What is § 104c AufenthG?
It is important to know the background to this Residence permit so that you understand what Section 104c AufenthG is all about and what the right to residence on the basis of opportunity means exactly. This will also help you to understand the circumstances surrounding Section 104c AufenthG and why time is such an important and decisive factor in the right of residence.
The reasons for Section 104c AufenthG
The Residence permit § 104c AufenthG is a possibility and an opportunity for people with a Tolerance permit in Germany to obtain legal residence for a limited period of time and to apply for a right of residence in accordance with § 25a AufenthG or 25b AufenthG.
The new form of 104c AufenthG was adopted in September 2022. The reason for the decision and the adoption of the amendment to the law by the federal government was to give people with a Tolerance permit a perspective in Germany. The new law has been in force since January 1, 2023.
The number of tolerated persons has risen steadily
One important reason why the law was passed by the federal government is the sharp increase in the number of tolerated people in Germany.
Statistics from the Migration Media Service show that the number of tolerated persons has increased steadily over the years. In 2015, the number of tolerated persons in Germany was 155,308.
Three years later, in 2018, the number rose to 180,124 people with tolerated status and at the last data in this chart at the end of June 2022, the number of tolerated people was 248,154.
The Federal Government's aim in amending the law was to reduce the number of tolerated persons and to give these people the opportunity to integrate in Germany and build a future step by step.
Top 5 federal states with the most tolerated persons
According to the latest calculation by Statista, there were 304,308 people in Germany who were required to leave the country in December 2022. 248,147 of these people had a tolerated status. With 63,611 tolerated persons, North Rhine-Westphalia had the highest number of tolerated persons, making it the leader in this category.
In 2nd place after North Rhine-Westphalia is Baden-Württemberg with 34,711 tolerated persons in December 2022. 3rd place goes to Bavaria with 29,910 tolerated persons and 4th place goes to Lower Saxony with 23,138 tolerated persons. In 5th place in this statistic is Berlin with 16,311 tolerated persons.
Who gets § 104c AufenthG ?
§ Section 104c AufenthG is granted to people who have resided in Germany for 5 years or more as of October 1, 2022. It is important that these people have a tolerated status. It does not matter whether you are in possession of a Tolerance permit in accordance with Section 60a AufenthG or a Tolerance permit "light" in accordance with Section 60b AufenthG.
Family members of people who already have a Residence permit in accordance with Section 104c (1) AufenthG can also obtain the Residence permit for the right of residence. However, different requirements apply here with regard to the required duration of residence.
Naturalization with § 104c AufenthG?
Types of § 104c AufenthG
There are two different types of residence permit: Residence permit on the right of residence § 104c AufenthG. It is important that you distinguish between the two Residence permit . Both types of residence have different requirements and conditions. It is important that you internalize these conditions. This will make it easier for you to apply for the respective Residence permit type.
§ Section 104c (1) AufenthG
Residence permit Section 104c (1) AufenthG is intended for people who have been granted tolerated status and have lived in Germany with this status for at least 5 years or longer without interruption. One of the key points for obtaining this right of residence is that you must prove your tolerated status and your residence with Tolerance permit .
The aim is to give you a perspective in Germany. If you are granted 104c (1) AufenthG, you will then have the opportunity (hence the right of residence) to have a long-term perspective in Germany and you have 18 months to do so. During these 18 months, it is important for you to act quickly and meet the requirements for a right of residence under § 25a or 25b AufenthG.
§ Section 104c (2) AufenthG
You will receive the Residence permit § 104c Para. 2 AufenthG if one of your family members already has the Residence permit § 104c Para. 1 AufenthG. You have the same option as your family member with regard to the 18 months.
These 18 months are your chance to change to a right of residence according to § 25a or § 25b AufenthG and from this right of residence you can then, if you meet the requirements and conditions, go on to a permanent residence permit such as Settlement permit and finally obtain a Naturalization .
How can I apply for the right of residence?
Even though the two types of Section 104c AufenthG have differences, there are also similarities. Applying for Section 104c AufenthG is the same for both types of residence permit and the main steps are identical. It is an advantage to memorize this procedure. It can serve as a guide if you are no longer sure which step to take next within the process.
This is how the application for § 104c AufenthG works
The first step in the application process is to organize the necessary documents and evidence for the application. The next step is to go to the relevant Foreigners' office.
Here you can obtain a sample application for your residence permit and make an appointment to submit the application. Now write an application based on the sample application and hand in the formulated application with the complete documents at the agreed appointment.
For the application, you as an adult pay 100 euros each and for children there are processing costs of 50 euros each.
