Controversial: Can children obtain a permanent residence permit?

Immigration authorities sometimes take the view in practice that minor children can only receive a permanent residence permit upon reaching the age of 16. This blanket statement is legally incorrect. It is based on a confusion between a specific, child-related facilitation provision and the general eligibility criteria for a permanent residence permit, which itself does not specify an age limit.

The origin of the "16-year limit"

The age limit stems from Section 35 Paragraph 1 Sentence 1 of the German Residence Act (AufenthG), which governs the "independent, permanent right of residence of children." According to this provision, a minor child receives a permanent residence permit if they have held a residence permit for five years by the time they reach the age of 16; at the same time, certain otherwise applicable requirements – such as language skills or a secure livelihood – are waived in this case. Section 35 of the Residence Act is therefore a special, preferential provision intended to facilitate, not hinder, children's access to a permanent residence permit.

Why Section 35 of the Residence Act does not have a blocking effect

Crucially, Section 35 of the Residence Act (AufenthG) does not preclude the application of the general provision of Section 9 of the Residence Act. This is recognized in case law and legal literature: According to the commentary in Bergmann/Dienelt, AufenthG, Section 35, marginal note 2, Section 35 is a favorable special provision that does not preclude the granting of a settlement permit directly based on Section 9 of the Residence Act (confirmed by the Bavarian Administrative Court of Appeal, judgment of August 5, 2015 – 10 B 15.429, marginal note 27, and the Higher Administrative Court of North Rhine-Westphalia, judgment of October 15, 2014 – 17 A 1150/13, marginal note 54). A minor child can therefore, in principle, receive a permanent residence permit even before reaching the age of 16 if they meet the general requirements of Section 9 Paragraph 2 of the Residence Act – in particular, five years of holding a residence permit, a secure livelihood, sufficient pension insurance contributions, adequate living space, sufficient language skills, and the absence of any grounds for deportation. For minors living with family, these economic requirements are regularly assessed in light of the parents' household; a blanket rejection solely on the grounds of age is not supported by law.

Relationship between multiple residence permits

It should also be noted that holding an existing residence permit does not preclude the issuance of a further, independently established permit. The Federal Administrative Court clarified in its judgment of March 19, 2013 – 1 C 12.12 – that there is no legal exclusivity between different residence permits if their respective requirements are met independently. This principle also applies to situations where, in addition to an existing (e.g., humanitarian) residence permit, an application is simultaneously submitted for a residence permit based on family law or a settlement permit: The authority is obligated to independently examine and decide on the further application and cannot rely solely on the continued validity of the already granted permit.

Result

As a result, the statement that children can only receive a permanent residence permit at the age of 16 is incorrect as a general rule. It applies, at most, to the privileged special route under Section 35 of the Residence Act. Regardless, minors can apply via Section 9 of the Residence Act, provided its general requirements are met – with the consequence that even younger children can receive a permanent residence permit before their 16th birthday if the actual requirements are fulfilled and the authorities are obligated to make a decision accordingly.