According to § 5, para. 1, no. 1 of the Residence Law, eligibility for being granted a residence title is dependent on one's livelihood being secured. According to § 2, para. 3, clause 1, livelihood also constitutes adequate health insurance cover.
No. A modification of project content or a change to the objectives of a research project will not result in the forfeiture of a residence permit, nor does it require a new hosting agreement for the same researcher, provided that the researcher's work still qualifies as 'research' as defined in the Researcher Directive and in the Ordinance on Residence.
A secure means of subsistence during the guest academic's stay in the host country is an important precondition for issuing a visa and residence permit. Whether someone is able to cover their living expenses in the host country depends on the amount of the fellowship and the sponsorship period.
In any event, the facts regarding the amount and the sponsorship period must therefore be accurate. If this is not the case, it can lead to a refusal of the application or an early termination of the stay in the host country. Moreover, the guest academic and responsible officials at the host university would face being penalised by the immigration authorities for giving false information during the application process. The amount and the sponsorship period of the fellowship should therefore only be disclosed if there has been a binding decision on these matters and only by the office responsible for awarding the fellowship.
You should apply for a visa and residence permit for conducting doctoral studies and working as a visiting physician right from the start. You should enclose the relevant offers from a German medical institution with your application.
In order to work as a visiting physician you will also have to apply to the relevant authorities in the respective Land (state) for a (temporary) licence to practise medicine.
It is not possible for Chinese nationals to acquire an unlimited licence to practise medicine because this right is reserved for German nationals and the citizens of other Member States of the European Union, the European Economic Area and Switzerland, or stateless foreign nationals recognised in Germany.
The length of time for which a residence title is granted is strictly at the discretion of the Immigration Office. Usually, it is issued for one year with the option of extending to cover the continued duration of the project.
If a residence permit is issued for the purpose of research (§18d AufenthG) the law requires it to be issued for a "minimum duration" of one year. Thus, Immigration Offices cannot be forced to set a time frame of more than one year for the residence permit year from the outset.
A 90-day visitor's visa does not entitle you to enter the country for a period of more than 90 days, nor to enter the country for the purpose of employment. It is essential to apply for a national visa in India from the start covering the intended research position. Once you have entered the country, you can apply for the relevant residence permit to be issued on the basis of the visa, usually for 1 year with the option of extending at a later stage.
Application may only be made if you have concluded a hosting agreement with a recognised German research establishment. Apart from this, the immigration authorities may require you to leave the country in-between and submit the application from Pakistan due to the change between a short-term and long-term stay.
Citizens of the European Union, Iceland, Liechtenstein, Norway and Switzerland have the right to stay in Germany for purposes of research under EU freedom of movement legislation. This right extends to members of their family which means they are allowed to enter Germany. Members of the family are defined as the marital partner and children under the age of 21, even if they are citizens of a third country. Therefore, it is not a problem if the child of a Norwegian and a French citizen has American citizenship.
Family members of those who have freedom of movement but are not citizens of the European Union themselves need to apply and be issued with a residence card for family members of European Union citizens once they have registered as residents in Germany. The residence card will then be valid for five years. For the application, the familial relationship to the EU citizen must be proven, in the case that the child is related to its parents.
Family members who are not citizens of the European Union, Iceland, Liechtenstein and Norway generally do, however, require a visa to enter the country. Citizens of multiple countries, as in this case the American child, are able to enter Germany without a visa for family reunification purposes to apply for this card.
If a researcher with German nationality returns to Germany accompanied by foreign family members, they also have the right to a residence permit which, however, is subject to different regulations under the Residence Law.
Spouses can get a residence title if their livelihood in Germany is secured. To this extent, the size of the fellowship or salary may be relevant. Unmarried partners will not be granted a residence permit unless they can provide their own reasons for staying in Germany.
Sample Case 1:
We are a research institution in Belgium and would like to employ a researcher from India on the basis of a longer-term contract. However, the researcher will actually be carrying out her work permanently with our partners, a research institution in Germany. The researcher has an employment contract and a residence permit in Belgium. Is she allowed to work in Germany for an extended period, i.e. 12 months or longer? And what happens if she also has to spend shorter periods (3 months or even longer) in other EU countries in the context of her research project or travel to meetings and conferences for odd days?
