The case: Residence permit refused due to lack of income
The applicant, a Serbian national, has been living in Germany for several years - initially with a Tolerance permitand from 2022 with a residence permit in accordance with Section 25b AufenthG ("residence permit for sustainable integration"). She is considered to be permanently unable to work due to a chronic illness.
When the applicant wanted to extend her Residence permit, the Foreigners' office rejected the application. It confirmed that the woman was unable to work due to illness. Nevertheless, the authority argued that the inability to earn a living was not solely due to the illness .
Even if the woman were healthy, she would hardly have any chances on the job market according to the authorities. The reasons given by the authority were the applicant's advanced age, lack of professional qualifications and limited language skills.
The authorities were of the opinion that an exception could only be made if the illness alone was the reason for the inability to work. As several factors played a role here, it did not see any entitlement to an extension of the residence permit.
The woman appealed against this. The Administrative Court initially upheld the authority's decision. However, the Higher Administrative Court (OVG) came to a different conclusion and ordered the authorities to extend the residence permit. The authority then lodged an appeal - and the case went to the Federal Administrative Court (BVerwG).
Residence permit according to § 25b AufenthG
According to Section 25b of the Residence Act (AufenthG), people who have lived in Germany for many years and are sustainably integrated can receive a Residence permit - even if they originally came to Germany for humanitarian reasons (e.g. with a Tolerance permit).
The requirements for Section 25b AufenthG include, among others:
- Permanent residence in Germany
As a rule, at least six years of uninterrupted and legal residence (or four years for single parents with minor children). Periods with a Tolerance permit, residence permit or residence permit can be taken into account. - Commitment to the free and democratic basic order
A declaration that the person respects the German constitutional order is required for § 25b AufenthG. - Securing the means of subsistence
The means of subsistence must be predominantly secured independently, i.e. essentially through work and not through social benefits. This may be waived, e.g. in the case of illness, disability, caring for relatives or looking after underage children. - Sustainable integration
Proof that the person is integrated into social, economic and cultural life in Germany - e.g. through the "Living in Germany" test, language skills (at least level A2 of the Common European Framework of Reference for Languages), work, children's school attendance or social commitment. - No significant criminal offenses
As a rule, there must be no criminal convictions that go beyond minor offenses. - Clarification of identity
Identity and nationality must always be clarified; appropriate documents must be presented or it must be demonstrated that it is impossible to obtain them. - No interest in deportation
There must be no serious grounds for deportation (e.g. security threat, extremist behavior). - Children's school attendance or education
For families with children, it is also checked whether the children regularly attend school or complete an apprenticeship.
Residence permit in the event of illness even without a secure livelihood
Although the Federal Administrative Court (BVerwG) formally upheld the Foreigners' office 's appeal, it clarified important principles that will also apply to many similar cases in the future.
According to the court, the question of whether someone can "predominantly support themselves" should not be based on an overall assessment of various factors. The decisive factor is whether illness, disability or age is the main reason why a person is unable to work. This also applies if there are other reasons - such as low qualifications or poor labor market opportunities.
This means that the health restriction does not have to be the sole reason for the incapacity to work, but it does have to be the decisive one.
The court referred to the wording of the law to justify its decision: Section 25b para. 3 AufenthG is intended to protect people who are unable to secure their livelihood through no fault of their own. This also corresponds to previous case law on comparable provisions in the Nationality Act(Section 10 (6) sentence 1 StAG) and the Residence Act(Section 9 (2) sentence 6 AufenthG).
The ruling thus strengthens the rights of people who are unable to work for health reasons. They are entitled to have their right of residence examined fairly and on a case-by-case basis.
Case not yet closed
Despite this clarification, the Federal Administrative Court referred the case back to the Higher Administrative Court (OVG). The reason: The OVG had assumed that the Foreigners' office was bound by previous assessments of the applicant's integration - for example, that she already had sufficient knowledge of the German legal and social order (Section 25b (1) sentence 2 no. 2 AufenthG).
However, the Federal Administrative Court clarified that these requirements do not automatically continue to apply. When renewing a residence permit, the authorities must re-examine whether the integration requirements are still fulfilled - i.e. whether the person still speaks sufficient German, participates in social life and is committed to the free and democratic basic order.
So before a final decision can be made on the applicant's case, the OVG must now examine whether she meets all the requirements for a residence permit under Section 25b AufenthG.
Significance of the ruling for migrants
The ruling creates legal certainty for people who are unable to work for health or age-related reasons and whose Residence permit is linked to securing their livelihood.
In future, authorities will no longer be allowed to make an overall assessment of why someone is unable to find work for several/different reasons. The only decisive factor is whether an illness or disability is the main cause.
For those affected, this means
- Illness, disability or old age may be sufficient to obtain a residence permit in accordance with § 25b AufenthG, even if you are unable to earn a living.
- Other reasons - such as limited language skills or a lack of qualifications - must not have a negative influence on the decision as long as the health restrictions are the decisive factor.
- All other legal requirements - such as sufficient knowledge of German, integration and minimum length of stay - must still be met.
The ruling thus emphasizes the social protection function of the right of residence: anyone who is unable to work due to health restrictions should not be disadvantaged - but should have a fair, case-by-case chance of legal residence in Germany.
