外国人怎样成立GmbH ....Part 2,共有5个部分
外国人怎样成立GmbH ....Part 22.2 The various types of residence permits
Under the overall term of ,Aufenthaltsgenehmigung" (residence permit), the Aliens
Act subsumes a number of different „categories" of residence, conferring widely
differing legal status on the foreign national.
2.2.1 Residence permit (Aufenthaltserlaubnis)
When a foreign national is allowed residence without being connected with a specific
purpose, he/she will get the residence authorization in the form of a residence permit
(AE). As a rule, this permit is at first granted for a limited period. Issuance of an
unlimited resident permit (AE) is principally taken into consideration only after the
foreign national, among other things, has had a limited residence permit for five
years.
Moreover, the residence permit (AE) is usually subject to collateral conditions. It may
e.g. restrict residence to a particular city, a county district or an administrative district.
It may also be issued under certain conditions as e.g. connected with the duration of
employment with a specific company. Finally, the residence permit (AE) may be
subject to requirements, especially the prohibition of ,all self-employment or
comparable dependent gainful occupation". However, owners of an unlimited
residence permit (AE) are exempt from this requirement. Subject to existing trade
regulations or similar permit requirements, they are allowed to take up selfemployment
or a comparable dependent occupation.
2.2.2 Right of residence (Aufenthaltsberechtigung)
Under certain - strict - conditions, foreigners may be granted residence authorization
in the form of a right of residence which privileges the foreign national to a higher
degree than does the residence permit (AE). The issuance of a right of residence,
however, requires that the foreigner must have been in previous regular possession
of a residence permit for a period of eight years (five years if married with a German
national). The right of residence is unlimited as to both duration and territory and is
free from requirements and conditions. The foreign national is thus entitled to reside
and settle at will throughout the Federal territory. He/she may perform all types of
gainful occupation - subject to industrial law or similar permit requirements - and is
thus de facto equal with German nationals.
2.2.3 Residence authorization (Aufenthaltsbewilligung)
Residence authorization is the entitlement of a foreign national to remain for a
specific purpose only which, by its nature, requires only temporary residence. This
applies e.g. to a stay for training or study purposes but also when the foreign national
is admitted to perform a specific function in a specific company or to cooperate in a
specific project.
The residence authorization - restricted to a specific purpose - is initially granted for a
period of two years at most and may be renewed for further periods not exceeding
two years each if the purpose for which it was granted has not yet been fulfilled but
can be achieved within a reasonable period of time. As a residence authorization is
granted for a specific purpose, it follows that even if no restrictive collateral conditions
are provided, any occupation other than the authorized one is prohibited.
2.2.4 Residence warrant (Aufenthaltsbefugnis)
A residence warrant is issued if, for reasons of international law or urgent
humanitarian reasons or to safeguard political interests of the Federal Republic of
Germany, a foreign national is to be permitted entry and stay although he/she cannot
be granted a residence permit or there are reasons to refuse admission such as
substantiated reason for deportation, inability to =earn his/her living, impairment or
imperilment of interests of the Federal Republic of Germany.
On the other hand, foreigners whose period of residence cannot be terminated,
especially so-called de facto refugees, shall be granted a residence warrant as legal
entitlement to stay instead of sufferance (Duldung).
The residence warrant may be granted for successive periods not exceeding two
years each at most unless the obstacle to deportation or other reasons preventing
termination of residence have ceased to apply. Collateral conditions attached to the
residence warrant exclude at least self-employment and comparable dependent
occupation from the outset. Exceptions may only be made if it is foreseeable that
deportation will be permanently excluded for humanitarian or similar reasons.
Moreover, the following condition is usually attached to residence warrants for purely
dependent occupations: ,An occupation may be taken up if a work permit has been
granted by the relevant labour office" so that employment is at least possible on the
basis of the corresponding permit issued by the labour office.
2.2.5 Sufferance (Duldung)
Sufferance means the acceptance of what is in fact an illegal residence of a foreign
national. Sufferance is especially granted when it is impossible to deport the foreign
national for legal or material reasons; e.g. well-founded danger of torture or death
penalty constitute absolute obstacles to deportation. Sufferance may also be granted
e.g. for urgent humanitarian, international law or similar reasons.
By its nature, sufferance is a mere temporary right to stay subject to manifold
restrictions, and is generally related with the prohibition or restriction of gainful
occupation.
2.2.6 Allowance to stay (Aufenthaltsgestaltung)
Besides the provisions of the Aliens Act, there is a legal right of residence (allowance
to stay) for foreign nationals under the Act Implementing the Asylum Procedure
(Gesetz zur Durchführung des Asylverfahrens). Various conditions may be attached
to the allowance to stay.
For the duration of mandatory residence in allocated accommodation, the foreign
national is not allowed to exercise a gainful occupation. Moreover, at least selfemployment
and similar dependent occupations are prohibited by restrictions from
the outset. With regard to dependent occupations, the following condition is generally
attached to an allowance to stay: „Occupation may be taken up if work permit has
been granted by the relevant labour office". It is thus at least possible to establish the
right to employment on the basis of the corresponding permit of the labour office.
页:
[1]