Federal Constitutional Court, October 11, 2017, Case No.: 2 BvR 1758/17
According to Section 4, Paragraph 1, a foreigner is considered a beneficiary of subsidiary protection if they have presented substantial reasons to believe that they face a serious threat in their country of origin. A serious threat includes the imposition or execution of the death penalty, torture, inhumane or degrading treatment or punishment, or a serious individual threat to the life or integrity of a civilian due to indiscriminate violence in the context of an international or internal armed conflict. Through the regulation in Section 104, Paragraph 13 of the Residence Act (AufenthG), the law introducing accelerated asylum procedures of March 11, 2016 (Federal Law Gazette I p. 390), as part of the so-called „Asylum Package II,“ suspended family reunification for persons granted subsidiary protection until March 16, 2018.
The regulation regarding family reunification for recognized refugees remained unchanged. In this case before the Federal Constitutional Court, the complainants sought the provisional issuance of visas for family reunification with a minor who had been granted subsidiary protection (Complainant 1), alternatively the issuance of visas for humanitarian reasons.
Introduction and Background
The present case concerns a constitutional complaint filed by a Syrian family against the denial of family reunification. The case is set against the backdrop of Germany’s current asylum and migration policy and raises questions about the protection of families separated under subsidiary protection. In particular, the case highlights the constitutional implications of Section 104, Paragraph 13 of the Residence Act (AufenthG), which restricts family reunification for beneficiaries of subsidiary protection.
Facts and Legal Framework
The complainants consist of a young Syrian who arrived in Germany in 2015 as an unaccompanied minor and was granted subsidiary protection, as well as his family, who remained in Syria. The son, who was still a minor at the time, applied for asylum and was granted subsidiary protection in August 2016. Despite efforts, his parents and siblings, who remained in Damascus, could not obtain a positive decision on their visa applications and therefore turned to the administrative court for interim legal protection. Both the administrative court and the higher administrative court rejected the application, partly on the grounds that the claim to family reunification was excluded by law.
Arguments of the Complainants
The complainants argue that the provision in Section 104, Paragraph 13 of the Residence Act (AufenthG) is unconstitutional, as it violates Article 3, Paragraph 1 (principle of equality) and Article 6, Paragraph 1 of the Basic Law (protection of marriage and family). Furthermore, they cited the provisions of the EU Family Reunification Directive and the UN Convention on the Rights of the Child. They emphasized the particular vulnerability of the family due to the humanitarian situation in Syria and argued that the denial of family reunification constituted a disproportionate burden.
Decision of the Federal Constitutional Court
The Federal Constitutional Court rejected the application for an interim order. It clarified that such an order could only be issued under strict conditions, particularly to prevent severe disadvantages or impending violence. In the present case, however, the court found no sufficient reason to justify such an order. It referred to the statutory provision of Section 104, Paragraph 13 of the Residence Act (AufenthG), which explicitly excludes family reunification for beneficiaries of subsidiary protection, and noted that the application was not adequately substantiated.
Constitutional Considerations
The Federal Constitutional Court emphasized the importance of the separation of powers and the necessity of respecting statutory provisions. It pointed out that suspending a statutory provision through an interim order would only be considered in exceptional cases. Such an exceptional case would exist if an unconstitutional provision were identified. Since this was not the case here and no particular vulnerability of the complainants had been demonstrated, the court ruled that the complainants‘ interests were not sufficiently weighty to justify an interim order.
Balancing the Consequences
In balancing the consequences of a possible interim order, the Federal Constitutional Court concluded that the risks of such an order outweighed the potential benefits. Had the application been granted, irreversible facts would have been created that could not be undone. Furthermore, this would have had far-reaching consequences for similar cases of family reunification, effectively leading to a suspension of the existing statutory regulation. Such a consequence would contradict the constitutional principle of the separation of powers and would only be permissible in particularly significant cases, which were not present here.
Conclusion
The decision of the Federal Constitutional Court highlights the strict requirements under which an interim order can be issued, particularly concerning the suspension of statutory provisions. In the present case, the court found no sufficient basis for such an order, as the complainants‘ constitutional concerns were not considered weighty enough. The case also illustrates the difficult legal and humanitarian challenges associated with family reunification for beneficiaries of subsidiary protection and underscores the importance of carefully balancing individual protection interests with adherence to statutory regulations.
Source: Federal Constitutional Court
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