Can one apply for a residence permit in Germany with a residence permit from another Schengen state?

Those who already hold a residence permit from another Schengen state often assume that moving to Germany is relatively straightforward. In fact,Section 39 No. 6 of the German Residence Ordinance (AufenthV) contains an important exception to the generally required visa procedure: Under certain conditions, a German residence permit can be applied for directly at the immigration office in Germany.

However, the regulation is less far-reaching than its wording initially suggests. In particular, the Higher Administrative Court of Berlin-Brandenburg has significantly restricted the possibility of such an application within Germany. According to this ruling, anyone entering Germany with the intention of remaining permanently cannot, in principle, invoke Section 39 No. 6 of the Residence Ordinance.

What does Section 39 No. 6 of the Residence Ordinance regulate?

In principle, third-country nationals must apply for the required national visa before entering Germany for a longer stay. Section 39 of the Residence Ordinance (AufenthV) contains various exceptions to this rule.

According toSection 39 Sentence 1 No. 6 of the Residence Ordinance , a residence permit can be obtained in the federal territory if the foreigner possesses a residence permit issued by another Schengen state, is entitled to reside in Germany on the basis of this residence permit, and the requirements for an entitlement to the issuance of a residence permit are met.

At first glance, the regulation appears very far-reaching. For example: A third-country national lives in Italy with an Italian residence permit. He marries a person living in Germany and fulfills all the requirements for a residence permit for family reunification. One might assume that he could enter Germany with his Italian residence permit and apply directly for a German residence permit.

However, caution is advised here.

Why is a residence permit from another Schengen state not always sufficient?

A residence permit issued by another Schengen state generally grants the right to short-term stays in other Schengen states. However, according to case law, this does not automatically mean that the holder is also permitted to enter Germany for the purpose of permanent residence.

Of particular importance in this regard is the decision of the Higher Administrative Court of Berlin-Brandenburg of February 28, 2019 – OVG 11 S 21.18 . The court dealt with a third-country national who possessed a Polish residence permit (“Karta Pobytu”) and had entered Germany to join her German husband.

The Higher Administrative Court ruled that a residence permit from another Schengen state does not cover entry if the intention to remain permanently in Germany exists from the outset. According to the court, the foreign residence permit only allows for a short-term stay within the Schengen area.

Does Section 39 No. 6 of the Residence Ordinance only apply in the case of a subsequent decision to reside permanently?

In practice, the legal rulings largely amount to this.

Interestingly, the wording of Section 39 No. 6 of the Residence Ordinance itself does not explicitly require that the conditions for entitlement arise only after entry into the country . Precisely such a formulation can be found, for example, in Section 39 No. 3 of the Residence Ordinance. There, the legislator explicitly requires that the conditions for entitlement to the issuance of a residence permit "arise after entry into the country." This restriction is absent in Section 39 No. 6.

Nevertheless, the Higher Administrative Court of Berlin-Brandenburg arrives at a restriction via another element of the offense: Section 39 No. 6 requires that the person concerned is entitled to stay in the federal territory on the basis of their foreign residence permit.

If the intention to reside permanently in Germany already exists upon entry, the Higher Administrative Court (OVG) holds that this right of residence is lacking. According to this view, the Schengen right based on a residence permit from another member state only covers a temporary stay.

This results in a significant difference between two outwardly very similar situations:

A third-country national enters Germany for a temporary visit with their French, Italian, or Polish residence permit. Only during this stay do their plans change, and they wish to remain in Germany permanently. If all the requirements for entitlement to a German residence permit are met, Section 39 No. 6 of the Residence Ordinance (AufenthV) can, in principle, allow for an application within Germany.

If, on the other hand, it is already clear before entry that the person intends to relocate their center of life to Germany and apply for a German residence permit immediately after entry, there is a considerable risk, according to the case law of the Higher Administrative Court of Berlin-Brandenburg, that Section 39 No. 6 of the Residence Ordinance is not applicable.

