FAQ: Open Admission Program for Trans* People

FAQ Petition 'Admission Program for Trans* People from Russia'

Before launching the petition for an admission program for trans* people from Russia, we invested significant effort in researching the legal foundations for opening such a program and the legal practice in such cases. Our goal was to create an admission program for trans* individuals who do not have activist experience or connections with German institutions.

In this post, we want to answer some of the questions we asked ourselves and those you have raised in connection with our petition.

In your petition, you call for an admission program for trans* people from Russia. What kind of program is this, and who decides on it?

There are various types of admission programs based on § 23 of the Residence Act (AufenthG).

According to § 23 (2) of the Residence Act, the Federal Ministry of the Interior obliges the Federal Office for Migration and Refugees to issue an admission approval for specific groups of people based on criteria set by the Ministry. The competent immigration authorities are bound by this approval and must grant a residence permit accordingly.

Applications are processed by the subordinate Federal Office for Migration and Refugees, which must issue the admission approvals to affected foreign nationals. The Federal Office then distributes the admitted individuals across the federal states. Immigration authorities do not make decisions on admissions and are bound by the approvals issued by the Federal Office.

In this regard, the process is not significantly different from that under § 22, sentence 2 of the Residence Act. Admission approvals under § 22, sentence 2 of the Residence Act are also only granted after distribution to the federal states by the Federal Office for Migration and Refugees. The process is even simplified compared to the current practice, as the Foreign Office is no longer involved in reviewing applications, reducing the number of authorities involved.

Individual federal states can also create their own admission programs under § 23 (1) of the Residence Act. In these state-level programs, the highest state authorities order that residence permits be granted to specific groups of people. Here too, immigration authorities are bound by the decision of the state authorities and must grant residence permits to those who meet the set criteria within the quota.

With the current petition, Quarteera is calling for the establishment of an admission program under § 23 (2) of the Residence Act at the federal level. However, we would also welcome the creation of one or more admission programs for queer people from Russia at the state level. Such programs have already been successfully implemented by willing federal states and are just as “valuable.” Some federal states already have templates for creating such admission programs.

I heard that many activists and journalists from Russia have come to Germany with a humanitarian visa since last year, but I am not an activist. Is it possible to expand the criteria for humanitarian visas? What is the difference between your request and the existing humanitarian visa program?

The humanitarian visa under § 22, sentence 2 of the Residence Act is intended for activists, journalists, and human rights defenders who can prove they are persecuted in Russia and already have connections to Germany through, for example, joint projects. Belarusian nationals who meet these criteria are also eligible for a humanitarian visa under § 22, sentence 2 of the Residence Act.

Under § 22, an extensive individual review is always necessary, as this paragraph is designed for the individual admission of people. Unlike § 23 of the Residence Act, § 22 requires that each case demonstrates a special political interest of the Federal Republic of Germany in admitting the person. This interest must be justified in each individual case. The review process involves two ministries and at least one embassy. The final decision on admission is made by the Federal Ministry of the Interior and Homeland. Moreover, rejections are not explained in detail and cannot be legally challenged. Applicants have no entitlement to an admission approval, even if they meet the publicly known criteria.

Since there is currently no official admission program from Russia, applications for human rights defenders, activists, and journalists from Russia are processed under § 22, sentence 2 of the Residence Act. However, this procedure is tailored for exceptional individual cases, not for a large number of similar cases. As a result, processing times have become very long, and there is no guarantee of admission, even if the criteria appear to be met.

Expanding the criteria while keeping the same procedure would mean that ministries would be hopelessly overwhelmed with individual case reviews. The legislator created § 23 of the Residence Act precisely for such situations. Under § 23, larger groups of people in similar cases can be admitted without requiring a detailed individual review. Additionally, § 23 requires clear criteria and quotas to be established and publicly announced so that the likelihood of success can already be assessed during the consultation process. If individuals who meet the criteria are unlawfully rejected, they can file a lawsuit.

The use of § 22 of the Residence Act was appropriate at the beginning of the Russian invasion of Ukraine, as it was not yet clear how many people needed protection and which criteria should be set for admission. By now, the pressure of persecution in Russia has increased, and the most vulnerable groups have been identified, making it possible to launch an admission program.

A key difference between the two paragraphs is that § 22, sentence 2 is aimed at a highly specific and relatively privileged group, where admission chances depend on public recognition or close connections to German organizations. With our petition, we seek an admission program that enables evacuation for a highly vulnerable group for humanitarian reasons.

Furthermore, the procedures are not mutually exclusive. If an admission quota under § 23 (2) of the Residence Act is established for specific groups, such as trans* people, it does not exclude other individuals from being admitted under § 22, sentence 2 of the Residence Act based on individual case review.

Have there been such admission programs in the past? How many people have benefited from them?

An admission program under § 23 (2) of the Residence Act was already established in 2022 following the Taliban takeover in Afghanistan. Unfortunately, only a few people have been able to enter Germany through this program so far. In the first year of the program, fewer than 800 admission approvals were issued, although the quota was set at 12,000 LGBTQ* people and women’s rights activists per year. So far, fewer than 100 individuals have actually submitted visa applications. However, this is not due to the legal paragraph but to country-specific issues such as security screenings and the fact that the German embassy in Kabul is no longer operational.

The German government regularly conducts admission programs in crisis situations. In the 1990s alone, thousands of people were admitted under § 23 of the Residence Act due to the Balkan wars. One well-known example in the Russian-speaking world is the admission of Jewish immigrants from the former Soviet Union, which was carried out under § 23 (2) of the Residence Act. More than 200,000 people came to Germany over 30 years through this program.

For this reason, it is important to start the admission program from Russia as soon as possible, while the embassy in Moscow is still able to process applications and people can still leave the country.