A question about the eligibility for residence after 5 years and age of over 60..

Question

thank you for your help as always ..
my parents have a separate case from me.  Their age is over 62 ... They have been in Germany for about 5 years ... The Administrative Court ruled positively about a year ago about the Dublin case they had ... It said that Germany was responsible for examining their asylum application ... But since that time the BAMF  has not sent them anything ...... I have searched and found two opinions regarding that.. One of them is that they should file a  "failer to act " against the Bamf .. And the other is what I want to ask about.  It is the existence of a law that states that after five years they will receive residency.. by a law that states ..after five years of their presence in Germany and if  they are entitled to protection ... and Germany is responsible for their asylum request.. so they are granted residency..Without having to wait for a decision from the bamf .. is this accurate ?

Comments

And I would like to add :

Thank you very much for your response ... they are Syrians ... and they handed over all the proofs ... from a passport and others ... and the BAMF did not fail to deport them ... but they went to a session in the administrative court, which is a procedure that is followed when you receive a refusal for the first time and appeal the decision  ...the administrative court decided that the previous refusal decision was rescinded..and that they had the right to follow up on the procedures for their asylum here..they did not hold a duldung..but the ordinary card "Aufenthaltgestattung" which is valid for 6 months...and they are waiting for a decision from the BAMF to grant them asylum.  Or protection...I know that this law may not be apparent...because I spent a week researching all the laws..But this is what one of the lawyers told someone i know , and I would like to verify it... before ...starting an  "failed to act." case against the Bamf

Answer 1

Hello,

the information about granting a residence permit automatically after 5 years stay in Germany is false. There is no legal rule about it and such a rule, to tell the truth, wouldn't make much sense. There is a law that people who stay in Germany for 5 years and are granted protection during this time can apply for an unlimited residence permit, the time of the asylum procedure will be included in this 5 year time. But it is not an automatic decision, they must fulfil a number of conditions. For political refugees this time can even be 3 years if they make especially good integration process. After 6 or 8 years in Germany people with Duldung can also apply for legal status but only if they fulfil a lot of difficult conditions. And this circumstance doesn't concern your parents.

Before you make Untätigkeitsklage (appeal to the court against BAMF because of failure to act), first send them a letter, give the case number of your parents, remind them when the court took a positive decision for Dublin and how long they wait and ask, when they will have a decision or why it is still not made. And - very important - give them a special time frame to give you a decision or an explanation. We normally gave 4 weeks. Warn that if they don't react within this time, you will go to the administrative court and make an appeal there.

If you don't write this warning letter with the time frame first, it is not good for the court procedure. The court can say that you had to clear your claims with BAMF before making an appeal. And there is a good chance that BAMF will be active without a court procedure.

One year is not unusual but in the last time BAMF has been working quicker than before, and they don't have so much new application as some years ago, so that it doesn't **** too much if your claim for a decision after 1 year waiting time.

Comments

Very useful information! Many thanks for these explanations, dear @alla_fka!

Answer 2

Dear @Meltomm, 

Welcome back to the Wefugees Community and thank you for reaching out to us again. 

I actually never heard of such a law stating that people are granted automatically a residence permit after staying in Germany for more than five years. But I will also link our dear expert @alla_fka here. Maybe she has some alternative information. 

In general, there is the option to file an action for failure to act ("Untätigkeitsklage") against the BAMF. However, it is not unusual that the procedures at the BAMF take several months minimum. I am not sure though if waiting for the decision for about one year (since only one year ago the responsibility for the asylum application was transferred to the German government) already "qualifies" for such a step. I would recommend you to discuss this with your lawyer or in a legal counselling office. 

One positive aspect: If your parents are granted the refugee status, their wating periods of the pending asylum procedure may be "counted" as well in case they are applying for a permanent residence permit (Niederlassungserlaubnis) later on. 

I hope this helps and please don't hesitate to get back to us with any further questions. 

All the best, 

Meike