Spousal visa and secure livelihood: When the immigration authority may refuse

Short answer

When spouses join a foreign partner, the livelihood of the entire family needs-based community must generally be secured – not just that of the joining person. If the income is not sufficient for the spouse and minor children, the immigration authority may refuse under Section 5(1) no. 1 of the Residence Act. When joining a German spouse, this generally applies not (section 28(1) sentence 4 of the Residence Act).

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. This post explains the general legal situation and does not replace an assessment of your individual case. Whether an exception applies in your situation depends on figures, deadlines, and evidence that can only be evaluated individually. For this, please contact a lawyer specialising in migration law.

The letter from the immigration office – and what lies behind it

You are working. You earn enough to feed yourself. Nevertheless, the notice states: Your livelihood is not secured, the application is being rejected.

That sounds contradictory, but it isn't. The authorities aren't just calculating for you alone. They are calculating for your family.

The Federal Administrative Court ruled fundamentally on this question in 2010 (judgment of 16.11.2010, ref. 1 C 20.09). The plaintiff was a Turkish national who wanted to join his wife living in Germany. His own income now covered his personal needs – however, the family continued to receive benefits under Book II of the Social Code (SGB II) for his wife and minor son. The Higher Administrative Court of Berlin-Brandenburg considered this to be sufficient. The Federal Administrative Court did not.

His core message remains valid to this day: family reunification generally requires that the livelihood of family benefit community can be funded without public welfare benefits.

Since 2010, however, a great deal has changed around this core – the social benefit has a different name, deportation law has been rewritten, rules for skilled workers have been eased, and family reunification is currently suspended entirely for those with subsidiary protection. That is precisely what this article is about.

What does „secure livelihood“ actually mean?

Briefly explained: Your livelihood is considered to be secured if you including sufficient health insurance coverage without recourse to public funds be able to cover (§ 2 section 3 sentence 1 of the Residence Act, AufenthG). It is not about a fixed minimum wage or a threshold in the law. It is about a comparison: needs on the one hand, available income on the other.

And it is about a Prognosis. The authority not only asks what the current situation looks like, but also whether it is foreseeable that no entitlement to basic security benefits will arise in the future either. In doing so, it may look back at past income development. The Court of Justice of the European Union has expressly declared such a prognosis to be permissible and has approved basing it on the income of the last six months prior to the application (ECJ, judgment of 21.04.2016, C-558/14 – Khachab).

What matters is the flip side: whether benefits are actually applied for plays no role. It is enough that a Claim this would exist (Federal Administrative Court, judgment of 26.08.2008, docket no. 1 C 32.07).

Who counts? The benefit unit

Here lies the core of the 2010 decision – and the most common error in consulting.

The term „subsistence of the foreigner“ in section 2 (3) of the Residence Act refers to social law. And under Book II of the Social Code (SGB II), calculations are not made per capita, but for the benefit unit: spouses and unmarried children under the age of 25 living in the same household (§ 7 para. 3, § 9 SGB II). If the total requirement is not covered, each person is deemed to be in need of assistance on a pro rata basis.

Two further provisions confirm this overall assessment:

• Section 2(3), sentence 4 of the Residence Act: For family reunification, „family members“ contributions to the household income" are taken into account. Anyone who speaks of household income views the household as a single unit – this works both ways and can also help you if your spouse is also earning an income.
• Section 27(3) sentence 1 of the Residence Act: The following up can be refused if the person entitled to maintenance other Family member or household member is dependent on benefits under SGB II or SGB XII. This provision explicitly concerns persons outside the core benefit community – such as parents living in the household.

Nor does Union law preclude this: under Article 7(1)(c) of the Family Reunification Directive (Directive 2003/86/EC), Member States may require stable and regular resources which are sufficient for the sponsor and his family members suffice.

The Federal Administrative Court has clarified and most recently confirmed an important restriction: German family members are not taken into account in the calculation (BVerwG, judgment of 16.08.2011, ref. 1 C 12.10; confirmed in BVerwG, judgment of 25.09.2025, ref. 1 C 17.24). So if the shortage in needs is attributable solely to German children, that is a completely different case.

How is it calculated?

Step 1: The requirement

The requirement is made up of the standard needs pursuant to Section 20 of Book II of the German Social Code (SGB II) and the reasonable costs for accommodation and heating pursuant to Section 22 SGB II. In addition, where applicable, there are additional requirements, for example for lone parents or during pregnancy (Section 21 SGB II).

