From newly rejected asylum to a resident permit for skilled worker

Question

Hello everyone,

I have been in Germany for three years (I am 29 years old) and am still in the asylum process. My asylum application was rejected by BAMF and later in court after my appeal. We appealed again after the court's decision, but I believe I will receive a final rejection in a few weeks.

I have completed a German course up to the C1 level, but I have not taken the exam yet (currently at B2 level). I also have a bachelor's degree in IT, which was officially recognized last month.

Unfortunately, I do not qualify for some residence permits because I have not had Duldung for a long time, and I do not have a job offer that would allow me to withdraw my asylum application and apply for the new Fachkräfteeinwanderungsgesetz 2024 residence permit. I have been struggling to find an IT job or an Ausbildung in IT due to my lack of work experience.

My question is: If I manage to get an IT job in the next few months and receive a fresh Duldung, is there any residence permit I could apply for? Is it possible to apply for an Aufenthaltstitel (§18) with Duldung without leaving Germany? If leaving the country is required, would it be possible to do so without an entry ban?

I really apperciate some answers if someone has been in similar postion before .

thanks in advance

Answer 1

Dear @Elwand,

Welcome back at Wefugees and thank you for reaching out to us.

Please note that I am not a lawyer and that we cannot offer individual legal advice here. Nevertheless, I will try to share some information here according to my level of knowledge.
First of all, you seem to have a lawyer (you mention that ‘you’ have appealed the court's decision again). I would definitely recommend that you discuss all your questions with your lawyer. He or she knows your situation best.
As you rightly said, asylum seekers who came to Germany before 29 March 2023 (which seems to apply to you) can receive a residence permit for skilled workers (according to §18a, §18b or §19c (2)) if they withdraw their asylum application as long as it has not yet been incontestably rejected.
This means, for example

   -  It is still possible to withdraw an asylum application even if the BAMF has already rejected the asylum application and legal proceedings are pending.

   -  The asylum application can still be withdrawn even if the administrative court has already issued a judgement but the appeal period has not yet expired (for the application for permission to appeal).

  -  The asylum application can still be withdrawn even if an application for leave to appeal has been made but a decision has not yet been made.

But you are right, for a residence permit according to (in your case probably) §18a you would also have to present a current job offer.
If your asylum application is then legally rejected and you receive a tolerated stay, new prospects may open up. However, the immigration authorities also have different approaches to issuing tolerated stay permits.
If you would then like to do another apprenticeship ("Ausbildung"), you could, for example, apply for a residence permit in accordance with §16g (however, you would have to be tolerated for three months for this). A tolerated stay permit for training is also possible.
If you do not receive a tolerated stay permit ("Duldung"), it would probably be best to leave the country voluntarily and re-enter with an appropriate visa. As long as you are not deported, you will not be banned from re-entering the country. But it is important that you leave the country ‘voluntarily’. I would strongly recommend that you get good, personalised advice so that you are well prepared for all possible options.
I hope this helps you and please feel free to contact us again if you have any questions.

All the best,

Meike