If you have an apprenticeship in Germany or are studying here, you should definitely also apply for a Settlement permit (you can find an article about the many advantages of a Settlement permit here).
To do so, you must fulfill various requirements, which can generally be found in § 9 AufenthG. In our experience, young people find it particularly difficult to provide proof of a secure livelihood (§ 9 para. 2 sentence 1 no. 2) . We at Migrando want to help you obtain the Settlement permit . In this article, we therefore explain whether and how you can obtain the Settlement permit as a student or trainee despite receiving BaföG, a mini-job or training assistance.
If you still have questions, simply click here and take our free test.
I. Settlement permit in accordance with Section 9 (2) AufenthG
In principle, the strict requirements of Section 9 II AufenthG must be met before a Settlement permit can be issued. For young people who are still in training or studying, there is a simplification in Section 9 (3) sentence 2 AufenthG.
But does the trainee privilege in Section 9 para. 3 sentence 2 also help with financial problems?
No, unfortunately not! According to unanimous legal literature, persons who are in training that leads to a recognized school or vocational qualification areexempt from providing proof of old-age provision within the meaning of §9 Para.2 S. 1 no.3 exempt. This means that this provision does not make it easier for you to prove your financial security. But can the money from the trainee grant or BaföG be used to secure your livelihood?
Securing your livelihood through Bafög/trainee support?
According to § 2 Para. 3 AufenthG, subsistence is secured if it can be provided for without recourse to public funds, including adequate health insurance cover. Public funds in this sense include, in accordance with § Section 2 para. 3 sentence 2 no. 5 does not include BAföG, so that it can still be taken into account as income.
The problem lies in forecasting the future
However, the ability to cover your living expenses from your own resources must not only be temporary.[1]
This means that your living expenses are currently considered to be covered by Bafög, scholarships or your salary during training. However, as these payments are often limited in time, the authority's future prognosis can still be negative. The immigration authorities require "reliable compensation"[2] for the time after your studies or training if these payments cease.
Important factors for the prognosis of Foreigners' office are
- Your age
- Your previous employment history [3]
The authority wants to know whether you have ever earned your own money before. - Job offers
Employment contracts or job offers are best suited to provide evidence of your long-term livelihood. - Your social and economic integration in Germany
Foreigners' office would like to find out how good your career prospects are in Germany.
With this prognosis decision, the German legislator wants to ensure that you will not need any money from the state in the future. This is because a Settlement permit is an unlimited right of residence and therefore gives you the opportunity to live in Germany permanently.
When will I receive the Settlement permit?
The Administrative Court of Munich ruled as follows against the argument of a shortage of skilled workers and proof of examination performance:
"Particularly in view of the fact that the Settlement permit is designed as a permanent residence permit and thus in principle unlimited in time and content as a full right of residence, detached from an original purpose limitation, a favorable prognosis cannot be granted solely because the plaintiff's livelihood is temporarily secured due to the granting of BAföG benefits. Although the certificate submitted by the university gives the impression that the plaintiff will complete his studies (in an indefinite period of time), this alone is not sufficient to make a statement about a smooth entry into the professional world and thus about reliable compensation for the BAföG benefits received .Despite labor shortages in some sectors, by no means every university graduate succeeds in concluding an employment contract immediately after graduation."[4]
Follow-up problems (mini-jobs, fixed-term employment contracts...)
As you can see, such a forecast for the future offers many uncertainties that remain to be clarified.
- (P1): Fixed-term employment contracts:
do not exclude livelihood security, unless the circumstances of the individual case indicate otherwise - (P2): Minijobs:
are basically suitable for securing a livelihood - but also sufficient in the specific case? - (P3): Trainees/students over 30 (who are not entitled to Bafög or trainee assistance)
Probably no sustainable means of subsistence from their own resources for the time being
"The harmless benefits (in accordance with § 2 III sentence 2) are treated in the same way as own resources, as they either serve the needs of children [ ... ] or are based on the foreigner's own contribution [ ... ] or are intended to cover the need for maintenance during the stay in the federal territory (e.g. scholarships)." [5]
"Harmful benefits" under residence law, the use of which does not ensure subsistence in accordance with § 5 Para. 1 no. 1 AufenthG and which, conversely, lead to the assumption that maintenance is not secured are, on the other hand, ALG II benefits not based on contributions, social benefits, basic security benefits, social assistance or corresponding benefits under SGB VIII or under the AsylbLG."[6]
The sustainability requirement could be an argument against this:
" [ ... ] However, this is contradicted by the fact that para. 2 S.1 no.2 - unlike para.2 S.1 no.4 - not to §9a Para.2 No.2 was adapted. This standard requires a permanent maintenance guarantee through the requirement of fixed and regular income. In this respect wording ("... is secured ...") and legal system provide no basis for a narrow interpretation."[7]
II. Settlement permit according to § 35 para. 1 AufenthG
This provision is a special favorable regulation for children born and/or raised in Germany. These sould receive a settlement permit from the age of 18 at the latest.
