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Article 6 of the German Basic Law (Grundgesetz) stipulates that marriage and family enjoy special protection. This special right to protection and respect is also enshrined in Article 8 of the European Convention on Human Rights and Article 16 of the Universal Declaration of Human Rights. In addition, the EU Family Reunification Directive (2003/86/EC) adopted in 2003 has established an EU-wide legal framework for the reunification of family members of third-country nationals with third-country nationals and with citizens of the respective Member State. The national requirements for family reunification with third-country nationals and Germans are governed by sections 27 to 36 of the German Residence Act (AufenthG). In terms of family reunification, same-sex partnerships largely have the same status as married couples. The following article deals with the issue of family reunification of other family members.
Section 36 of the German Residence Act applies to immigration for the purpose of reunification both with foreign nationals living in Germany and with German nationals
At a first glance, section 36 para. (2) of the German Residence Act only seems to refer to foreign nationals, but due to the reference in section 28 para. (4) of the Residence Act, this provision also applies to Germans with a foreign spouse or foreign partner. First and foremost, the reunification of other family members refers to parents and their German or foreign adult or foreign minor children, and the reunification of adult children with their parents or of minor children with close adult relatives. Both they and other family members (such as cousins, aunts and uncles, nieces and nephews, but also siblings) can be granted a residence permit for family reunification.
Exceptional hardship is a prerequisite for reunification of other family members
Reunification can only be granted if it is also necessary to avoid exceptional hardship, section 36 para. (2) sentence 1 of the German Residence Act. Nevertheless, it must be considered that section 36 para. (2) in conjunction with section 28 para. (4) of the German Residence Act does not grant a legal entitlement to family reunification. Only a discretionary entitlement is granted, i.e. a right to a decision by the competent foreign citizens’ office (Ausländerbehörde) that is free of any error of assessment.
Further requirements must be met
In addition to the general requirements according to section 27 or section 28 of the German Residence Act, the key requirements a third-country national must meet for family reunification are roughly as follows:
- Possession of a settlement permit, an EU long-term residence permit, a residence permit or an EU Blue Card
- Sufficient living space
- Health insurance
- Demonstrable means to support oneself and family members
- For certain groups of immigrants seeking reunification on a case-by-case basis: Demonstrable command of German before entry and/or attendance of language and orientation courses after entry
- In the case of reunification with spouse or partner: Partner must be at least 18 years of age
Exceptional hardship is an unspecific legal term
In the case of family reunification of other family members, as already mentioned above, exceptional hardship is also required in accordance with section 36 para. (2) sentence 1 of the German Residence Act. “Exceptional hardship” is an unspecific legal term. Accordingly, exceptional hardship exists if it becomes apparent that the family member living in Germany or the family member seeking reunification is dependent on family life support and such support can only be provided in Germany. For example, due to a special need for care of the person living abroad. In the case of children under 18 years of age, their well-being and their age must be primary considerations. Facts that qualify for dependence on the family can only be based on the special criteria of the individual case, which are always purely individual. Examples of such criteria include illnesses, disabilities, but also the need for care or psychological distress.
Poverty and need in the country of origin do not constitute exceptional hardship
Circumstances arising from the general living conditions in the home country of the family member seeking reunification will not be considered. Hence, for example, poor educational, social or even economic and other conditions in the country of origin do not constitute hardship. Moreover, reasons for political persecution that are not due to the separation of family members can only be considered within the framework of granting residence on humanitarian grounds, sections 22 et seq. of the German Residence Act, and therefore do not constitute a case of hardship within the meaning of section 36 of that Act.
On a case by case basis, the individual and special circumstances are considered and examined with regard to the unspecific concept of exceptional hardship within the meaning of section 36 para. (2) of the German Residence Act. In conclusion, the purpose of this provision is to preserve family unity. Where possible, evidence of the circumstances supporting a case of exceptional hardship should be provided such as medical or birth certificates. It is also advisable to demonstrate and prove that the subsistence of the family member seeking reunification will be secured. Before entering the country, the applicant must apply for the visa in person at the relevant embassy or diplomatic mission. Since the visa procedure is a two-step process, the diplomatic mission will then contact the relevant local foreign citizens’ office. This is the foreign citizens’ office that has jurisdiction in the district of the family member whom the foreign national wants to reunified with in Germany. So, if the relative of the foreign national seeking reunification lives in Cologne, this would be the foreign citizens‘ office in Cologne.
If the foreign national is already in Germany, he or she would have to apply for a residence permit according to section 36 para. (2) of the German Residence Act directly at the relevant foreign citizens’ office and not at the embassy. It should be noted, however, that the foreign national seeking reunification must not be in Germany with a Schengen visa. Due to the fact that this is not the right visa with which to apply for a national visa under section 36 para. (2) of the German Residence Act, a residence permit would have to be refused. However, this does not apply in certain cases, for example if the exceptional hardship is due to an accident or an illness that only occurred in Germany.
In each individual case, the exceptional hardship must not only be specifically justified for the family member seeking family reunification, but evidence must also be provided. Due to these special situations and the discretion of the relevant authority, it is advisable to seek individual advice beforehand in order to avoid possible delays and errors with your application.
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 0221 – 80187670 or send us an e-mail to info@mth-partner.de
