What was the case about?
The case involved an Afghan national. The man filed an asylum application in 2015. During his asylum proceedings, he was permitted to remain in Germany under a temporary residence permit.
In Germany, a successfulasylum proceeding results in a temporary residence permit. Applicants receive one of the following four Residence permit:
- Eligibility for Asylum (Section 25(1) of the Residence Act)
- Refugee Status (Section 25(2), Alternative 1, of the Residence Act)
- Subsidiary Protection (Section 25(2), Alternative 2, of the Residence Act)
- National Prohibition on Deportation (Section 25(3) of the Residence Act)
In this man’s case, it was determined that he was protected from deportation under national law. Consequently, in February 2021, he was granted a residence permit under Section 25(3) of the Residence Act (AufenthG). Since February 2024, he has also held a Settlement permit.
He applied for German citizenship as early as October 2023. Because the naturalization authority did not initially rule on his application, he filed a Lawsuit for failure of act.
One question was particularly crucial to the proceedings: When did the man begin to meet the required five-year residency period for the “ Naturalization ”? And can the time spent in the asylum process be counted toward the “ Naturalization ”?
Which periods of stay count toward the " Naturalization "?
To qualify for the “ Naturalization ” (German citizenship by residence ) under Section 10 of the German Nationality Act (StAG), applicants must, among other requirements, have resided in Germany for at least five years. Several conditions must be met: Applicants must have their habitual residence in Germany, and their residence must be lawful.
This means that it is not enough to have lived in Germany for several years. The residency status a person held during that time is also a decisive factor.
In general, periods spent in Germany with the following residence permits are taken into account for the Naturalization :
- Settlement permit (Section 9 of the Residence Act)
- EU Permanent Residence Permit (Section 9a of the Residence Act)
- EU Blue Card (Section 18g of the Residence Act)
- Residence for Employment Purposes (Section 18a/b/d of the Residence Act) or Self-Employment (Section 21 of the Residence Act)
- Residence permit On Family Reunification (Sections 28, 30, 32, 34, 36 of the Residence Act)
- Residence permit on humanitarian grounds (Section 25(1) of the Residence Act, Section 25(2), Alternative 1, of the Residence Act, Section 25(2), Alternative 2, of the Residence Act, Section 25(3) of the Residence Act)
Special rules apply to the period during which asylum proceedings are underway. Asylum seekers are granted temporary residence authorization while their case is pending. Whether this period later counts toward the “ Naturalization ” depends on the outcome of the asylum proceedings.
According to § 55(3) of the Asylum Act (AsylG), the following applies: Time spent in the asylum process may be taken into account for the purpose of determining eligibility for permanent residence ( Naturalization ) if the person was subsequently recognized as entitled to asylum or granted refugee status or subsidiary protection. This means that the time spent in the asylum process is counted toward the period of residence required for permanent residence ( Naturalization ).
The situation is different in the case of a national ban on deportation. In such cases, the time spent in the asylum process is not counted toward the “ Naturalization .”
This means:
- Eligibility for asylum (Section 25(1) of the Residence Act) → The duration of the asylum proceedings is considered a lawful period of residence for the Naturalization
- Refugee status (Section 25(2), Alternative 1, of the Residence Act) → The period of the asylum proceedings is considered a lawful period of residence for the Naturalization
- Subsidiary protection (Section 25(2), Alternative 2, of the Residence Act) → The period of the asylum proceedings is considered a lawful period of residence for the Naturalization
- National ban on deportation (Section 25(3) of the Residence Act) → The period of the asylum proceedings is NOT considered a lawful period of residence for the Naturalization
What was the court's decision?
The Administrative Court of Baden-Württemberg upheld this distinction. The court ruled that, in this man’s case, the time spent in the asylum proceedings could not be counted toward the required period of residence for the “ Naturalization .”
The reason: At the conclusion of his asylum proceedings, the man had been granted neither refugee status nor subsidiary protection nor recognition as a person entitled to asylum. He was merely found to be protected from deportation under national law.
This means that, for the plaintiff, the period of residence relevant for the “ Naturalization ” did not begin with the asylum application (in 2015), but only in February 2021, when the national ban on deportation was recognized in his case. Thus, the man did not meet the required five-year period of residence until February 2026.
After the plaintiff had fulfilled the required period of residence in February 2026, the naturalization authority continued processing the application. He finally received his German passport in May 2026.
Conclusion: Not all periods of asylum qualify for the Naturalization
The decision by the Administrative Court of Baden-Württemberg shows that, when calculating the length of residence for the " Naturalization " (German citizenship based on residence), it is not solely the length of time a person has lived in Germany that is decisive. Residency status is just as important.
In the case of previous asylum proceedings, it also depends on what protection status a person ultimately received. If someone is recognized as eligible for asylum or is granted refugee status or subsidiary protection, the duration of the asylum proceedings can be counted toward the period of residence required for the “ Naturalization ” (residence permit for long-term residents).
However, if the asylum proceedings result in a national ban on deportation, the time spent in the asylum proceedings does not count toward the “ Naturalization.” For those affected, this can mean that even though they have already lived in Germany for many years, they will not meet the required length of residence for the “ Naturalization ” until a later date.
