and whether the employment conditions meet local standards. If the assessment is positive, it approves the employment.
Foreigners' officeAfter receiving approval from the Federal Employment Agency , Foreigners' office issues the required Residence permit, which entitles the non-EU foreigner to work in Germany.
Problems in interaction:
Delays: Coordination between institutions can be time-consuming, leading to significant delays in processing and issuing the required documents.
Bureaucracy: The complex bureaucratic processes can be confusing and frustrating for employers and employees, especially if it is unclear which documents are required or how to submit them correctly.
Communication problems: Lack of communication between the authorities and employers can lead to misunderstandings and errors that slow down or even derail the whole process.
Rigid regulations: The strict legal requirements and often restrictive interpretation of the rules can mean that qualified workers do not receive their work permits in time, meaning that valuable opportunities are lost for both the employee and the employer.
Step-by-step guide to avoiding deportation
An effective method of preventing deportation while securing a work permit in Germany follows a clear six-step process. These steps are specifically designed to minimize bureaucracy and provide a quick solution for those affected. Of course, it is important to gather all the necessary documents and evidence in advance in order to be optimally prepared for the bureaucratic requirements.
Strategy for securing the right of residence
Step by step instructions:
Step 1: Fictitious certificate with work permit: Foreigners' office issues a fictitious certificate that includes a temporary work permit. This step is usually straightforward and allows you to follow the next steps in the employment process.
Step 2: Binding job offer: The employer submits a binding offer that shows willingness to conclude an employment contract as soon as the Residence permit is issued. This offer is crucial in order to receive support from the Federal Employment Agency.
Step 3: Approval of the Federal Employment Agency: With the binding job offer, the Federal Employment Agency can give its approval, which is an essential prerequisite for issuing the residence permit.
Step 4: Signing the employment contract: Once approval has been given, the employment contract can be signed by both parties - employer and employee. This formalizes the employment relationship on the condition that the Residence permit is granted.
Step 5: Taking up employment: With the signed employment contract, you can now start working. This shows Foreigners' office that you have found regular employment in Germany.
Step 6: Conversion of the fictitious certificate: Finally, visit Foreigners' office again to have your fictitious certificate converted into a regular one Residence permit . This is the final step that secures your legal residence and work permit in Germany.
Legal support to help
The complicated legal situation regarding residence and work permits in Germany can be challenging. Legal support can be crucial to avoid legal pitfalls and maximize the chances of a successful outcome.
When should you consult a lawyer?
The decision to seek legal help requires a good analysis. Here are some situations in which consulting a lawyer is particularly advisable:
If you receive a request to leave the country or a threat of deportation: a lawyer can check and, if necessary, appeal.
Before applying for an Residence permit or a work permit: a lawyer can help you fill out the application correctly and increase your chances of success.
For complex cases: These include cases involving criminal records, misunderstandings or previous refusals.
If the case is urgent: If quick action is required, a lawyer can often find ways to speed up the process.
If you are unsure about your rights: a lawyer can explain what rights you have in Germany and how best to protect them.
Settlement permit as a skilled worker?
Conclusion on the topic of deportation despite a job offer
The situation of skilled workers who are at risk of deportation despite valid job offers sheds light on the challenges within the German immigration system. The interaction between immigration authorities and the Federal Employment Agency often requires complex bureaucratic processes that can prevent quick access to job opportunities.
A clear and simple design of these processes could help skilled workers obtain a work permit more quickly and efficiently. This would allow them to make their contribution to the German labor market without being held up by lengthy procedures.
FAQ - The most frequently asked questions and answers about deportation despite a job offer
Yes, working in Germany does not offer absolute protection against deportation. If the legal requirements for residence are not met, such as expired visas or residence permits, an employed person can also be deported.
A deportation may not be carried out if:
The life or freedom of the person in the country of origin would be threatened because of skin color, religion, nationality, political conviction or membership of a particular social group.
There is a serious risk that the person will be tortured or treated inhumanely in the country of origin.
There is a ban on deportation pursuant to Section 60 (5) or (7) AufenthG, for example due to a serious illness that cannot be treated in the country of origin.
The time it takes for a deportation to be carried out can vary greatly and depends on many factors, such as the availability of travel documents, the cooperation of the country of origin and the legal situation of the person concerned. It can take anywhere from a few days to several months or even years, especially if an appeal is lodged.
The following steps can be taken to prevent deportation:
Apply for visa and residence permit extensions in good time.
If you are threatened with deportation, seek legal advice and possibly apply for asylum if you are in danger in your home country.
Fulfill all obligations to cooperate and work closely with the authorities.
Promote integration into society through participation in integration courses and demonstrable social ties in Germany.
Persons who are protected from deportation are:
Are recognized as persons entitled to asylum or refugees.
Have been granted protection status under the Geneva Refugee Convention or subsidiary protection status.
Due to deportation bans according to § 60 AufenthG are protected, as already mentioned above.
In certain cases also persons with a Tolerance permit who cannot be deported for various humanitarian or practical reasons.
