Administrative Court of Berlin, January 22, 2014, Case No.: 3 K 334.13 V
If you are not a national of a Schengen or EU member state, a visa is required to enter Germany. Visas are issued for various purposes: employment, education, studies, or family reunification. A visa for family reunification can be obtained if, among other things, one has a marital partner who legally and permanently resides in Germany. However, simply marrying a German citizen is not sufficient; there must also be an actual marital relationship and a genuine intention to maintain it in Germany. If there are doubts about the authenticity of the marital relationship, such a visa can be quickly denied.
In this case, an Indian national sought a visa for family reunification with his German wife. The application was denied because there were doubts about the couple’s intention to maintain a marital relationship, and it was suspected that the applicant had only pretended to divorce his first Indian wife. After filing a lawsuit, the Administrative Court of Berlin ruled in favor of the plaintiff, finding no substantial doubts about the genuine intention of the marriage or the legitimacy of the divorce.
Facts of the Case:
Indian husband wants to join his German wife in Germany
The plaintiff, an Indian national, married an Indian woman in 1996, with whom he had two children born in 1997 and 2004. In June 2008, the marriage was dissolved at the request of the plaintiff’s wife.
In April 2007, the plaintiff entered the Schengen area with a Polish visa and shortly thereafter traveled to Germany. Here, he applied for asylum in June 2008, which was rejected as manifestly unfounded in July 2008. His appeal and subsequent lawsuit were dismissed in August and November 2008. Since January 2009, the plaintiff, whose stay in Germany was initially tolerated due to a lack of travel documents, was of unknown whereabouts.
On March 22, 2011, the plaintiff married a German citizen in Denmark. On March 31, 2011, the plaintiff applied to the immigration authority for a residence permit for family reunification.
After the spouses were interviewed at the same time on 18 April 2011 and house investigations were carried out at the spouses' registered address on 28 April 2011, the plaintiff's stay in Germany was again tolerated. On 4 September 2012, the plaintiff left the country to complete the visa procedure after the immigration authority had agreed in advance to issue a visa for family reunification on 3 September 2012 based on the results of the spousal interview and the home investigations.
German embassy commissions lawyer of trust to review the divorce certificate
On 29 November 2012, the plaintiff applied to the embassy in New Delhi, India, for the issue of such a visa. On 6 December 2012, the embassy then instructed one of its trusted lawyers to check the documents submitted by the plaintiff, in particular with regard to the judgement on the divorce of the plaintiff's first marriage. This review revealed that, according to several of the plaintiff's neighbours, he had returned from Germany to live with his first wife in his parents' house. However, none of these people were aware of the fact that the plaintiff was divorced from her and had remarried in Germany. When the plaintiff's parents and brother were asked about this, they merely stated that they had not clearly denied this fact. The plaintiff himself was not questioned about this, as he was at the embassy in New Delhi at the time.
On 19 March 2013, the immigration authority repeated its approval of the visa, as it had initially assumed that the marriage had only been entered into for the purpose of granting the applicant the right of residence, but this could not be confirmed after the simultaneous interview and the home investigations carried out. On the contrary, in view of the couple's interaction with each other during the numerous joint interviews, it was assumed that both wanted to live together as husband and wife.
In a decision dated 3 April 2013, the embassy rejected the applicant's application as there was a suspicion of a fictitious marriage.
After rejection, the Indian appeals for the visa to be granted
On 20 April 2013, the plaintiff's complaint was received, in which he explained that the fact that he and his wife had lived together in the one and a half years between the marriage and his return to India spoke against a sham marriage. He had also cared for his wife day and night while she was ill. The embassy's investigation report did not invalidate this marriage either. On the one hand, the report was anonymous, so that neither the identity nor the professional suitability of the author for the task assigned to him could be verified. Secondly, there were considerable doubts about the accuracy of the content of the report. For example, the plaintiff's first wife was not present during the interview at his home, otherwise the wife herself would have been interviewed and not just the plaintiff's parents, which was not the case. In fact, the wife of the plaintiff's brother was present. In addition, the plaintiff had contacted the neighbours mentioned in the report after learning about it. According to his own statements, these neighbours were not asked about the whereabouts of his divorced wife, but only about the plaintiff's place of residence and the number of children. In addition, one interviewee had stated that the divorced wife had not been at the plaintiff's home for over a year and that she was therefore unable to make a reliable statement as to whether she was living with him. He did not know one person at all who was labelled as his friend in the investigation report. He did know another person named in the report, but according to his own statements, this person was not interviewed by the author of the report.