Standard needs 2026 (unchanged compared to 2024 and 2025, monthly):

standard needs category	Who	Amount
1	Single people, single parents	563 €
2	your partner in a couple's benefit claim	506 €
3	Adults aged 18–24 in someone else's household	451 €
4	Young people aged 14–17	471 €
5	Children aged 6–13 years	390 €
6	Children aged 0–5 years	357 €

The cost of accommodation is the second major block – and it varies considerably depending on the location. The bill in Cologne turns out differently than in a rural municipality. Therefore, always check the local limits of reasonableness.

Step 2: Income

On the income side, net earned income counts. As harmless and therefore do not qualify as „public funds“ pursuant to Section 2(3) sentence 2 of the Residence Act (AufenthG), inter alia:

1. Child benefit – 2026 uniformly €259 per child per month.
2. Child Supplement in accordance with Section 6a of the Federal Child Benefit Act (BKGG) – up to €297 per child per month. This point is often overlooked: if only the children's needs are not met, the child supplement (Kinderzuschlag) can completely prevent the need to claim benefits under Book II of the Social Code (SGB II). In that case, livelihood is secured. The Federal Administrative Court has explicitly pointed this out.
3. Parental allowance and parental benefit.
4. Student finance benefits in accordance with the German Social Code, Book III (SGB III), the Federal Training Assistance Act (BAföG) and the Upward-Grading Vocational Education Promotion Act.
5. Public funds based on contribution payments – such as jobseeker's allowance, sickness benefit, pensions.
6. Benefits under the Maintenance Advance Act.

Special case Housing benefit: It does not count as income and cannot fill a gap – however, the mere fact of receiving it does not preclude the assumption of a secure livelihood (Federal Administrative Court, judgement of 29 November 2012, ref. 10 C 4.12).

Step 3: The deductions – and a crucial difference

Under SGB II, certain amounts are deducted from income (currently Section 11b of SGB II). Two of these are of particular legal importance in the context of family reunification:

• The earned income allowance within the scope of application of the Family Reunification Directive not be counted against the person willing to join their family. The Federal Administrative Court abandoned its previous contrary case law following the CJEU judgment in Chakroun (04/03/2010, C-578/08). Reasoning: The allowance is a labour market policy incentive, not social assistance within the meaning of Union law.
• The flat-rate allowance for income-related expenses of €100 is generally deducted. However, you may provide evidence that your actual expenses are lower. This evidence may be the deciding factor.

Please note: Outside of the Family Reunification Directive – such as with the permanent settlement permit under Section 9 of the Residence Act (AufenthG) – the crediting of the earned income allowance remains applicable (Federal Administrative Court, judgment of 16.11.2010, ref. 1 C 21.09).

A simplified calculation example

Let us assume that the husband, who lives in Germany, holds a settlement permit; the wife wishes to join him, and they have a child (aged 8) who already lives here. The reasonable rent (including heating) is €900, and the husband’s net income is €2,100.

Position	Amount
Standard requirement husband (level 2)	506 €
Standard allowance for a spouse (Level 2)	506 €
Standard child benefit, 8 years old (level 5)	390 €
Accommodation and heating	900 €
Total requirement	2.302 €
Net income	2.100 €
Child benefit	259 €
less the flat-rate allowance for income-related expenses	– €100
Qualifying income	2.259 €

There is a shortfall of €43. According to the rules, the application would have to be rejected.

And now it gets interesting: if the husband can prove that his actual income-related expenses amount to just €40, his assessable income rises to €2,319 – and his needs are met. An approved child supplement could also bridge the gap. It is details like these that decide the outcome of such cases.

These figures are for illustrative purposes only. The actual calculation depends on your specific income, local accommodation costs and other factors.

German or foreign spouse? The difference is big

The most important decision of all: Whose place are you moving into?

Constellation	Legal basis	Living expenses required?
Family reunification to German spouse	Section 28(1) sentence 1 no. 1 of the Residence Act	No – the permission should as a rule different be granted pursuant to Section 5(1) no. 1 (Section 28(1) sentence 4). Exceptions are only conceivable in atypical cases.
Family reunification to foreign spouse	Section 30 in conjunction with Section 29 of the Residence Act	Yes, as a standard condition for issuance – specifically for the entire benefit community. In addition, sufficient living space is required (§ 29 para. 1 no. 2).
Family reunification with skilled workers, holders of an EU Blue Card, ICT Card and comparable titles	Section 30(1) sentence 1 no. 3 lit. g, Section 29(5) of the Residence Act	Livelihood yes, but without the requirement for living space; in some cases, the proof of language proficiency is also waived (§ 30 section 1 sentence 3 no. 5).
Family reunification with persons entitled to asylum and recognised refugees	Section 29(2) of the Residence Act	Upon application within three months Following incontrovertible recognition, the provision of subsistence and living space is to be dispensed with. The deadline is strict.
Family reunification with persons eligible for subsidiary protection	Section 36a of the Residence Act	No family reunification at present: Pursuant to Section 104 (14) of the Residence Act, it will not be granted until the expiry of 23 July 2027.

The final point deserves its own line because it affects many families: The law on the suspension of family reunification for those with subsidiary protection status entered into 24 July 2025 has entered into force. For two years, no visas for family reunification under Section 36a of the Residence Act will be issued. Exceptions are essentially limited to cases where an invitation to collect a visa had already been issued or a settlement has been reached. As a safety net, the legislator mentions admission for urgent humanitarian reasons under Section 22 of the Residence Act – however, the hurdles for this are high. Before the deadline expires, it is to be reviewed whether the suspension will be extended.

Spouse reunification with German citizens

What has changed since the 2010 judgement?

The core ruling of the Federal Administrative Court remains unchanged. However, the legal framework surrounding it has shifted on several occasions. Anyone still working with older texts or information sheets will run into errors.

1. The social benefit has a different name. On 1 January 2023, „Hartz IV“ or unemployment benefit II (Arbeitslosengeld II) became citizen's allowance (Bürgergeld). With effect from 1 July 2026, the Act for the Reform of Basic Income Support for Jobseekers (Gesetz zur Umgestaltung der Grundsicherung für Arbeitsuchende) renamed the benefit once again – it now operates as basic income support for jobseekers (Grundsicherung für Arbeitsuchende) or basic income support allowance (Grundsicherungsgeld). The legal basis in all cases remains Book II of the Social Code (SGB II). The renaming makes no difference to the residence law assessment: Section 27(3) of the Residence Act (AufenthG) continues to refer unchanged to „benefits under Book Two or Book Twelve of the Social Code“.
2. The deportation law has been rewritten. Since 1 January 2016, there are no longer any „reasons for expulsion“, but rather the Interest in expulsion (section 5(1) no. 2 Residence Act, sections 53 et seq. Residence Act). Older references to section 55(2) no. 6 of the former Residence Act are obsolete.
3. The catalogue in Section 30 of the Residence Act has grown. Section 30(1) sentence 1 number 3 currently ranges from letter a to g. Letter g covers the EU Blue Card, ICT Card and Mobile ICT Card. The current version is based on the Act on the Further Development of Skilled Immigration of 16 August 2023.
4. The sentence numbering in § 28 AufenthG has changed. The privilege of spouse reunion with German citizens can nowadays be found in Section 28(1), fourth sentence AufenthG, no longer in sentence 3. Anyone citing the old provision is now citing a different rule.
5. Relaxations for skilled workers. When family is joining holders of an EU Blue Card or certain skilled worker titles, the housing requirement does not apply (Section 29 (5) of the Residence Act); in certain Blue Card constellations, the housing requirement, the requirement to secure one's livelihood with the exception of health insurance cover, and Section 27 (3) sentence 1 also do not apply (Section 29 (1) sentence 2 of the Residence Act).
6. Section 2 subsection 3 sentence 2 of the Residence Act has become longer. Training allowance and advance maintenance payments now explicitly count as harmless benefits.
7. The SGB II deductions are located elsewhere. The previously cited sections 11(2) and 30 of the Second Book of the Social Code (SGB II) have been in force since 2011 in Section 11b of the Second Book of the Social Code (SGB II) merged.
8. New supreme court guidelines. In 2024 and 2025, the Federal Administrative Court sharpened the examination of the exceptional case (more on that in a moment).

The exception to the rule: When you can succeed despite a shortfall in requirements

• Section 5 (1) of the Residence Act speaks of „as a rule“. This is not a mere decoration, but the legal lever. If an exceptional case exists, the lack of secured means of subsistence may not be held against you. not can be raised as an objection – in the case of a statutory entitlement such as spouse reunion pursuant to Section 30 (1) of the Residence Act (AufenthG), there is then no longer any discretion.

The Federal Administrative Court most recently summarised the standard in its judgment of 25.09.2025 (ref. 1 C 17.24): If the protection of the public purse precludes family reunification, this public interest must be weighed against private interests; the decision must comply with the principles of proportionality and the prohibition of excessive measures. An exceptional case exists in the event of special, atypical circumstances that remove the weight of the statutory rule – or if higher-ranking law such as Article 6 of the Basic Law (GG), Article 8 of the ECHR or EU law mandates the granting of the permit.

