Obligation to leave the country, toleration, right to stay

For many refugees in Germany it is difficult to obtain the right to stay. Why is this so? What is the difference to toleration and what is a stop of deportation? This and more is explained in the Knowledge Compact on the obligation to leave the country, toleration and the right to stay. Seek help, advice or offers? We are there for you on the spot.

© Diakonie/Francesco Ciccolella

For many refugees in Germany, it is difficult to obtain the right to stay – and thus a perspective for the future.

What is an obligation to leave the country?

People who do not have a residence title in Germany – a temporary residence permit or an unlimited settlement permit – thus also have no right of residence. This means that they are obliged to leave the country (Section 50 of the Residence Act) and must leave Germany as soon as possible.

At the end of 2019, the Central Register of Foreigners contained ca. 281.000 people in Germany stored as being obliged to leave the country.

What is a deportation?

In the event of deportation, the obligation to leave the country is enforced by state authorities. If people who are obliged to leave the country do not do so within a set period of time, or if they are not granted a period of time to leave the country, they must be deported (Section 58 of the Residence Act). According to the law, there is no discretionary leeway here.

What are the reasons why people do not leave the country despite their obligation to leave??

For many people, the obligation to leave the country comes as a surprise; in most cases, a permitted stay is not extended, or the asylum procedure ends unexpectedly with a rejection. Then they must first clarify their further life prospects. There may be another purpose with which the stay can be allowed to continue. Or they have to clarify for themselves whether they want to return or move on to another country. This takes time and explains the number of people who are obliged to leave the country and live in Germany.

What is return management?

The so-called return management is mainly about the interlocking of legal and administrative measures for the repatriation of refugees without the right to stay in order to eliminate the alleged "enforcement deficit. Background: Already in the report "Enforcement Deficits" of the so-called AG Ruck of the Conference of Interior Ministers in 2011, an enforcement deficit in the termination of stay of people who are obliged to leave the country was presented. Especially the deportation of rejected asylum seekers would be prevented by civil society again and again. As a result, refugee reception was combined with so-called return management. For example, the regulation was introduced that asylum seekers remain in the state’s initial reception center during their asylum procedure – instead of being distributed to the municipalities – and are not allowed to leave it even if their asylum application is rejected before the end of their stay. Thus, rejected asylum seekers are no longer distributed to the municipalities and cannot integrate there, which would hinder deportations. The goal: to carry out more deportations directly from reception centers. Also known in this context was the term Arrival, Decision and Return Center (AnkER Center) as a name for initial reception facilities.

Other legal measures include: In order to facilitate deportations, deportation dates may no longer be announced, the criteria for medical reports to protect against deportations have been tightened, and the sanctions in the Asylum Seekers’ Benefits Act and the possibilities for detention pending deportation have been successively expanded.

Is there really an enforcement deficit?

It is relatively difficult to prove whether the assumed enforcement deficit, which is the cause of many legal and administrative measures, exists at all. Thus, at the end of 2020 in the Central Register of Foreigners (AZR) were approx. 281.000 people in Germany stored as obliged to leave the country. However, the data from the AZR are not very valid. For example, there were about 33.000 people who were recorded as being obliged to leave the country in the current asylum procedure, even though their stay is permitted during the asylum procedure and therefore there is no obligation to leave the country.

The number of people who are stored as being obliged to leave the country has been declining since ca. relatively constant for two decades. In 2000, it was approx. 260.000 people. This corresponds to just 2.5 percent of all people who are potentially obliged to leave the country because they do not have German citizenship. Until 2010, it decreased in correlation with total net immigration and then increased again. After the necessary time to clarify their further life perspectives, most of those obliged to leave actually do leave the country.

Thus, there does not seem to be a constant group of people who are obliged to leave the country, but rather a large fluctuation within the group. Three quarters of people who are obliged to leave the country have lived in Germany for less than four years, including the previous permitted stay with a visa, residence permit or residence authorisation. Only slightly more than half of those who have to leave the country have ever applied for asylum and are rejected asylum seekers. The others are, for example, people who have overstayed their visa, whose residence permit has expired or who, as citizens of the Union, have been deprived of their right to freedom of movement.

The number of people obliged to leave the country is increasing far less than the number of people newly obliged to leave the country, for example because their visa has expired, their asylum application has been rejected or their residence permit has not been extended. In addition, there is no statistical record of all departures, since people who leave the country do not (have to) deregister with the authorities. The storage "departure to unknown", whereby these people fall out of the statistics of persons obliged to leave the country, only takes place when the foreigners authorities become aware of the termination of residence.

What is a Duldung?

A toleration is the "suspension of deportation". If the deportation of people who are obliged to leave the country is not possible for factual or legal reasons, the deportation is suspended (§60a para. 2 AufenthG) – the people receive a Duldung in Germany. However, they are still obliged to leave the country and do not have a legal residence status in Germany. Only criminal liability for illegal residence no longer applies (§95 para. 1 No. 2c). A Duldung is sometimes only valid for a few days up to a maximum of six months, in some cases even longer, for example in the case of the so-called Ausbildungsduldung for the time of education and training. This new form of toleration is contrary to the concern to reduce the number of persons obliged to leave the country and marks a politically intended state of limbo in which people are allowed to remain in Germany, but they are obliged to leave and remain without the right of residence. The toleration can be revoked at any time without notice. In principle, tolerated persons can be deported any day.

What are the reasons for toleration??

There are various reasons for a Duldung, for example, missing travel documents that make travel impossible, or a deportation stop in the country of origin. A tolerated stay is also granted to people who cannot be expected to leave the country, such as parents of minor children who are entitled to stay, unaccompanied minors or people who are tolerated for the purpose of training or employment. Health or personal hardship reasons can also speak against deportation.

Each toleration is assigned to a reason for toleration in the statistics. In practice, however, there are often several reasons why someone cannot be deported, and the statistical assignment is often inexplicable. For example, according to the federal government’s response, there are at least 15 countries in the "toleration due to a deportation stop" category to which people are not deported due to a deportation stop. At present, however, there is no deportation ban for any country in Germany.

One third of all tolerated persons are in the category "toleration for other reasons". This imprecise classification reflects the informative value of the AZR. Contrary to the public portrayal, such as by Federal Minister of the Interior de Maiziere, with ca. 3.000 out of 236.000 people only very few people tolerated for health reasons.

People obliged to leave the country without toleration

Of the ca. 281.000 people statistically recorded as being obliged to leave the country have approx. 236.000 a toleration. The remaining 45.000 people have not been issued a document to this effect, even though their deportation has been suspended; instead, they have been issued a border crossing certificate, for example.

However, the distinction between people who are obliged to leave the country and those who are tolerated is misleading. In fact, almost all tolerated persons are enforceably obliged to leave the country, and all persons obliged to leave the country would have to be granted a toleration as long as they are de facto not deported for actual or legal reasons. In political discourse, the term "obliged to leave the country" is increasingly used instead of "tolerated persons," although in principle the same group is meant. The extent to which persons who are obliged to leave the country without a toleration permit have already left cannot be clarified statistically.

Integration opportunities with toleration

Tolerated persons are subject to considerable restrictions on access to integration opportunities due to their non-legal residence status. People who have a "toleration for persons with unclear identity" (pursuant to Section 60b of the Residence Act) or who have come from a so-called "refugee camp" are not subject to a general obligation to leave the country. If they come from a "safe country of origin", they must not be allowed to work. In other cases, it is at the discretion of the foreigners authorities. Tolerated persons also have no access to an integration course. Thus they have no possibility to learn the German language. However, this is a basic prerequisite for integration. This explains why only a small number of tolerated persons are granted a right to stay each year, for whom "sustainable integration" – such as independently securing a livelihood or knowing the German language – is a prerequisite.

Persons in need of protection who are obliged to leave the country: What is the difference between a ban on deportation and a stay of deportation??

There are special regulations for people in need of protection and who are obliged to leave the country. If an asylum seeker is threatened by a "considerable concrete danger to life, limb or freedom," a Prohibition of deportation (§ 60 para. 7 S. 1 AufenthG) and a residence permit is issued. In the asylum procedure, however, only threats that target a specific individual are taken into account. If there is a general danger to a group of persons, protection can (only) be granted in the context of a Deportation stops be granted. It is irrelevant whether the danger is equally threatening to their existence. Whether a group is granted a ban on deportation on the basis of a general danger is, however, at the political discretion of the government. Even then, only a toleration is granted, the obligation to leave the country remains in place. A deportation stop may only be granted twice for three months by a federal state, after which the agreement of the Federal Ministry of the Interior is required. In this case, a residence permit can be issued instead of a toleration (according to Section 23 para. 1 AufenthG). De facto, no deportation stop has ever been converted into an order under this regulation. Even in the case of the ban on deportation until the end of 2020 for Syria, the persons have only been tolerated since 2012.

In practice, this rule does not work de facto: it would be plausible that many more people are in need of protection due to a general danger than due to an individual danger, since a general danger would have to affect many more people than targeted individual persecution. In fact, in practice, the granting of protection is the other way around. There are incomparably more recognitions due to individual danger, only in exceptional cases tolerations due to a general danger.

What is a right to stay?

A right to stay can be granted to tolerated persons if they have nevertheless integrated sustainably despite the time limit for leaving the country and the associated restrictions on integration. Under certain conditions, for example, economically well-integrated, tolerated people receive a residence permit in Germany for a certain period of time due to their training or studies, well-integrated young people and adolescents up to the age of 21, but also families (§ 19d, 25a and 25b AufenthG). In addition, the interior ministers of the federal states can grant a right to stay in individual cases on the basis of a recommendation by the so-called hardship commissions (Section 23a Residence Act).

