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 payed 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]
Parents of unaccompanied minors may only be granted a visa if the child is still underage at the time of departure. This practice has been challenged in courts however, given the fact applications for family reunification often take a long time to process and 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.[16] The Federal Administrative Court has requested a preliminary ruling of the CJEU on the matter in April 2020.[17] 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.[18] This counts for cases where the underaged child is the sponsor as well as for cases where the parent is the sponsor. 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.[19] 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.[20]
Another discussion arose in 2022 on the additional criteria for family reunification in cases where minor children are the sponsors and want to reunite their parents. Parents of unaccompanied minors may only be granted a visa if the family already existed in the country of origin.[21] 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.[22]
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.[23] For family reunification of spouses, a further requirement is that both spouses have to be at least 18 years of age.[24]
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.[25] In 2022 a total of 19,449 visas for family reunification were issued to beneficiaries of international protection, out of which 10,549 for beneficiaries of refugee protection and 8,900 for beneficiaries of subsidiary protection.[26] While the number of visas issued in 2022 was higher than in the years 2020 and 2021 where Covid impacted the family reunification procedure,[27] the overall figure stayed below the 2019 numbers (15,849 visas issued in 2021, compared to 24,835 in 2019).[28]
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.[29] 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.[30]
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.[31] 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.
Between August 2018 and April 2021, only 20,600 visas were granted to family members of beneficiaries of subsidiary protection, which equals to 62% of the total of 33,000 visas that the law would have foreseen for this period.[32] In 2022, 8,900 visas were issued, i.e. 74% of the quota.[33] Around 17,594 requests for appointments at embassies were pending as of June 2022. [34] 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.[35]
Difficulties for family reunification are exacerbated by long waiting periods at embassies.[36] This has particularly problematic effects on family reunification procedures of unaccompanied minors (see above). In several decisions the Administrative Court of Berlin[37] has argued that the right to family reunification (i.e. reunification with one’s parents) ends when the subsidiary protection status holder becomes an adult.[38] The delay in procedures, in particular on the part of local authorities, might put reunification of young persons with their parents at risk.[39] 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.[40]
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.[41]
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),[42] Brandenburg (prolonged until end of 2023),[43] Bremen (until end of September 2021), Hamburg (until end of November 2023),[44] Schleswig-Holstein (until end of 2023)[45] and Thuringia (until end of December 2024)[46]. The programme in the Federal State of Berlin is also available to family members of Iraqi refugees.[47]
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. [48] The Federal government approved these programmes.[49] 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).[50]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.[51] 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.[52]
No exact figures are available on the number of visas or residence permits granted to family members of refugees for family reunification purposes. In 2020, 3,900 residence permits were granted to Syrian nationals for the purpose of family reunification, compared to 12,790 permits in 2019.1,339 such permits were granted to Iranian nationals (2019: 1,913) and 834 to Afghan nationals (2019: 1,151).[53] However, these figures include both cases of family reunification with refugees and with persons who have a residence permit in Germany for other reasons. More recent statistics are not available.
[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.
[6] Federal Ministry of Interior, Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz (General Administrative Guidelines for the Residence Act), 26 Oct. 2009, no. 27.0.5.
[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.
[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.
[15] Ibid.
[16] CJEU, Case C-550/16, A und S / Staatssecretaris van Veiligheid en Justitie, Judgement of 12 April 2018.
[17] Federal Administrative Court, 1 C 9.19 – Decision of 23 April 2020.
[18] CJEU, Joined Cases C-273/20, C-355/20, Judgement of 1 August 2022, ECLI:EU:C:2022:617.
[19] Federal Government, Response to parliamentary question by The Left, 20/4146, 20.10.2022, 20, available in German at: https://bit.ly/3RkYCYa.
[20] Tagesschau.de, Bundesregierung will Familiennachzug erleichtern, 26.10.2022, available in German at: http://bit.ly/3kXFWSf.
[21] Section 26 (3) (no.2) Asylum Act.
[22] Higher Court of Rhineland-Palatinate, Decision 13 A 11241/21.OVG, 25 June 2022, available in German at: http://bit.ly/3HolJwj.
[23] Sections 27(3) and 29 Residence Act.
[24] Section 30(1)(1) Residence Act.
[25] Section 30(1)(3) Residence Act.
[26] Reply to oral parliamentary question by Clara Bünger (Die Linke), , 8 February 2023, question no. 37..
[27] 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.
[28] Neue Osnabrücker Zeitung, ‘Familiennachzug hat im vergangenen Jahr wieder deutlich zugenommen’, 10 March 2022, available in German at: https://bit.ly/389cYbi.
[29] Section 36a Residence Act; Section 104(13) Residence Act.
[30] Detailed information on the legal requirements and the procedure can be found at: https://familie.asyl.net.
[31] A description of the procedure in English has been published by Initiative ‘Familienleben für alle’, available at https://bit.ly/2V6QzBg.
[32] 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.
[33] Reply to oral parliamentary request by Clara Bünger (die Linke), 8 February 2023, question no. 37.
[34] Reply to written parliamentariy request by the Left, Drucksache 20/2842, 20 July 2022, 3.
[35] ibid.
[36] By way of example, waiting times were 24 weeks at the Beirut embassy and over one yar at the Islamabad embassy as of April 2021, see Federal Government, Response to parliamentary question by The Left, 19/30793, 17 June 2021, 8.
[37] Appeals or other legal measures in family reunification cases have to be directed against the German Foreign Office which is responsible for issuing the necessary visa. Therefore, the Administrative Court of Berlin is the competent court of first instance for family reunification matters.
[38] Administrative Court of Berlin, Decision 38 K 27.18 V, 29 March 2019, available at https://bit.ly/2VGrPQW.
[39] 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.
[40] 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.
[41] 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.
[42] Berlin, Aufnahmeregelung für syrische und irakische Flüchtlinge mit Verwandten in Berlin, available in German at: http://bit.ly/3Ri299z.
[43] Brandenburg, Allgemeine Weisung Nr. 4/2022, available in German at: http://bit.ly/3HJGRyj.
[44] Hamburg, Anordnung Nr. 2/2022, available in German at: https://bit.ly/3wIz6T3.
[45] Schleswig-Holstein, Landesaufnahmeprogramm für syrische Familien bis Ende 2023 verlängert, 21 December 2022, available in German at: http://bit.ly/3jh0KDH.
[46] Refugee Council Thuringia, Familiennachzug – Syrien Aufnahmeprogramm, available in German at: http://bit.ly/40g4eqA.
[47] An overview of regional programmes can be found at: http://resettlement.de/aktuelle-aufnahmen/.
[48] 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
[49] Federal government, response to parliamentary request, 20/4209, 30, available in German at: https://bit.ly/3jhzuFc.
[50] 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.
[51] Federal government, response to parliamentary request, 20/3430, 22, available in German at: https://bit.ly/3HOs4Tk.
[52] Federal government, response to parliamentary request, 20/3430, 22, available in German at: https://bit.ly/3HOs4Tk.
[53] The permits include permits for family reunification with German nationals (121 for Syria, 289 for Iran and 138 for Afghanistan in 2020), see BAMF, Migrationsbericht 2020 der Bundesregierung, December 2021, 271, available in German at: https://bit.ly/3nTDv1J.