No restrictions on the freedom of movement within Germany exist for refugees and beneficiaries of subsidiary protection. They can travel at any time to any destination within Germany, without having to ask for permission by the authorities, in contrast to the so-called ‘residence obligation’ which applies to asylum seekers during the early stages of the procedure (see Reception Conditions: Freedom of Movement).
However, since August 2016, refugees and beneficiaries of subsidiary protection are generally obliged to take up their place of residence within the Federal State in which their asylum procedures have been conducted. This has been regulated by the ‘residence rule’ of Section 12a of the Residence Act.[1]
Further to the obligation to reside in a Federal State, authorities can impose further restrictions and oblige beneficiaries to take up a place of residence in a specific municipality within the Federal State. This obligation is now applied in seven Federal States: Bavaria, Baden-Württemberg, North Rhine-Westphalia, Hesse, Saarland, Saxony and Saxony-Anhalt, with some regional distinctions. For instance, in the Federal State of Saxony, the obligation to live in a particular place is limited to a one-year period, as opposed to the possible three year-period applied in other states.[2] Furthermore, the Federal States of Lower Saxony and Rhineland-Palatinate introduced ‘negative’ regulations according to which refugees can be asked not to move to certain municipalities. This regulation is effective for three towns in Lower Saxony (Salzgitter, Delmenhorst and Wilhemshaven) and one in Rhineland-Palatinate (Pirmasens) which are faced with structural economic difficulties and already house a comparably high number of migrants and refugees. The ‘city states’ (Berlin, Hamburg, Bremen) and several smaller Federal States (Brandenburg, Mecklenburg-Vorpommern, Schleswig-Holstein, Thuringia) have not introduced any further restrictions beyond the obligation to take up residence in the respective Federal State.[3]
The obligation to live in a certain Federal State or in a certain municipality remains in force for a maximum period of three years, but it can be lifted for certain reasons e.g. for family-related reasons or for education and employment purposes.
The regulation of Section 12a of the Residence Act only applies to beneficiaries of protection who have been granted a residence permit based on protection status since 1 January 2016. The residence rule shall not apply if a beneficiary of protection (or one of their family members) can take up a job in another place, if this job provides for a sufficient income to cover the cost of living. It also has to be lifted, if a beneficiary of protection takes up vocational training or university education in another place. Furthermore, the rule shall not apply if family members (spouses, registered partners or minor children) live in another place.[4] In 2022 the legal framework for the obligatory place of residence has been slightly changed. New exception grounds for the obligation to take up a specific place of residence have been introduced. Accordingly, beneficiaries of international protection may be exempted from the obligation if their participation in an integration course or other qualification measures requires them to move somewhere else. Additionally, for the lifting of the obligation it is now sufficient that the beneficiaries are able to cover the ‘overwhelming part’ of the cost of living, whereas before beneficiaries had to cover all the living costs.[5]
According to the official explanatory memorandum, the residence rule is supposed to promote sustainable integration by preventing segregation of communities.[6] However, it has been questioned whether the way in which the provision has been put into effect is suitable for achieving the intended aim.[7] A study by the Technical University of Dresden on existing ‘residence rules’ was published in March 2018. The author points out that it will take more time to assess the positive or negative effects of the regulations introduced in 2016. At the same time, she concludes that the new measures should not be expected to have too many regulatory effects on the labour and housing markets and on integration efforts of refugees. This is because the number of persons affected by the new regulations was rather low in comparison to the overall migrant and refugee communities in Germany. Furthermore, she argues that integration processes are generally difficult to regulate by law.[8]
A brief analysis of the impact of the residence rule was published in January 2020.[9] This paper is based on the ‘IAB-BAMF-SOEP survey’, a representative study on the living conditions of refugees which has been carried out on an annual basis since 2016. In this analysis, the situation of refugees who are subject to the residence rule is compared to other refugees, in particular those that were granted refugee status at an earlier date, before the introduction of the regulation. The duration of stay in Germany as well as other regional and individual factors were taken into account in order to avoid possible distortions. The main findings of this analysis are:
- Refugees who are subject to the residence rule are less likely to be employed;
- Refugees who are subject to the residence rule are less likely to live in private accommodation (as opposed to collective accommodation);
- It could not be ascertained whether the residence rule had a positive or negative impact on refugees’ German language skills or on their (successful) participation in integration courses.
An independent study from ‘Paritaetischer Gesamtverband’ from 2022 confirmed these findings. In the study, the obligation has been highly criticised as standing in contrast to the aim of facilitating integration. E.g. access to the job market, access to regular housing and protection for victims of violence is heavily impeded by the obligation.[10]
In a ruling of 4 September 2018, the High Administrative Court of North Rhine-Westphalia decided that the Federal State’s regulation on the residence obligation for refugees was illegal. According to the court, the wording of the directive was too restrictive as it stated that refugees ‘should, as a rule’ be obliged to reside in the town or district to which they had been accommodated during the asylum procedure.[11] Although the decision was restricted to North Rhine-Westphalia, it highlights that authorities generally have to conduct an individual assessment to determine whether a residence obligation is useful ’to enhance the prospects of a sustainable integration’.[12] In the aftermath of the judgment the government of North Rhine-Westphalia generally evaluated the states rules and amended those parts where the court objected.[13] Apart from this ruling, few cases have become known in which courts were asked to decide on the legality of the residence rule.
The residence rule for persons with protection status had originally been introduced for a period of three years, so it would have run out at the end of July 2019. The explanatory memorandum to the integration act of 2016 had stated that the decision on whether the rule would be discontinued or extended should be based on an evaluation of its impact. Although this evaluation never took place, a new law was introduced in the spring of 2019 and entered into force on 12 July 2019.[14] This law has now made the residence rule permanent. The main principles of the regulation remain unchanged, as only a few clarifications were introduced (e.g. concerning the continuation of the residence rule after an authorised move to another Federal State). Furthermore, a new sanction was introduced for persons who have moved to another place without permission while they were subject to the residence rule: In these cases, the obligation to stay in the assigned place of residence can now be extended ‘by the (same) period of time at which the foreigner has not complied with the obligation’.[15] Again, the explanatory memorandum to the law states that an evaluation of the impact of Section 12a of the Residence Act is supposed to take place within three years.[16] While the amendments in the legal framework slightly improve the situation of beneficiaries since more exceptions and reasons for lifting the obligation have been introduced, still no official evaluation on the obligation has been published. The BAMF started an evaluation in 2021 but no results are available yet.[17]
[1] Not to be confused with the ‘geographical restriction’ or ‘residence obligation’ (Residenzpflicht) as described above. The residence rule is part of the so-called Integration Act of 31 July 2016, Official Gazette I no. 39 (2016) of 5 August 2016, 1939.
[2] Welt.de, ‚Dort wohnen, wo der Staat es will‘, 1 March 2019, available in German at https://bit.ly/2XiTGZH.
[3] Melina Lehrian, Zwei Jahre Wohnsitzregelung nach Artikel 12a AufenthG – Ein Überblick zur Umsetzung der Regelung in den einzelnen Bundesländern. Asylmagazin 12/2018, 416-423, available at https://bit.ly/2V7T1rn.
[4] Section 12a(5) Residence Act.
[5] GGUA, Änderungen ab 1. June 2022 für Geflüchtete aus der Ukraine mit Aufenthaltserlaubnis nach § 24 AufenthG oder nach Antrag auf § 24 AufenthG, 27 May 2022, available in German at: https://bit.ly/3JwRohS.
[6] Explanatory memorandum, Bundestag Document no. 18/8614, 42-43.
[7]Clara Schlotheuber and Sebastian Röder, Integrative (?) Zwangsmaßnahme (!), Die neue Wohnsitzregelung nach § 12a AufenthG, Asylmagazin 11/2016, 364-373.
[8] Nona Renner, Die Wohnsitzauflage als Mittel deutscher Integrationspolitik? Das Beispiel Sachsen, MIDEM-Policy Paper 01/18, Dresden, available at: http://bit.ly/2HSpzgM.
[9] Institut für Arbeitsmarkt- und Berufsforschung (IAB): Wohnsitzauflagen reduzieren die Chancen auf Arbeitsmarktintegration, IAB-Kurzbericht 2/2020, January 2020, available in German at: https://bit.ly/34rH7wL.
[10] Der Paritätische Gesamtverband, Die Wohnsitzregelung gem. § 12a AufenthG, April 2022, available in German at: https://bit.ly/3jmhNEq.
[11] High Administrative Court North Rhine-Westphalia, Decision 18 A 256/18, 4 September 2018.
[12] Claudius Voigt, ‘Zum Urteil des OVG Nordrhein-Westfalen: Rechtswidrige pauschale Wohnsitzzuweisung’, Asylmagazin 12/2018, 454-458.
[13] Ministry for children, family, refugees and integration North Rhine-Westphalia, Bericht zur Evaluierung der Wohnsitzregelung für anerkannte Schutzberechtigte in Nordrhein-Westfalen, 1 August 2019, available in German at: http://bit.ly/3Jyhm4E.
[14] Act to remove the time-limit of the integration Act (Gesetz zur Entfristung des Integrationsgesetzes), Official Gazette I, No. 25, 11 July 2019, 914.
[15] Section 12a(1)(3) Residence Act.
[16] Explanatory memorandum to draft bill, 25 March 2019, 19/8692, 9.
[17] BAMF, Evaluation der Wohnsitzregelung nach §12a AufenthG, 30 August 2021, available at: http://bit.ly/3YgbqBa.