The Federal Administrative Court (BVerwG) recently issued an important ruling on this matter. It clarifies that periods with a Tolerance permit are generally not counted toward the length of stay Settlement permit for a Settlement permit . Periods with a provisional residence permit, on the other hand, are only Settlement permit toward the Settlement permit under certain conditions. The decisive factor is whether the stay was based on a valid residence permit throughout.
The decision affects many people who have been living in Germany for years or even decades, but whose residence status has been repeatedly interrupted—for example, by temporary suspension of deportation or provisional residence permits. This is because, particularly in the case of long and complex residence histories, the question often arises: Has the required period of residence for a Settlement permit been fulfilled?
Long stay – but no entitlement to Settlement permit
The lawsuit was filed by a married couple from Serbia who had already moved to Germany in the mid-1990s. Both have been living in Germany for many years, have their family here, and at times had various Residence permit, including:
- a residence permit pursuant to Section 104a of the Residence Act (right of residence for well-integrated persons),
- a residence permit in accordance with Section 25b of the Residence Act (sustainable integration) and
- a residence permit pursuant to Section 25 (5) of the Residence Act (AufenthG) (obstacles to deportation)
However, between these phases there were always periods during which their stay was merely tolerated (Section 60a of the Residence Act). tolerated (Section 60a of the Residence Act) or was only secured by provisional residence permits pursuant to Section 81 (4) and (5) of the Residence Act.
In 2015, the couple applied for a Settlement permit. However, the responsible Foreigners' office the applications. It stated that not all legal requirements had been met, in particular the requirement of five years of continuous possession of a residence permit.
The couple then took their case through several courts. Finally, the case was heard before the Federal Administrative Court, the highest court of general administrative jurisdiction in Germany.
Requirements: Settlement permit humanitarian Residence permit
Recognized refugees and persons entitled to asylum, as well aspersons entitled to subsidiary protection and persons with a ban on deportation, can obtain a humanitarian Residence permit Germany. For these groups of people, the path to a Settlement permit is Settlement permit open.
This means that persons entitled to subsidiary protection can obtain a permanent Residence permit Section 26 (4) of the Residence Act in conjunction with Section 9 (2) of the Residence Act, provided they meet all the requirements. For recognized refugees and persons entitled to asylum, however, Section 26 (3) of the Residence Act applies to the Settlement permit.
Compared to Section 26(4) of the Residence Act, Section 26(3) of the Residence Act provides for certain concessions for recognized refugees and persons entitled to asylum in certain cases, for example with regard to the length of stay or language skills.
The most important requirements include:
- Possession of a humanitarian residence permit (e.g., refugee status or subsidiary protection),
- At least five years of possession of a legal residence permit. Periods of asylum proceedings count (there may be concessions for recognized refugees and persons entitled to asylum).
- no revocation or withdrawal of protection status and no ongoing revocation proceedings,
- Secure livelihood without welfare or social assistance,
- at least 60 months of pension insurance contributions to the statutory or private pension insurance scheme,
- German language skills at B1 level (or simplified),
- Proof of basic knowledge of the legal and social order,
- sufficient living space and
- no serious criminal offenses or threats to public safety.
In the present case, the court deliberated on point 2 and the question: Which periods of residence count toward the Settlement permit and which do not?
Court: Only complete periods of residence count
With this ruling, the Federal Administrative Court confirms the current legal situation: only periods during which the residence permit was valid without interruption Settlement permit taken into account for the Settlement permit . Periods without Residence permit valid Residence permit in particular periods with a Tolerance permit – interrupt this five-year period.
The decisive factor here is uninterrupted title ownership. The court confirms that the five years required for the Settlement permit must be fulfilledcontinuously with a valid residence permit.
If the stay is only tolerated in the meantime, the duration of stay is considered interrupted. In this case, the five-year period starts again from the beginning when a new residence permit is issued. Previous periods of stay with a humanitarian Residence permit thenno longer counted toward the Settlement permit .
Why fictitious certificates are not (always) taken into account
Many affected individuals assume that a certificate of fictitious residence Settlement permit as a residence permit for the Settlement permit . However, the court clarified that this is not the case in all instances.
A fiction certificate can be Settlement permit toward the Settlement permit if the legal Residence permit is Residence permit extended.
However, periods covered by a provisional residence permit are not Settlement permit toward the Settlement permit if the legal Residence permit is not Residence permit extended.
A provisional residence permit serves to temporarily secure your stay until a decision has been made on an application for renewal or reissuance of a residence permit.
With a provisional certificate, the old Residence permit remains valid until a decision has been made on the extension of the permit. If an extension is subsequently refused, the periods covered by the provisional certificate cannot be Settlement permit as lawful possession of a permit for the purposes of the Settlement permit .
Why the plaintiffs were unsuccessful
In this specific case, the court found that although both plaintiffs had been living in Germany for several decades, they did not meet the five-year requirement for a Settlement permit. Their legal Residence permit never Residence permit for a continuous period of five years.
The plaintiff had spent long periods of time in which he only had a provisional residence permit. In the case of the plaintiff, the court of appeal had initially assumed that she was entitled to a retroactive residence permit. However, the Federal Administrative Court corrected this assessment and clarified that, in this case too, there had been a period of several years without a legal residence permit.
This meant that both lacked an important prerequisite for the issuance of a Settlement permit.
Conclusion: What does the ruling mean for those affected?
The ruling of the Federal Administrative Court confirms the current legal situation and standard administrative practice. Only periods of residence based on a valid Residence permit Settlement permit counted toward the Settlement permit .
Times with a Tolerance permit are not considered legal title ownership and interrupt the stay in terms of residence law. Periods with a provisional residence permit are only counted if the Residence permit was subsequently extended.
If a residence permit is reissued after such an interruption, the five-year period for the Settlement permit starts again.
For the Settlement permit , this Settlement permit :
- Only legal residence permits count.
- Tolerated stays are not counted.
- Fictitious periods only apply under certain conditions
- Interruptions in title ownership may Settlement permit entitlement to a Settlement permit .
People with long and varied residence histories in particular should therefore carefully review their residence status. The ruling makes it clear that a long period of residence alone is not sufficient—the legal quality of the residence is decisive.