Apart from the report in question, the claimant was also able to explain the circumstances that led to the conclusion that his divorced wife was still living with him. She was still mentioned on his ration card. This could be explained by the fact that the applicant had not been in India for several years and, in view of the advance consent granted, had assumed that he would soon be able to return to Germany and therefore did not need a current Ration Card. The author of the report, however, had insisted on the presentation of a Ration Card, which is why he was shown his old one, on which his divorced wife was also listed.
His brother knew nothing about the new marriage, as he had been at odds with him for several years and therefore only discussed the bare necessities with him, but did not exchange details of his family life. Although his mother knew about the marriage, she did not know that his wife was significantly older than him because, as the defendant had rightly pointed out, marriage to a much older woman was unusual in Indian culture and he did not want to worry his mother unnecessarily by this circumstance.
German embassy in New Delhi assumed a marriage of convenience
The embassy in New Delhi defended the contested decision and stated that the fact that the plaintiff had apparently divorced his first wife only for the purpose of residence, but was still living with her in a marital partnership, spoke in favour of a marriage entered into only for the purpose of residence. According to the enquiry by the embassy's lawyer, the claimant was again living with his first wife in his parental home. The denials of the plaintiff's parents appeared to have been agreed with the plaintiff. In Indian culture, however, a wife immediately leaves the parental home she moved into when a divorce occurs. Moreover, a new marriage is always publicised, at least in the immediate vicinity. As a result, the plaintiff kept the divorce from his first wife and the new marriage a real secret. Not even his brother knew about it, which could not easily be explained by the fact that the plaintiff did not speak to his brother. After all, he at least communicated with the other family members, and the mother had known about the marriage, even if she had not been informed about the large age difference. This gave the corroborating impression of a fictitious marriage, as the plaintiff did not stand by his new wife. The report was also confident, as the embassy had been working with the lawyer of trust for years and the latter had always delivered reliable and substantively correct investigation results and had no interest in producing a false report.
Furthermore, the divorce decree between the plaintiff and his first wife did not include any provisions on the separation of assets and maintenance or a decision on custody of the two children born of the marriage. This was a typical feature of a sham divorce, as these legal provisions are not required for a new marriage in Germany. In "real" divorce decrees, on the other hand, such provisions are always present because Indian wives are usually financially dependent on their husbands and therefore claim maintenance payments - usually in the form of a lump sum - to cover their living expenses or to be able to raise the dowry for another marriage.
Furthermore, in India, divorce only takes place in exceptional cases, as it is associated with social stigmas in Indian society. Due to the plaintiff's traditional family, it seemed unusual and implausible that the divorce was based on a mere estrangement of the spouses.
The age difference of 33 years also spoke in favour of a sham marriage
Furthermore, the enormous age difference of 33 years between the plaintiff and his wife, which was unusual in Indian culture and therefore suggested a marriage for the purpose of residence, also spoke in favour of a marriage of convenience. In view of the daily and nightly care provided by the plaintiff to his sick wife, no marital cohabitation could be affirmed, as this did not automatically derive from the relationship between a carer and a patient. On the contrary, the wife's need for care called into question a real marital relationship, as the relationship between the couple appeared to be purely a caring relationship, which could also be exercised professionally. However, the prerequisite for a marital relationship is a relationship between the spouses that goes beyond an ordinary friendship or an employment relationship. The story of how they met, namely that the plaintiff had met his wife, who lived opposite his sister, by chance on the street, also appeared implausible. Instead, it had to be assumed that the marriage had been arranged via the plaintiff's sister purely for reasons of residence.
Finally, the plaintiff's history under immigration law and certain circumstances of the wife also spoke in favour of a marriage that was entered into for the purpose of obtaining the right of residence. The former had entered the Schengen area on a Polish tourist visa in order to apply for asylum in Germany. His current wife had already married a Turkish national in 1989. Due to the considerable age difference of 27 years between the spouses and the rather short marriage duration of five years, this was probably also a marriage of convenience.
