Family reunification for refugees
Persons with refugee status enjoy a privileged position compared to other foreign nationals in terms of family reunification, since they do not necessarily have to cover the cost of living for themselves and their families and they do not have to prove that they possess sufficient living space. In order to claim this privilege, refugees have to notify the local authorities within 3 months after the refugee status has become incontestable (final) that they wish to be reunited with a close family member (notification).[1] This notification by the refugee can be done online through the website of the Federal Foreign Office or at the local authorities.[2] The application itself has to be handed in by the family members at the embassy of the country where the family members are staying.
Persons eligible for family reunification under this provision are:
- Spouses or ‘registered same-sex partners’;[3]
- Minor unmarried children;
- Parents of unaccompanied children, if no other parent with entitlement to custody is living in Germany;
- Minor siblings of unaccompanied children.
Depending on who is to be reunited additional criteria apply. For example, spouses need to be above eighteen years and need to have basic knowledge of German if marriage occurred post-flight.[4]
In order to demonstrate the family link first and foremost official documents are considered by the authorities.[5] There is no obligation to demonstrate the family link through DNA testing. However, in cases where the family link cannot be proven by official documents and reasonable doubts cannot be removed regarding the existence of a family link, the authorities are required to inform applicants about the possibility to use voluntarily DNA testing as evidence.[6] The question of who covers the costs for the required documents and the family reunification procedure in total is disputed and differs in individual cases. It is generally established that only the sponsors present in Germany may apply for financial compensation. Additionally, costs will only be compensated if sponsors are unable to cover the costs themselves and if the general social benefits are not sufficient to cover the costs.[7]
The family link does not need to be established before the entry of the sponsor to Germany. Explicitly family reunification is possible not only for the “protection of family life” but also for the “establishment of family life”.[8] However, the applicability of additional criteria may depend on whether the link already existed prior to the arrival of the sponsor in Germany. For example, basic German knowledge of spouses is not required if the link already existed prior to the arrival of the sponsor in Germany.[9]
If refugees are entitled to family reunification under this provision, the local authorities in Germany examine the application. They then approve the application if the criteria set out above are fulfilled. The approval is sent to the embassy. Based on the approval, the German embassy in the country where the family members are staying then must issue the necessary visa. An administrative fee of € 75 for adults and half of it for minor children must be paid for the issuance of the visa.[10]
Generally, the reunited person must be in possession of a valid passport or equivalent travel documents.[11] As mentioned above, it is contested whether sponsors or family members may apply for financial support. Exemptions are only possible if all other criteria for family reunification are fulfilled and if the identity of the person is established. The person who wishes to be reunited must apply for the exemption of holding valid travel documents and a decision on whether the exemption will be granted is discretionary.[12]
The overall procedure may take several months, depending on the embassies. The sometimes-extensive length of the procedure has continuously been criticised by civil society organisations. [13] According to the answer to an oral parliamentary request, the waiting times in 2022 took over one year in Islamabad and Lagos and one year in Rabat.[14] The Foreigners Office announced it would introduce an action plan to accelerate the procedure.[15] Up until December 2023, there has been no significant change and the waiting times to apply for a visa in relation to family reunification is still over a year in Dhaka, Islamabad, Lagos and Teheran.[16] Some embassies already state beforehand, that the processing time takes up at minimum twelve months.[17] There is no legal regulation concerning the timeframe. In case of lack of answer, the applicant can file an action for inactivity. However, delays are seen as irrelevant if there is a valid reason. As a rule, the embassies will be overloaded, and the complaint will thus be quite futile. In case of refusal, the applicant can appeal against a negative decision in the visa procedure in writing to the diplomatic mission abroad, i.e., lodge an appeal against the decision.
