Can the authorities refuse to register a residence in the case of an overstay or temporary stay?

In recent months, there have been increasing reports from Berlin that residents' registration offices are beginning to check the residency status of foreign applicants during the registration process . What was previously understood as a purely registration-related procedure is increasingly developing into a de facto preliminary review of residency rights – with sometimes significant consequences for those affected. These cases are particularly well-known when applicants attempt to register an apartment under Section 17 of the Federal Registration Act (BMG) while on a visa-free stay or with a Schengen visa .

Refusal to register residence for short stays

The situation typically unfolds as follows: At an appointment to register a new residence, not only are the usual documents collected, but a "legal" residence permit is also required. In some cases, registration of residence has reportedly been refused, leading to police involvement, the temporary seizure of identification documents, and other measures that were traditionally the responsibility of immigration authorities . This often comes as a surprise to those affected and causes considerable anxiety.

Legally, the question arises whether citizens' registration offices are even authorized to independently verify residency status and make the registration process dependent on this. According to the legal framework, this separation is actually quite clear. Registration authorities act on the basis of the Federal Registration Act , while the verification of the legality of residency is reserved for immigration law and thus for the immigration authorities. Although the Residence Act stipulates that registration authorities must forward registrations and deregistrations to the immigration authorities ( § 71 para. 1 no. 1, § 72 Residence Ordinance ), this reporting obligation clearly serves the purpose of subsequent information and coordination between authorities, not upfront control by the citizens' registration office itself.

The registration authority may not refuse registration.

The law does not explicitly impose an obligation on the registration authority to substantively verify residency status. Nevertheless, the obligation to maintain an accurate register of residents ( § 6 BMG ) is sometimes cited as justification for such measures. According to the Federal Registration Act, the registration authority must correct inaccurate entries and investigate the facts ex officio. From this, it is sometimes inferred that the authority must also verify whether a person is even entitled to occupy a dwelling in the legal sense.

From a legal perspective , this will always be the case if the applicant is permitted to enter visa-free and stay for 90 days, or if they hold a Schengen visa. Furthermore, registration law is based on the actual occupancy of a residence, not on the legal status of that stay. Whether someone is residing in Germany lawfully or unlawfully is a separate issue from whether that person actually lives in a residence. The Federal Registration Act (BMG) does not stipulate a general requirement of lawful residence for registering a residence. The exception in Section 27, Paragraph 2, Sentence 3 of the BMG for persons who "otherwise reside abroad" does not justify its blanket application to cases of overstay or temporary residence.

The situation becomes particularly critical where registration procedures effectively merge into police or immigration law measures . If citizens' registration offices, during the registration process, forward residency status to security authorities or initiate measures themselves, the legally mandated division of responsibilities is at risk of being undermined. The citizens' registration office is then no longer perceived as a neutral registration authority, but rather as a control body, which can have a significant impact on public trust in government administration.

Conclusion: Refusal to register residence in case of overstay or temporary stay

It should be noted that an overstay does not make a stay "invisible" and does not eliminate the reality of registration. As long as a person actually occupies a residence, there is a strong indication that they must also be registered. Clarifying the consequences under immigration law is the responsibility of the immigration authorities, not the registration office. Whether the currently observed practice can withstand legal scrutiny appears at least doubtful and is likely to be the subject of increasing administrative court disputes in the future.