Our law firm's practice includes a large number of highly varied cases spanning different areas of law and covering virtually every legal relationship — from contracts to child support, inheritance, employment disputes, or criminal defense. However, our attorneys' primary focus is representing clients in the procedure for obtaining late resettler status under German law, in particular Germany's Act on the Affairs of Displaced Persons and Refugees (Bundesvertriebenengesetz). For many years now, our clients have accordingly been ethnic Germans living in the territories of the former Soviet Union who wish to obtain this status.
Under Section 4(1) of that Act, a late resettler is a person of German ethnicity who left the territory of one of the states that made up the USSR after 31 December 1992 under the admission procedure and, within six months, established permanent residence in Germany, provided that beforehand this person:
Requirements for Obtaining the Status
Late resettler status requires proof of German ethnicity, a lasting attachment to German culture, and German proficiency at a family/native-speaker level (Section 6 BVFG).
1. from 8 May 1945 onward, or;
2. after being expelled, or after one of their parents was expelled, from 31 March 1952 onward, or
3. from birth, if that person was born before 1 January 1993 and their parents/grandparents met the requirements under points 1-2, resided permanently in the area of forced resettlement.
Whether an applicant meets these statutory requirements is reviewed by Germany's Federal Office of Administration (Bundesverwaltungsamt, BVA). The circumstances of each individual case are assessed strictly on their own merits, which is why there is extensive case law addressing the various nuances of acquiring late resettler status.
Our law firm, which specializes in these matters, closely follows the court decisions issued in these categories of cases so that we can represent our clients' interests before the authorities as precisely and persuasively as possible. For this reason, we would like to present a selection of the most problematic issues considered by German courts in connection with the late resettler status procedure.
1. The Requirement of Permanent Residence in the Area of Forced Resettlement
It is fairly common for a client wishing to obtain late resettler status to be residing, at the time the application is filed with the competent authority, somewhere other than the area of forced resettlement — that is, outside the territory of the former USSR (excluding Latvia, Lithuania and Estonia) as well as Poland, the Czech Republic, Slovakia, Hungary and Romania. Germany's administrative courts have established that leaving the area of forced resettlement is confirmed where the applicant expressed an intention to relocate the center of their personal life abroad. This assessment takes into account the length of residence in the other country as well as the purpose of the move: if the applicant left the area of forced resettlement in order to establish permanent residence elsewhere, the requirement of permanent residence in the area of forced resettlement will not be met.
The most typical situations here are the following:
· Entering into a fixed-term employment contract: the court has held that in this case the requirement of permanent residence in the area of forced resettlement is still met;
· Studying in another country: this does not amount to a change of permanent residence provided the applicant does not sever their existing personal and economic ties with their previous place of residence. It remains unclear, however, what happens when a student remains in another country after graduating in order to look for work — this is assessed based on the specific circumstances of the case, particularly whether the applicant actually finds employment;
· Applying for refugee status: where an applicant finds themselves in difficult circumstances and is consequently forced to apply for a permit to enter Germany, the court takes into account whether the move to Germany was made solely to obtain refugee status. The application must be filed before, or immediately after, resettling in Germany. If, after being refused refugee status, the applicant immediately returns to the area of forced resettlement, their temporary stay in Germany will not be regarded as having left the area of forced resettlement.
2. Including an Adopted Child as a Descendant in a Late Resettler's Entry Permit / Recognizing an Adopted Person as a Late Resettler
Persons who, before receiving a permit to enter Germany, were adopted by late resettlers while still minors can be included as descendants in that entry permit without additional difficulty. A problem can arise, however, where the adopted person was already an adult. This question remains partly unresolved and must be settled on a case-by-case basis. Where an adoption took place long after the person reached the age of majority and was not intended to transfer existing assets, however, the courts have concluded that no family-like relationship comparable to a birth family arises between the adopted person and the adoptive parent, meaning the adopted person cannot be recognized as a descendant under the applicable law.
We would also like to draw attention to the fact that, under Section 6(2) of Germany's Act on the Affairs of Displaced Persons and Refugees, persons born after 31 December 1923 are recognized as German if they are descendants of persons holding German citizenship or German ethnicity, and if, before leaving the area of forced resettlement, they acknowledged their belonging to the German people — whether by declaring their nationality or in some other way — or if, under the law of their country of origin, they belong to the German nationality. In this case, only persons whose biological parents held German nationality or German citizenship are recognized as German. This provision accordingly does not extend to persons who were adopted by Germans.
It follows that adopted persons cannot apply for late resettler status under Section 4 of Germany's Act on the Affairs of Displaced Persons and Refugees, but can be included as descendants in an entry permit.
3. Descent from German Grandparents and the Right to Reopen Proceedings
Until 2008, Section 6(2) of Germany's Act on the Affairs of Displaced Persons and Refugees was interpreted by the courts to mean that, in order to be recognized as German, an applicant had to prove descent from a German parent. For this reason, a great many applicants whose parents, in order to avoid persecution by the Soviet authorities, had stated in their documents that they were Russian, Ukrainian, Kazakh or of some other nationality not persecuted in the USSR, were refused.
A decision of Germany's Federal Administrative Court dated 25 January 2008 established that, to be recognized as German, it would be sufficient for an applicant to prove descent from a grandmother or grandfather who held German citizenship or German ethnicity. Case law shows, however, that no right to reopen proceedings arises for persons who, before 25 January 2008, were refused recognition as German for failing to prove descent from German parents (as opposed to grandparents).
The courts' view has also changed regarding whether descendants and spouses of late resettlers need a separate admission decision in order to be recognized as late resettlers themselves. Until July 2015, the courts held that a descendant or spouse could only be recognized as a late resettler through a two-stage procedure — the so-called "upgrading" of their status from Section 7 to Section 4 of Germany's Act on the Affairs of Displaced Persons and Refugees. Under two decisions issued by Germany's Federal Administrative Court on 16 July 2015, however, descendants and spouses of late resettlers may now apply directly for recognition as late resettlers under Section 4 BVFG.
It should be noted that descendants and spouses of late resettlers who have already moved from the area of forced resettlement to Germany can obtain a separate admission decision only in exceptional cases involving severe hardship, and any such request should be filed as early as possible after resettling in Germany.
Descendants and spouses of late resettlers who were refused recognition as late resettlers under Section 4 of Germany's Act on the Affairs of Displaced Persons and Refugees before 2013 have no right to demand that proceedings be reopened.
It is also an important feature that, since 2013, descendants of late resettlers already living in Germany may likewise resettle in Germany, provided they hold a permit to enter Germany as late resettlers under Section 4 of Germany's Act on the Affairs of Displaced Persons and Refugees.
Summarizing the most important and relevant court decisions for persons wishing to obtain late resettler status, we would like to stress that every case is reviewed strictly on its own merits — by Germany's Federal Office of Administration in the first instance, and, where a dispute arises, by the administrative courts. For this reason, we recommend consulting a qualified attorney with many years of experience in this field, since only an attorney can help you not only gather the necessary documents and evidence but also correctly argue your legal position, taking into account both German statutory law and current case law.
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