"Translation is always commentary."
Leo Baeck
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.
Our regular readers are already well familiar with the prerequisites, requirements and procedure for moving to Germany permanently for those applying for German citizenship under the "Late Resettlers" program. As a reminder, under this program persons of German ethnicity who remained living in the territory of the former Soviet Union from May 1945 onward, or after being expelled from 31 March 1952 onward, as well as their family members, are entitled to apply for late resettler status, which allows them to resettle permanently in Germany. The term "resettlers" (German: Aussiedler) first appeared after Germany passed the "Act on the Affairs of Displaced Persons and Refugees" (Gesetz über die Angelegenheiten der Vertriebenen und Flüchtlinge, abbreviated Bundesvertriebenengesetz, BVFG) in 1953. This German federal law 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 receive social support from the European state. A major advantage of this program is that "late resettlers" do not need to go through a naturalization procedure or renounce their country of origin's citizenship.
One of the most important requirements is a sufficient command of the German language for quick adaptation and integration in the country after moving. Accordingly, all adults moving to Germany under the late resettler admission program must demonstrate German proficiency. Those obtaining late resettler status take a German language test at a German mission in their country, or submit a certificate confirming proficiency at level B1 or higher. It is important to understand that the language test at the embassy has no formal standards, and the examiner does not issue the final decision — they merely record their own opinion of the candidate's level on a form. The final decision is made by the Federal Office of Administration (Bundesverwaltungsamt, BVA). The applicant only learns of it several months after taking the language test.
Nevertheless, every rule has its exceptions. In this case, the exception applies to people who cannot provide proof of sufficient language proficiency due to illness, disability or other similar reasons. As a general rule, a candidate for late resettler status must be able to hold an everyday conversation in German. The right to be exempted from the German-language interview is available to applicants who, due to illness (a serious disease, mental disorder, dementia, etc.) or disability (muteness, deafness, blindness, etc.), are unable to acquire the language knowledge needed to converse in German on everyday topics.
The specific illness or disability of a candidate for late resettler status must be confirmed by a medical board's opinion establishing that the applicant, due to an incurable illness or disability, is unable to acquire the German knowledge needed for everyday conversation. Old age alone is not grounds for exemption from the test, nor is the inability to study German due to difficult financial circumstances or the distance of language courses from the applicant's place of residence. Even where this exemption might apply — for example, to a relative or acquaintance of yours — and a medical certificate in the proper form has already been obtained, it is too early to relax. Danger can also lurk in the correctness and precision of the German translation of that medical certificate. In this article, we describe one such case from our extensive experience successfully representing late resettlers.
A young man — let's call him Dmitri — came to our law firm. Dmitri's problem was that his elderly father, who was gathering documents to move to Germany under the "Late Resettlers" program, was unable to pass the German language test at the required B1 level. We gave Dmitri a detailed consultation, explaining every category of illness that constitutes grounds for exemption from the exam. Our attorney, who specializes in late resettler cases, also explained in detail what form the medical certificate needed to take, which specialist had to issue it, and exactly what the diagnosis needed to state in order for the situation to qualify as a "severe personal hardship."
Following our initial consultation, Dmitri arranged for the necessary medical examination to be carried out at his father's place of residence in Kazakhstan. A medical board of three physicians confirmed that the elderly man was unable to learn a foreign language. A corresponding certificate meeting the requirements of the Federal Office of Administration (Bundesverwaltungsamt, BVA) was drawn up and issued on this basis. Dmitri then, without our involvement, found an authorized translator who translated the document into German. The complete set of documents was thus assembled and submitted to the BVA. The result of the initial review was unexpected: although every prerequisite for the coveted status had been met and the required documents submitted, the authority ruled that the language test still had to be taken. Unfortunately, the officials considered that the certificate provided did not reliably establish that Dmitri's father was actually unable to learn a foreign language. Dmitri again turned to us for help understanding the reason for this rejection of the medical document, and to find a way out of this difficult situation. Our firm's attorney examined the medical certificate previously submitted to the BVA, along with its German translation. As it later turned out, the problem lay precisely in the particulars of translating and interpreting the medical terminology. The translation stated that our client's father suffered from a nervous system disorder that substantially impeded successfully learning foreign languages. At the same time, the translation did not accurately reflect the conclusion contained in the original certificate — namely, that the nervous system disorder from which the elderly man suffered made learning foreign languages entirely impossible. To resolve the situation, the attorney personally contacted the translator who had produced the translation of the medical document. Following discussions, it was agreed that the translator would append an additional clarification to the existing translation stating that the illness noted in the medical certificate not only impeded the successful acquisition of foreign languages but rendered learning them entirely impossible for the patient. This clarification, in German, was duly certified with the translator's signature and stamp.
The certificate, together with the clarification, was then submitted to the BVA as an attachment to a document prepared by our firm's attorney. This document set out the facts and explanations showing that, owing to an illness he had had for many years, the man had genuinely been unable to prepare for and pass the German language exam, and was accordingly entitled, under the exceptions provided by law, to be exempted from this requirement. The attorney continued to accompany the process until a positive decision was received from the BVA — an Aufnahmebescheid (admission permit), which an applicant for late resettler status receives once their documents have been successfully reviewed. Our client's joy — and that of his father — knew no bounds: he could now move to the country without hindrance, whenever suited him.
Fully trusting our firm's attorney's professionalism, Dmitri instructed us to handle the further process needed for his father to obtain German citizenship. The next steps consisted of obtaining a national visa, traveling to Friedland, applying for a German passport at the relevant German authority, and other formal procedures whose thorough observance is decisive and allows one's intentions to be carried out without delays or friction. Our attorneys — experienced professionals with many years of successful practice — are ready to help you with the challenging matter of emigration. Our firm's range of services includes one-off consultations on questions of interest to you, legal assistance with individual procedural steps, and full "turnkey" support of an immigration case from start to successful completion. If moving to Germany is currently on your agenda, we invite you to consult our law firm.
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