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Berlin-Brandenburg Higher Administrative Court, 07.03.2018, Case No.: OVG 11 N 152.16
In matters of child reunification, Section 32 of the Residence Act (AufenthG) is applicable. According to paragraph 1, a residence permit is to be granted to the minor, unmarried child of a foreigner if both parents or the parent with sole custody hold a residence permit, an EU Blue Card, an ICT Card, a Mobile ICT Card, a settlement permit, or a permanent residence permit – EU.
If the minor, unmarried child has already reached the age of 16 and does not move to Germany together with their parents or the parent with sole custody, paragraph 1 only applies if the child has a command of the German language or it appears likely that the child will be able to integrate into the living conditions in the Federal Republic of Germany based on their education and living conditions.
Section 32 (1) AufenthG requires that both parents or the parent with sole custody must hold a valid residence right in Germany. It is not sufficient, and thus irrelevant, that unmarried fathers are co-custodians for their children under Turkish judicial or legal practice after paternity recognition.
In the following decision, the Higher Administrative Court of Berlin-Brandenburg sets out the presentation requirements pursuant to Section 124a (4) sentence 4 VwGO.
In the following decision, the Berlin-Brandenburg Higher Administrative Court addressed the requirements for a successful appeal under Section 124a (4) sentence 4 of the Administrative Court Procedure Act (VwGO). The appeal must engage with the contested judgment and explain why there are serious doubts about its legality. A general reference to doubts within the reasoning is insufficient.
Introduction to the Case
The Administrative Court’s ruling of September 22, 2016, dismissed the lawsuit filed by a Turkish family seeking the issuance of spousal and family reunification visas for the family members living in Germany. The primary issue in the decision was whether the first plaintiff possessed the required language skills under Section 30 (1) sentence 1 No. 2 AufenthG, which are necessary for spousal reunification.
Language Skills and Standstill Clause
The Administrative Court found that the plaintiff did not possess the basic German language skills required under Section 30 (1) sentence 1 No. 2 AufenthG, despite having resided in Germany during childhood. A language test conducted at the German embassy in Ankara confirmed this. Since no further efforts were made to acquire the necessary language skills, and neither unreasonableness nor impossibility was proven, the court dismissed the lawsuit.
Additionally, the court ruled that the introduction of the language requirement did not violate the standstill clause in Article 13 of Association Council Decision No. 1/80 EEC/Turkey (ARB 1/80), as overriding reasons of general interest were present. A violation of Article 7 (2) of Directive 2003/86/EC was also ruled out.
Claim for Child Reunification
The court also denied the issuance of child reunification visas for the second and third plaintiffs. The requirements of Section 32 (1) AufenthG were not met, even though the visa applications were submitted before the children turned 16. At the time of the applications, the mother was the sole custodian under Article 337 of the Turkish Civil Code (ZGB 2001). The father, who lived in Germany, only gained joint custody through marriage in 2014.
A claim was also denied for the fourth plaintiff, born in 2010. The mother should have provided a declaration of consent for the child’s relocation to the father under Section 32 (1) and (3) AufenthG, which did not occur. No special hardship cases were present that would justify an exception.
Appeal Application and Its Rejection
The plaintiffs timely filed an application for leave to appeal, which was denied by the Berlin-Brandenburg Higher Administrative Court. The court found no serious doubts about the correctness of the contested judgment, as the plaintiffs failed to present convincing counterarguments challenging a key legal principle or significant factual finding.
The plaintiffs’ reference to European Court of Justice (ECJ) and Berlin-Brandenburg Higher Administrative Court rulings, which stated that Turkish nationals were not required to prove German language skills, did not persuade the appellate court. The court emphasized that the introduction of the language requirement was justified by the statutory hardship clause in Section 30 (1) sentence 3 No. 6 AufenthG, as it pursued overriding reasons of public interest.
Engagement with Special Legal Difficulties
The court also found that the plaintiffs did not sufficiently engage with the reasoning of the Administrative Court. The argument that the plaintiff was illiterate and therefore unable to learn the German language was insufficient to establish the unreasonableness of language acquisition. Additionally, the plaintiff had made no efforts to further her education since the marriage and visa application.
The plaintiffs‘ argument regarding the father’s parental custody, which under Turkish law also applies to unmarried fathers, was also dismissed. The court ruled that the requirements of Section 32 (1) AufenthG were not met, as the mother, who also had custody rights, did not have a residence right in Germany.
Outcome and Conclusion
Overall, the appellate court found no legal difficulties of general importance that would justify granting leave to appeal. The court also denied the case’s fundamental importance, as there was no decisive legal issue of general significance that required clarification by a higher court. The application for leave to appeal was therefore denied.
Source: Berlin-Brandenburg Higher Administrative Court
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