The Opportunity Residence Act: Germany’s half-hearted attempt to end migrants’ legal limbo

A guest post by Anne Droste, current student in our 2022-23 MPP cohort

With the introduction of the Opportunity Residence Act (which came into force in Germany on 31 December 2022), many long-term ‘tolerated’ migrants now have the chance to receive a residence permit.

However, due to the Act’s strict conditions and failure to recognise the lived realities of tolerated migrants, Germany has once again missed an opportunity to permanently end the state of legal limbo known as ‘chain toleration’.

The ‘Duldung’ card: proof of a temporary suspension of deportation. Photo: Tim Reckmann

The ‘toleration’ status

The German Duldung (literally translated as ‘toleration’) is the temporary suspension of deportation and is granted to individuals that are required to leave the country but cannot be returned due to humanitarian or technical constraints. While the status decriminalises irregular migrants, it does not provide them with a legal residence permit and individuals must reapply for a ‘toleration’ every three months (Gemi, 2017). Currently, around 248,000 (Deutscher Bundestag, 2023) migrants are living with a Duldung in Germany, with the majority coming from Iraq, Afghanistan and Nigeria (Drucksache 20/1048, 2022).

While the Duldung status is supposed to be a temporary solution for those who cannot return to their countries of origin, when circumstances do not change, the status is often renewed over a long period of time. This ongoing renewal is known as Kettenduldung (literally: ‘chain toleration’) and has been criticised heavily as it traps many migrants in a continuous and precarious situation of legal limbo (Tize, 2021). Furthermore, ‘tolerated’ individuals are deprived of many rights that are granted to other migrants, one of the biggest differences being the limited access to the labour market, which is only granted in individual cases when a work permit is issued by the local authorities (Dienelt, 2016).

In their coalition agreement, the new German government promised to put an end to the long-standing practice of chain tolerations. The Opportunity Residence Act is their first attempt to put this promise into practice. Unfortunately, the Act’s various flaws may mean that it will remain just that: an attempt (Pro Asyl, 2022).

New pathway to regularisation

Currently, the main pathway to regularisation for tolerated migrants is under §25a and §25b of the German Residence Act, which establishes the right to a residence permit for well-integrated migrants. ‘Well-integrated’ in this context means that tolerated migrants must earn more than half of their living expenses, have sufficient knowledge of the German language and culture, and have a valid identification document. While living with a Duldung, it’s often not possible to meet these criteria (Becker, 2023).

This is where the Opportunity Residence Act is supposed to provide a solution: it grants long-term tolerated migrants an 18-month residence permit, during which they will not be deported and can therefore, in theory, fulfil the criteria for §25a and §25b more easily. If the conditions are not met after this period, migrants fall back into the Duldung status (Bundestag, 2022).

A chance for few, no change for many

The new policy has several shortcomings hindering its ability to end chain tolerations in the future. Many tolerated migrants will not benefit from the new policy due to the exclusion criteria – particularly the cut-off date criterion, which makes the law only applicable to migrants that have been tolerated continuously since 31 October 2017, and thus immensely reduces the number of people eligible for the opportunity residence permit.

Moreover, migrants charged with minor criminal offenses (e.g. being fined for using public transport without a ticket) are not allowed to apply for the opportunity residence permit. The German Ministry of Internal Affairs stated that in total 140,000 tolerated migrants are potentially able to apply for the new residence permit, but only 33,000 are estimated to ultimately benefit from the new regulation – who make up merely 13% of all tolerated migrants in Germany (Spille, 2023).

Further challenges faced

In addition to the legal barriers, many tolerated migrants are facing discrimination and stereotyping that is hindering them from fulfilling the criteria necessary to obtain a residence permit. Living in constant fear of deportation puts immense psychological pressure on tolerated migrants. Furthermore, long-term tolerated migrants often experience limited integration compared to other migrants, as they have been denied access to language courses for extended periods of time. The risk of deportation also means that employers are reluctant to hire tolerated migrants, making it difficult for them to meet the criteria of self-financing at least half of their living expenses. This challenge is further amplified for families with multiple children or single-parent households. (Spille, 2023).

In short, the situations and lived experiences of migrants with a Duldung status vary drastically from that of other migrants, and this is not sufficiently considered under the new Opportunity Residence Act.

Putting a permanent end to ‘chain tolerations’

The following months will determine the extent to which tolerated migrants can reap the benefits of this policy and meet the necessary conditions. While it will offer new prospects and the potential for an improved life in Germany for some individuals, many others will remain trapped in an endless cycle of legal uncertainty.

If the German government is serious about its promise to end chain tolerations, it must introduce a policy that has broader applicability. A good start would be the removal of the cut-off date, thus extending the policy to all individuals with a long-term Duldung. Furthermore, granting tolerated migrants unrestricted access to the labour market from the outset of their stay would not only improve their economic situation but also enhance their overall integration into society.

By ending chain tolerations and giving the opportunity for a legal residence permit to all long-term tolerated migrants, Germany would signal a change of perspective in its migration policy: away from a focus on deservingness and towards a focus on humanity.