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Irregular stay in Germany: perspectives, measures and challenges , , Study by the German National Contact Point for the European Migration Network
Source: BAMF (image: stock.adobe.com | Travel Wild, Zangrilli Andrea)
The EMN study focuses on persons irregularly staying in Germany, their legal status, and the measures taken to end their irregular stay.
The question of how to deal with persons staying in Germany illegally gained political significance as the number of asylum applications increased sharply from 2015 onwards, and is still relevant today. The debate on the enforcement of the removal decision focuses on effective returns versus possibilities of integration for persons staying in Germany irregularly.
The legal status of persons staying in Germany irregularly
The EU's Return Directive requires EU Member States to take action to im-plement enforceable departure obligations by means of voluntary or forced return. If forced return is not possible, and no residence permit is granted, immigration authorities in Germany issue what is known as temporary suspension of removal (Duldung). Roughly 236,000 people held this status on 31 December 2020, with more than half of them having lived in Germany for more than three years.
In addition to individuals who are not lawful residents due to their removal having been temporarily suspended, but who are still in contact with the authorities, there are also individuals who are resident in Germany without authorisation and are not in contact with the authorities.
Social welfare rights of irregularly staying persons
Overall, an increasing differentiation in the law can be observed with regard to temporary suspension of removal, the access of persons staying irregularly to welfare state benefits and to the labour market, and to their eligibility to other rights and entitlements. Irregularly staying persons who are in contact with the authorities and are willing to cooperate with them, but whose departure is nevertheless not feasible, are eligible for various welfare state benefits. The opportunities for participation are most severely limited for irregularly-staying persons who are not in contact with the authorities.
Termination of illegal stay: return
In order to reduce the number of irregularly staying persons, various measures have been implemented in recent years aiming to increase the number of returns of irregularly staying persons whose expulsion order is enforceable. Sanctions (restricted freedom of movement, no access to the labour market, restricted social welfare benefits) are applied in particular in case of a violation of the legally-prescribed obligations to cooperate in clarifying their identity. A research-based evaluation of the effectiveness of these measures has not been carried out yet.
Termination of illegal stay: residence permit
Issuing residence permits is another way to reduce the number of persons staying in Germany irregularly. The individuals concerned can obtain a residence title under certain conditions, for example by performing special integration services. Since these possibilities are generally contingent on temporary suspension of deportation, they are as a matter of principle out of the question for persons who are not in contact with the authorities. With the "Chancenaufenthaltsrecht" (Opportunities Residence Act), the Federal Government intends to open up further options to obtain legal residence for persons who have had a temporary suspension of removal for several years.
Challenges in dealing with irregular stays
The central political and legal challenge consists of striking a balance between the various measures in order, on the hone hand preventing misincentives. On the other hand, long-term exclusion of irregularly residents is financially costly, and due to potential disintegration phenomena such as criminality, homelessness and long-term unemployment also not very desirable for the public. Against this background, dealing with irregular stays remains a central discussion point in migration policy. It is constantly reevaluated in terms of policy by the political parties, but also by the Federation, the Länder and the municipalities.
Parallel to the national study, the EMN's comparative publications provide information on the topic, and take a comparative look across the EU at how irregular stays are dealt with in the individual EU Member States: the detailed EMN Synthesis Report, the compact EMN Inform, and the one-page EMN Flash (see "Downloads" at "Further information").
The study was written by: Friederike Haberstroh, Dr. Axel Kreienbrink and Claudia Lechner
The study is only available in German.