Criteria and conditions

Germany

Country Report: Criteria and conditions Last updated: 30/11/20

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Informationsverbund Asyl und Migration Visit Website

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 authorities within 3 months after the refugee status has become incontestable (final) that they wish to be reunited with a close family member.[1] The application has to be handed in at the embassy of the country where the family members are staying. In addition, the local authorities at the place of residence of the refugee living in Germany should be notified that an application for a visa for the purpose of family reunification has been filed at the embassy.

Persons eligible for family reunification under this provision are:

  1. Spouses or “registered partners” i.e. partners in a same-sex partnership which has been registered in Germany or is equivalent to a registered partnership in Germany;
  2. Minor unmarried children;
  3. Parents of unaccompanied children, if no other parent with entitlement to custody is living in Germany.

If refugees are entitled to family reunification under this provision, the local authorities usually have to declare that they have no objections against the issuance of a visa to the family members. The German embassy in the country where the family members are staying then has to issue the necessary visa.

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.[2] For family reunification of spouses, a further requirement is that both spouses have to be at least 18 years of age.[3

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.[4]

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.[5] 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.

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:

  1. Long duration of separation of family members,
  2. Separation of families with at least one (minor) unmarried child,
  3. Serious risks to life, limb or personal freedom of a family member living abroad,
  4. Serious illness, need for care or serious disabilities of a family member living abroad.

In addition, welfare of the child and “integration aspects” (e.g. language skills, ability to provide for means of living) may be taken into account.[6]

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.[7] 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. In the first 18 months (from August 2018 to January 2020) only 14,404 visas were granted to family members of beneficiaries of subsidiary protection, which equals to 80 % of the total of 18,000 visas that the law would have foreseen for this period.[8] Around 22,000 requests for appointments at the embassies were pending at the end of 2019. 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.[9] Nevertheless, the figures show that many family members of beneficiaries of subsidiary protection are facing a waiting period of another year or more, even if the monthly quota of 1,000 visa would be reached in full from now on.

The long waiting periods have particularly problematic effects on family reunification procedures of unaccompanied minors. In several decisions the Administrative Court of Berlin,[10] 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.[11] The delay in procedures, in particular on the part of local authorities, might put reunification of young persons with their parents at risk.[12]  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.[13]

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”). Courts decided upon 18,433 such cases in 2019. 3,145 upgrade-appeals were successful in 2019, with Administrative Courts granting asylum or refugee status. In 11,370 cases upgrade-appeals were rejected by Administrative Courts or procedures were abandoned for other reasons (settlement out of court and/or withdrawal of appeal; see Differential Treatment of Specific Nationalities in the Procedure). 20,549 cases of such appeals were pending at the end of 2019.[14]

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 2019 and 2020 such programmes were in place in the Federal States of Berlin (until end of 2020), Brandenburg (until 2024), Hamburg (until end of November 2020), Schleswig-Holstein (until end of June 2020) and Thuringia (until end of December 2020). The programme in the Federal State of Berlin is the only one which is also available to family members of Iraqi refugees.[15]

No exact figures are available on the number of visas granted to family members of refugees for family reunification purposes. According to a media report, about 26,000 visa were granted in 2019 to family members from the seven most important countries of origin of refugees.[16] However, this figure includes both cases of family reunification with refugees and with persons who have a residence permit in Germany for other reasons. Therefore, this number represents only a vague indicator for the actual number of visa issued to family members of refugees.

The German embassy in Kabul was closed after being severely damaged in an attack on 31 March 2017. The embassy had not been reopened for visitors as of the end of 2019, so it was still not possible to apply for visas for family reunification purposes. Applications for visa for family reunification purposes have to be submitted to one of the German embassies in New Delhi (India) or Islamabad (Pakistan).[17]



[1] Section 29(2)(1) Residence Act.

[2] Sections 27(3) and 29 Residence Act.

[3] Section 30(1)(1) Residence Act.

[4] Section 30(1)(3) Residence Act.

[5] Section 36a Residence Act; Section 104(13) Residence Act.

[6] Detailed information on the legal requirements and the procedure can be found at: https://familie.asyl.net.

[7] A description of the procedure in English has been published by Initiative "Familienleben für alle", available at https://bit.ly/2V6QzBg

[8] PRO ASYL, ‚18 Monate Gnadenkontingent beim Familiennachzug: Nicht einmal der Minimalkonsens wird erfüllt‘, 28 February 2020, available in German at: https://bit.ly/2R8jGTR.  

[9] Federal Government, Reply to oral question by The Left, Plenary protocol 19/139, 17412, 14 January 2020, available in German at https://bit.ly/3dV6njk.

[10]  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.

[11] Administrative Court of Berlin, Decision 38 K 27.18 V, 29 March 2019, available at https://bit.ly/2VGrPQW

[12] 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. 

[13] 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.     

[14] Federal Government, Reply to parliamentary question by The Left, 19/18498, 2 April 2020, 50-51.

[15] An overview of regional programmes can be found at: http://resettlement.de/aktuelle-aufnahmen/.

[16] Migazin.de, ‚Kontingent für Familiennachzug für 2019 nicht ausgeschöpft‘, 14 January 2020, available in German at: https://bit.ly/3j9iQCE.

[17]  Informationsverbund Asyl und Migration, ‘Bearbeitung von Visaanträgen afghanischer Staatsangehöriger’, available in German at: http://bit.ly/2GfN3zh.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation