The Ukrainian government has banned the issuance and renewal of internal and foreign passports to Ukrainian men aged 18-60 who are subject to compulsory military service. The relevant amendments were adopted on April 23, 2024.
Russian- and Ukrainian-language media reported that Deutsche Welle had obtained information at the request of the Berlin Senate, according to which the granting or extension of residence status to Ukrainian refugees does not depend on the validity of their national passports. The main thing is that the identity of the person concerned can somehow be established.
My searches in the German-language media have so far yielded no results. Neither the Deutsche Welle website nor the Berlin Senate found anything on the subject.
Since my profession as a lawyer does not allow me to rely only on newspaper articles, I contacted the Berlin Senate and Deutsche Welle and asked for more information, or better yet, a full response from the authorities. I have not yet received a response from the Berlin Senate. However, a Deutsche Welle employee contacted me very quickly and provided official information.
It turned out that the official response did not come from the Berlin Senate, but from the State Office for Immigration Affairs (LEA) in Berlin. This office did confirm that the issuance and renewal of residence permits for the temporary protection of refugees from Ukraine does not legally require a valid passport if the identity can be verified in another way. The right of residence in Germany and all related rights remain valid regardless of such a decision by the Ukrainian government.
The authorities also stated that if Ukrainian embassies and consulates refuse to issue or renew a Ukrainian passport to a Ukrainian citizen simply because he or she has not completed military service, the State Immigration Office will only issue appropriate replacement documents for international travel or border crossings in exceptional cases. The Residence Ordinance requires the immigration authorities to issue conscripts with a German replacement document only if there are compelling reasons. Compulsory military service is legally considered a reasonable civic duty. Relevant applications for a German travel document for which a fee is charged will be scrutinized and generally rejected.
At first glance, this information might seem surprising. After all, it could be seen as unequal treatment. If we remember the situation when many Ukrainian refugees did not have passports with them, especially in the first few months since the start of the war in Ukraine, the local immigration authorities pointed out that they should apply for a new Ukrainian passport at the Ukrainian embassy. However, as they were also aware that the Ukrainian embassy was full and a trip to Ukraine was unreasonable, the immigration authorities issued travel documents for foreigners. So why should a person who wishes to have their Ukrainian passport issued or extended, but can no longer do so at the Ukrainian embassy due to the current legal situation, not also be able to obtain a travel document for foreigners from the foreigners authority? The situation seems to be similar to that of the refugees who did not have passports when they arrived.
Well, this is actually a different situation in legal terms and the answer to this can be found in the relevant laws.
Let's take a closer look at the legal situation:
According to Section 5 (1) of the Residence Ordinance, a foreigner who can prove that he or she does not have a passport or passport substitute and cannot reasonably obtain one may be issued a travel document for foreigners in accordance with certain requirements.
Within the meaning of paragraph 1, it is considered reasonable in particular to fulfill compulsory military service, provided that its fulfillment is not unreasonable for compelling reasons, and other reasonable civic duties.
As a spokesperson for the LEA correctly informed Deutsche Welle, compulsory military service is therefore legally considered a reasonable civic duty. Therefore, the applicant cannot be issued a travel document for foreigners simply because of the compulsory military service in Ukraine.
Section 5 (3) of the Residence Ordinance also states:
As a rule, a travel document for foreigners will not be issued if the country of origin refuses to issue a passport or passport substitute for reasons on the basis of which the passport can also be refused or otherwise denied under German passport law, in particular under Section 7 of the Passport Act or for failure to cooperate under Section 6 of the Passport Act.
Ukraine refuses to issue or renew passports for men liable for military service because there is a war in Ukraine. There should therefore be a comparable legal regulation in Germany, which the immigration authorities could refer to in order to be able to refuse corresponding applications for the issue of travel documents for foreigners. And there is indeed such a regulation.
In § 7 of the Passport Act:
The passport shall be refused if certain facts give rise to the assumption that the passport applicant [...] intends to leave the Federal Republic of Germany as a conscript without the permission of the District Armed Forces Replacement Office required under [...] Section 48(2) of the Conscription Act....
So let's take a look at § 48 of the Conscription Act, to which the Passport Act refers.
It states, among other things, that in a state of defense, male persons who have reached the age of 17 must, by order of the Federal Government, obtain the approval of the responsible career center of the Bundeswehr if they wish to leave the Federal Republic of Germany (see Section 48 (1) sentence 1 no. 5 b in conjunction with Section 48 (2) of the Conscription Act).
The term "case of defense" is clearly defined in the Basic Law (Art. 115 a para. 1 sentence 1 Basic Law):
The determination that the federal territory is attacked by armed force or that such an attack is imminent (case of defense) shall be made by the Bundestag with the consent of the Bundesrat.
In the event of war in Germany, the competent authorities could therefore also refuse to issue a passport to German conscripts.
The foreigners authority can therefore also refuse to issue a Ukrainian conscript with a travel document for foreigners, referring in particular to Section 5 (3) of the Residence Ordinance (see above).
However, Section 5(3) of the Residence Ordinance explicitly states that "A travel document for foreigners will generally not be issued ...".
This wording means that there are also exceptions to the rule in which such a travel document can nevertheless be issued. Such cases are thoroughly examined and it is advisable to seek legal advice before applying for a travel document for foreigners or to instruct a lawyer to apply for a travel document for foreigners.
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