What goes into this assessment:

• The amount of the remaining funding gap. A shortfall of a few euros weighs differently than a complete dependence on welfare benefits.
• The dependent partner's own contribution. If he covers his own needs and noticeably reduces the burden on the public purse, this speaks in his favour – but according to case law, this alone is not sufficient.
• The degree of integration of the family in Germany, specifically the duration of stay and the degree of integration of the family members already living here.
• The reasonableness of maintaining the marriage abroad. If that is ruled out for the foreseeable future, the balance shifts.
• German family members, whose needs are not to be taken into account anyway.
• Previous maintenance conduct, because it facilitates the forecast for future economic integration.

Equally important is what none Atypik states:

• Illness, disability or old age alone. According to the Federal Administrative Court, the fact that someone cannot work for health reasons is not so far outside the bounds of everyday experience that the statutory rule has to take a backseat. Additional circumstances must be present (Federal Administrative Court, judgment of 25.09.2025, docket no. 1 C 17.24).
• The mere relationship with minor grandchildren or other relatives, even if they are German nationals – without additional circumstances that is not sufficient.
• Secured livelihood and adequate housing as such. This is what the Federal Administrative Court decided regarding waiting times for family reunification for persons entitled to subsidiary protection: these are migration-typical situations, not special circumstances (BVerwG, judgment of 24.10.2024, docket no. 1 C 17.23).

Hardship case regarding the missing language certificate

Five points where proceedings frequently collapse

1. The child supplement is not being applied for. It is dependent on an application. If the income covers the parents' needs, but not those of the children, the child supplement according to Section 6a of the Federal Child Benefit Act (BKGG) can remove the need for SGB II entitlement – and with it the residence law hurdle. Calculate this through before you submit the application.
2. The flat-rate allowance for professional expenses is accepted without examination. Anyone who can prove they spend less than €100 a month can claim the difference. In close cases, that is precisely what makes the decision.
3. The earned income allowance is being incorrectly deducted. Within the scope of the Family Reunification Directive, that is unlawful. Check the calculation in the notice item by item.
4. The three-month time limit under Section 29 (2) of the Residence Act (AufenthG) is missed. For persons entitled to asylum and recognized refugees, the cost of living and accommodation must be secured within three months of the unappealable recognition foreseeable. After that, not necessarily. This deadline runs silently, and it is frequently missed.
5. Resolving conditions in the residence permit are overlooked. Some titles include the provision that they lapse upon the receipt of benefits under Book II or Book XII of the Social Code (SGB II or SGB XII). Once such an ancillary provision becomes legally binding, it takes effect – even if its lawfulness is disputed. Check ancillary provisions immediately upon receipt and not only when the event has occurred.

Additionally: Also a Declaration of commitment pursuant to Section 68 of the Residence Act the livelihood can be secured by a third party. The Federal Administrative Court has ruled that this must generally also be taken into account in the case of long-term stays (judgment of 18.04.2012, ref. 10 C 10.12). However, the financial consequences for the person making the declaration are substantial and should be discussed beforehand.

When legal assistance is advisable

Not every case needs a lawyer. If your income clearly exceeds the family's needs and you can provide clean documentation, the procedure is often straightforward.

It is a different story if one of these situations applies:

• The official notice calculates with amounts that you cannot follow.
• The gap in requirements is small, and it is a question of the exceptional case.
• You are unsure whether the three-month period under Section 29(2) of the Residence Act is still running.
• Your residence title contains a resolving condition linked to the receipt of social benefits.
• It concerns family reunification with a person entitled to subsidiary protection and thus the question of whether humanitarian admission is to be considered.

In these cases, the calculation is decisive – as is the question of which items may be included at all. This is detailed legal work, and the deadlines for lodging an objection and filing a lawsuit are short.

Action for failure to act in family reunification cases

Immigration law advice

Lawyer Helmer Tieben provides nationwide advice on immigration and migration law. You can reach the firm at 0221 - 80187670 or by e-mail to info@mth-partner.de.

Frequently asked questions about spouse reunification and maintenance

How much do I need to earn for my spouse to be allowed to join me?

The law does not state a fixed amount. What is decisive is whether your countable income exceeds the needs of your benefit community according to the Second Book of the Social Code (SGB II). The requirement consists of the standard needs – in 2026 roughly €506 per spouse in a couple's benefit community and €357 to €471 per child, staggered by age – plus the reasonable costs for accommodation and heating. Because housing costs vary considerably by region, the required income in Cologne can be significantly higher than in a small municipality. Calculate your specific case rather than relying on rules of thumb from forums.

