Family Reunification of German Spouses in Visa Cases
The German system of family reunification in visa cases is very strict. The spouses should be prepared carefully by their attorney before they apply for a visa to Germany. In the following I explain the relevant fact pattern of German visa cases.
Seriousness of the marriage:
You must be aware that the seriousness a marriage will be checked by the Aliens Office and the German Embassy. This is done by a separate and simultaneous interview of both spouses. Here you have to know that the Federal Administrative Court (Bundesverwaltungsgericht) means that you have the burden of proving the seriousness of marriage. Formula of the OVG Berlin-Brandenburg (higher administrative court) is the following: The more the individual shape of a marital partnership is apart from the rule, the more additional factual explanations of the reasons for the difference are to annex to justify that the assumption of the relationship of the spouses corresponds with the content criteria, as is typical for the marital cohabitation (see Berlin-Brandenburg Higher Administrative Court, judgment of 29/01/2009, OVG 2 B 11 .08 ). Since the applicants should indicate that they live a serious marriage, a preparation before applying for the visa is appropriate.
The foreigner entering Germany must prove the German language at A1 level. This ruling begins to falter, because the Federal Administrative Court in Leipzig has decided that the statutory requirement to demonstrate knowledge of German in case of a family reunification with the foreign spouse to a German citizen is only valid restricted.
Unlike the reunion of foreign nationals here visa for spouses must already be granted even if there are efforts to acquire simpler language skills in individual cases. The visa should be issued if the German test is not possible within a year (Federal Administrative Court dated September 4, 2012 - 86 / 2012).
In my opinion the German embassies are not allowed to exclude people of the visa application who did not pass the language test in general, because the decision of the Federal Administrative court dated March 3, 2010 - BVerwG 1 C 8/09 is on the following individual cases. The German regulation must not effect, that the German embassies ask people to pass the language test before they can apply for the visa, especially if they are entitled to get a residence permit regarding § 28 Aliens Act (family reunification to a German). Because the Federal Administrative Court notes in his guiding principle for the reunification of the visa applicant to his foreign spouse living in Germany regarding § 29 Aliens Act: "The absence of a general exemption for hardship cases shall not affect the constitutionality of the regulation, as to avoid a disproportionate couples separate in individual cases in other ways, such as by issuing a residence permit for language acquisition in accordance with § 16 paragraph 5 Aliens Act, can be remedied. "
Decision of the Constitutional Court of March 3, 2011, 2 BvR 1413/10
The decision of the Federal Constitutional Court regarding the requirement of successful participation in the course and the existence of the language test A1 does not change the necessity of a check in the individual case, because in this decision the following is noted:
"The delay in the acquisition of language skills typically associated burden domestic cohabitation in Germany will be mostly overcome in the foreseeable future because there are only minor requirements of the language test. In addition it is so, that for the foreign spouse who lives in Germany, additional efforts for the family unit are therefore necessary through visits or - as the Federal Administrative Court rightly observes – if necessary the family reunion has to be established entirely abroad.
This means that if the language skills cannot be resolved in a reasonable time, a visa must be issued if one spouse is a German citizen. In my estimation, can thus also in cases where the languages are available, but the language test does not lead to a positive result. If the court weighs up the individual case this could have the result that a visa should be granted. One case with these reasons I have filed to the Federal Constitutional Court on July 6, 2011, the court did not decide until today.
In my opinion the latest decision of the Federal Administrative Court is not compatible with the EU family reunification directive, as there is talk of integration and a language test is not necessarily to be provided. Also, the burden of proof of the spouses of the seriousness of the marriage is not in my opinion required by the ER directive, on the contrary, there must be a burden of the Federal Republic for a fictitious marriage.
ABOUT THE AUTHOR: Stefan Gräbner Attorney for Family Reunification - Visa and Immigration Lawyer
Attorney Stefan Gräbner Immigration Lawyer since 1995, first working as a lawyer in Bremen, since 1997 he is registered in Berlin. Attorney Stefan Gräbner works with the focus of immigration law, asylum and nationality law and the law of family reunification.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.