In this article, our law firm would like to examine the problem of obtaining late resettler status for persons who, before the 2013 amendments to Germany's Act on the Affairs of Displaced Persons and Refugees (Bundesvertriebenengesetz), had decided to develop a business or take up employment abroad. Registering a legal entity abroad, renting or purchasing property for that company's operations, working there, and the business owner's frequent visits to other countries to manage the company all give Germany's Federal Office of Administration grounds to view an applicant's actions as relocating the center of their personal life away from the area of forced resettlement — that is, as failing to meet the statutory requirements, which is precisely the difficulty such an applicant faces.
Under existing case law, applications for late resettler status in such circumstances have typically been rejected by both the competent authority and the corresponding administrative court. Our law firm, however, succeeded in obtaining a favorable court decision, bringing a fairly lengthy and burdensome process to a successful conclusion for our client Valentin (name changed).
B1/B2 Language Certificate Requirements
To obtain late resettler status, an applicant must prove German proficiency at a native-speaker level (Section 6 BVFG) — exemption from the test is possible only on medical grounds.
Valentin was born and raised in the Russian Federation. Our client's ancestors were Germans who had lived in German colonies within the Russian Empire, but after Soviet power was established their property was nationalized, Valentin's great-grandfather was branded a German spy, arrested and executed, and his grandfather was exiled to an area of forced resettlement. Our client's father spent his entire life trying to conceal his German origin, listing himself as Russian in his documents, yet still faced discrimination by the state. Nevertheless, Valentin was raised to love German traditions, learned German, and, after the collapse of the USSR, began visiting his relatives in Germany fairly often.
Our client, however, only began seriously considering moving to Germany much later, since he did not initially meet the requirements set out under German law. Having started a family and built a solid life for himself in Russia through his business activities, Valentin began reflecting on what he genuinely felt was missing. Visiting Germany often during German holidays and spending time with relatives on his father's side, Valentin realized how close he felt to the country, its people's mentality, and German culture and traditions. Germany's economic stability also appealed to him as an experienced businessman, and our client decided to open his own company there. To that end, Valentin also purchased a house, planning either to turn it into his company's office or simply to safeguard his investments in an economically stable country.
After registering the company, Valentin began giving serious thought to how best to run it and to what future he envisioned for his family as a whole. After consulting his wife and his student son, our client decided to resettle in his ancestors' homeland and, to that end, to apply for late resettler status.
Being a man who had built a successful business and was used to handling matters on his own, Valentin approached the task responsibly, thoroughly researching everything about late resettlers on forums, talking with acquaintances who had moved to Germany, and gathering additional information from his German relatives.
Having gathered this information and reviewed the documents he had, our client concluded that his application for late resettler status would be approved without any difficulty. On this basis, Valentin submitted the corresponding application to Germany's Federal Office of Administration, in which, in addition to the required information, he also stated that both he and his family were ready to integrate into German society — not only because, at the time of applying, they already had a fairly good command of German, but also because Valentin had registered a legal entity that would operate in Germany, and had purchased land and a house for that purpose. Our client also noted that he visited Germany fairly often, both for business meetings and to see his German relatives.
Entirely satisfied with the application he had submitted, Valentin happily awaited his permit to enter Germany. Imagine his surprise, then, when a few months later the competent authority sent our client a refusal, stating that Valentin was not entitled to late resettler status because he did not meet all the statutory requirements — specifically, that he had left the area of forced resettlement.
Valentin was simply shocked by the refusal and decided not to give up, turning to our law firm for competent legal assistance to challenge Germany's Federal Office of Administration's decision. Since the deadline for appealing the authority's decision was limited to just one month, our attorney immediately notified the competent authority in writing that he represented Valentin's interests in the matter and requested access to our client's case file in order to prepare the appeal against the refusal of late resettler status.
Having carefully reviewed all the available documents, the attorney informed Valentin that the very explanations he had written about integrating into German society, registering a business in Germany, and purchasing property had been used against him, since the competent authority had concluded that our client had thereby shifted the center of his personal life from Russia to Germany and consequently no longer met the requirements set out in Sections 4 and 6 of Germany's Act on the Affairs of Displaced Persons and Refugees.
For this reason, the attorney's main task became finding proof that our client in fact continued to reside in the area of forced resettlement, and building a legally sound argument. Our attorney discussed with the client, in detail, every fact that might be relevant to challenging the authority's decision, and asked him to provide copies of the relevant documents. In doing so, the attorney drew Valentin's attention to the fact that the documents he had submitted to the authority did not state that he was German by nationality. Moreover, our client's birth certificate recorded both his father and his mother as Russian by nationality. This fact had not been noted in the Federal Office of Administration's decision, but our attorney, with many years of experience handling late resettler cases and dealing with the relevant government bodies, insisted that Valentin file a court action seeking to amend his civil-status records.
Trusting the attorney's knowledge and experience, Valentin agreed to initiate the court proceedings. The court action was drafted by the attorney, and our client only had to support the claims set out in it during the hearing. Taking into account the fact that Valentin's grandfather was German and had been exiled to an area of forced resettlement — as confirmed by the corresponding certificates — and the testimony of our client's father, who confirmed that he had indeed had to adopt his mother's nationality, "Russian," in order to avoid persecution by the Soviet authorities, the court found Valentin's claim to be well-founded and granted his action. On the basis of this court decision, the civil registry offices issued Valentin, among other things, a new marriage certificate stating that he was German by nationality.
