When does the Residence Act (AufenthG) apply in Germany? And to whom does it not apply?

The Residence Act (AufenthG) is the central legal basis for the residence of foreign nationals in Germany. However, the law does not apply equally to all people without a German passport. VISAGUARD explains who is subject to the Residence Act – and to whom it (exceptionally) does not apply.

The principle: Residence Act applies to all foreigners

In principle, the Residence Act applies to all persons who do not have German citizenship – regardless of whether they hold another passport or are stateless. This is stipulated in Section 2 Paragraph 1 of the Residence Act . Stateless persons also fall within this scope of application. The only requirement: The person must not be German within the meaning of Article 116 Paragraph 1 of the Basic Law. However, there are several exceptions to the scope of application of the Residence Act, which are described below.

1. Exception: Union citizens and EEA nationals

The Residence Act generally does not apply to citizens of the European Union (EU) and the European Economic Area (EEA). Special regulations apply to them, namely the Freedom of Movement Act/EU (FreizügG/EU) and the provisions of Union law. This means that the residence of EU citizens is primarily governed by EU law, not the Residence Act.

Only in certain special cases—for example, if an EU citizen has lost their right of freedom of movement—can the Residence Act apply as an exception. Such cases are regulated in Section 11 of the Freedom of Movement Act/EU. Citizens of Iceland, Norway, Liechtenstein, and Switzerland also benefit from the right of freedom of movement. Their stay in Germany is therefore also not subject to the Residence Act, but to specific intergovernmental regulations.

2. Exception: Diplomats and consular representatives

Also not covered by the Residence Act are so-called extraterritorial persons —such as diplomats , members of consular missions, or other official representatives of other states who are staying in Germany upon official invitation. Their residence status is not regulated by the Residence Act, but rather by international agreements. The Federal Foreign Office, not the local immigration authority, is primarily responsible for this (see the organizational chart of the Federal Foreign Office ).

3. Exception: Special regulations through international treaties

Finally, Section 1 Paragraph 2 No. 3 of the Residence Act lists other groups of persons whose residence is specifically regulated under international treaties. These include, for example, employees of international organizations , who enjoy special rights and immunities in Germany.

Which international agreements apply here can be found, among other things, in the so-called reference lists A and B , which are published annually by the Federal Ministry of Justice.

Stateless persons: Usually protected by the Residence Act

A common uncertainty concerns stateless persons . The following applies to them: Yes, the Residence Act applies – provided they do not have German citizenship. There is no such thing as “unclear nationality” in the legal sense. Either a person has a nationality (which may still have to be determined) – or they are stateless. Anyone who is stateless as defined by the Convention on the Status of Stateless Persons (StlÜbk) can receive a special status as a stateless person in addition to being classified under the residence law. This entails certain rights – similar to those granted to refugees under the Geneva Convention. However, these rights – e.g. to social benefits, a travel document or freedom of movement – are generally dependent on the legality of residence in Germany. A mere toleration or permission to remain is not sufficient to claim these rights. These entitlements can only be fully realized with a residence permit in accordance with the Residence Act.

Conclusion: To whom does the Residence Act apply (scope of application)?

The Residence Act applies to almost all people who do not have a German passport – except:

• Citizens of the EU and EEA (if entitled to freedom of movement),

• Diplomats and similar officials of other states,

• certain groups that have special privileges under international treaties.

VISAGUARD helps you clarify whether the Residence Act applies to you or your dependents – and what this specifically means for your stay in Germany. Trust our partner lawyers for immigration law in Berlin – transparent, competent, and digital.