According to German law, parents of unaccompanied minors may only be granted a visa if the child is still underage. Section 36 para 1 Residence Act does only speak of “parents of a minor” and does not specify the point in time at which the child has to be minor. German Courts have previously required the minority at time of the judicial decision, even if the child turns 18 due to a lengthy judicial process.[18] This practice has been challenged, however in the context of a CJEU decision of 2018 which clarified that the date of lodging the asylum application, and not the date of entry of the parents, is decisive for the right to family reunification, meaning that family reunification is still possible if the minor turns 18 before the arrival of the parents.[19] The Federal Administrative Court has requested a preliminary ruling of the CJEU on the matter in April 2020.[20] In August 2022 the CJEU strengthened the right to family reunification in its decision. The CJEU decided that the child needs to be underage at the time of the application for asylum but not necessarily at the time of their family’s departure.[21] This counts for cases where the underaged child is the sponsor as well as for cases where the parent is the sponsor. The CJEU has strengthened this position again in January 2024.[22] As of August 2022, according to the Federal government, 330 cases were pending at German embassies on the matter and another 250 cases were pending before courts.[23] No information for 2024 was available as of April 2024. The Federal government declared that they advised the embassies and Federal states to quickly implement the CJEU’s decision to respond to the backlog of cases. The party The Left however criticised that the non-compliance with the CJEU decision of 2018 already lead to wrong decisions causing serious harm and trauma to many families in the last years.[24]
Another discussion arose in 2022 on the additional criteria for family reunification in cases where minor children are the sponsors and want to reunite with their parents. Parents of unaccompanied minors may only be granted a visa if the family already existed in the country of origin.[25] In the case discussed, the child was born in Germany, so it was argued that the ‘family’ did not exist yet at the time the parents were in the country of origin. However, the Higher Administrative Court decided that the criterion of the ‘already existing family’ does not necessarily require identical persons but that the family already exists as family tribe, meaning that the child does not need to be born prior to their arrival in Germany in order to later become a sponsor for the parent.[26]
If family members of refugees apply for family reunification later than 3 months after status determination has become final, ‘normal rules’ for family reunification apply. In particular, refugees living in Germany have to prove that they can cover the cost of living for themselves and their families and that they have sufficient living space.[27] For family reunification of spouses, a further requirement is that both spouses have to be at least 18 years of age.[28]
One important privilege applies regardless of whether the procedure for family reunification is initiated within the three-month period or at a later date: Spouses of refugees who wish to immigrate to Germany by means of family reunification do not have to prove that they have basic German language skills.[29]
In 2023 a total of 22,637 visas for family reunification were issued to beneficiaries of international protection, out of which 10,570 for beneficiaries of refugee protection and 12,067 for beneficiaries of subsidiary protection.[30] The number of visas issued in 2023 was again higher than in 2022 (19,449) and in the years 2020 and 2021 when Covid impacted the family reunification procedure,[31] but is still a little below the 2019 numbers (24,835).[32] 4,125 visas for family reunification purposes to refugees were granted to Syrian nationals, 991 to Afghan nationals, 1,776 to Turkish, 361 to Iraqi and 299 to Iranian nationals..[33]
Family reunification for beneficiaries of subsidiary protection
In 2018 the right to family reunification was effectively abolished for beneficiaries of subsidiary protection and was replaced with a provision according to which 1,000 relatives shall be granted a visa to enter Germany each month.[34] This means that the privileged conditions that apply to family reunification for refugees do not apply to beneficiaries of subsidiary protection and have been replaced with a ‘humanitarian clause’ which places family reunification at the discretion of the authorities. As such, the beneficiary of subsidiary protection does not have a right to family reunification. Instead, the family members need to apply themselves for reunification and the decision is at the discretion of the authorities.
This is regulated in Section 36a of the Residence Act, according to which only members of the ‘immediate family’ (spouses, registered partners, minor unmarried children, parents of unaccompanied children) are eligible for family reunification. In order to be included in the monthly quota of 1,000 visa, ‘humanitarian reasons’ shall be decisive, which are listed in the law as follows:
- Long duration of separation of family members,
- Separation of families with at least one (minor) unmarried child,
- Serious risks to life, limb or personal freedom of a family member living abroad,
- Serious illness, need for care or serious disabilities of a family member living abroad.
