Basics of 104c AufenthG
The Residence permit § 104c AufenthG is a possibility and an opportunity for people who are in Germany with a Tolerance permit to switch to legal residence for a fixed period of time and apply for the right to stay in accordance with § 25a AufenthG or 25b AufenthG.
The background to Section 104c AufenthG
The new form of Section 104c of the Residence Act, passed in September 2022 and valid from December 31, 2022, aims to offer people with tolerated status a perspective in Germany. This amendment to the law is a response to the significant increase in the number of tolerated persons in Germany, which, according to statistics from the Migration Media Service, rose from 155,308 in 2015 and 180,124 in 2018 to 248,154 at the end of June 2022.
The main aim of the Federal Government with this amendment to the law is to reduce the number of tolerated persons and gradually enable them to integrate and build a future in Germany.
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 been tolerated for an uninterrupted period of five years as of October 1, 2022 or who have resided in Germany for more than five years at Tolerance permit . 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 apply for the right of residence. However, different requirements apply here with regard to the required duration of residence.
How does Naturalization work?
Types of § 104c AufenthG
§ Section 104c AufenthG provides for two different bases of entitlement. Here you can see the most important facts about Sec. 104c (1) and Sec. 104c (2) AufenthG:
§ Section 104c (1) AufenthG
- Target group: Persons with tolerated status who have been living in Germany for at least 5 years without interruption.
- Purpose: Granting a perspective in Germany through a right of residence.
- Duration: 18 months to fulfill the requirements for a right of residence (§ 25a or § 25b AufenthG).
§ Section 104c (2) AufenthG
- Prerequisite: One family member already has a Residence permit in accordance with Section 104c (1) AufenthG.
- Option: No statutory minimum period of 4 years as with Section 104c (1) AUufentG
- Objective: Transition to a right of residence permit in accordance with § 25a or § 25b AufenthG, followed by the possibility of a Settlement permit and later the Naturalization.
- Duration: 18 months to fulfill the requirements for a right of residence (§ 25a or § 25b AufenthG).
Application procedure and required documents
The application procedure for the issue of a residence permit in accordance with Section 104c of the Residence Act (opportunity residence) is identical for both types of residence permit.
Step-by-step guide to submitting an application
Here is a clear guide on how to submit your application:
- Preparation: Gather all the necessary documents to prove your tolerated status and your stay in Germany.
- Sample application: Visit the relevant Foreigners' office to obtain an application form and make an appointment to submit your application.
- Application: Submit the completed application together with all necessary documents to Foreigners' office .
- Fees: Pay the required fees (100 euros for adults, 50 euros for children). (If you receive ALG II (citizen's allowance), the fees may be waived).
Necessary documents and requirements
To apply for § 104c AufenthG, the following documents must be submitted:
- Proof of toleration: Current certificate of your toleration status.
- Proof of residence: Proof of your continuous residence in Germany (at least 5 years for para. 1).
- Proof of identity: Valid passport or passport substitute.
- Declaration of loyalty: Signed declaration on the free democratic basic order.
Processing time and costs
The application is normally processed within 12 weeks. If you do not receive a response within this time, you have the option of contacting Lawsuit for failure of act. The costs are 100 euros for adults and 50 euros for children. (The fees can also be waived if you are in receipt of ALG II (citizen's allowance).
Possible decisions and next steps
- Positive decision after application: Receipt of a residence permit and the relevant documents.
- Negative decision after application: Possibility of appeal through the administrative courts. Please note the deadline of 2 weeks after receipt of the negative decision!
- Revocation of the right of residence: The right of residence can be revoked in accordance with § 52 AufenthG if serious criminal offenses are committed or essential conditions are violated.
- Reasons for revocation: Among other things: If you have repeatedly and deliberately provided false information (misrepresented your identity or nationality) or if you have been sentenced to a fine of more than 90 daily rates.
Rights and obligations with § 104c
Section 104c AufenthG gives you certain rights and benefits. These mainly concern the area of work and the recognition of the duration of residence. However, you also have certain obligations with Residence permit
Rights in connection with the stay of opportunity
As a holder of a residence permit in accordance with § 104c AufenthG, you enjoy comprehensive employment and social rights in Germany:
Work permit: You may take up any type of employment without additional approval from the Federal Employment Agency - be it temporary, permanent or self-employed. The legal basis for this is § 4a para. 1 sentence 1 AufenthG, which does not contain any general prohibitions on taking up employment. Your gainful employment is therefore permitted!
Social benefits: This Residence permit gives you access to various social benefits in accordance with SGB II and XII. These include healthcare assistance, care assistance and support for living expenses. You are also entitled to child benefit and BAföG, as well as basic income support for jobseekers if you are looking for work.
These arrangements ensure that you receive support even in difficult social situations and offer you security until you find a new job.
There are benefits that are part of your rights with a Residence permit of opportunity stay:
Fundamental advantage of the duration of residence under Section 104c AufenthG:
- Crediting the period of residence: The 18-month period of residence under § 104c AufenthG is fully credited for applications to Settlement permit and Naturalization .
- Relevant legal regulations:
- For Settlement permit in accordance with § 9 and 9a AufenthG.
- For the Naturalization according to § 10 StAG.