If the Indian researcher has a Belgian residence permit "for the purpose of research" she has the right to be issued with a visa or residence permit for every other EU Member State in which she wishes to carry out parts of her research project, i.e. Germany, too. For a research stay of this kind in Germany lasting up to 3 months within a 12-month period it is not necessary to have a residence permit. However, if the research stay is going to last longer than 3 months, she will only be issued with a residence permit if she has concluded the relevant hosting agreement with a recognised research institution in Germany.
If the Indian researcher does not have a Belgian residence permit "for the purpose of research", but another type, e.g. for the purpose of employment, she cannot invoke European regulations on freedom of movement for researchers from third countries. It then becomes more difficult to obtain a residence permit for Germany.
Sample Case 2:
A researcher from a non-EU country holds a residence permit for a stay in Ireland. He wants to travel to another EU-country short-term in order to attend a conference. Which residence law regulations apply? Would the case be different if the residence permit had been issued by France?
Ireland is not a Schengen state. A residence permit for Ireland does not entitle you to travel to another EU country. The researcher therefore needs a visa in order to attend a conference in another EU country.
If the residence permit had been issued by France, the researcher would be within the limits of the Schengen Area. As a matter of principle, he could then travel to any other Schengen state for up to three months on his French residence permit. He would thus not need a visa to attend conferences in any Schengen state. The EU member states Bulgaria, Cyprus, Ireland and Romania, however, are not part of the Schengen Area. For conferences in these five states, the holder of a French residence permit would also require a visa.
Like Germany, Spain is a signatory of the Schengen Agreement. In order to enter Germany and Spain it is thus sufficient to apply for 1 Schengen visa.
Sample Case I:
Our institute is employing a Chinese doctoral student as a member of the academic staff ('wissenschaftliche Mitarbeiterin/wissenschaftlicher Mitarbeiter') on a part-time basis. So far, he had a residence permit for the purpose of pursuing gainful employment (§18b (1) of the Residence Act). When he recently wanted to extend his permit, the Immigration Office discovered that his previous residence permit had been issued wrongly because the main purpose of his stay was to take a doctorate. He was then issued with a new residence permit for the purpose of studying (§16b of the Residence Act) although he is in part-time employment. This is to his disadvantage as he loses his right to child allowance, and the period spent on the doctorate cannot be credited if he applies for a settlement permit at a later stage. What are the criteria for determining the main purpose of the stay?
Doctoral candidates fall within the scope of §16b or §18d. If the research activity is part of a doctoral program of higher education, §16b and not §18d applies. §16b (4) of the Residence Act states that, as a rule, during a study visit residence permits should not be issued or extended for any other purpose, unless legal rights permit a change. Taking a doctorate is defined as studying in the sense of § 16b of the Residence Act. The objective of the regulation contained in § 16b (2) (1) of the Residence Act is to prevent permanent residence being obtained in contravention of the purpose via a backdoor entitled "studying". Thus, according to § 16b (2) (1) of the Residence Act, "studying" is defined on principle as the main purpose of the stay.
However, according to § 16b (3) of the Residence Act, even a residence permit for the purpose of studying does allow for the pursuit of gainful employment of up to 90 full days or 180 half-days per year; part-time student assistant jobs are also permitted.
Sample Case II:
In May, a German university intends to employ a researcher of Russian nationality, who is currently resident in Italy, for a period of 3-4 years. However, as she will be sent, or rather, delegated to a research centre in Switzerland for the duration of her contract, she will not actually need to come to the German university. She will be resident in Switzerland. This raises some legal issues for us in respect of social security, tax and residence. In which state is she registered for tax and social security purposes? In which country does she acquire pension rights? How and where should she contribute towards her healthcare insurance? Does she actually need a German residence permit?
As a foreign national, you only need a work and residence permit for the country in which you reside in order to fulfil the obligations of your employment contract. The location of the employer's headquarters is irrelevant here. The researcher therefore only requires a residence permit for Switzerland and not for Germany. She is registered for tax, social security and healthcare insurance purposes in the country in which she carries out her employment, therefore in Switzerland. There is no requirement for her to be registered in Germany for tax or social security purposes. The German university should therefore pay her salary without deducting income tax.
The researcher is responsible for her own income tax affairs in Switzerland. In respect of social security it should be noted that she will be working for an employer not domiciled in Switzerland. Accordingly, the employee is responsible for the payment of any relevant social security contributions herself. In Switzerland this type of contribution is known as ANobAG ("Arbeitnehmer ohne beitragspflichtigen Arbeitgeber"). The salary should be paid to the researcher without deducting the employee’s social security contributions. The employer's share of the social security contributions that the employee is required to pay herself may be subsidised by an additional payment from the employer. Depending on the length of her employment in Switzerland, the researcher may acquire an entitlement to a Swiss pension.
A post-doctoral researcher from the USA is working at a university. Her employment contract runs until December, and her residence permit, issued according to § 18 of the German Residence Act, is valid for the same period. She would now like to apply for a job in industry and has the following questions:
Does she have 90 days to look for a job after her current residence title has expired in December or must she leave the country on the day her residence title expires at the latest?
You are required to leave the country on the day on which the residence title expires at the latest. However, if an application for a new residence permit is made before the old residence permit has expired, the existing residence title continues to be valid until a decision has been made by the immigration authorities on the new application. The applicant is given a so-called "Fiktionsbescheinigung" (a probationary permit). In exceptional cases, in order to avoid undue hardship, this may even be granted if the application was submitted late. In either case, however, a concrete job offer must have been made for an application for employment purposes. Foreigners who are already living in Germany will only be granted a residence permit according to §20 (2) (1) if they were in previous posession of a residence title for employment purposes according to §18b, §19c (1) or §16e.
As the researcher is American the immigration authorities may grant her a discretionary extension of 90 days even if she does not have a concrete job offer and does not exit the country. This is because the USA is one of a group of privileged countries whose citizens may enter Germany for an extended period without a visa and have three months to apply for the necessary residence title. This would need to be clarified with the immigration authorities directly.
If she finds a job and has to apply for a new residence permit, does she have to submit the entire paperwork that was required for the first residence title or is there less paperwork involved in submitting a new application or seeking an extension?
Extensions of or re-applications for a residence permit are subject to the same regulations as initial applications. The amount of paperwork is more or less identical.
Roughly how long does a new application/extension take? Can an employer employ and pay her even if the process of granting a new residence title is still ongoing?
The process of extending or re-applying usually takes about three months. If the application package is incomplete or raises questions the process can take longer. The new employer may only employ and pay the researcher once the new residence title has been granted specifically for the new job.
If someone fails to de-register at the end of a stay in Germany, will s/he have to pay a fine if s/he wishes to stay in Germany again or is there a margin of discretion which allows you to avoid having to pay the fine? How much would the fine be?
According to Federal and State (Länder) Registration Laws you are obliged to de-register with the registration authorities if you move out of one residence and do not move into a new residence in Germany. If you fail to de-register you have committed an offence. The decision to prosecute this offence is at the discretion of the prosecuting authorities, who usually initiate administrative fines proceedings immediately.
Administrative fines proceedings may be suspended if it can be proven that the person in question acted in good faith. Lack of knowledge of registration regulations is not usually a safeguard against the imposition of an administrative fine because, as the registrant, you are duty-bound to inform yourself about the requirements. If the registrant is a foreigner s/he could try to plead that s/he was not cognisant of all the details of German registration requirements and was unaware of the obligation to inform her-/himself about them.
In most Länder the framework of fines for offences against registration obligations can range up to 500 euro. In the case of failure to de-register, an administrative fine of 50 euro to 120 euro is usually imposed. However, the fine generall increases the longer de-registration does not take place. Therefore, if a considerable period has elapsed between the failure to de-register and the new stay in Germany, the amount could be twice as much.
When moving residence within Germany, it is not necessary to de-register, merely to register at the new place of residence. The new registration authorities will inform the previous registration authorities about the de-registration internally.
An international PhD student will shortly be completing her doctorate in Germany. She would like to remain in Germany and is currently looking for a job. In order to do so, she will be applying for a work permit according to § 20 (3) (1) of the Residence Act. As she was employed by the university for four years during her PhD, she is entitled to unemployment benefit (Arbeitslosengeld I). Can the fact that she has received unemployment benefit disadvantage her later if she applies for a permanent settlement permit?
One of the preconditions for being granted settlement permit according to § 9 of the Residence Act is that one has to have held a residence permit for five years and have a secure livelihood.
According to § 2 (3) of the Residence Act, a foreigner's livelihood is secure if s/he can support her-/himself, including sufficient health insurance, without resorting to public funds. However, public funds which are based on payment of a contribution are an exception to this rule and include unemployment benefit. The fact that she received unemployment benefit will therefore not disadvantage the PhD student if she applies for a permanent settlement permit according to § 9 of the Residence Act.
There is, however, another disadvantage: The time spent studying or in vocational training in Germany is not accredited fully to the required five-year minimum period of holding a residence permit, but according to § 9 (4) (3) of the Residence Act, only counts half.