Section 38a of the Residence Act: Recognition of a long-term residence permit in Germany

Mirko Vorreuter, LL.B.
5 hours ago
7 min read

Imagine you've invested years of hard work to obtain long-term resident status in Italy, Spain, or another EU member state . With this document in hand, you feel secure – you're mobile, you're European. You move to Germany, find a job, rent an apartment, and build a new life. But after six years, the shock hits: the immigration authorities refuse to extend your residence permit under Section 38a of the German Residence Act . The reason? You haven't been in your original issuing country for "too long." What sounds like a bureaucratic nightmare has become a bitter reality for many third-country nationals thanks to a ruling by the European Court of Justice (ECJ). In our law firm, we occasionally see clients completely unprepared for the strict time limits of the Long-Term Residence Directive . In this detailed article, we explain why this "limited freedom of movement" can be treacherous and how we, as your law firm , can help you legally secure your center of life in Germany.

Europe-wide mobility with a residence permit according to § 38a AufenthG

Section 38a of the German Residence Act (AufenthG) is Germany's response to the EU Long-Term Residence Directive (2003/109/EC) . It applies to individuals who hold long-term resident status in another EU member state (with the exception of Ireland and Denmark) . This status is a mark of quality: it indicates that the holder has already lived legally in the EU for five years, can support themselves, and is integrated. The legal status of long-term resident is known by the following names in other EU countries:

English: "long-term resident - EC"
Estonian: “pikaajaline elanik - EÜ”
Finnish: "pitkään oleskelleen kolmannen maan kansalaisen EY-oleskelulupa" or "P-EU 2003/109-EU"
French: "carte de résident longue durée - Communauté Européenne" or "carte de résident longue durée - UE" (France)" or "résident de longue durée - UE" (Luxembourg) or "résident de longue durée - CE or UE" (Belgium)
Italian: "soggiornante di lungo periodo - CE or UE"
Croatian: "osoba s dugotrainim boravištem - EZ or EU"
Latvian: "pastvgi dzvojosa persona - ES" or "pastvgais iedzvotjs - ES"
Lithuanian: "ilgalaikis gyventojas - EB"
Maltese: "residenti gat-tul - KE" or "resident fit-tul - UE"
Dutch: "EU - langdurig inzetene"
Polish: "Pobyt rezydenta dugoterminowego - UE"
Portuguese: "residênte CE de longa duração"
Romanian: "rezident pe termen lung – CE"
Swedish: “varaktigt bosatt inom EU” or “P-EG 2003/109/EG”
Slovak: "dlhodobý pobyt - EU" or "OSOBA S DLHODOBÝM POBYTOM - EÚ"
Slovenian: "rezident za daljši as – ES or EU"
Spanish: “Residente de larga duración - CE or UE”
Czech: "povolení k pobytu pro dlouhodob pobývajícího rezidenta - ES" or "Trvalý Pobyt/Permanent residence (two-digit number) povolení k pobytu prodlouhodob pobývajícího rezidenta – EU" or "Trvalý Pobyt/Permanent residence (two-digit number) Rezident - ES"
Hungarian: "huzamos tartózkodási engedéllyel rendelkez –EK"

If you come to Germany with this status, you generally have a legal right to a residence permit under Section 38a of the German Residence Act (AufenthG) , provided you meet the local requirements. The most significant hurdle is securing your livelihood without relying on public funds. In our consultations, we always emphasize that this does not mean you need a top salary. It's about a forecast: Is your income sufficient to cover the needs of you and your family (standard allowance plus rent and health insurance)?

ECJ: Long-term residence permit must also remain valid upon extension

For a long time, legal scholars and authorities debated whether the status in the country of first residence (e.g., Italy) only needed to exist upon entry into Germany or whether it had to remain in effect permanently for a German residence permit to be extended. The European Court of Justice (ECJ ) issued a definitive ruling on this matter on June 29, 2023 ( Case Nos. C-829/21 and C-129/22 ), which fundamentally changed legal practice.

