44
Bianchini
status, and the years on Duldung do not normally count towards the time
required to naturalize.48
According to section 25 of the Residence Act, a person is eligible to obtain a
temporary residence permit when his departure is impossible in fact or in law
and the obstacle to deportation is not likely to be removed in the foreseeable
future. The residence permit should be issued if deportation has been suspended for 18 months. A residence permit may only be granted if the person is
prevented from leaving through no fault of his own.49
According to section 26 of the Residence Act, a residence permit may be
issued and extended in each instance for a maximum period of three years, but
for no longer than six months where it has been issued due to the impossibility
of deportation, and if the foreigner has not been legally resident in the Federal
territory for at least 18 months. The residence permit must not be extended if
the obstacle to departure ceases to apply. The authorities may also withdraw or
refuse to grant a toleration certificate or a temporary residence permit when a
readmission agreement between Germany and a country of former residence
or even of simple transit applies.50
48
49
50
is always unreasonable. §48, 49 AufentG neugefasst durch Beschluss vom 25.02.2008
(BGBl I 2008, 162); zuletzt geändert durch Artikel 2 Abs 59 Gesetz vom 07.08.2013 (BGBl I
2013, 3154).
Toleration prevents a person to breach the law, but it does not make the presence
lawful. BVerwG, 16.10.1990, BVwerGE 87, 11, 18; VGH Baden-Württemberg, 31.03.1993,
Verwaltungsblätter für Baden-Württemberg (VBIBW, Administrative Gazette for BadenWürttemberg) 1993, 482, 483; OVG Niedersachsen, 30.09.1998, DVBl 1999, 1219-1221. In light
of these cases, it seems that a person with Duldung is only considered ‘lawfully in’ the
country for purposes of the rights of the 1954 Convention (the protections offered under
the 1954 Convention depend on the nature of the attachment of the stateless person and
the host State. There are ‘five levels of attachment’, which starting from the weakest are:
being subject to the State’s jurisdiction, physical presence, lawful presence, lawful stay, and
durable residence).. Van Waas (n 3) 229, 230).
Fault applies in particular if he provides false information, deceives the authorities with
regard to his identity or nationality or fails to meet reasonable demands to eliminate the
obstacles to departure.
Germany has entered into readmission agreements with a number of countries.
Claudia Finotelli, Illegale Einwanderung, Flüchtlingsmigration und das Ende des NordSüd-Mythos (LIT Verlag 2006) n 381, 120; Simone Grimm, Die Rückführung von Flüchtlingen
in Deutschland (BWW Berliner Wissenschafts-Verlag 2007) 49-146. Some of these
readmission agreements are applicable also to stateless persons. The readmission agreements that also concern stateless persons are those with Bulgaria, Armenia, Estonia,
Latvia, Lithuania, Slovakia, Macedonia, Kazakhstan, Georgia, Macedonia, Yugoslavia,
Syria, Kosovo, Romania, Montenegro and France. Bundesministerium des Innern,
‘Abkommen zur Erleichterung der Rückkehr ausreisepflichtiger Ausländer’(June 2013).
tilburg law review 19 (2014) 35-51
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