Bundeseinheitliches Merkblatt zur Verwendung des bundeseinheitlichen Formulars der Verpflichtungserklärung zu § 68 i. V. m. § 66 und § 67 AufenthG - (englisch) (Seite 4)

3. Credit risk assessment (Fortsetzung)
3.3 Entries / data protection

In case of legal persons, the company name and name of the company representative are to be entered in brackets on the front of the form. This information is to be provided by an authorized representative (company owner, manager, board member, etc.) who is to sign on the back of the form.

If different aliens authorities are responsible for the districts in which the company is located and the company representative lives, the aliens authority for the district in which the company is located will be responsible. However, the aliens authority for the district in which the company representative lives may also provide administrative assistance.

In case of companies that are not legal persons, the name of the person with personal liability is to be entered.

The statement of the third party, the certification of the authority and the result of the credit risk assessment are to be entered on the back of the form.

Occupation and name of employer may be used as criteria for applying the lessstringent assessment standard of substantiation.

Documents provided for the credit risk assessment are to be returned to the third party. The aliens authority/diplomatic representation may keep copies of the supporting documents in the files for record-keeping purposes. The result of the credit risk assessment is to be recorded in an internal note.

These documents are to be kept in a special file separate from the foreigner’s file. If a new formal obligation is received or claims arise based on a formal obligation, access to the formal obligation must be ensured. As soon as it is clear that no further claim can be based on the formal obligation, these documents are to be destroyed. It is recommended that formal obligations be retained for at least six years (cf. also Section 70 (1) Residence Act).

Procedure

4. Procedure

If the person submitting the formal obligation enters the information on the official form him- or herself, he or she must do so when meeting with the representative of the authority.

Because the formal obligation constitutes a unilateral declaration of intent, it is not possible for the person submitting the formal obligation to be represented by another person. Blank forms should not be handed out.

Under the heading “Comment by the aliens authority/diplomatic representation“ on page 2 of the formal obligation, the authority certifies whether the creditworthiness of the person submitting the formal obligation has been proven or substantiated.

The aliens authority keeps a copy of the form with original signatures of the third party and the authority representative. The original is given to the third party, who is to send it to the foreigner so he/she can present it at the diplomatic representation during the visa application process. The foreigner keeps the original to present it at the border inspection.

If the aliens authority comes to the conclusion that the creditworthiness of the person submitting the formal obligation has not been proven or substantiated, it may not give the original of the formal obligation to the third party.

The third party is to be informed that he/she should make a copy of the formal obligation before submitting it, as the foreigner has to submit a copy of the formal obligation to the diplomatic representation.

In order to claim reimbursement under public law, the government agency which expended the public funds must issue a notification of payment.

Duration of validity

5. Duration of validity

The duration of an obligation based on a formal obligation starts “with the presumable first day of validity of the visa on ... up to the termination of the foreigner’s stay or up to the issue of a residence title for another residence purpose“. For the purpose of legal certainty, this has been noted on the official forms since 1 January 2005. The foreigner remains free to leave and re-enter the country while his/her visa is still valid (e.g. for visiting purposes) (see also Section 6 (2) Residence Act).

A period of validity, such as “for three weeks starting 15 July“, or “three weeks after entry“, or “30 days“, should never be given under the heading “Duration of obligation“ on the form. In order to satisfy the principle of certainty, the formal obligation should make clear the purpose of stay and the full length of stay to which it is supposed to apply. The period of validity of the residence title issued does not matter, because in the case of intended long-term stays the formal obligation is submitted in order to enable entry and the long-term stay. The obligation resulting from the formal obligation thus applies for the length of the entire stay, regardless of the period of validity of the residence title on which the stay is based, and includes the length of any illegal stay. The obligation ends when the planned stay ends or when the original purpose of the stay changes and a new residence title is issued for the new purpose. The obligation does not end if the foreigner requests asylum after having entered with a formal obligation, because permission to reside pending asylum proceedings is not a residence title.

In order to clarify this for the person submitting a formal obligation and to avoid later misunderstandings, it may be helpful to add an asterisk to the text “on ... up to“ and an asterisk below the text, followed by the presumable first day of validity of the visa.