The basic requirement for naturalization
Legal and habitual residence
A key requirement for naturalization is "lawful habitual residence" in Germany. This means that your residence must not only be permanent, but also permitted by law. For naturalization, these two characteristics must have existed simultaneously for the required period of time.
What is habitual residence?
You have your habitual residence in Germany if you are not only living here temporarily, but for an indefinite period of time. It is a question of where the center of your life is. Interestingly, even repeatedly granted tolerated stays can constitute habitual residence. However, this alone is not sufficient for naturalization, as the residence must also be legal.
What is legal residence?
Residence is legal if you have a valid residence permit, for example a residence title. A tolerated stay in accordance with § 60a of the Residence Act (AufenthG) is not in itself considered a legal residence.
How periods of tolerated stay or residence permit can be taken into account
Although a tolerated stay is not a legal residence, there are ways in which the time during a tolerated stay or a residence permit (during the asylum procedure) can be counted towards the required period of residence for naturalization. The key here is almost always the outcome of an asylum procedure.
The successful case in the asylum procedure
Positive decision makes the stay legal
The time you have spent in the asylum procedure with a residence permit can be retroactively counted as legal residence. However, this only happens if your asylum procedure is successfully completed.
Which decisions count as success?
- Recognition as a person entitled to asylum.
- The granting of refugee status.
- The granting of subsidiary protection.
When does the time start counting?
Crediting begins on the date on which you submitted your application for asylum.
Special case: The asylum follow-up procedure
Even if you were only granted a tolerated stay during a subsequent asylum procedure, this period can be counted as a legal stay. Here too, the prerequisite is that the procedure ultimately leads to a positive outcome, for example the granting of refugee protection.
What happens if the asylum application is rejected?
If your asylum application is rejected, the period of the asylum procedure will not be counted as legal residence. This applies even if you later receive a residence permit for other reasons that have nothing to do with the asylum procedure.
Other forms of legal residence
In addition to a regular residence permit, there are other situations in which your residence is considered legal.
The fictitious certificate
If you apply for the extension or issue of a residence permit in good time, your residence can be deemed to be fictitiously permitted for the duration of the procedure. This is confirmed by a so-called fictitious certificate in accordance with § 81 of the Residence Act.
Differentiation from the fiction of acquiescence
It is important to know that a so-called fiction of toleration in accordance with Section 81 (3) sentence 2 AufenthG does not count as lawful residence. It does not end the unlawfulness of residence, but rather presupposes it.