By order of 2 December 2013, the legal dispute was assigned to the judge-rapporteur as a single judge for a decision. At the hearing on 22 January 2014, the judge questioned the wife about the establishment and structure of the marital partnership with the plaintiff.
Judgment of the Administrative Court of Berlin:
Administrative court considers rejection to be unlawful
The Administrative Court of Berlin found that the denial of the visa by the German Embassy in New Delhi on April 3, 2013, was unlawful and violated the plaintiff’s rights, as he was entitled to the issuance of the requested visa for family reunification with his wife.
The legal basis for issuing the visa is § 6 Para. 3 S. 1 and 2 in conjunction with §§ 27 Para. 1, 28 Para. 1 S. 1 No. 1 AufenthG. According to this law, the foreign spouse of a German citizen who is habitually resident in Germany is granted a visa to establish and maintain the family relationship in Germany. These requirements were met.
The residence permit for foreign family members to establish and maintain family cohabitation in the federal territory (family reunification) is expressly only granted for the protection of marriage and family in accordance with Art. 6 of the Basic Law pursuant to § 27 Para. 1 AufenthG. The mere fact that the applicant and his wife had entered into a marriage with each other was not sufficient. This is because the protection of Art. 6 Para. 1 GG only applies in accordance with § 27 Para. 1 AufenthG, which only guarantees the right to family reunification for the actual establishment and maintenance of the family community in the federal territory. The prerequisite for this is a bond between the spouses, i.e. the will of both spouses to actually establish and maintain a marital cohabitation in the federal territory. In contrast, a marriage that was entered into solely for the purpose of helping the foreigner willing to join the couple to obtain a right of residence in Germany that would otherwise be denied to him or her does not carry any weight in terms of triggering a right of residence. The will to establish and maintain a marital partnership in the federal territory, which must be present in both spouses, is an internal fact, the existence of which can only be inferred by external signs (decision of the OVG Berlin of 27 May 2002, OVG 8 M 24.01, AuAS 2003, 4). This intention is one of the favourable circumstances for the foreigner, which, if not already known, must be asserted immediately by stating verifiable circumstances and providing the necessary evidence (§ 82 para. 2 sentence 1 AufenthG). The extent of the foreigner's burden of proof depends on the respective individual circumstances. The more the outward appearance of a marital relationship differs from the normal case, the more additional evidence is required in cases of doubt to justify the assumption that the relationship between the spouses meets the substantive criteria that are typical for the intention to establish a marriage (Hessischer VGH, decision of 14 January 2002, 12 TG 724/01, InfAuslR 2002, 426).
These requirements also exist after the amendment to the Residence Act by the Act of 19 August 2007 (Federal Law Gazette I p. 1970; revised announcement of 25 April 2008, Federal Law Gazette I p. 162). This Act serves to implement, among other things, Council Directive 2002/86/EC of 22 September 2003 on the right to family reunification. This directive was issued "for the protection of the family and the preservation and establishment of family life" and aims to promote family reunification as "a necessary condition for family life to be possible". The explicit reason for exclusion created in this context in Section 27 (1a) Residence Act (see Official Explanatory Memorandum, Bundestag printed paper 16/5065, p. 170), according to which family reunification is not permitted if it is established that the marriage was entered into solely to establish a right of residence, does not change the fact that the conditions for the desired family reunification must be positively established. These are not to be affirmed if it is unclear whether such a marriage exists. Rather, this reason for exclusion is in addition to the possibility of denying the visa because the conditions for granting it are not met. This is because Article 16(2) of the Family Reunification Directive stipulates that family reunification can "also" be refused if the intention is only to obtain a residence permit (see the Chamber's judgement of 30 August 2007, VG 3 V 62.06, and the judgement of the OVG Berlin-Brandenburg of 29 January 2009, OVG 2 B 11.08, with further references).
Court was convinced that the spouses intended a marriage worthy of protection
Based on this, however, the court was convinced, as required by § 108 Para. 1 VwGO, that both the plaintiff and his wife had the will to establish a marital partnership within the meaning of § 27 Para. 1 AufenthG in Germany.