My income is enough for me, but not for my family. Is that enough?

No, at least not as a general rule. Precisely that was decided by the Federal Administrative Court in 2010 (ref.: 1 C 20.09): It is not sufficient if the joining spouse covers their own needs when considered in isolation, but benefits under Book II of the Social Code (SGB II) are claimed for the spouse and children. However, it always remains to be examined whether an exceptional case exists pursuant to Section 5 (1) of the Residence Act (AufenthG). In this regard, it depends, among other things, on how large the remaining gap is and to what extent you contribute to the family maintenance.

Does my spouse, who is a German citizen, mean I don't have to prove my income?

As a rule, no. Pursuant to Section 28(1), sentence 4 of the Residence Act (AufenthG), the residence permit for the foreign spouse of a German national shall be granted as a departure from Section 5(1) no. 1 of the Residence Act. The background to this is the special protection of marriage and family under Article 6 of the Basic Law (GG) in conjunction with the unrestricted right of residence of German nationals within the federal territory. However, „shall“ does not mean „must always“: in atypical cases, the authority may exceptionally still require secured maintenance. Other prerequisites – such as the Proof of basic German language skills – remain unaffected by this.

Does receiving child benefit or housing benefit do any harm?

Child benefit does no harm. It is explicitly listed as harmless in Section 2(3) sentence 2 of the Residence Act (AufenthG) and is added to income – in 2026 at €259 per child per month. The same applies to the child supplement (Kinderzuschlag), parental allowance (Elterngeld), training assistance (Ausbildungsförderung), advance maintenance payments (Unterhaltsvorschuss) and contribution-financed benefits such as unemployment benefit I (Arbeitslosengeld I). The situation regarding housing benefit (Wohngeld) is twofold: it cannot close an income gap because it is not counted as income. However, according to the case law of the Federal Administrative Court, receiving it alone does not preclude the assumption of a secured livelihood (judgement of 29.11.2012, ref. 10 C 4.12).

What is a benefit community?

The benefit association is a term from social law (§ 7 para. 3 SGB II). As a rule, it includes the employable person, their spouse or civil partner, as well as unmarried children under 25 years of age who live in the household and cannot support themselves. What is decisive is: calculations are not made for each person individually, but for the community as a whole. If the income is insufficient for the total requirements, each person is considered to be in need of assistance on a pro-rata basis. It is precisely via this reference to social law that the benefit association has an effect on residence law.

Can I bring my spouse to join me if I have subsidiary protection?

Not at present. Since 24 July 2025, family reunification for persons entitled to subsidiary protection under Section 104(14) of the Residence Act has been suspended until 23 July 2027. During this period, German diplomatic missions abroad will not issue visas under Section 36a of the Residence Act. The main exceptions to this are families who had already received an invitation to apply for or collect a visa before the cut-off date, or whose visa is based on a settlement agreement. In individual cases, admission on urgent humanitarian grounds under Section 22 of the Residence Act remains possible; however, the requirements for this are stringent. A decision on whether to extend the suspension will be reviewed in good time before the deadline expires.

The Foreigners' Office has refused the application. What can I do now?

First, check the information on legal remedies in the notice – depending on the federal state, you may be entitled to lodge an appeal or bring a direct action before the administrative court, and the deadlines are short. In terms of content, it is almost always worth checking the figures: was the earned income allowance wrongly deducted? Has the flat-rate allowance for income-related expenses been applied even though your actual costs are lower? Have non-taxable benefits such as child benefit been correctly included? Has it been checked whether an exceptional case under Section 5(1) of the Residence Act (AufenthG) applies? If this assessment of whether an exception applies is entirely missing, the notice is open to challenge.

For how long must the cost of living be secured?

The authority makes a forecast regarding the duration of the intended stay. It therefore asks not only about the current month, but also whether no entitlement to basic security benefits will arise in the future, barring unforeseen events. In doing so, it may look back at your previous income development. The Court of Justice of the European Union has approved basing such a forecast on the income of the last six months prior to the application (judgment of 21.04.2016, C-558/14 – Khachab). A fixed-term employment contract or an ongoing Trial period do not automatically preclude a positive prognosis, but they do make it more difficult.

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. The content of this post has been prepared to the best of our knowledge and with due care, and reflects the legal situation as of August 2026. Immigration law changes frequently; liability and guarantees for completeness and accuracy in individual cases are excluded. This post does not replace individual legal advice. For your specific situation, please consult a lawyer.

Solicitor Helmer Tieben advises nationwide on immigration law. Telephone 0221 – 80187670, email info@mth-partner.de.