The immigration of other family members (e.g. parents, siblings or other relatives)

Article 6 of the Basic Law describes the special protection of marriage and family. This status of protection and respect is also affirmed by 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) was adopted in 2003, which has since defined the EU-wide legal framework for family reunification of third-country nationals, both for relatives of third-country nationals and for nationals of member states. The national requirements for family reunification for third-country nationals and Germans are regulated in Sections 27 to 36 of the Residence Act (AufenthG). Same-sex civil partnerships are largely granted the same legal status as marriage when it comes to family reunification. The following article deals with the topic of family reunification of other family members.

§ Section 36 AufenthG applies both to reunification with foreign nationals living in Germany and to German nationals.

At first glance, Section 36 (2) AufenthG appears to apply only to foreigners. However, due to the reference in Section 28 (4) AufenthG, this provision also applies to Germans who are married or partnered with a foreign partner. The above-mentioned reunification of other family members primarily concerns parents of German or foreign children of legal age or minors, children of legal age with their parents or minors with close family members of legal age. Other family members, such as cousins, aunts and uncles, nieces and nephews and siblings, can also be granted a residence permit for family reunification.

The prerequisite for the reunification of other family members is the existence of exceptional hardship.

According to Section 36 (2) sentence 1 AufenthG, reunification must be necessary in order to avoid exceptional hardship. It should be noted that Section 36 (2) AufenthG in conjunction with Section 28 (4) AufenthG does not grant a legal entitlement to family reunification. There is only a discretionary entitlement, i.e. an entitlement to a discretionary decision by the competent immigration authority.

Further requirements must be met.

In addition to the general requirements under Section 27 AufenthG and Section 28 AufenthG, the core requirements for family reunification with a third-country national can be summarised as follows:

• • • Existence of a settlement permit, a permit for permanent residence in the EU, a residence permit or an EU Blue Card
    • Sufficient living space
    • Health insurance cover
    • Proof of livelihood for yourself and family members
    • For certain immigration groups: Proof of German language skills before entry and/or participation in language and orientation courses after entry
    • When reuniting with a spouse or civil partner: The partner must always be at least 18 years old

Exceptional hardship is an undefined legal term.

In the case of family reunification of other family members, as mentioned above, exceptional hardship pursuant to Section 36 (2) sentence 1 AufenthG is also required. "Exceptional hardship" is a vague term. Exceptional hardship exists if the family member living in Germany or the family member wishing to join them is dependent on family support that can only be provided in Germany, for example due to a special need to care for the person living abroad. In the case of children under the age of 18, their welfare and age must be given priority. Reasons for family dependency can only arise from the individual characteristics of the case, such as illness, disability, need for care or psychological distress.

Hardship and misery in the country of origin do not constitute exceptional hardship.

Circumstances resulting from the general living conditions in the country of origin of the family member joining them are not taken into account. Unfavourable educational, social or economic circumstances in the home country therefore do not constitute cases of hardship. Political reasons for persecution that are not based on the separation of the family members are only to be taken into account in the context of humanitarian residence permits (§§ 22 ff. AufenthG) and do not constitute a case of hardship within the meaning of § 36 AufenthG.

In each individual case, the individual and special circumstances are examined with regard to the undefined concept of exceptional hardship in accordance with Section 36 (2) AufenthG. Overall, it can be stated that the purpose of this provision is to protect family cohabitation. The circumstances in favour of exceptional hardship should be proven as far as possible, for example by means of medical certificates or birth certificates. It is also advisable to document that the family member joining you will be able to support themselves. Before entering the country, the applicant must apply for the visa in person at the relevant embassy or diplomatic mission. As the visa procedure is a two-stage process, the German diplomatic mission or consular post will contact the relevant district immigration authority. This authority is responsible for the district in which the person to whom the foreigner wishes to move to Germany lives. If the relative of the foreigner wishing to join them lives in Cologne, the foreigners authority in Cologne would be responsible.

If the foreign relative is already in Germany, the residence permit must be applied for directly at the responsible immigration authority and not at the embassy in accordance with § 36 Para. 2 AufenthG. However, it should be noted that the foreign national wishing to join the family must not be in Germany with a Schengen visa, as this is not the correct visa for applying for a national visa in accordance with Section 36 (2) AufenthG. The residence permit would therefore have to be refused. However, exceptions apply in certain cases, for example if the exceptional hardship is due to an accident or illness that first occurred in Germany.

In each individual case, the exceptional hardship must be specifically justified and proven in the person of the family member wishing to join the family. Due to these special situations and the discretion of the competent authority, it is advisable to seek individual advice beforehand in order to avoid possible delays and errors in the application.