According to section 4 para (1) of the German Residence Act (Aufenthaltsgesetz) foreigners need a residence title in order to enter into and stay in Germany.
Generally there are four types of residence titles:
– Visa according to section 6 German Residence Act (Aufenthaltsgesetz)
– Residence Permit according to section 7 German Residence Act (Aufenthaltsgesetz),
– Settlement Permit according to section 7 German Residence Act (Aufenthaltsgesetz)
– Perfmit for long-Term Residence status (EC) according to section 9a German Residence Act (Aufenthaltsgesetz)
MARRIAGE VISA (Heiratsvisum)
Section 6 of the German Residence Act (Aufenthaltsgesetz) stipulates the visa requirements for entering Germany.
Two types of visas exist in Germany:
– the Schengen visa and
– the national visa
For short stays (of up to 90 days within a 180-day period from the date of first entry), all non-EU citizens require a Schengen visa.
However, foreign citizens who seek reunification and want to apply for a residence permit will need a so-called national visa for a stay of more than 90 days. Only with such a national visa can a foreign citizen apply for a residence permit within the 90 days.
A marriage visa (visa for the purpose of marriage) is a national visa within the meaning of section 6 para. (3) of the German Residence Act.
The issuance of national visas is governed by the regulations for residence and settlement permits, depending on the purpose of the stay, in accordance with section 6 para. (3) sentence 2 of the German Residence Act.
Therefore, in addition to the general prerequisites under section 5 of the German Residence Act (ability to support oneself, no threat to public security, fulfilment of the passport obligation) the special factual requirements for granting a settlement or residence permit must already be met at the time of issuance of the visa.
Even national visas such as the marriage visa are normally only issued for a period of three months. Within this period, an application for a residence permit in accordance with section 28 para. (1) no. 1 of the German Residence Act must then be submitted to the competent foreign citizens’ office (Ausländerbehörde) in Germany.
The disadvantage of a marriage visa is that the local registry office must be involved in its issuance, which can significantly delay the already lengthy procedure. In addition, a so-called declaration of commitment (Verpflichtungserklärung) must be submitted for the period from the foreign national’s entry into the country until his or her marriage; this is not required if the marriage has already taken place before the foreign national enters Germany. This case of spousal reunification (Ehegattennachzug) is discussed in the next paragraph.
SPOUSAL REUNIFICATION WITH GERMANS (FAMILY REUNIFICATION WITH GERMANS) ACCORDING TO SECTION 28 PARA. (1) No. 1 OF THE GERMAN RESIDENCE ACT
If the marriage has already taken place abroad (or during a visit to Germany or Denmark) and the foreign national then wishes to come to Germany on a long-term basis, this is known as spousal reunification. Normally, this procedure is a bit faster and easier than seeking to obtain a marriage visa. Because the foreign national is already married to the German, Article 6 of the German Basic Law (Grundgesetz) (protection of marriage and family) and Article 8 of the European Convention on Human Rights (ECHR) have a special effect in respect of the German citizen.
According to these laws, the German national should as a rule not be prevented from living with his or her spouse and family in Germany.
Therefore, the foreign national seeking reunification has a legal right to be granted a residence permit under the proviso that the German spouse has his or her habitual abode in the territory of the Federal Republic of Germany and that the other immigration requirements are met.
Other immigration requirements include:
– The spouse seeking reunification has a basic command of German.
– The German spouse has his or her habitual abode in Germany.
– There is no reason for deportation or no ban on deportation.
– There is no threat of terrorism.
– The entry regulations (e.g. for issuance of a marriage visa) have been observed.
In principle, the requirement of being able to support oneself is no longer a prerequisite for issuance of a residence permit in the case of spousal reunification with Germans. This is also the advantage over the marriage visa, as the foreign national will no longer have to submit a declaration of commitment to be able to enter Germany.
MARRIAGE OF CONVENIENCE
In many cases, the issuance of a marriage visa also fails because the embassy or the foreign citizens’ office believes that the marriage is not genuine. Section 27 para. (1a) of the German Residence Act stipulates that family reunification will not be permitted
- if it is established that the marriage has been entered into or kinship established solely for the purpose of enabling the persons immigrating for reunification purposes to enter and stay in Germany or
- if there are concrete indications that one of the spouses has been forced into marriage.
In this case, also, the refusal of a residence title can be challenged if the marriage is genuine and the authorities are making incorrect assumptions.
BASIC COMMAND OF GERMAN ACCORDING TO SECTION 28 PARA. (1) No. 1 OF THE GERMAN RESIDENCE ACT
Another prerequisite for both the marriage visa and spousal reunification with Germans is basic language skills, as required by section 28 para. (1) no. 1 of the German Residence Act.
Many foreign spouses fail because they lack a basic command of German. Exceptions are made only very rarely and usually only if the foreign spouse has failed the exam three times and can prove that he or she has seriously tried to learn the German language for over a year (nowadays even 6 months are accepted). An exception may also be made in the case of illness and submission of a medical certificate that meets certain requirements.
Frequently, however, the German Embassy or the foreign citizens’ office (Ausländerbehörde) will set the bar too high for proof of German language skills. However, even then, the decision can often be appealed.
More details on the basic command of German are to be found in this article.
LEGAL REMEDIES
If issuance of a marriage visa, spousal reunification or a residence permit is refused by the embassy, consulate or foreign citizens‘ office, the applicant can lodge legal remedies against the decision.
First of all, the applicant should file a remonstration against the refusal of the embassy or consulate. The refusal will then be reviewed in more detail by the embassy or consulate and a new decision will be issued. In the remonstration procedure, new facts and documents can also be submitted by the applicant, which the embassy must then take into account.
If the embassy nevertheless sticks to its refusal, an enforcement action can be lodged with the Administrative Court of Berlin (Verwaltungsgericht Berlin). Often the applicant will only be able to obtain the requested visa by court proceedings. If, moreover, reunification with the spouse is particularly urgent for certain reasons, it may also be possible to apply to the administrative court for an interim measure (einstweilige Anordnung) if a visa is refused. In such a case, the embassy can then be required to issue the visa by an accelerated procedure.
If the procedure takes too long (it should, by law, take no more than three months), an action for failure to act (Untätigkeitsklage) can also be brought against the administrative court. This can be used to put more pressure on the embassy or the foreign citizens’ office.
Important note: The contents of this article have been created to the best of our knowledge and belief. However, due to the complexity and volatility of the subject we are unable to accept any liability or guarantee.
If you need legal advice, please call us without obligation on 0049 (0) 221 – 80187670 or send us an e-mail to info@mth-partner.de
