Subsequent immigration of children to join a German national (section 28 of the German Residence Act (Aufenthaltsgesetz – AufenthG))
The legal basis for issuing a residence permit for the subsequent immigration of children to join a German national is the first sentence of section 28 para. (1) number (2) in conjunction with section 27 para. (1) and para. (3) of the German Residence Act. Hence, an unmarried child who has not yet reached the age of eighteen at the time of application is legally entitled to a residence permit, provided that the German parent’s habitual residence is in Germany and he or she is a parent in the legal sense.
The requirements of section 5 para. (1) number (1) of the German Residence Act (secure subsistence) need not be met in accordance with the second sentence of section 28 para. (1) of the German Residence Act. Neither is the right of care and custody of the German parent living in Germany materially relevant, unlike in cases of subsequent immigration to join a foreign national.
Subsequent immigration of children to join a foreign national (section 32 of the German Residence Act (AufenthG)
The legal basis for granting a residence permit for the subsequent immigration of children to join a foreign national is section 32 in conjunction with section 27 para. (1) and para. (3) of the German Residence Act. The requirements of section 29 para. (1) number (2) of the German Residence Act (sufficient living space) as well as the general conditions for granting a residence permit according to section 5 para. (1) of the German Residence Act must be met for the subsequent immigration of children, unless otherwise provided for in sections 28, 29 of the German Residence Act.
Section 32 para. (1) of the German Residence Act:
Minor, unmarried children of a foreigner are entitled to subsequent immigration if both parents or the parent with the sole right of care and custody holds one of the residence titles specified in section 32 para. (1). This is any residence permit with the exception of a residence permit for subsidiary protection within the meaning of section 4 para. (1) of the German Asylum Act (Asylgesetz – AsylG), an EU Blue Card, a permanent settlement permit or an EU long-term residence permit.
The date of the application is decisive for the existence of the entitlement.
Section 32 para. (1) of the German Residence Act applies, as a rule, to the subsequent immigration of children up to the age of sixteen and, in the following cases, up to the age of eighteen (cf. section 32 para. (2) by implication):
a) The minor child, together with his or her parents or the parent with the sole right of care and custody, relocates his or her main ordinary residence to Germany.
(b) The foreign citizen who conveys the right of subsequent immigration possesses one of the residence titles specified in the second sentence of section 32 para. (2) of the German Residence Act. In the case of residence titles on humanitarian grounds the requirements of section 5 para. (1) number (1) of the German Residence Act (secure subsistence) and of section 29 para. (1) number 2 of the German Residence Act (sufficient living space) can be waived pursuant to section 29 para. (2) of the German Residence Act, if the required application is filed within three months and it is not possible for the foreign citizen and his or her family members to live together as a family unit in another country to which they have special ties, second sentence of section 29 para. (2) of the German Residence Act. In all other respects, the requirements can be waived.
Section 32 para. (2) of the German Residence Act:
If the minor, unmarried child is sixteen or older and neither of the two aforementioned constellations in 2.2 or 2.3 applies and if, nevertheless, no temporal connection (see below) is to be assumed, para. (1) basically applies only if the child speaks German (command corresponding to Level C1 of the Common European Framework of Reference for Languages, legal definition section 2 para. (12) of the German Residence Act) or if it appears, on the basis of his or her education and way of life to date, that he or she will be able to integrate into the way of life in the Federal Republic of Germany. This is generally assumed for children, who have grown up in a member state of the EU, the EEA, or another country specified in the first sentence of section 41 para. (1) of the German Residence Ordinance (Aufenthaltsverordnung – AufenthV).
Since 31 December 2022, exceptions have applied if the reference persons have residence titles as specialists and skilled workers, see second sentence of section 32 para. (2). The exceptions concur with those for the subsequent immigration of spouses.
Section 32 para. (3) of the German Residence Act:
If the two parents share the right of care and custody a residence permit according to section 32 paras. (1) and (2) should also be granted for the purpose of joining only one parent with the right of care and custody, if the other parent has consented to the child’s residence in the Federal Republic of Germany or if a competent authority has reached a legally binding decision to this effect. This results in the following constellations:
Section 32 para. (1) in conjunction with para. (3) of the German Residence Act:
Age up to 15 at the time of application:
The minor, unmarried child of a foreign citizen should be granted a residence permit for joining one parent with the right of care and custody if the latter holds a residence permit, an EU Blue Card, a permanent settlement permit or an EU long-term residence permit and the other parent with the right of care and custody has consented to the child’s residence in the Federal Republic of Germany or if a competent authority has reached a legally binding decision to this effect. This applies regardless of whether the child enters the country together with the principal entitled parent or joins him or her later.
Section 32 para. (2) in conjunction with para. (3) of the German Residence Act:
Age 16 or 17 at the time of application:
If the two parents share the right of care and custody and the child does not relocate his or her main ordinary residence to Germany together with the parent with the right of care and custody (principal entitled parent) who is already living in Germany, para. (1) only applies if the child speaks German or if it appears, on the basis of his or her education and way of life to date, that he or she will be able to integrate into the way of life in the Federal Republic of Germany, provided that no temporal connection (see below) is to be assumed. In concrete terms, this means that in the case of a subsequent immigration – i.e. with no temporal connection with the principal entitled parent – of a child aged over 16 to join only one parent, given that the parents share the right of care and custody, proof of language proficiency must be provided as a matter of principle.
Minors who are already 16 or older and who want to join the principal entitled parent with a right of care and custody who is already living in Germany – together – with the other parent with a right of care and custody through subsequent immigration fall under section 32 para. (2) of the German Residence Act. In this case it is also relevant whether there is a temporal connection between the main ordinary residence and the entry of the parent with a shared right of care and custody who is already living in Germany. In the case of joint immigration with the first parent, it is not necessary to prove the child’s C1 proficiency, section 32 para. (2) in conjunction with para. (3) of the German Residence Act.