Alternative 1: Section 35 (1) sentence 1:
a) Direct application
A minor who has been in possession of a residence permit for five years on their 16th birthdayreceives a Settlement permit. No further conditions are required[8]. "In particular, a failure to secure the means of subsistence for this group of persons (only) means that the entitlement to a permit is replaced by a discretion under the regulatory regime of section 35 III 1 no. 3 and sentence 2 takes its place."[9] This means that thensurance of livelihood is not absolutely necessary here!
If the residence permit is not issued for the purpose of family reunification has been issued, Section 35 is not directly applicable. However, corresponding application may be considered in the cases of Section 26 (4) sentence 4.
b) Application via § 26 AufenthG (NE for humanitarian reasons)
The application of § 35 is also possible via the reference in § 26 IV S 4. This means that eeased requirements apply here too!
Alternative 2: Section 35 (1) sentence 2:
The legislator places higher requirements on this group of adult applicants. In the case of older young people, the presumption of integration into German living conditions is less justified because they have spent a longer part of their adolescent development abroad and have been more strongly influenced there than the group covered by sentence 1[10].
Prerequisites:
- Vage of majority
- Residence permit according to §§ 27 ff. AufenthG (family reasons) has existed for at least 5 years
- Sufficient knowledge of German
(Bt can be assumed if you have attended a German-speaking school for more than four years[11]). - Livelihood secured OR education that leads to a recognized qualification [12]
(A recognized educational qualification is offered by Hauptschule and Realschule, vocational schools, or other public or private educational institutions[13] & universities[14]). - No grounds for refusal within the meaning of Section 35 (3)
(interest in deportation, criminal offense, no means of subsistence)
In the event that a reason for refusal exists, a discretionary decision pursuant to Section 35 (3) sentence 2 AufenthG takes the place of the entitlement to a permit.
Possible evidence:
- Training contracts, if applicable
- Takeover confirmations
- Certificates
- Audit results
Legal consequence: entitlement to grant
We enforce your rights!
III Summary
The issue of securing a livelihood for Settlement permit is extremely complex. For young people in particular, it is still a major hurdle and raises many questions. We at Migrando would therefore like to help you to obtain Settlement permit even as a trainee or student. It all depends on your individual situation. Take our free test here to find out whether you meet the requirements for Settlement permit .
[1] VG Munich, 22.03.2012 - M 12 K 12.298 para. 26.
[2] VG Munich, 22.03.2012 - M 12 K 12.298 para. 29.
[3] cf. OVG Berlin - Brandenburg of 28.2.2006 Ref.: OVG 11 S 1306.
[4] VG Munich, 22.03.2012 - M 12 K 12.298 para. 28.
[5] V. Harbou/Weizsäcker EinwanderungsR, H. Zugang zu Sozialleistungen und Sicherung des Lebensunterhalts para. 18.
[6] V. Harbou/Weizsäcker EinwanderungsR, H. Zugang zu Sozialleistungen und Sicherung des Lebensunterhalts para. 19.
[7] NK-AuslR/Kerstin Müller, 2nd ed. 2016, § 9 para. 13.
[8] Bergmann/Dienelt/Dienelt, 13th ed. 2020, Residence Act Section 35 para. 6.
[9] Bergmann/Dienelt/Dienelt, 13th ed. 2020, Residence Act Section 35 para. 7.
[10] VGH BW, decision of 5.2.2019 - 11 S 1646/18 para. 10; OVG BB, decision of 22.3.2018 - OVG 12 B 11.17 para. 26.
[11] Bergmann/Dienelt/Dienelt, 13th ed. 2020, Residence Act Section 35 para. 19.
[12]https://www.bamf.de/DE/Themen/MigrationAufenthalt/ZuwandererDrittstaaten/Migrathek/Niederlassen/niederlassen-node.html (Status: 17.01.2020)
[13] Bergmann/Dienelt/Dienelt, 13th ed. 2020, Residence Act Section 35 para. 20.
[14] No. 35.1.4 AVV-AufenthG; NK-AuslR/Thomas Oberhäuser, 2nd ed. 2016, AufenthG Section 35 marginal no. 12.