Examination of the application for § 104c AufenthG
Once you have submitted the application to your Foreigners' office , the processing time for the authority begins. There is a guideline that specifies exactly how long the authorities have to process your application.
The employees have 12 weeks (i.e. 3 months) to process the application. If nothing has happened within this period, you can file an Lawsuit for failure of act to the administrative court.
The administrative court then sets the authority a new deadline by which your application must be processed. You will then receive the result of your application and the authority's response at the latest and will then know whether your request will be granted or not.
Granting of § 104c AufenthG
In most cases, the application for § 104c AufenthG is positive. You will therefore be contacted by Foreigners' office and receive a positive decision. At the same time, you will receive your card for Residence permit and will then have a legal right of residence.
However, there are also cases in which the decision is negative. You then have the option of appealing against this decision before the relevant administrative courts (Administrative Court, Higher Administrative Court, Federal Administrative Court). For these three appeals, it is important that you observe and adhere to the deadline of 2 or 3 weeks (depending on the requirements).
If the decisions are negative three times, your application for Section 104c AufenthG will not work and you will remain in the Tolerance permit. Accordingly, the conditions that applied during the previous period of toleration will then apply to you.
As a general rule, § 104c AufenthG is granted once and cannot be extended. This means that the duration of § 104c AufenthG does not exceed 18 months. During this time, you must change your Residence permit . If you do not change your right of residence, you will revert to Tolerance permit .
Revocation of § 104c AufenthG
There are situations in which your right of residence can be subsequently withdrawn in accordance with Section 104c AufenthG. These situations occur if you violate the basic requirements of Section 104c AufenthG. Violations can be if you commit serious criminal offenses that argue against granting you the right of residence under § 104c AufenthG.
In this case, it is possible that your Residence permit will be revoked in accordance with Section 52 AufenthG following revocation proceedings and you will end up back in Tolerance permit due to the seriousness of the offense. It is therefore very important that you do not make yourself liable to prosecution. This applies to every Residence permit and is also the case with Section 104c AufenthG.
The requirements for the right of residence
Depending on the type of Section 104c AufenthG, there are different conditions for the right of residence. However, some points, such as proof of tolerated status, are identical. It is important that you submit all these documents in full and in good order when applying for § 104c AufenthG. Then your application will be safe and processing will be faster.
Conditions and documents for Section 104c (1) AufenthG
The most important document is first of all that you prove your tolerated status or show that you are entitled to Tolerance permit .
You will also need a document proving that you have lived in Germany for an uninterrupted period of 5 years. Proof of this period can be provided via Tolerance permit, a residence permit or a residence permit for this period.
They also require a commitment to the free democratic basic order in Germany and the associated signed declaration of loyalty.
Another condition is that you have not committed any intentional criminal offenses: So if you have been sentenced to fines of more than 50 daily rates and, in the case of criminal offenses, more than 90 daily rates, then your application for § 104c AufenthG will fail.
It is also important that there are no grounds for refusing you a residence permit. You must not have misrepresented your identity or citizenship and you must not have provided false information several times in the past.
The documents for the application for § 104c AufenthG are composed as follows:
- Proof of your tolerated status.
- Proof that you have resided in Germany for an uninterrupted period of 5 years.
- Proof of the signed declaration of loyalty and commitment to the free democratic basic order in Germany.
Conditions and documents for Section 104c (2) AufenthG
The conditions for applying for Section 104c (2) AufenthG differ from Section 104c (1) AufenthG in one important respect, namely the duration of residence. You do not have to prove 5 years of residence. It is important that you can prove that one of your family members already has § 104c para. 1 AufenthG. Otherwise, the same conditions and rules apply as for Sec. 104c (1) AufenthG.
- You must prove that you live in a domestic community with a holder of Section 104c (1) AufenthG.
- Proof of your tolerated status.
- Proof of the signed declaration of loyalty and commitment to the free democratic basic order in Germany.
The advantages of § 104c AufenthG
The Residence permit § 104c AufenthG has several advantages. These relate to travel, gainful employment, but also the recognition of the period of residence. It is important that you are aware of these positive aspects and know how to make use of them.
Travel with § 104c AufenthG
Travel is generally possible with § 104c AufenthG. The decisive condition is that you must have a valid national passport. With this travel document, you can then travel both within Germany and to other European countries. For EU countries, you can travel freely for 3 months within a 6-month period.
Traveling to your home country is also straightforward and you don't have to worry about getting into trouble with the authorities in Germany or losing your Residence permit .
Gainful employment with § 104c AufenthG
With § 104c AufenthG, you can pursue gainful employment without any problems. It is completely irrelevant whether you are in temporary employment, permanent employment or self-employment. You also do not require approval from the Federal Employment Agency and are not bound by any requirements in this regard.