In addition, the welfare of the child and ‘integration aspects’ (e.g., language skills, ability to provide for means of living) may be taken into account.[35]
The monthly quota for visa has not been reached since the introduction of the new regulation for beneficiaries of subsidiary protection, due to a complicated procedure involving three different authorities: Embassies or consulates – often in cooperation with IOM – have to carry out an interview with the family members who have applied for visa; then the local alien’s offices in Germany have to decide whether the necessary humanitarian criteria are fulfilled; and then they have to pass on the visa applications to the Federal Administrative Office (Bundesverwaltungsamt) which theoretically should select the most urgent 1,000 cases per month.[36] In practice, this selection does not take place since procedures at the local authorities are lengthy, resulting in less than 1,000 applications per month. As a result, the Federal Administrative Office usually authorises all cases submitted by the local authorities and informs the embassies or consulates that visas may be issued.
Until 12 December 2023, 12,067 visas were issued to family members of beneficiaries of subsidiary protection.[37] In contrast to the time between August 2018 and April 2021, where only 20,600 visas were granted(62% of the total of 33,000 visas that the law would have foreseen for this period), the quota of 12,000 per annum is thus fulfilled in 2023.[38] In 2022, 8,900 visas were issued, i.e., 74% of the quota of 12,000 per year.[39] Around 17,594 requests for appointments at embassies were pending as of June 2022.[40] Since it is likely that many persons have asked for appointments several times, the actual number of persons applying for visa for this purpose is likely to be lower.[41] 10,778 of those visas in 2023 were granted to Syrian nationals, 176 to Afghan, 54 to Turkish, 83 to Iraqi and 2 to Iranian nationals.[42]
Also for beneficiaries of subsidiary protection, the question arises concerning the time of their minority in relation to family reunification. As already mentioned, the German Courts have in the past evaluated the age of the beneficiary at the time of the court decision and must now refer to the time of the asylum application due to several CJEU rulings (see above). However, those rulings are based on the directive 2003/86/EC,[43] which does not apply to beneficiaries of subsidiary protection.[44] Thus, German courts have argued, that the right to family reunification ends when the subsidiary protection status holder becomes an adult.[45] Until January 2024, there is no final decision concerning this matter of the highest administrative court. This means that a delay in procedures, in particular on the part of local authorities, might put family reunification of young persons with subsidiary protection again at risk.[46] In order to safeguard the right to family reunification, the Administrative Court of Berlin has repeatedly asked authorities to prioritise procedures of unaccompanied minors who were approaching their 18th birthday.[47]
The suspension of family reunification for beneficiaries of subsidiary protection coincided with a steep rise in decisions in which asylum applicants were granted subsidiary protection instead of refugee status. At the same time, suspension of family reunification resulted in tens of thousands of beneficiaries of subsidiary protection appealing against the authorities’ decisions in order to gain refugee status (‘upgrade-appeals’, see Subsequent applications and Differential treatment of specific nationalities in the procedure).
The coalition programme of November 2021 underlines in this regard that the restrictions on family reunification for beneficiaries of subsidiary protection should be removed. Minors who have received a protection status should be allowed to bring their siblings, and not only their parents as is currently the case. It remains to be seen if these measures will be implemented in practice. However, the Federal government has not initiated any legal reforms yet. Instead, the Federal Administrative Court ruled in December 2022 that a distinction between refugees and beneficiaries of subsidiary protection concerning the right to family reunification does not violate the Constitution.[48]
Ad hoc family reunification programmes for Syrian and Afghans
For Syrian refugees, some regional programmes for family reunification are still in place. These programmes are reserved for first- and second-degree relatives of persons living in Germany with refugee status or another legal residential status. In contrast to the ‘normal’ family reunification procedures, the family members living in Germany have to act as sponsors by declaring that they will cover the cost of living of their relatives (either from their own resources or with the help of external sponsors). In 2020 and 2021 such programmes were in place in the Federal States of Berlin (prolonged until end of 2024),[49] Brandenburg (prolonged until end of 2023),[50] Bremen (until end of September 2021), Hamburg (until end of November 2023),[51] Schleswig-Holstein (until end of 2023)[52] and Thuringia (until end of December 2024).[53] The programme in the Federal State of Berlin is also available to family members of Iraqi refugees.[54]
In 2021 and 2022, several Federal States (Berlin, Bremen, Hessen, Schleswig-Holstein and Thuringia) decided to put similar family reunification programmes in place for family members of Afghan refugees. [55] The Federal government approved these programmes.[56]
Civil society organisations have welcomed the introduction of such programs and the corresponding prerequisites for the family members, however criticises that only a small number of Federal States have implemented them. In addition, the conference of interior ministers of the Federal States have decided that such programmes should have more restrictive prerequisites.[57] In any case, the programs unfortunately are coming to an end. For example, for family members of Afghan refugees, only Berlin still provides an ad hod reunification program that is supposed to end 31 December 2024.[58]
In parallel, in October 2022, the Federal Government introduced a reception and family reunification programme for Afghans and family members of Afghans with a monthly quota of 1,000 people (see also Differential treatment of specific nationalities in the procedure for further details).[59] Criticism has been raised by the party The Left as to the fact that the visa procedure for family reunification from Afghanistan is extremely lengthy. Accordingly, despite the discretion of the local authorities to shorten the procedure in cases of concrete danger, the procedure continues to take over one year.[60] The Left further criticises that because applications for the special reunification programmes may only be filed in Afghanistan and embassies in Pakistan and India are overburdened with applications for family reunification, many family members in practice do not have access to family reunification.[61]
[1] Section 29(2)(1) Residence Act.
[2] Handbook Germany, Familiennachzug für Geflüchtete, lastly amended 20 August 2022, available at: http://bit.ly/3jh3P6z.
[3] ‘Registered same-sex partnership’ was introduced in 2001 as equivalent to marriage which was at that time still reserved to heterosexual couples. From 2017 on same-sex marriage is allowed in Germany. However, the term is still used, since there may still be same-sex couples who formerly registered as such and/or a similar concept might exist in other countries.
[4] Section 30 para 1 Residence Act.
[5] Federal Ministry of Interior, Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz (General Administrative Guidelines for the Residence Act), 26 Oct. 2009, no. 27.0.4, available in German at: https://bit.ly/3wfvPh7.
[6] Federal Ministry of Interior, Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz (General Administrative Guidelines for the Residence Act), 26 Oct. 2009, no. 27.0.5, available in German at: https://bit.ly/3wfvPh7.
[7] Eva Steffen, Infoblatt für Mitarbeitende in den Migrationsfachdiensten, Zu den rechtlichen Möglichkeiten der Übernahme von Kosten des Familiennachzuges zu international Schutzberechtigten, 18 November 2019, available in German at: https://bit.ly/3uH0NOE.
[8] Section 27 para. 1 Residence Act.
[9] See e.g., Section 30 para 1 sentence 2 no. 1 Residence Act.
[10] Section 46 para 2 Regulation on Residence.
[11] Section 3 para 1 Residence Act.
[12] Federal Foreign Office, Visumhandbuch, Ausnahme von der Passpflicht, 130. Ergänzungslieferung, August 2022.
[13] German Institute for Human Rights, Hürden beim Familiennachzug, December 2020, available in German at: https://bit.ly/3HnwBKK.
[14] Reply to oral parliamentary request by Clara Bünger (die Linke), 8 February 2023, question no. 37, available in German at: https://bit.ly/3OJPJaq.
[15] Ibid.
[16] Reply to written parliamentary request by Clara Bünger, 19 December 2023, question no 80, available in German at: https://bit.ly/3SOEbnI.