Advantage compared to Tolerance permit:
- Time advantage: Persons who change from a Tolerance permit to a right of residence only begin to count the duration of stay for the Settlement permit or Naturalization from the time the right of residence is granted.
- Already recognized time under § 104c AufenthG:
- 18 months as a head start: The time spent under § 104c AufenthG is already counted as legal residence, which enables a faster application to Settlement permit or Naturalization .
Obligations and restrictions
The Residence permit right of residence according to Section 104c AufenthG also entails certain obligations and restrictions that holders must observe:
- Obligation to notify: Holders must notify the competent authorities of any changes to their place of residence and personal details.
- Integration requirements: Participation in integration courses may be mandatory in order to obtain or extend the Residence permit .
- Restrictions on freedom of travel: Travel abroad may be restricted and it may be necessary to apply for a travel permit before leaving Germany.
- Employment restrictions: Although a work permit is granted, certain types of employment or self-employment may be subject to restrictions, depending on the local labor market situation and other factors.
Family reunification and travel
In this section, we highlight specific regulations and restrictions that apply to you as a holder of a residence permit under Section 104c AufenthG in the area of family reunification and travel.
Possibilities and restrictions for family reunification
If you are in Germany on the basis of § 104c AufenthG, it is currently not possible for you to bring family members to join you:
- Legal restrictions: Family reunification is excluded for you under Section 29 (3) AufenthG. This applies regardless of whether you would submit the application under Section 104c (1) or (2).
- Reason for the restriction: The main reason for this is the temporary nature of your residence permit. Without security guarantees for the period after the first 18 months, the requirements for family reunification cannot be met.
- Necessary steps: You must first change to a more permanent Residence permit before an application for family reunification can be submitted.
Travel with § 104c AufenthG
There are also specific regulations in the area of travel that you should observe as a holder of Section 104c AufenthG:
- Travel freedoms:
- Within the Schengen area: You may stay in the Schengen area for up to 90 days within a 180-day period.
- Outside the Schengen area: Please note the visa regulations of the countries you wish to visit.
- Travel restrictions:
- Permit requirement: For longer trips (longer than 6 months) or special projects lasting longer than months, a permit may be required.
- Obligation to return: You must be able to prove that Germany remains your main place of residence and that you intend to return.
Path to Settlement permit and Naturalization
The step from the opportunity stay to Settlement permit and Naturalization is not a direct one. Your Residence permit must be changed. You will have to overcome a few detours and obstacles during the process.
From opportunity stay to Settlement permit
- Starting point: § 104c AufenthG (opportunity residence)
- Change required:
- Before applying for Settlement permit , a change to a right of residence title (§ 25a or § 25b AufenthG) is necessary.
- Duration until change: 18 months.
- Application for Settlement permit:
- During the opportunity stay, documents should already be prepared for Settlement permit .
- Legal basis: § 9 AufenthG or 9a AufenthG.
- Applications are submitted after obtaining a residence permit.
- Organize documents and prepare application form.
From the Settlement permit to the Naturalization
Once you have obtained Settlement permit , the next step awaits you: The path to German citizenship:
- Prerequisite for Naturalization:
- Naturalization is not possible directly from § 104c AufenthG.
- Necessary intermediate step: change to a right of residence (§ 25a or § 25b AufenthG), duration: 18 months.
- Application for Naturalization:
- After the change to the right of residence, the application is made to Naturalization.
- Legal basis: § 10 StAG.
- Required documents:
- Proof of livelihood.
- Proof of identity (passport/passport replacement).
- B1 certificate, B2 certificate for accelerated procedures.
- At least 5 years of legal residence and 3 years with C1 certificate or voluntary work.
- Naturalization test and declaration of loyalty.
- Submission and processing of the application:
- Organize an appointment at the naturalization office, fill out the application form and submit the documents.
- In the event of delays, consider Lawsuit for failure of act if necessary.
- After successful processing, the naturalization certificate is ceremoniously presented.
Summary and conclusion on Section 104c Residence Act
Summary of the most important points
§ Section 104c AufenthG is an important Residence permit that offers people with tolerated status a perspective in Germany. The key aspects are briefly summarized here:
- Purpose of § 104c AufenthG: Enables tolerated persons to create a basis for a permanent right of residence in Germany over a period of 18 months.
- Target groups: People who have been living in Germany for at least five years and have either a Tolerance permit in accordance with § 60a or a Tolerance permit "light" in accordance with § 60b AufenthG.
- Rights: Allows you to take up gainful employment without further approval from the Federal Employment Agency and gives you access to social benefits.
- Restrictions: The Residence permit excludes family reunification and places restrictions on the freedom to travel.
- Possibilities after the 18 months: transition to a permanent right of residence (§ 25a or § 25b AufenthG) and later the possibility to Settlement permit and Naturalization, whereby the time under § 104c AufenthG is taken into account.
Conclusion on Section 104c AufenthG
Section 104c of the Residence Act has a significant impact on the integration and residence status of those entitled. By being granted a right of residence on the basis of opportunity, the persons concerned are given the opportunity to build up a livelihood in Germany and to be gradually integrated into social and economic life.
Despite the clear advantages, such as the length of stay being taken into account for subsequent applications to Settlement permit and Naturalization, there are also significant restrictions, particularly with regard to family reunification. These restrictions can affect the personal and family planning security of those affected.
Difficulties with the application?
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.