The basis is § 4a para. 1 sentence 1 AufenthG. All the requirements relating to working with your Residence permit are described in detail here. In principle, there is no ban on pursuing gainful employment.
Benefit support with § 104c AufenthG
With your Residence permit you have access to benefits in accordance with SGB II or XII. You can receive social welfare benefits such as healthcare assistance, care assistance or assistance with living expenses. If you are a jobseeker, you also have the right to apply for and receive basic security benefits for jobseekers with your Residence permit .
These options are an advantage, as it can always happen that you get into difficult social situations and as long as you have the Residence permit § 104c AufenthG, there is the possibility of support for the period until you have found a new job.
The length of stay is taken into account
The most important advantage for you is that the 18 months of residence under Section 104c AufenthG will be recognized for Naturalization and Settlement permit . This means that you do not have to start from scratch when you switch to the right of residence and have a period of legal residence that is recognized.
This advantage means that you can apply for your Naturalization or your Settlement permit more quickly if you are later granted § 25a AufenthG or § 25b AufenthG. If you were granted the right of residence from Tolerance permit , the calculation of the duration of your stay would start from the time you were granted the right of residence. As you were previously in § 104c AufenthG, the one and a half years will be taken into account.
The disadvantages of Section 104c AufenthG
In addition to positive aspects, Residence permit also has some negative aspects. It is important for you to be aware of these negative aspects and to be prepared accordingly. This will save you trouble and prepare you well for the situation. These negative points include the time limit on the residence permit and the issue of family reunification.
The Residence permit is limited in time
The Residence permit Chancen-Aufenthaltsrecht according to § 104c AufenthG is limited in time. There is therefore no possibility for you to extend your right of residence. Rather, from the time you receive your residence permit, you should make every effort to be able to switch to a right of residence under Section 25a or 25b AufenthG after the 104c AufenthG expires.
It is therefore important for you to be active after you have been granted the right of residence and ideally to apply directly for Section 25a AufenthG or Section 25b AufenthG and to organize all the missing documents for the application for the right of residence.
Family reunification is impossible with § 104c AufenthG
You cannot apply for family reunification under Section 104c AufenthG. Family reunification is blocked by the legal requirement in § 29 (3) AufenthG. It does not matter whether you apply under Sec. 104c (1) or Sec. 104c (2).
The reason for the block is your temporary Residence permit. With a temporary Residence permit you have no security guarantees for the period after the 18 months. However, these guarantees are explicitly required for family reunification. You must therefore wait until you submit an application for family reunification and switch to another right of residence beforehand.
The path from 104c AufenthG to Settlement permit
To get from § 104c AufenthG to Settlement permit , you have to take a few detours. The direct step is not possible. However, you can organize further requirements for Settlement permit during your time in the Opportunities Residence Act and thus save yourself time with the documents.
The change from § 104c AufenthG to the right of residence
Before you can apply to Settlement permit , you first need to switch from the right of residence for opportunities to the right of residence under Section 25a AufenthG or Section 25b AufenthG. Depending on Residence permit , you will need to fulfill different documents and conditions. However, you already have some conditions, such as your Residence permit .
After 18 months, you will then switch from § 104c AufenthG to the right of residence. You can then take the next steps on the way to your permanent residence permit Residence permit and Settlement permit .
Theoretically, you can only switch from Section 104c AufenthG to Residence permit Section 25a or 25b. However, if you meet the requirements for 25a and 25b and at the same time meet the requirements for another purpose, the so-called "fictitious second" applies. In this case, you jump directly to another Residence permit instead of § 25a AufenthG or 25b AufenthG.
Application to Settlement permit for the right to stay
When applying for Settlement permit from the right of residence, it is first of all important that you organize all the documents that you can already organize. It is advisable to tackle the document on proof of duration of residence last, as you do not yet meet the requirements at the beginning anyway. You should therefore use this time to obtain further documents and organize the application form.
The legal basis for all requirements and therefore also the description of the documents you need can be found under Section 9 AufenthG. Once you have all the documents together, make an appointment and submit the application to change from Section 25a AufenthG or Section 25b AufenthG to Settlement permit.
Your documents will then be checked by Foreigners' office and at the end you will receive a message that your application to Settlement permit has been successful and you will receive a card for your new Residence permit.
The path from 104c AufenthG to Naturalization
As with Settlement permit , the following also applies to Naturalization: You do not have the option of applying for German citizenship from your Residence permit § 104c AufenthG. The path from Residence permit of the right of residence opportunity to Naturalization is therefore not a direct path. It only works if you take an intermediate step first.