The right to stay is increasingly shifting to the insecure status of toleration. This is how the training toleration and the employment toleration were created. During these tolerations, people are not deported, but they also have no right of residence and remain obliged to leave the country.

History of the right to remain and the termination of residence

The Immigration Act introduces a provision to abolish the toleration (§ 25 para. 5 Residence Act). However, the original provision that a residence permit should be granted if departure is impossible is amended in the legislative process so that deportation should be impossible. The desired effect is therefore missing, because people can still not be deported, but could leave the country.

The conference of interior ministers decides on an old case regulation for long-time tolerated persons and the SPD negotiates an analogous legal regulation (§ 104a and b Residence Act) in the course of a law to implement European directives. At the same time, the status of toleration under residence law is reintroduced.

Due to the narrowly defined limits and restrictive grounds for exclusion, the old-case regulations must be relaxed several times in order to be effective. Many tolerated persons are unable to secure their livelihood independently, primarily due to their legal exclusion from the labor market.

Due to recurring cases of young people, some of whom were born and at least grew up in Germany and are well integrated, first the Conference of Interior Ministers and then the Bundesrat and Bundestag pass a right to stay regulation for well-integrated young people and adolescents between the ages of 15 and 20 in 2011. Unaccompanied minor refugees are systematically excluded due to the criteria.

2010 – 2013
Since the problem of chain tolerations has still not been solved, a political discussion is developing about a new right to stay regulation. In order not to always have to decide on new regulations for old cases, these should now no longer contain a cut-off date, but only a minimum duration of stay. In 2010/2011, three bills are introduced in the Bundesrat for this purpose. Hamburg introduces the result of the working group of the Conference of Integration Ministers, which is open to the federal states. This bill will be introduced on 22. March 2013 passed by the Bundesrat with a red-green majority and the consent of the CDU-led state of Saxony-Anhalt. This also simplifies the right of abode for young people and adolescents in order to increase its effect.

With the approval of the Bundesrat, the Bundestag passes the "Act on the Redefinition of the Right to Remain and the Termination of Residence". The right to stay regulation passed by the Bundesrat in 2013 is adopted with minor changes in § 25b AufenthG. People who have been tolerated for many years can be granted a right of residence if they have made appropriate integration achievements. What is new is that even if not all minimum criteria are met, a right to stay can now be granted if the foreigners authority determines "sustainable integration" as part of an overall assessment. Also, people who cannot secure their own livelihood or learn the German language for reasons of health or age can receive a residence permit.

In addition to the regulation on the right to stay, the law also contains regulations to enable tolerated persons to end their stay more quickly. For example, the criteria for a ban on entry and residence are expanded. This can be imposed by the foreigners authority if, for example, the deadline for leaving the country has expired. Further legal amendments concern the obligations to cooperate in the clarification of identity and the expansion of the definition of "risk of absconding" as a prerequisite for detention pending deportation. Furthermore, in addition to detention pending deportation, the possibility of detention pending deportation is also introduced, which simplifies the deprivation of liberty of persons obliged to leave the country for the foreigners authorities.

The "Asylum Procedure Acceleration Act" (sog. Asylum package I) contains in particular an extension of the housing obligation in initial reception facilities (up to 6 months). In addition, deportations may no longer be announced after the deadline for voluntary departure has expired; in some cases, cash benefits are cancelled as a sanction for insufficient cooperation in removing obstacles to deportation (§1a AsylbLG).

Data Exchange Improvement Act, facilitation and standardization of data transmission from authorities (such as Youth Welfare Office, Public Health Service, Job Center, Benefit Centers AsylBLG)

"Law on the introduction of accelerated asylum procedures" (sog. Asylum Package II), Shorter procedures (Section 30a Asylum Act), Residence obligation (Section 33 Asylum Act), Suspension of deportation only in the case of serious or life-threatening illness (Section 60 para. 7 AufenthG), new presumption rules for deportations (§ 60a para. 2c and 2d AufenthG, reduction of asylum seeker benefits, suspension of family reunification with beneficiaries of subsidiary protection

"Law on the classification of Algeria, Morocco and Tunisia as safe countries of origin", rebuttable presumption of non-prosecution, sanctions in benefit law and employment ban

"Integration law", introduction of sog. Training toleration, possibility of toleration during the period of training

Chancellor Merkel calls for a "national effort" to repatriate refugees without right of abode.