After Valentin submitted every document gathered on our attorney's recommendation, a corresponding appeal was filed with Germany's Federal Office of Administration. In this document, the attorney first drew attention to the fact that Valentin met every requirement set out in Sections 4 and 6 of Germany's Act on the Affairs of Displaced Persons and Refugees. In particular, our client had been born after 31 December 1923, was descended from ethnic Germans, and had a sufficient command of German at the B1 level.
Moreover, contrary to the view of Germany's Federal Office of Administration, the requirement of residence in the area of forced resettlement had also been met, since Valentin and his family continued to reside permanently in the Russian Federation. The attorney emphasized that our client had spent considerably less time in Germany than in Russia, and had neither registered residence nor obtained a permit for extended stays in Germany, since every trip our client made to Germany had been undertaken solely on the basis of a corresponding Schengen visa, which allowed a stay in the Schengen area of no more than 90 days every six months.
To obtain that visa, Valentin had each time to provide evidence of his solvency, his ongoing employment relationship in Russia, his willingness to return to Russia, and so on. All of this indicated that our client's permanent residence was in Russia, not Germany.
Furthermore, Valentin, who had continuously held such visas since 2012, spent an average of only around 35-40 days abroad out of the 90 available. The attorney also asked that it be taken into account that part of this time was spent in other EU countries, and that the purpose of Valentin's trips to Germany was to visit his German relatives, take part in German holidays, join group trips with employees of his company, and so on — never to establish permanent residence in Germany.
Further evidence of permanent residence in the area of forced resettlement was the fact that, when registering his company and purchasing property in Germany, Valentin had been required to appoint a representative permanently residing in Germany, since he himself did not hold such a permit. Very importantly, however, the company's operations had been suspended almost immediately after registration, meaning our client was a taxpayer exclusively in Russia, where he owned a fairly large company and had successfully run his business for many years.
As for Valentin's residence in the house he had purchased in Germany, the attorney asked that it be noted that the house had originally been purchased with a view to setting up his German company's office there, but that once the decision was made to suspend the company's operations, the house became for Valentin purely a source of investment. Part of the house our client rented out, while the other part was undergoing renovation work owing to its poor structural condition. Valentin, however, was never registered there and never lived in that house.
Under existing case law, leaving the area of forced resettlement is confirmed where the applicant expressed an intention to relocate the center of their personal life abroad. On this basis, the attorney also placed particular emphasis on the fact that the center of Valentin's and his family's personal life remained the Russian Federation, since both our client and his wife continued to work and run their business there, and their son continued studying at a Russian university.
Having backed up every argument set out above with corresponding evidence, the attorney submitted the appeal to Germany's Federal Office of Administration. A few months later, our law firm received the competent authority's refusal, which again stated that Valentin had left the area of forced resettlement and shifted the center of his personal life to Germany. The counter-arguments our attorney had submitted were simply ignored.
The attorney explained to the client that it was also possible to bring this dispute before the courts. A court process naturally entails additional costs, but in this particular case Valentin's chances, in the attorney's view, were fairly good despite the existing case law. Weighing the pros and cons, our client fairly quickly decided to keep fighting — all the more so since Valentin already had experience of German court proceedings, having previously been forced to file a court action for damages over poor-quality construction work on his land. Learning of this, the attorney decided to use that court process as further evidence that Valentin permanently resided in Russia.
The reason: under Section 110 of Germany's Code of Civil Procedure (Zivilprozessordnung), applicants who do not permanently reside in any European Union member state or state party to the European Economic Area Agreement must, at the defendant's request, provide security for the potential costs of proceedings. Accordingly, once his action was accepted for review, Valentin was required, at the request of the construction company's representative, to transfer a certain sum to the court's account as security. This, in turn, further confirmed that our client held no permanent residence permit in Germany.
In addition, the attorney asked Valentin to prepare, for submission to the court, copies of his Russian tax returns as well as proof of health insurance, pension contributions, ownership of property in Russia, and so on.
Having gathered this additional evidence, our attorney filed the court action with the relevant administrative court. Once a hearing date was set, our client expressed a wish to attend the hearing himself. The attorney accordingly explained to Valentin the usual course of such proceedings, what clarifying questions might be asked, and how best to answer them.
The hearing began, as usual, with the judge's summary of the case in chronological order. The attorney listened carefully to ensure every important event had been mentioned, supplementing the judge's account where necessary. After the summary, the judge put clarifying questions to the parties, particularly to the representative of Germany's Federal Office of Administration, whose position the court considered less well-argued. The opposing side agreed with our attorney's arguments that Valentin had not left the area of forced resettlement and had not shifted the center of his personal life to Germany, but, grasping at straws, tried to argue that Valentin failed to meet other statutory requirements. For example, the biography of our client's father was raised in order to determine whether he had held a special political or professional position that could only have been attained through a special connection to the totalitarian system (Section 5(2)(b) of Germany's Act on the Affairs of Displaced Persons and Refugees), which could have justified refusing Valentin recognition as a late resettler. Our attorney, however, met every argument with a counter-argument backed by corresponding evidence, and the competent authority agreed to issue our client and his family a permit to enter Germany.
The case was thus successfully concluded in Valentin's favor, leaving him very satisfied with the outcome of our law firm's work. All court costs were borne by the authority.
On the basis of this example, we would once again like to stress that, even where you have obtained what seems like comprehensive information about the late resettler status procedure from relatives, acquaintances, forums, and other internet resources, we strongly recommend seeking professional legal assistance from a qualified attorney who is guided not only by the letter of the law but also by its practical application as reflected in current case law. Moreover, only an experienced attorney can find the arguments most compelling for your specific case and present them in the right light — saving you not only time, but money as well.
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