Change of residence permit
The intermediate step that you must take with your Residence permit is to change to another right of residence. You have exactly 18 months to do this. The options for you are usually Residence permit the right of residence § 25a AufenthG or § 25b AufenthG. With both residence titles, you then have the option of applying for Naturalization and becoming a German citizen.
Application of § 25b and § 25a for the Naturalization
If you have switched to one of the two Residence permit residence permits after 18 months, the next step is to go to Naturalization . It is now a matter of organizing the necessary documents for your naturalization application. The legal basis for the documents can be found under § 10 StAG.
The necessary documents are as follows:
- Proof that you are able to support yourself.
- Proof of identity (valid passport or passport substitute).
- Proof of B1 certificate.
- Proof of at least 5 years of legal residence (with the new Naturalization Act from 27 June 2024)
- Proof of a successful naturalization test.
- Proof of the signed declaration of loyalty and commitment to the free democratic basic order.
With special integration achievements such as a C1 certificate, educational and professional achievements and voluntary work, you can be naturalized after 3 years under the new Naturalization Act.
Once you have all the documents together, it is time to contact the relevant naturalization authority and ask for the application form for Naturalization and have it handed over to you. At the same time, organize an appointment to hand in all the documents.
You must now complete the application form in full, sort the documents carefully and check them again. Then attend the appointment to submit your application and hand in your application to Naturalization .
If necessary, submit an Lawsuit for failure of act after 12 weeks. The authorities are obliged to process your naturalization application by a certain date.
Once the application has been processed, you will be contacted by Foreigners' office and an appointment will be made with you to receive your Naturalization . The naturalization certificate will then be ceremoniously presented to you at the appointment and you will be a German citizen from that point on.
Summary
As you can see, Residence permit 104c AufenthG is a very extensive area. We have compiled the most important information for you here:
- The Residence permit § 104c AufenthG gives tolerated persons who have been in Germany for a long time the opportunity to build up long-term prospects in Germany.
- The prerequisite is that you have been in Germany for at least 5 years without interruption and are in a tolerated status. Proof can be provided with an Tolerance permit, residence permit or an Residence permit.
- Furthermore, one must be committed to the free democratic basic order in Germany and there must be no reasons to deny the application for § 104c.
- Relatives of people with §104c AufenthG can also apply for this Residence permit . The specified 5-year residence period does not apply here.
- As soon as you have the Residence permit , you have 18 months to organize the change to a right of residence according to § 25a AufenthG or 25b AufenthG after the time has expired.
- After 18 months, you then switch to the right of residence.
- The 18-month residence period in Section 104c AufenthG is included for Settlement permit and Naturalization .
Settlement permit with § 104c AufenthG?
FAQ - The most important questions and answers on Sec. 104c AufenthG
§ Section 104c of the Residence Act (AufenthG) is Residence permit intended to give long-term tolerated residents in Germany the prospect of building a long-term perspective in Germany. These people are given a certain period of 18 months as an opportunity during which they can switch to a long-term right of residence.
People who have been living in Germany for 5 years without interruption and have a toleration status, are committed to the free democratic basic order and have no grounds for refusal can apply for the temporary 18-month residence permit Residence permit § 104c AufenthG.
No. Naturalization is not directly possible with § 104c AufenthG. After 18 months, you must first change to a right of residence (§ 25a AufenthG or § 25b AufenthG). From this right of residence, you can then apply for German citizenship. The 18-month period in § 104c AufenthG is taken into account when calculating the duration of residence.
No. The same applies to Settlement permit as to Naturalization. A direct step from Section 104c AufenthG is not possible with this Residence permit . You must therefore first change to Residence permit within 18 months. You can then apply to Settlement permit without any problems. The one and a half years from the Residence permit § 104c AufenthG will be credited to you for the Settlement permit .
Yes, it is possible to travel with the Residence permit opportunity residence permit in accordance with Section 104c AufenthG. You can travel both within Germany and abroad without any problems. It is important that you always have a valid travel document (valid national passport) and the Residence permit 104c AufenthG with you when you travel.
No, family reunification is not possible for you. The reason for this is that your Residence permit is only valid for 18 months. You do not have any security for the period after that and you will need such proof of security for your family reunification to work. You must therefore change to another Residence permit for family reunification.
The granting and extension of the residence title § 25b AufenthG is generally valid for 2 years. There are exceptions if your national passport does not run for such a period, in which case the duration of your residence permit is based on the period of validity of your national passport.
Gainful employment is possible with § 104c AufenthG. It does not matter whether you have a fixed-term or permanent contract or are self-employed. Any form of work is possible with the right of residence and there are no prohibitions in this regard.
