Contributed by: Daniela Boehme
1. Country Overview
COVID-19 continues to impact administrative and Court appointments/decisions, for example on 1 May 2021 the German visa section in New Delhi closed. Various executive orders continue to be rolled out to cushion the effects of COVID-19 (e.g. language certificate is not necessary for spouse reunion, if due to COVID-19, no courses or tests were available; applicants for residence permits will not be penalized for reduced salary due to short-time work; possibilities to obtain a tolerated stay certificate or a fictional certificate, second asylum application can be made in writing).
The main legislative focus was on sending rejected refugees back faster, how to attract and integrate more skilled workers and highly skilled workers, and to deal with Brexit.
2. Legislative Changes (just six examples mentioned out of many more – e.g. 19 changes of the Residence Act alone)
The so-called “Second Get Lost Law” came into effect on 21 August 2019. The second law for the better enforcement for the obligation to return contains wider reasons for expulsion, much reduced social rights for people with an unclear identity (limited to “bed, bread and soap”), wider reasons for arresting people related to asylum (including a new form of arrest was introduced for uncooperative asylum seekers), and the new legislation gives the Federal Administration for Migration and the Recognition of Refugees five years to revoke an asylum decision.
On 1 January 2020 legislation on tolerated stays for training and employment came into effect. This allows for a tolerated stay for 30 months for completing vocational training and working in the relevant field for two years afterwards, with the possibility of extension, even in circumstances where asylum procedures ended negatively.
31 January 2020 – Withdrawal agreement
After pressure from industries and craftsmen associations, the Immigration Act for Skilled Workers came into effect on 1 March 2020. 300,000 skilled workers are needed every year but only 25,000 were coming. The new act allows the holder of a residence permit to work [before the date allowed by the work permit, provides a clearer definition of a skilled worker and offers better recognition of foreign diplomas. Labour market tests are no longer required if there is an appropriate work contract and the qualifications are recognised. For a fee, future employers can use an accelerated procedure. The act also permits that missing qualifications (for example, German language knowledge) can be obtained in Germany. Under the act, skilled and highly skilled workers will be eligible for permanent residence sooner.
On 24 November 2020 the act on the current adaptation of the Freedom of Movement Act / EU to Union law was introduced in reaction to the fact that Germany was subject to infringement proceedings initiated by the EU Commission since it had not adopted a law which sufficiently transforms Art. 3 II of directive 2004/38 regarding reunion with a so-called close or associated persons (from a different sex; “concubinage”).
From 1 January 2021 UK and Northern Ireland became “Best Friends States” to Germany. This was brought about by a change of Section 26 of the Governance Regulation Employment (Beschäftigungsverordnung) and Section 41 of the Residence Ordinance to (Aufenthaltsverordnung) treat the UK and Northern Ireland like other hand-selected countries as Andorra, Australia, Israel, Japan, Canada, the Republic of Korea, Monaco, New Zealand, San Marino and the USA – nationals can enter Germany visa-free, can change from within the country the reason of stay and there is a wide margin of discretion to do any kind of work in Germany.
3. Business Immigration
The gross annual income thresholds were updated for the Blue card, for regular professions to €56,800 and for professions in which there are shortages (such as natural scientists, mathematics, engineers, doctors and IT specialists) to Euro 44,304. These thresholds are tied to the yearly general pension insurance contribution assessment ceiling (jährliche Beitragsbemessungsgrenze der allgemeinen Rentenversicherung).
Law on tolerated stays for training and employment (see above).
Immigration Act for Skilled Workers (see above).
Law to strengthen security in passport, identity card and immigration law document systems (see above).
Placing workers became possible for EU-based temporary work agencies with effect from March 2021 (van der Elst).
4. Family based immigration
National right to family reunion remains untouched but de facto very slow due to the understaffed German consulates in the relevant countries (even before COVID-19 there was a 12 month waiting time in Ethiopia for a first appointment).
Act on the current adaptation of the Freedom of Movement Act / EU to Union law (see above)
Second law for the better enforcement for the obligation to return (so-called “Second Get Lost Law” - see above).
(Only) 713 persons were allowed to come to Germany after the fire in the Moria camp on Lesbos.
Dublin transfers were stopped until 15 June 2020 due to COVID-19 - still big machinery with little effect, also before COVID-19, e.g: from January until April
In 2019 Germany asked for 18,018 cases to be transferred to Dublin. In effect only 2,783 were actually transferred. In 2021, from January to April, Germany asked for 11,175 cases to be transferred to Dublin and only 759 were transferred. On the other hand Germany was asked by other countries for the transfer of 7,230 cases and took 1,958 persons. In 2021, from January to April 2021, Germany was asked for the transfer of 5,440 cases and took a total of 1,205.
Second law for the better enforcement for the obligation to return (so-called “Second Get Lost-Law” - see above).
A draft for the fourth change of Nationality Law was proposed on 16 July 2019 requiring that in order to acquire German citizenship by birth in Germany (ius soli), the identity of the parent must be clear.
The third change of Nationality Law specifies that German citizenship can be lost if the German took part in fighting with a terrorist group in a foreign country.
Rechtsanwältin Daniela Boehme, 3 June 2021