Extending a Residence Permit for a Patient Too Ill to Travel

We fail to realize that an old person is the very same person they were in their youth,

only sewn into worn and wrinkled skin.
Magdalena Samozwaniec

As our readers already know well from our previous publications, the main piece of legislation governing the residence of foreign nationals in Germany is the Residence Act (Aufenthaltsgesetz — AufenthG). It is on the basis of this Act that foreign nationals are entitled to obtain a time-limited or unlimited residence permit in Germany. A temporary residence permit in any EU country grants a temporary right to stay in the country while enjoying some of the privileges of a citizen. In every country that issues such a permit to a non-resident, the document has its own particular features and time limits. In Germany, the residence document allows its holder to live in the country in compliance with the applicable legal requirements, to enter into an employment relationship, and to enjoy certain rights of German citizens accordingly. When obtaining a temporary residence permit, one should bear in mind that it does not always grant the right to work in Germany. For example, people who have been granted a residence permit for the purpose of education are often denied that right altogether, or it is strictly limited in terms of working hours. Where work is permitted, this must be noted directly on the residence permit card (Aufenthaltstitel) itself.

In this article, we look at a case in which the residence permit was obtained under § 25(4) AufenthG. The distinctive feature of this type of residence permit is that it is issued on so-called "humanitarian grounds." One specific situation in which such grounds arise is the need to undergo medical treatment in Germany.

In such cases, the treatment must be vitally necessary for the patient and unavailable in their home country. In other words, this type of residence permit can be obtained where deporting a foreign national from Germany would lead to a situation dangerous to their life, or even to their certain death within a short period of time. To prove that it is impossible for elderly relatives to leave Germany, a corresponding certificate from a German doctor (Reiseunfähigkeitsbescheinigung) must be submitted to the immigration authority. Once this certificate is on file, the immigration authority is required, under § 60a AufenthG, to suspend the relatives' departure from Germany (Duldung), or may, at its discretion, grant them a temporary residence permit under § 25(4) AufenthG (eine Aufenthaltserlaubnis für einen vorübergehenden Aufenthalt) until they recover.

At the same time, one must be keenly aware that a breach of visa rules — including leaving a Schengen country after the expiry of an existing residence permit — carries serious consequences that are not always obvious to those who breach them. Regardless of what caused an unlawful stay, and regardless of whether it was intentional, such an offense in Germany, for instance, carries such unfavorable consequences as:

immediate deportation from the country of unlawful stay;

the opening of criminal proceedings under § 95 of the Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (Aufenthaltsgesetz — AufenthG) for unlawful residence in Germany (possible penalties include a fine or imprisonment for up to one year);

a ban on entering the Schengen Area for the next several years.

Sometimes it happens that, once their residence permit expires, a foreign national is physically unable either to leave the country or to extend their residence permit. In other words, foreign nationals are sometimes forced to remain in the Schengen Area without a valid residence permit through no fault of their own. In such cases, only the highly qualified assistance of an attorney specializing in immigration matters can provide a solution to this difficult problem. In this article, we describe one of the rather sad cases from our legal practice.

A young woman came to our law firm — let's call her Inna. It was immediately apparent that any trace of a smile had long since vanished from her face: her mother, whom we'll call Anna, was seriously ill. Anna had come to Germany from Ukraine about five months earlier for medical treatment. The treatment had been going reasonably well until her mother suffered a stroke. Overnight, an always energetic, active woman turned into a frail, bedridden patient whose mental clarity could no longer be relied upon. At the time, her mother was undergoing a course of intensive therapy at a rehabilitation center. Unfortunately, the situation was made considerably worse by the fact that her residence permit was due to expire in a month. There was, of course, no question of the patient personally "showing up" at the immigration authority to renew her permit. Our firm's attorney, who specializes in immigration matters, had no choice but to visit the immigration authority (Ausländerbehörde) himself, in an attempt to extend Inna's mother's residence permit without her personal presence. We began preparing for this difficult undertaking, until yet another unexpected detail came to light. While gathering the documents, it turned out that Anna's passport had already been expired for almost two months. We turned to the Ukrainian Embassy in Germany and explained the situation, which had arisen from unforeseen circumstances, in detail to the officials, submitting the necessary medical certificates along with it. To our disappointment, we received a categorical refusal. To issue a new passport, Anna was required to appear in person at the Embassy premises, regardless of her condition. At the time, meeting the Embassy staff's requirement was categorically impossible, and we began looking for other ways out of this difficult life situation. As the saying goes: "Life is a maze that always has at least two ways out — the main thing is not to give up!"

So, we turned to the immigration authority and honestly described the entire situation our client and her mother found themselves in, submitting supporting documents as well. We sincerely asked for help in finding at least a temporary solution. To our shared relief, a way out — albeit a temporary one — was found: a certificate valid for six months was issued in Anna's name, allowing her to remain in the country unhindered (Fiktionsbescheinigung). Consequently, Inna and we now have six months to complete all the steps necessary to extend the temporary residence permit of this elderly woman. Over these six months, we need to arrange a new passport for Anna and a power of attorney authorizing Inna to handle all of Anna's affairs on her behalf. In addition, given her mother's state of health, we expect to obtain the next residence permit for a long period, or perhaps even a permanent one. We sincerely hope that treatment at one of Germany's best rehabilitation centers will help Anna return to a more or less normal life. This will allow us to resolve the matter of her passport and new residence permit, as well as the power of attorney for managing her affairs and her residence status.

Our firm's attorneys wished Inna's mother a speedy recovery, and Inna herself good health, strength and patience. As honest professionals, we cannot guarantee a final positive outcome in this case, but we can guarantee that we will do everything possible to reach a favorable resolution. After all, there is, thankfully, no doubt that Germany is a country governed by the principle of humanity.

Immigration & Residence Law

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