"The louder he talked of his honor, the faster we counted our spoons."
Challenging a BVA Refusal
A refusal by the Bundesverwaltungsamt (BVA) to recognize late resettler status can be challenged before the administrative court — typically within one month of receiving the refusal.
Ralph Waldo Emerson
Germany is one of the thriving countries with a developed economy and a high level of social protection. It is not only one of Europe's wealthiest countries but also ranks among the top five most prosperous nations in terms of living standards and social protection. For this and many other reasons, many people wish to move permanently to Germany. One of the programs offering that opportunity is the "Late Resettlers" program.
As we have mentioned in earlier articles, under this program persons of German ethnicity who remained living in the territory of the former Soviet Union from May 1945, or after being expelled from 31 March 1952, as well as members of their families, are entitled to apply for late resettler status, allowing them to move to Germany on a permanent basis. The term "resettlers" (Aussiedler) first appeared after Germany adopted the "Act on the Affairs of Displaced Persons and Refugees" (Gesetz ueber die Angelegenheiten der Vertriebenen und Fluechtlinge, or "Bundesvertriebengesetz" — BVFG) in 1953. This federal act governs the admission and integration in Germany of forcibly displaced persons and refugees of German ethnicity who left their places of settlement during and after the Second World War, as well as the admission of ethnic German resettlers from Eastern Europe and the countries of the former USSR. This group of people is entitled to resettle in Germany and to social support from the German state. A great advantage of this program is that "late resettlers" do not need to go through the complex naturalization procedure or renounce their country-of-origin citizenship. Children of resettlers who are already born in Germany likewise receive dual citizenship — of their country of origin and of Germany. When a late resettler moves to Germany together with family members, his or her spouse and children obtain the corresponding status under Section 7 BVFG, unless they themselves qualify as late resettlers. In that case, spouses of late resettlers must have been officially married for at least three years and must prove German proficiency at the Start Deutsch A1 level (either by submitting a Goethe-Institut A1 certificate or by passing a Sprachtest). Children who have reached the age of majority by the time of moving to Germany must demonstrate German proficiency at the A1 level.
Children under 18 and persons with disabilities are accordingly fully exempt from the test.
Common reasons a resettler may be refused include:
- insufficient evidence of German origin;
- poor German-language proficiency;
- a criminal record;
- engaging in violent or nationalist activity;
- the resettler's support for the communist regime during the Soviet era, or having held leadership positions in the party, military, or economic administration.
- evidence of participation in a terrorist group or of acts against Germany's constitutional order and security.
Applicants for resettlement under this program should also be aware that a 2013 German law is currently in force allowing the reopening of decisions in which applicants for late resettler status were refused admission before 2013. Anyone intending to move to their historical homeland under the "late resettlers" program should therefore know that even if refused for some reason, there is no need to lose hope. In this article we describe one interesting case from our practice, in which we managed to help a resettler-status applicant achieve, "through hardship to the stars," a positive decision from Germany's Federal Office of Administration (BVA).
A middle-aged man living permanently near Moscow — let's call him Alexei — contacted us on a relative's recommendation. He told us that about a year earlier he had submitted a set of documents to the BVA seeking late resettler status. After nine months of waiting, he received a letter stating that review of his file had supposedly been paused pending more precise proof of his German origin, as well as a more recently issued police clearance certificate. Alexei approached our law firm to prepare, on his behalf, an application to reopen review of his case. Relying on the information provided by our client and acting under the power of attorney he had granted, we prepared an appropriate petition to Germany's Federal Office of Administration seeking to reopen Alexei's case. By the time this petition was filed, our client already had in hand documents reliably establishing his German origin, as well as a fresh police clearance certificate. It turned out, however, to be nowhere near as simple as the resettler who came to us had thought.
After requesting the file from the BVA, it emerged that this was not a matter of Alexei's case being paused at all, but rather that the Federal Office of Administration had already issued a negative decision. Because an incorrect petition had been filed based on the information provided by the client, the deadline for appealing the negative decision in Alexei's case had been missed, and the decision was about to become final. Some, in the position of the attorney representing our client, might have given up at that point. As British Prime Minister Winston Churchill rightly observed: "Success is not final, failure is not fatal: it is the courage to continue that counts." Faced with this difficult situation, our attorney decided not to give up and to try using every available legal tool to have the appeal deadline for the BVA's negative decision reinstated. A detailed petition was accordingly prepared and submitted to the authority, explaining the reasons the appeal deadline had been missed. We requested reinstatement of the deadline so that we could then submit the additional documents needed to secure a positive decision for Alexei. To our client's relief, the BVA accepted our arguments as persuasive, and the deadline for appealing the earlier decision was reinstated. This gave us one month to prepare the corresponding petition and submit all additional documents needed to appeal the earlier decision. Fortunately, we succeeded in helping Alexei reach a happy ending to what had, for the reasons described above, become a drawn-out immigration case. We obtained a positive decision granting him the corresponding status, and provided legal support for the subsequent steps in carrying out his plan to move permanently to Germany.
As is well known, choosing a good attorney is as difficult as choosing a doctor — a point members of that profession readily acknowledge themselves. We do not entrust our health to just anyone, and the same care should be taken when deciding whom to trust with your legal problems. In effect, an attorney is your legal doctor. To prescribe the right course of action, they need your complete case history. To choose the most effective line of defense in a dispute, an attorney needs the most accurate and complete information from the client. So do not deceive your attorney or withhold information from them — hidden facts can surface at the worst possible moment and undermine the defense strategy chosen for the client.
If any problematic or unclear situation arises in your life, we recommend consulting a professional without delay. Whether you have received a claim in the mail, been summoned to a police interview, received a strange demand from the tax office, or had your rights infringed in some other way — the first step is always to consult an experienced attorney. The sooner you do so, the more time they will have to gather the necessary evidence and prepare your case. However complex and unsolvable your problem may seem, a well-reasoned approach and the right defense strategy give you a far better chance of a positive outcome.
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