[17] See for example The German Embassy in Cameroon, available at: https://bit.ly/49Ccdlz.
[18] Federal Administrative Court, 10 C 9.12 – Decision of 18 April 2013, avaialbe in German at: https://bit.ly/49jMBdC.
[19] CJEU, Case C-550/16, A und S / Staatssecretaris van Veiligheid en Justitie, Judgement of 12 April 2018, available at: https://bit.ly/3RuoEbL.
[20] Federal Administrative Court, 1 C 9.19 – Decision of 23 April 2020, available in German at: https://bit.ly/486ZFCn.
[21] CJEU, Joined Cases C-273/20, C-355/20, Judgement of 1 August 2022, ECLI:EU:C:2022:617, available in German at: https://bit.ly/3Tz9THo.
[22] CJEU C-560/20, Judgment of 30 January 2024, ECLI:EU:C:2024:96, available at: https://bit.ly/3uxVr8z.
[23] Federal Government, Response to parliamentary question by The Left, 20/4146, 20 October 2022, available in German at: https://bit.ly/3RkYCYa, 20.
[24] Tagesschau.de, Bundesregierung will Familiennachzug erleichtern, 26 October 2022, available in German at: http://bit.ly/3kXFWSf.
[25] Section 26 (3) (no.2) Asylum Act.
[26] Higher Court of Rhineland-Palatinate, Decision 13 A 11241/21.OVG, 25 June 2022, available in German at: http://bit.ly/3HolJwj.
[27] Sections 27(3) and 29 Residence Act.
[28] Section 30(1)(1) Residence Act.
[29] Section 30(1)(3) Residence Act.
[30] Reply to oral parliamentary question by Clara Bünger (Die Linke), 19 December 2023, question no. 80, available in German at: https://bit.ly/3SOEbnI.
[31] Reply to oral parliamentary question by Clara Bünger (Die Linke), 8 February 2023, question no. 37, available in German at: https://bit.ly/3OJPJaq; for information on the impact of Covid-19 on the family reunification procedure, see: AIDA, Country Report Germany – Update on the year 2021, April 2022, available at https://bit.ly/3XnN7RS, 170.
[32] Neue Osnabrücker Zeitung, ‘Familiennachzug hat im vergangenen Jahr wieder deutlich zugenommen’, 10 March 2022, available in German at: https://bit.ly/389cYbi.
[33] Reply to oral parliamentary question by Clara Bünger (Die Linke), 19 December 2023, question no 80, availabl in German at: https://bit.ly/3SOEbnI.
[34] Section 36a Residence Act; Section 104(13) Residence Act.
[35] Detailed information on the legal requirements and the procedure can be found at: https://familie.asyl.net/.
[36] A description of the procedure in English has been published by Initiative ‘Familienleben für alle’, available at https://bit.ly/2V6QzBg.
[37] Reply to oral parliamentary question by Clara Bünger (Die Linke), 19 December 2023, question no. 80, available in German at: https://bit.ly/3SOEbnI.
[38] In 2020, the number of visas granted was especially ow with 5,311, compared to 12,000 visas that should have been granted according to the monthly quota, see Tagesschau, ‘Viele Angehörige müssen warten’, 20 January 202, available in German at: https://bit.ly/3H0EwMM.
[39] Reply to oral parliamentary request by Clara Bünger (die Linke), 8 February 2023, question no. 37, available in German at: https://bit.ly/3OJPJaq.
[40] Reply to written parliamentariy request by the Left, Drucksache 20/2842, 20 July 2022, available in German at: https://bit.ly/3SWWkRj, 3.
[41] ibid.
[42] Reply to oral parliamentary question by Clara Bünger (Die Linke), 19 December 2023, question no 80, availabl in German at: https://bit.ly/3SOEbnI.
[43] See inter alia CJEU, Case C-550/16, A und S / Staatssecretaris van Veiligheid en Justitie, Judgement of 12 April 2018, available at: https://bit.ly/3RuoEbL.