"Gesetz zur besseren Durchsetzung der Ausreisepflicht" (Law for better enforcement of the obligation to leave the country), extension of detention pending deportation, extension of detention pending departure from 4 to 10 days, extension of R, introduction of reading out of cell phone data, state authorization for compulsory residence for up to 24 months in initial reception facilities, compulsory residence in the event of deception or lack of cooperation, abolition of the one-month revocation period after more than one year of toleration in the event of lack of cooperation in removing obstacles to deportation

Presentation of the Migration Master Plan by BMI, introduction of AnkER centers (AnkER = arrival, decision, repatriation), sanctions for insufficient cooperation of identity clarification, reduction of the so-called. Secondary migration of asylum seekers within Europe

Migration package with

  1. "Second Act to Improve the Enforcement of the Obligation to Leave the Country (Ordered Return Act)" and within the framework of the sog. migration package, compulsory residence in initial reception generally max. 18 months, in case of families up to 6 months, introduction of passport procurement obligation "Duldung bei ungeklarter Identitat" (toleration in case of unclear identity) with employment ban, tightening of expulsion law, cancellation of social benefits for persons with protection status in another EU member state
  2. "Law on toleration for training and employment", legal definition of criteria when a corresponding toleration may be granted
  3. "Second Data Exchange Improvement Act", facilitation of data transmission, introduction of an AZR number (AZR = Central Register of Foreigners) for proof of arrival, residence permit, toleration and fictitious certificate, lowering of the minimum age for fingerprints from 14 to 6 years, identification service treatment of unaccompanied minors even without an asylum application, collection of data on assisted ("voluntary") return

Background and figures

Since 2006, an estimated 80+.000 people were granted temporary residence rights under various regulations on the right to stay, in particular as a result of the "old case" regulations of 2006 and 2007. It is unknown how many people have lost their right to stay again because they could not (or could no longer) fulfill the requirements such as independent means of subsistence. Others will have been granted an unlimited settlement permit. Therefore their exact number cannot be determined.

At the end of 2020, 8.932 people had a residence title according to § 23a AufenthG, 11.065 people according to §25a and 6.658 in accordance with §25b AufenthG. About 54.347 persons had a residence permit according to § 25 Abs. 5 because it was not possible for them to leave the country. Here, too, it is possible that some have lost the right of residence again or have in the meantime been granted a settlement permit.

A survey conducted by Diakonie among its counseling centers has shown that the new regulations on the right to stay have so far only been implemented in a very restrictive manner. As a result, by far not all people who are entitled to a right to stay under the new regulations actually receive it. In some cases, the foreigners authorities set the hurdles so high by requiring the submission of documents that the purpose of the regulation is thwarted. For example, a person who is unable to work due to an accident was required to prove that he has a positive prognosis for securing his livelihood by submitting an employment contract in the event that he recovers.

At the end of 2020, the Central Register of Foreigners contained ca. 281.000 people in Germany were stored as being obliged to leave the country. The number has been rising since approx. relatively constant over the past two decades. In the year 2000, approx. 260.000 people registered as obliged to leave the country.

Evaluation by Diakonie Deutschland

The public discussion about the termination of residence for people who are obliged to leave the country is often misleading. This gives the impression that people do not (want to) leave the country and that there are no valid reasons to the contrary. However, this is usually not the case. In many cases, there are reasons that would justify remaining in Germany. Within the framework of the so-called discretionary toleration, the foreigners authorities also explicitly recognize these reasons for remaining; in some cases, there are legal regulations, for example, through the education or employment toleration. However, the residence decisions often miss the realities of life. The consequences and the great burden are then borne by the people who are obliged to leave the country.

In fact, toleration is increasingly developing into a semi-residence title with analogous residence purposes (humanitarian, gainful employment), into an uncertain gray area that allows people to stay, but without obtaining a right to stay. Thus they remain obliged to leave the country.

In the view of Diakonie, the core idea should be: an obligation to leave the country can be ended not only by terminating the residence, but also by a right of residence. The Diakonie works to ensure that people who have good prospects of staying or for whom there are legal obstacles to deportation, such as unaccompanied minors, are granted a right of residence. In particular, people in need of protection who face a "considerable, concrete danger to life, limb or freedom" as a general danger need a solution under residence law.

Despite extensive legal and administrative measures, the number of people required to leave the country has remained relatively constant over a long period of time. Obviously, most of those who are obliged to leave the country do so, otherwise their number would have to be statistically much higher. The underlying assumption that there is an enforcement deficit in the termination of residence should, in the view of Diakonie, be reconsidered and reviewed. For this purpose, the data basis should first be improved before further measures, which are very drastic for the people concerned, are taken – especially since this public discussion can also have an impact on the social climate and the attitude towards refugees. The assumption that the willingness of the population to accept refugees is related to the termination of residence of persons who are obliged to leave the country, is also not proven.

Text: Diakonie/Dr. Sebastian Ludwig and Madeleine Correarrd
Editing: Diakonie/Sarah Spitzer

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