The case: Ukrainian minor seeks way out of Tolerance permit
The case was brought by a young woman born in Ukraine in 2007 who has been living in Germany with her parents since 2008. The family had applied for asylum several times without success and initially provided false information about their origin and identity.
After years of toleration, the applicant applied for a residence permit - initially under Section 25a AufenthG. This applies to well-integrated young people. However, the application was rejected by the competent authority as she was only eleven years old at the time. However, § 25a AufenthG only applies to young people aged 14 and over.
In further proceedings, the Higher Administrative Court of Saxony-Anhalt finally obliged the Foreigners' office to grant the applicant at least a residence permit in accordance with Section 104c of the Residence Act (right of residence on opportunity). The authorities lodged an appeal against this. It argued that minors are not entitled to the right of residence and cannot make the necessary commitment to the free and democratic basic order
Background: What is the opportunity stay?
Opportunity residence is a special Residence permit introduced by the German government at the end of 2022. It is regulated in Section 104c of the Residence Act and is aimed at people who have been living in Germany for a long time but previously only had a Tolerance permit and are therefore actually required to leave the country.
The temporary residence permit is intended to give migrants the opportunity to switch from a Tolerance permit to a legal Residence permit . Those entitled to the title include
- Anyone who has lived in Germany without interruption for at least five years on October 31, 2022, either tolerated, permitted or with a residence permit
- Anyone who has not committed any criminal offenses (exceptions apply to petty offenses)
- Anyone who is committed to the free and democratic basic order
- Anyone who does not conceal their identity or citizenship and does not prevent the procurement of a passport
The opportunity stay is granted for a period of 18 months and cannot be extended. During this time, those affected should show that they can fulfill the conditions for a regular Residence permit . This includes clarifying their identity and passport issues, acquiring sufficient language skills and largely securing their own livelihood through work or training.
If this is successful, it is possible to switch to a permanent Residence permit - in accordance with Section 25a AufenthG for well-integrated young people and young adults or Section 25b AufenthG for adults who have been integrated for many years.
Opportunity stay ends in 2025
The right of residence was introduced as a transitional regulation and is limited until December 31, 2025, until which time applications can still be submitted. After this date, the legal basis no longer applies. Anyone who submits their application on time will receive the full 18 months, even if this extends into 2026.
There are currently no plans to extend or permanently continue the right to stay. To date, there is no draft law that goes beyond the time limit.
Court decides: Opportunity stay also for minors
In the case of the Ukrainian minors, the Federal Administrative Court rejected the authority's appeal. The judges made it clear:
- Minors can also be granted the right of residence by chance
- Children and young people under the age of 16 do not have to pledge allegiance to the constitution
- the right of residence by opportunity explicitly applies to all foreigners - not only to adults
The court referred to the Citizenship Actto justify its decision. The law already stipulates that anyone who has not yet reached the age of 16 must be naturalized. Naturalization to make a commitment to the free and democratic basic order. This regulation is to be transferred to the right of residence.
In the opinion of the court, the legislator deliberately wanted to create a "bridge" with the right of residence in order to make up for missing requirements - such as clarifying identity or learning the German language. This instrument is not only intended to benefit adults, but also explicitly adolescents and young adults.
This can also be seen in Section 25a of the Residence Act, which is followed by the right of residence with opportunities and was created specifically for adolescents and young adults up to the age of 27. If Section 104c were only intended for adults, the aim of the follow-up regulation would be missed, according to the court.
Conclusion: Importance for refugee minors and families
The ruling makes it clear that the right of residence by opportunity is also expressly intended for children and young people. It offers them the opportunity to meet the requirements for a long-term Residence permit during the 18-month period of validity.
For many families with a Tolerance permit , this means considerable legal security: underage children can now also obtain their own Residence permit without their rights being dependent on their parents' Residence permit or on a declaration that they are not yet legally permitted to make.