This was already apparent from the simultaneous questioning of the couple by the immigration authorities on 18 April 2011. The spouses were able to provide detailed information about the person and life of the other, which revealed a mutual interest between the spouses and invalidated the assertion that this was a marriage entered into purely for the purpose of the right of residence. For example, the plaintiff knew his wife's date of birth, her parents' name and place of residence, her professional background (training as a saleswoman in a bakery and practising this profession) and the amount of her pension. He also knew about his wife's two previous marriages and knew the names of the two ex-husbands. The wife herself was also able to provide the plaintiff's date of birth and siblings and also knew that he had already been married once.
In addition, the two spouses were already able to provide consistent and thus credible information about their everyday life together at that time, which also allowed conclusions to be drawn about the seriousness of their intention to live together in a marital partnership worthy of protection. For example, both agreed that their favourite meal together was schnitzel and that they had had this dish for dinner together the day before, and that they took turns shopping (at Penny), but that the wife usually did the cooking. Furthermore, both spouses stated that they had a mutual friend named Ingrid and that their last outing together had taken place in the plaintiff's sister's restaurant. The spouses also agreed on the gifts they gave each other for their birthdays and the clothes they wore for their wedding. Furthermore, as the house investigation carried out on 28 April 2011 revealed, the couple apparently shared a household that went beyond a purely functional relationship, at least in the period after the wedding.
Based on these circumstances and the couple's interaction with each other during their joint visits to the foreigners authority, the case officer responsible there came to the conclusion that "there was definitely no fictitious marriage here", which is why the foreigners authority agreed in advance to issue the requested visa on 3 September 2012 and reaffirmed this agreement when asked by the embassy on 19 March 2013.
The wife's behaviour at the hearing was positive
The fact that this was not a sham marriage was also evident from the result of the informative questioning of the wife during the oral hearing. Here, the spouse repeated and expanded on the information she had already provided when questioned by the immigration authorities, which revealed her own seriousness as well as the seriousness of the applicant's intention to marry.
The wife explained how they had got to know each other. After the two had already been introduced once by the plaintiff's sister, he had approached her standing in the street and invited her for a cup of coffee. Due to her loneliness and attraction to the plaintiff, she had accepted this invitation. During this first cup of coffee, they had discussed, among other things, the fact that the plaintiff was currently unable to work because he did not have a work permit. After that, they had seen each other almost every other day, mainly on the plaintiff's initiative, and had gone for walks together or watched a film together with the plaintiff's sister in her flat, for example. Although the defendant could not spontaneously recount the time of this first meeting, she was able to reconstruct it in relation to the plaintiff's marriage proposal a short time later.
This detailed description suggested that the wife attached such importance to the beginning of the relationship that she was still able to provide sufficiently detailed, comprehensible, consistent and therefore credible information years later. In the case of a marriage of convenience, this was usually not the case.
The same applied to the description of the marriage proposal. In this respect, the defendant's explanation was again sufficiently detailed and emotionally characterised and therefore credible. For example, after the plaintiff had asked her to marry him, she had replied that he should rather look for a young woman. Particularly due to this initial objection by the wife, which was not described when asked by the court, the court also assumed the credibility of this description, as such a "break" would not be expected in the opposite direction when reproducing an event that was not actually experienced, but merely constructed and therefore generally endeavoured to be free of contradictions.
Even if one were to assume - on the basis of the plaintiff's interest in migration resulting from his previous history under immigration law and the short time between the first meeting and the marriage proposal he made - that at that time he only intended to enter into the marriage with the defendant in order to obtain a right of residence for the federal territory, this impression would in any case be contradicted by the fact that after this point in time he apparently already had a
Even assuming that the plaintiff had only submitted an application for marriage for the purpose of obtaining the right of residence at the time, this was contradicted by the fact that the two spouses had already been living together for several months at the time. This was supported both by the house search carried out and by the information provided by the wife about living together with the applicant before and after the marriage, which was sufficiently detailed, sufficiently emotional and therefore both credible and convincing as regards the seriousness of the couple's intentions to marry. They cooked together, watched television with a glass of wine in their hands, and the plaintiff helped with cleaning in their household. They also spent a lot of time with the plaintiff's family and went for walks together in the summer and sometimes went shopping. They had also bought a marital bed together.
