"Family reunification" ("Familienzusammenführung") is a fairly broad concept that applies to a variety of situations and groups of people. Reunification can take place between spouses, between parents and children, and between children living in Germany and their parents.
The legal provisions governing the residence of foreign nationals in Germany are set out in the Residence Act (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet, or AufenthG for short). Alongside other German statutes — such as the Act on the Affairs of Displaced Persons and Refugees (Bundesvertriebenengesetz, BVFG) or the Act on the General Freedom of Movement of Union Citizens (Freizügigkeitsgesetz/EU) — as well as European directives, this Act governs family reunification.
Conditions for Family Reunification
Family reunification in Germany generally requires proof of sufficient income, adequate housing, and, for spouses, a basic A1-level language certificate (Section 30 AufenthG).
Among the most common family-reunification cases is reunification between spouses. Statistically, most national visas are issued precisely for spousal reunification or for the purpose of marrying in Germany. Here, too, various subcategories exist depending on the spouses' status and citizenship — for example, reunification between German or other EU citizens and foreign nationals, between two foreign nationals, or between a late resettler and their spouse, among others.
Reunification of German citizens with foreign spouses is only possible if the visa procedure prescribed by law is followed. This means the applicant seeking reunification, residing outside Germany on the strength of an invitation from a person residing in Germany, must file the reunification application through the German consulate in their own country. Immediately upon accepting the documents, the consulate forwards a copy to the immigration authority (Ausländerbehörde). If the application is instead filed directly with the immigration authority within Germany — for example, where the spouse entered the country on a Schengen visa — it will be rejected for failing to follow the visa procedure. German law exempts applicants from this visa-procedure requirement only in exceptional cases, such as where particularly weighty circumstances arise only after the foreign spouse has already entered the country.
To obtain a national visa for the purpose of family reunification, permission from the immigration authority in Germany is required. Under Section 30 AufenthG, this requires meeting certain conditions. A residence permit may be issued if both spouses are at least 18 years old; the incoming spouse has at least a basic command of German (and can submit a Start Deutsch A1 certificate); the spouse residing in Germany holds a residence permit in the country (Aufenthaltserlaubnis or Niederlassungserlaubnis); has housing sufficient for themselves and the spouse they wish to be reunited with, as well as sufficient means of subsistence for both of them, independent of state support; has a stable source of income and health insurance covering every incoming relative. In addition, the persons being invited must not pose a threat to public order. And, of course, there must be a genuine intention to live together. Meeting all of these conditions entitles the foreign spouse to family reunification.
Our clients, Arkady and Valentina Prokhorov (names changed), are a married couple. Valentina, as a late resettler, once moved to Germany together with Arkady and subsequently obtained German citizenship. Arkady, for a time, lived with Valentina in Berlin as an accompanying family member of a late resettler, until the couple fell out and he returned to Russia. During their separation, Arkady became entangled in an unpleasant affair in Russia, the consequences of which still weigh heavily on him. On returning from Germany, Arkady could not find work for a long time and made some new acquaintances. A shady group offered him a way to earn some extra money, which, as it later turned out, came at a steep price. Arkady found himself drawn into a whole series of criminal events. Together with a group of others, he committed a criminal offense, for which he was subsequently sentenced to 7 years and 7 months' imprisonment. When Valentina learned of this, she did not abandon her still-lawful husband in such a difficult situation; she reconciled with him and visited him frequently in prison. Having served most of his sentence, he was released on parole for good behavior, and the couple began looking for ways to reunite. The problem was that Arkady, having voluntarily left Germany, had automatically lost his status as an accompanying family member of a late resettler — meaning he now had to obtain a German visa and a reunification permit through the ordinary procedure, like anyone else.
Things, however, were not so simple. As described above, one of the decisive factors German authorities consider in family-reunification matters is whether the foreign national wishing to enter Germany has a criminal record or other past unlawful conduct — since a criminal record represents a potential danger to public order and national security. This was precisely the reason Germany's Consulate General in Russia refused to issue the national visa, citing the immigration authority's refusal to permit entry and reunification because of our client's criminal record and the seriousness of the offense he had committed.
To find a way out of this situation, Arkady and Valentina came to our law firm. Family reunification is one of our core practice areas, and we set to work at once to help the couple reunite.
We first filed an objection with the consulate against the visa refusal, requesting that no further action or decision be taken regarding our client. In addition, to obtain a clearer picture of the situation, we requested the relevant records from the immigration authority's case file.
After receiving confirmation from the consulate that our objection had been accepted, as well as the necessary documents from the immigration authority, we built a strategy to defend our client's interests and began to act.
It was clear that the central issue to resolve was Arkady's criminal record, since he met every other statutory requirement.
Our main goal was to prove that, despite his earlier criminal conviction, Arkady nevertheless satisfied all the conditions prescribed by law. And we already knew which direction to take.
Russia's Criminal Code contains a provision governing when a criminal record expires. Where a convicted person has been released early from serving their sentence, the period for the expiry of the record is calculated based on the sentence actually served, from the date of release from every type of punishment imposed. For the record to expire, the person must not commit any new offense during that period; otherwise the period is interrupted, and the person is treated as having a record for both offenses until the expiry period for the more serious one has run.
This provision of the Criminal Code applied perfectly to our client's case. He had been released on parole. He had committed no further offenses afterward, and, moreover, no additional penalties beyond the main sentence had been imposed on him. The period required for his record to expire therefore began running from the date of his actual release — which was May 2008.
Under Russia's Criminal Code, the expiry period for a criminal record depends on the category of the offense committed. In Arkady's case, the offense fell into the category of serious crimes, and for persons sentenced to imprisonment for serious crimes, the record expires eight years after the sentence has been served. Accordingly, given his parole release, the period began running in May 2008 and lasted eight years. Precise calculation therefore showed that Arkady's criminal record had automatically expired back in May 2016.
Under Article 86(6) of Russia's Criminal Code, the expiry or removal of a criminal record terminates every legal consequence associated with it. This means the legal consequences of the conviction are annulled, and, from a legal standpoint, the person is treated as never having committed the offense, never having been prosecuted, and never having been sentenced or having served a sentence. In short, the person is considered entirely free of a criminal record and can start life with a clean slate.
Fully confident in the merits of our position, we wrote to the immigration authority, describing the entire situation in detail and explaining our client's legal position. In our letter, we drew attention to the following circumstances, which were decisive in our client's case.
First, after his release, Arkady, having long since repented of what he had done, took the right path and found employment at a company. Second, he now financially supports his wife, providing her substantial material support. Third, he committed the offense only once, and had never, even while previously in Germany, violated German law in any way. Fourth, the statutory record-expiry period under Russian criminal law had already elapsed, meaning that as of May 2016 our client automatically no longer has a criminal record — and consequently satisfies every prerequisite for the right to family reunification.
After reviewing our letter and taking the circumstances we had raised into account, the authorities ruled in our client's favor and granted their approval for Arkady to stay in the country, as a result of which he obtained his national visa. In this way, we achieved our client's goal, and Arkady was able to move to Germany to join his beloved wife. This example clearly shows that, with legal assistance, the most varied problems can be resolved. A detailed analysis of each case, combined with legal expertise in both German and Russian law, makes it possible to find a way out of any situation, however difficult it may seem.
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