A Schengen visa allows non-EU nationals to stay in Germany for up to 90 days within a 6-month period. Generally, it is not possible to extend the stay beyond this period or to apply for a residence permit during this time. A residence permit must typically be obtained prior to entering Germany. However, there are exceptions that allow for obtaining a residence permit during a stay in Germany with a Schengen visa. Below, these exceptions and their conditions are outlined.
Combination of Schengen Visa and Residence Permit
Anyone staying in Germany with a residence permit must have obtained it before entering the country, as stipulated in § 6 para. 3 AufenthG. While it is possible to combine a longer-term residence permit with a Schengen visa, such as when individuals with a visa for a longer stay in Germany enter up to 90 days earlier with a Schengen visa, the residence permit must have been issued before entry.
Conditions for Applying for a Residence Permit After Entry
Under § 39 sentence 1 no. 3 AufenthV, it is exceptionally permissible to apply for a long-term residence permit even after entering with a Schengen visa. The purpose of this provision is to simplify the procedure when all conditions for issuing a residence permit are already met.
The following conditions must be met cumulatively:
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- Legal Entitlement: The applicant must have a legal entitlement to the issuance of a residence permit under the Residence Act.
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- Post-Entry Entitlement: This entitlement must have arisen only after entering Germany. The qualifying conditions must not have existed before entry. It is crucial that the entitlement arises after entry into Germany, not just another Schengen country. For example, in a decision by the Higher Administrative Court of Hesse on September 22, 2008 (1 B 1628/08), the court ruled that an applicant who entered France with a Schengen visa and later married a German citizen in Denmark before entering Germany could not apply for a residence permit, as the marriage occurred before entry into Germany. This rule aims to prevent misuse by ensuring that all conditions arise only after entry into Germany.
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- General Conditions: The general conditions for issuing a residence permit under § 5 para. 1 sentence 1 AufenthG must be met. This includes securing the applicant’s livelihood, clarifying their identity and nationality, and fulfilling the passport requirement under § 3 AufenthG. Additionally, there must be no interest in deportation, and the applicant’s stay must not harm or endanger the interests of the Federal Republic of Germany. The specific conditions of § 5 para. 2 AufenthG do not need to be met under the exception of § 39 sentence 1 no. 3 AufenthV.
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- Validity of Schengen Visa: The Schengen visa with which the applicant entered Germany must still be valid when applying for the residence permit.
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A claim for a residence permit under § 39 sentence 1 no. 3 AufenthV might exist if, for example, the applicant’s child is born in Germany after entry, and the child holds German citizenship. However, no claim exists if the applicant plans from the outset to remain in Germany for economic or professional reasons, as this would not align with the intent of the provision.
If a residence permit cannot be issued immediately following a Schengen visa, the applicant may need to leave Germany temporarily until the residence permit is granted.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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2 responses
Dear Mr Tieben,
Thank you for your article. My fiancée is American. We would like to get married in Germany. She can enter Germany for 90 days without a visa as a positive citizen. Can we get married during her stay? And can she subsequently obtain an extension of her 90-day stay? She already has the necessary documents such as a passport, ID card and current birth certificate.
Would be very grateful if you could answer these questions.
Have a nice day,
ST
Hello Mr T.,
yes as an American your wife may marry during the visa-free 90 days and then apply for a residence permit here. If there are any problems, just contact me.
Yours sincerely
Lawyer Tieben