Why is the intention to enter the country so important?

In practice, this means that the subjective intention at the time of entry can become decisive.

For example, someone who lives in Italy, has a residence permit there, marries their spouse living in Germany and then travels to Germany to live with them permanently, should not automatically assume that Section 39 No. 6 of the Residence Ordinance replaces the regular visa procedure.

This applies in particular if the intention to reside permanently can be objectively proven – for example, by giving up one's residence or employment in the previous country of residence, registering a residence in Germany, or correspondence that indicates the planned permanent relocation even before entry.

In such cases, the safer course of action may be to apply for the required national visa at the competent German diplomatic mission abroad.

Why, moreover, must there be a "right" to the residence permit?

Section 39 No. 6 of the Residence Ordinance contains a second important restriction: It is not sufficient that the granting of a German residence permit is merely possible or probable. The provision expressly requires that the conditions for an entitlement to its issuance are met.

This can be particularly relevant in cases of family reunification. For example, if it is assumed that a spouse is exempt from proving German language skills, but the immigration authorities assess the conditions for this exemption differently, the supposedly secure entitlement to a residence permit may be lost. This can simultaneously eliminate the possibility of applying for a residence permit in Germany under Section 39 No. 6 of the Residence Ordinance.

Before entering Germany, it is therefore not enough to simply check which German residence permit is generally applicable. It should also be clarified whether all the requirements for a legally binding entitlement are actually met .

Does an application pursuant to Section 39 No. 6 of the Residence Ordinance trigger a legal fiction?

This question is also particularly important in practice, as procedures at German immigration authorities can take several months. Therefore, it is crucial whether the applicant is legally permitted to remain in Germany during this time.

Section 81, paragraph 3 of the German Residence Act (AufenthG) can, in principle, trigger a so-called deemed permission in cases of lawful residence without a German residence permit. However, the problem lies once again in the legality of the residence itself.

In its decision OVG 11 S 21.18, the Higher Administrative Court of Berlin-Brandenburg explicitly ruled that, in the case of entry with a pre-existing intention of permanent residence, no corresponding right to residence exists based on the residence permit of another Schengen state. The decision is explicitly listed in the official database under the heading "no legal fiction."

This can have significant practical consequences: If a residence permit is applied for in Germany and the immigration authority subsequently determines that Section 39 No. 6 of the Residence Ordinance does not apply, the applicant may not be able to rely on being legally allowed to remain in Germany until a decision is reached based on their application.

When is it advisable to refrain from applying for a residence permit in Germany under Section 39 No. 6 of the Residence Ordinance?

Special caution is advised if the permanent move to Germany is fully planned before entry.

In such a case, it should be examined whether the regular visa procedure via the German embassy or consulate is not the more legally secure option. This is especially true if there are additional uncertainties regarding individual requirements for the subsequent residence permit.

Section 39 No. 6 of the Residence Ordinance is therefore by no means insignificant. The provision can be an important option, particularly in cases where the intention to remain changes after an initially lawful short stay . However, it should not be interpreted as a general possibility to move to Germany with a residence permit from any other Schengen state and then forgo the national visa procedure.

Conclusion: Section 39 No. 6 of the Residence Ordinance is not a general "relocation regulation" within the Schengen Area.

A residence permit from Italy, France, Poland or another Schengen state does not automatically mean that a third-country national can move their center of life to Germany and subsequently apply for the required German residence permit at the immigration office.

According to the case law of the Higher Administrative Court of Berlin-Brandenburg, an intention to establish permanent residence already existing at the time of entry can, in particular, preclude the application of Section 39 No. 6 of the Residence Ordinance. At the same time, this can also jeopardize the legal fiction of a residence permit application submitted in Germany.

Anyone who holds a residence permit from another Schengen state and wishes to move permanently to Germany should therefore have it checked before entering the country whether an application within Germany is actually permissible or whether a national visa should first be applied for at the German embassy or consulate.