The court clarified: The legal status as a long-term resident in the first member state must still be valid at the time of each extension in Germany . The problem lies in Article 9 of Directive 2003/109/EC. This article states that the legal status lapses if the person is absent from the territory of the first member state for a period of six consecutive years (see Section 51 Paragraph 9 of the German Residence Act ). In practice, this means that anyone who moves to Germany and does not visit their former home country for six years automatically loses their long-term residence status there – and, according to the ECJ, also loses the right to extend their residence permit under Section 38a in Germany.

The "second solution": How to prevent status loss

The good news from the ECJ ruling, however, lies in the definition of "absence." The court determined that even a very brief physical return to the first member state is sufficient to interrupt the six-year period. A return to one's center of life is not required. Theoretically, a stay of just a few hours is enough . We therefore advise our clients to adopt a proactive strategy. For example, if you have Italian long-term residence permits (EU), you should travel to Italy at least once within six years. The burden of proof is crucial here. We strongly recommend collecting evidence of this trip : fuel receipts, restaurant bills, hotel bookings, or flight tickets. While the German immigration authorities are obligated to inform you of this possibility before rejecting your application, as a law firm, we know that you should never rely solely on the authorities' obligation to inform you. A well-documented weekend trip could determine your entire future in Germany.

Pitfalls in securing a livelihood and housing

Another issue that often leads to problems is the question of housing . Here, there is a welcome development thanks to the ECJ ruling: Since German law, in Section 38a of the Residence Act (AufenthG), does not explicitly stipulate sufficient living space as a requirement – unlike with other residence permits – the immigration authorities cannot refuse an extension solely because the apartment is too small . EU law only permits such additional hurdles if the national legislature has clearly defined them, which was neglected in Germany with Section 38a. Nevertheless, securing a livelihood remains the bottleneck. Many affected individuals run into difficulties if they become temporarily unemployed. Unlike EU citizens, there is no automatic continuation of the residence permit in the event of unemployment under Section 38a. Those who apply for benefits under the German Social Code, Book II (SGB II, citizen's allowance), risk having their residence permit not renewed. In such cases, we often check whether there is a so-called "unintentional unemployment" or whether other sources of income (e.g. assets or support from family members) can fill the gap to save the stay.

Strategic planning: The path to a permanent residence permit

To permanently escape the "absence trap" of the country of first residence, securing permanent residency in Germany is the primary goal of our consultation. Anyone who has held a residence permit under Section 38a of the German Residence Act (AufenthG) for five years is entitled to a settlement permit under the general conditions of Section 9 of the German Residence Act . Alternatively, the German " permit for long-term residence – EU" can be applied for under Section 9a of the German Residence Act. Once you possess one of these permanent German permits, it is completely irrelevant whether your status in Italy, Spain, or France expires. You will then have an independent, permanent right of residence in Germany . We recommend submitting this application as early as possible, ideally in the fifth year of your stay, to leave behind the uncertain status of Section 38a. We will support you in compiling the documentation of pension insurance contributions and language skills that are essential for these permits.

If the extension fails: Alternative solutions

Should the six-year period have indeed expired and the status in the country of origin have been lost, this does not necessarily mean deportation. As experienced lawyers, we examine the possibility of switching to other residence permits in such cases . Often, a residence permit under Section 19c Paragraph 1 of the German Residence Act (AufenthG) in conjunction with Section 9 of the Employment Ordinance (“ open work visa ”) is an option. This regulation allows individuals who already held a residence permit under Section 38a and have worked in Germany for at least two years to obtain a new residence permit for any employment – regardless of any formal qualifications.

Conclusion: Your legal protection begins with preventative measures.

The legal situation surrounding Section 38a of the German Residence Act (AufenthG) has become more complex, but also clearer, due to the ECJ ruling. The key takeaway for all those affected must be: Residence in Germany is a privilege that requires active maintenance. Mobility within Europe is legally contingent on the continued validity of your status in the first EU member state you visit, as long as you do not yet have permanent residency in Germany.

In summary:

Pay meticulous attention to the six-year deadline.
Document short trips to your first state and
Aim for a German residence permit as soon as possible.

Avoid relying on social benefits when your residence permit is up for renewal, and seek legal advice early if in doubt. The bureaucratic hurdles are high, but with the right strategy and legal expertise on your side, the dream of a permanent life in Germany can certainly be realized. Our law firm is happy to assist you to ensure that your mobility doesn't fail due to a deadline.

You might also be interested in: