The owner of Canzlei Schwarz has been involved in foreigners and asylum law proceedings as a judge / presiding judge for many years and therefore has broad experience and profound knowledge in these areas of law.
In Germany, with its nearly 83 million inhabitants, there are more than 21 million people with a migration background, about half of whom are foreign nationals. The numbers vary because every year many of them leave Germany again, while others join. The reasons for this are manifold. First, there is a large group of EU foreigners who live and work here. In addition, there are also many non-Europeans. Some of them are students who are only in the country for a limited period of time to obtain a professional degree, qualified foreign specialists who work here in a wide variety of fields, or spouses of German citizens or foreigners who have settled here by way of family reunification. In addition, there are people from non-European countries who have left their homeland because of existential hardship or oppressive poverty, or because they have been politically persecuted.
For almost all of them, who live in Germany as foreigners, manifold legal questions arise, which can often only be answered with legal certainty after an in-depth examination of the individual circumstances of their case. Frequent questions concern the issuance and extension or conversion of residence titles, family reunification or particularities in connection with German-foreign marriages and the assertion of obstacles to deportation. After deciding to live permanently in Germany, many foreigners want to make use of the possibility of naturalization and become German citizens. This is because a German passport allows you to travel to 191 countries around the world without having to apply for a visa.
The Residence Act (Aufenthaltsgesetz), the Freedom of Movement Act (Freizügigkeitsgesetz/EU), the Citizenship Act (Staatsangehörigkeitsgesetz), and various European regulations and directives contain many regulations on issues relating to foreigners. However, the relevant provisions are very differentiated and confusing for a foreigner seeking information. In addition, many regulations relevant to foreigners are subject to frequent changes. In order to maintain an overview in the field of aliens law and, if necessary, to ensure the necessary and correct steps for a legally compliant stay, legal advice and support from a lawyer is highly recommended.
In Germany, the right to asylum is enshrined in the Basic Law. It is available in the European Union to any politically persecuted foreigner who cannot find safe refuge in his or her home country. According to Article 16a (1) of the Basic Law, politically persecuted persons enjoy the right to asylum. However, this is restricted to the effect that asylum is not granted to anyone who enters the country from a member state of the European Communities or a so-called safe third country because they were already safe from persecution there. This is the basis of the so-called Dublin Regulation, which stipulates that a politically persecuted person must apply for protection in the EU country that he reaches first in his flight. Anyone who then travels on to Germany from another EU member state must reckon with the German authorities declaring themselves not responsible and therefore rejecting the asylum application as inadmissible. If the foreigner does not return voluntarily to the responsible EU member state, he will be deported to that country. So much for the theory.
The practice often looks different for various reasons. For example, there are EU member states that would be responsible, but where the accommodation of refugees and/or the recognition procedure does not meet the required standards and to which refugees who have continued on to Germany are not returned after all. In such cases, which are not uncommon, Germany then makes use of its so-called right of self-entry. It is also possible that the responsibility of the Federal Republic of Germany for a refugee who has traveled on from another EU member state results from the fact that close relatives are already here in the recognition process. A pregnancy-related inability to travel can also lead to an obstacle to deportation.
Since Germany is surrounded by EU member states and safe third countries, only those who enter by air or sea from a third country can be granted asylum here. However, all others who entered by land can receive equivalent refugee recognition. The regulations for this are contained in the German Asylum Act, which is supplemented by European regulations. Even those who are not politically persecuted can, if they face a serious individual threat to their life or integrity in their home country and it is not possible for them to obtain protection in their home country, at least be recognized as eligible for subsidiary protection. This includes, for example, an imminent danger of so-called blood revenge or the lack of possibility to secure existential basic needs in the home country.
Anyone who is recognized as a person entitled to asylum, a refugee or a person entitled to subsidiary protection receives a temporary residence permit in Germany, which can be converted into an unlimited settlement permit after a certain period of time. Foreigners who are not recognized can also receive a residence permit if there is a ban on deportation according to Section 60 (5) or (7) of the Residence Act. The existence of such prohibitions of deportation is generally examined by the Federal Office for Migration and Refugees (BAMF) during the asylum procedure. Outside of the asylum procedure, the foreigners authorities are responsible for examining prohibitions on deportation in accordance with Section 60 (7) of the Residence Act. This includes, for example, cases in which a sick foreigner does not receive sufficient treatment in his home country and therefore a considerable deterioration of his state of health is to be expected in the event of his deportation. This must then be proven by detailed medical certificates.
The person who neither receives recognition nor can claim a ban on deportation must leave Germany again. He receives a so-called border crossing certificate, which he hands in when leaving the country, so that the authorities know of his departure. In addition, a temporary re-entry ban is usually issued if the person concerned does not leave voluntarily and has to be deported. However, deportation requires that the foreigner is in possession of a valid passport or at least a so-called laissez passer, a temporary travel document issued by the home country. Otherwise, as a rule, he or she cannot be deported and receives a temporary suspension of deportation. Whether a residence permit can then be issued after all depends on the circumstances of the individual case. In these cases, the foreigner must at least make sufficient efforts to obtain travel documents. If he does not do so, he remains in tolerated status.
Whether a foreigner is recognized in the asylum procedure or whether deportation prohibitions are established depends largely on what he or she says at his or her hearing before the Federal Office. Both careless formulations and the omission of relevant details can lead to a negative decision. Once the Federal Office has rejected an application, it is often difficult to succeed in the subsequent administrative court proceedings with new or additional submissions, because the impression can arise that the subsequent submissions are only based on tactical considerations and do not correspond to the truth. Since asylum seekers are often not in possession of clear evidence, it is sufficient for recognition to make the flight reasons for political or other persecution credible. Therefore, it is important not to give the impression of telling the untruth during the procedure. It is recommended to seek legal advice before the hearing at the Federal Office in order to achieve the best possible result in the recognition procedure.
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