Cases where minors aged 16 or older wish to travel to Germany – together – with a parent with a right of care and custody, fall under section 32 para. (3) in conjunction with para. (1) of the German Residence Act. Section 32 para. (3) in conjunction with para. (2) of the German Residence Act does not apply in this case, since the main ordinary residence is jointly relocated to Germany. If the other requirements are met and the parent remaining abroad consents or a corresponding decision has been made by the competent authority (e.g. a court), proof of language proficiency would, in principle, not be required in this constellation either.
Assessment of the temporal connection of “joint immigration”
In principle, an immigration with a temporal connection is referred to as a joint resettlement. Particularly in the case of resettlement of school-age children, an overly strict reading of section 32 of the German Residence Act can lead to unsatisfactory results. The main criterion for a decision in cases of doubt should be whether the family recognisably wants to resettle together and continue living together as a family unit.
The six-month period, which is also the term agreed by case law, sets an easily definable limit for this.
However, in special cases, a longer period of time may be appropriate for the child’s subsequent immigration. This would be conceivable, for example, if a school year lasts longer or if the parent’s employment contract is only made permanent at a later date, so that the child’s subsequent immigration only then becomes financially possible.
Indications that there was no joint resettlement include, e.g. an inability to give valid reasons, even when asked, for a significantly later (e.g. several years) subsequent immigration of the child and, possibly, if hardly any visits have taken place in the meantime, the children have not learnt German in the meantime, or other indications suggest that the family actually only decided to live together in Germany at a much later date.
The declaration of consent to the child’s emigration by the remaining parent that is required for the examination pursuant to section 32 para. (3) of the German Residence Act, must be submitted in a form appropriate to local requirements (e.g. as a notarised document).
The demonstrable consent of, in particular, the parent who remains abroad, or a decision of the competent authority replacing such consent, is of great importance for the application of this provision in practice. If, on the basis of concrete indications, there are doubts about the authenticity and the legally binding nature of such declarations of consent or judicial or official decisions, a thorough examination is required, since the decision on a residence title must not, in particular, lead to a child being removed from the sphere of influence of the parent with a shared right of care and custody without the latter’s consent. In particular, if it is easy to reach the parent remaining abroad, written consent should be obtained in cases of doubt.
Due to the fact that the provision is designed as a “should-be” provision (intended or guided discretion for standard cases), it is possible to prohibit the child’s subsequent immigration in exceptional cases by means of discretion, in particular if there are clear indications that the right to subsequent immigration is being abused. Such indications may include, for example, that the application is filed shortly before the child reaches the age of sixteen and that the child had no ties to Germany and the parent living here until then.
Section 32 para. (4) of the German Residence Act:
If the requirements of section 32 paras. (1) to (3) of the German Residence Act are not met, a residence permit may be granted by a discretionary decision pursuant to section 32 para. (4) of the German Residence Act. Discretion can be exercised only in order to prevent special hardship. Such hardship is only to be assumed if the denial of subsequent immigration would have adverse consequences for a minor child that differ substantially from the consequences that would be reasonable for other minor foreign citizens who are not granted a residence permit under section 32 paras. (1) to (3) of the German Residence Act.
When weighing all the circumstances, particular consideration must be given to the child’s best interests, but also to the child’s chances of integration and the general integration and immigration policy interests of the Federal Republic of Germany. If the parents voluntarily leave their child behind in another country, a change in the parents’ opinion as to which residence solution is better for the child will not in itself justify the child’s subsequent immigration pursuant to section 32 para. (4) of the German Residence Act.
A foreseeable change of personal circumstances (completion of training) or a change of the general circumstances in the country of origin (e.g. better economic prospects in Germany) does not constitute a special hardship. According to the case law of the Federal Administrative Court (Bundesverwaltungsgericht), the decisive criterion is the occurrence of unforeseeable changes in living conditions which the parents were unable to consider until the current decision on subsequent immigration and which made it possible for the child to remain in the home country.
Subsequent immigration of children to join persons entitled to asylum and recognised refugees
Section 32 of the German Residence Act stipulates that, even for the subsequent immigration of children to join persons entitled to asylum and recognised refugees, the parent whom the child is to join must have the right of care and custody. However, in cases of subsequent immigration of children to join persons entitled to asylum and refugees, it is sufficient for the person entitled to asylum or the refugee to provide prima facie evidence of his or her right of care and custody, if providing formal evidence is not possible or reasonable pursuant to section 32 para. (3) of the German Residence Act. Prima facie evidence of the right of care and custody must meet the same requirements as prima facie evidence of parenthood, which was already required under the previous legal framework.
In addition, section 32 para. (4) of the German Residence Act allows children to join persons entitled to asylum and refugees even in the absence of the other parent’s consent if providing such consent is not possible or reasonable due to the refugee-specific situation, e.g. in cases of special hardship.
Subsequent immigration of children as “other family members” (section 36 para. (2) of the German Residence Act)
Children who have no possibility of subsequent immigration under section 32 of the German Residence Act due to having exceeded the age limit (reached the age of majority) can, at most, be granted a residence permit for subsequent immigration to avoid exceptional hardship pursuant to section 36 para. (2) of the German Residence Act. Care must be taken not to circumvent the inherently definitive rules for subsequent immigration under section 32 of the German Residence Act. Correspondingly cases of exceptional hardship must meet strict requirements. Likewise, the subsequent immigration of stepchildren or foster children is only possible according to section 36 para. (2) of the German Residence Act.
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Lawyers in Cologne provide legal advice on German immigration law.