Spouses were able to prove that they have regular contact
The plaintiff's will to marry was also evident from the fact that the couple continued to maintain a lively dialogue with each other despite having been separated for a long time, which in turn resulted in their ongoing mutual interest in each other. They spoke on the phone every two days, with the plaintiff worrying about her health, as she was under a lot of stress due to the visa process. At the moment, the plaintiff sometimes helped out in his mother's tailoring shop in India, as his father had a clothes shop from which the family made a living. The wife also spoke to the plaintiff's children on the phone and was able to give details from the conversations, such as the son's wish to study in Germany.
In addition, the wife was able to state, with reference to specific circumstances and character traits and thus in a comprehensible manner, what was the reason for the couple to enter into the marriage and to want to continue to live together. For example, she had appreciated the plaintiff's care, which was particularly evident during her illness. The plaintiff appreciated the fact that she did not put him under pressure, as his first wife had done. On this basis, the defendant's objections could not dispute the obvious will of both spouses to maintain a marital relationship worthy of protection.
Although it was up to the plaintiff to provide evidence of his intentions to marry, the wife had the burden of presentation and proof for circumstances that cast doubt on the seriousness of this intention. Above all, however, the defendant was unable to sufficiently demonstrate that the plaintiff was still cohabiting with his first wife despite the divorce and was planning a "creeping family reunion". The defendant had rejected the plaintiff's objections regarding the investigation report by his lawyer of trust across the board and did not address them. However, even if it was assumed that the embassy's lawyer could have no interest in knowingly producing a false investigation report, its concrete informative value was very low and could not invalidate the positive impression gained by the couple. It was not clear on which facts the relevant statements of the neighbours were based, that the plaintiff and his first wife lived together, so that the credibility of these statements could hardly be assessed.
The statement by a neighbour that she had met the wife at the plaintiff's house did not necessarily indicate that the two lived together. It was possible that she often came to visit to see the children living with him. Incidentally, the defendant itself indirectly acknowledged this lack of informative value of the report by stating that the neighbours (only) "assumed" that the plaintiff's divorced wife was still living in his parents' house, i.e. that they had merely inferred this fact. The fact that his divorced wife was still named on the submitted "ration card" was explained by the plaintiff in a comprehensible manner.
The fact that the plaintiff's brother did not know about his new marriage could also be sufficiently explained by the latter due to the discord between the two. Even if the brother had learnt about his mother through the marriage, this would not mean that the plaintiff wanted to conceal his remarriage from his brother, as the defendant concluded. This could also not be inferred from the information provided by the neighbours, who, according to the investigation report, knew nothing about the remarriage. This could also be explained by the fact that the plaintiff was still expecting to return to Germany at short notice at that time and therefore did not consider it necessary to inform all neighbours of these circumstances. This was all the more plausible as a marriage with a significantly older woman was rather unusual in India and the plaintiff or his family in India - as he himself intended to return to Germany at short notice - would have been exposed to many enquiries, which the plaintiff wanted to avoid. Therefore, it also seemed understandable that the plaintiff had not informed his mother about the age of his new wife.
Opposing view of the embassy is based only on assumptions
Thus, the defendant's objections were limited to the fact that the divorce decree, unlike "real" divorce decrees, had been insufficiently regulated, divorce in India was only granted in absolutely exceptional cases, the large age difference between the spouses pointed to a sham marriage, and the plaintiff's sister had probably arranged the marriage in return for a monetary payment from the plaintiff to his wife, since the wife's previous marriages had also resulted in sham marriages. On the latter point, however, it was only a matter of conjecture, as the defendant had no concrete evidence to prove this. She also did not submit any "real" divorce judgements, which could have made a settlement possible.
Finally, the statement by the defendant's legal representative that the wife's need for care called into question a real marital relationship showed that he was apparently only able to make a schematic assessment of marital cohabitation on the basis of what he assumed to be "standard cases", without taking sufficient account of the existence of other exceptional cases. For it is precisely in relationships in which one of the partners is or becomes in need of care that the willingness of the other to stand up for each other in a manner typical of a marital partnership can become apparent.
According to the findings of the embassy and the foreigners authority and in view of the daily telephone calls, the applicant also had the language skills required under Section 28 (1) sentence 5 in conjunction with Section 30 (1) sentence 1 no. 2 AufenthG. § 30 para. 1 sentence 1 no. 2 AufenthG.
Source: Administrative Court of Berlin
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