[44] Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, available at: https://bit.ly/3UINR5z.
[45] Administrative Court of Berlin, Decision 38 K 27.18 V, 29 March 2019, available at: https://bit.ly/2VGrPQW.
[46] An account of a case in which a 17-year-old Syrian could only be reunited with his mother following a „last-minute’ court intervention can be found here: Pro Asyl, Aus der Praxis: Familiennachzug – Zustimmung in letzter Minute, 2 January 2020, available at: https://bit.ly/39VrQp9.
[47] Administrative Court of Berlin, Decision 38 L 502.19 V, 16 January 2020, available in German at: https://bit.ly/34NRMC0; Decision 38 L 442.19 V, 26 November 2019, available at: https://bit.ly/3cDid0d. For an overview of jurisprudence on this subject, see German Red Cross: Nachzug zu subsidiär Schutzberechtigten, besonders Minderjährige vor Eintritt der Volljährigkeit: Fachinformation des DRK-Suchdienstes zum Familiennachzug (FZ) von und zu Flüchtlingen, February 2020, available in German at: https://bit.ly/2wuFwK8.
[48] Judgement not available yet. Instead see: Federal Administrative Court, ‚Voraussetzungen für den Familiennachzug zu subsidiär Schutzberechtigten‘, press release Nr. 78/2022, 8 December 2022, available in German at: https://bit.ly/3YcL6rO.
[49] Berlin, Aufnahmeregelung für afghanische, syrische und irakische Flüchtlinge mit Verwandten in Berlin, available in German at: https://bit.ly/42EZgFB.
[50] Brandenburg, Allgemeine Weisung Nr. 4/2022, available in German at: http://bit.ly/3HJGRyj.
[51] Hamburg, Anordnung Nr. 2/2022, available in German at: https://bit.ly/3wIz6T3.
[52] Schleswig-Holstein, Landesaufnahmeprogramm für syrische Familien bis Ende 2023 verlängert, 21 December 2022, available in German at: http://bit.ly/3jh0KDH.
[53] Refugee Council Thuringia, Familiennachzug – Syrien Aufnahmeprogramm, available in German at: http://bit.ly/40g4eqA.
[54] An overview of regional programmes can be found at: http://resettlement.de/aktuelle-aufnahmen/.
[55] Netzwerk Berlin Hilft, ‘Berlin & Bremen beschließen Landesaufnahmeprogramme für Afghanistan – mit Defiziten’, 29 December 2021, available in German at: https://bit.ly/3rLdHFS, Ministry of the Interior of Schleswig-Holstein ‚Innenministerin Sütterlin-Waack: Schleswig-Holstein bereitet ein eigenes Landesaufnahmeprogramm für Menschen aus Afghanistan vor’, 17 August 2021, available in German at: : https://bit.ly/3KyI1fv.
[56] Federal government, response to parliamentary request, 20/4209, available in German at: https://bit.ly/3jhzuFc, 30.
[57] ProAsyl, Flüchtlingspolitische Anliegen zur Tagung der Innenminister*innenkonferenz im Juni 2023, 12 June 2023, available in German at: https://bit.ly/3utlQo2.
[58] Berlin, Aufnahmeregelung für afghanische, syrische und irakische Flüchtlinge mit Verwandten in Berlin, available in German at: https://bit.ly/42EZgFB.
[59] Federal Ministry of Interior, Aufnahmeanordnung, 21 December 2022, available in German at: http://bit.ly/3jhXlnY and Federal Foreign Ministry, ‘Action Plan for Afghanistan, 23 December 2021, available at: https://bit.ly/3uF42lJ.
[60] Federal government, response to parliamentary request, 20/3430, available in German at: https://bit.ly/3HOs4Tk, 22.
[61] Federal government, response to parliamentary request, 20/3430, available in German at: https://bit.ly/3HOs4Tk, 22.