Not Everything Desired Is Possible, or an Exceptional Case of Family Reunification in Germany Without Returning to the "Home Country"

No desire is ever given to you apart from the power

to make it come true.

Richard Bach.

It is a well-known fact that Germany, under its Constitution, holds the family sacred and protects it. Nevertheless, when applying for a residence permit for the purpose of family reunification, married couples time and again run into formal problems. Failing to observe every nuance of the applicable rules and procedures, as well as being unaware of the exceptions to those rules, can lead to unfortunate consequences such as the immigration authority refusing to issue a long-term residence permit. That, in turn, jeopardizes the marriage and family, since one spouse then lacks the right to live for an extended period with the other in a different country.

The attorney's main task in such a case is to examine every open and hidden circumstance of the matter and find legally sound arguments for the officials so that a favorable decision is reliably issued. This article discusses one such case from our practice.

So, the general requirements that must be met to obtain a residence permit for family reunification are set out in § 28 of the Act governing the fundamental requirements for the residence, employment and integration of foreign nationals in Germany (Aufenthaltsgesetz):

1) for the purpose of restoring family ties or marital union (if relatives intend to live separately, say in different cities, there is no legal basis for reunification. The legislature considers that, in that case, the persons involved might just as well live in different countries);

2) where the family member already residing in Germany with whom reunification is sought holds one of the following statuses:

· German citizenship

· status as a German under Article 116(1) of the Basic Law

· a residence permit of the Aufenthaltsberechtigung type

· a residence permit of the Aufenthaltserlaubnis type

· status as a recognized political refugee (Asylberechtigter)

3) where housing space sufficient for the whole family is available (sufficient meaning space that, in size and quality, meets the standards for social housing for Germans);

4) where the family is able to support itself without state assistance.

The legal basis for reunification with minor children is § 32 of the Aufenthaltsgesetz. Since, under § 2 of the Civil Code (Bürgerliches Gesetzbuch, BGB), the age of majority in Germany is 18, this concerns children who have not yet reached that age. Above all, successfully resolving the matter requires meeting four general prerequisites set out in the Aufenthaltsgesetz.

It should also be borne in mind that the question of reunification depends heavily on the child's age. Different conditions and statutory criteria apply to:

- children under 16, and

- children between 16 and 18.

Under the established procedure, a national wishing to obtain a residence permit in Germany through "family reunification" must, while still in their home country, apply at the German embassy there for a national visa for the purpose of reuniting with a German citizen. Only after obtaining the national visa in their home country can the reuniting individual enter Germany in the new status and subsequently obtain a residence permit under § 28 of the Aufenthaltsgesetz — family reunification.

A mixed-nationality family, then facing desperate life circumstances, once came to our law firm. The matter was that Lyubov (name changed), a Ukrainian citizen who had recently married a German citizen, was required to leave Germany while pregnant, with the risk of losing her long-awaited child.

The young couple had met two years earlier; their relationship developed quickly, and just a year after they met, Lyubov received a marriage proposal. As foreign nationals often do, the couple married in Denmark without any difficulty. Some time later, it emerged that Lyubov was expecting a child. Unfortunately, the pregnancy was marked by constant complications. Physically exhausted, Lyubov gathered up her 9-year-old son from her first marriage and flew to her husband in Germany to recover a little and regain her strength. Since Ukrainian citizens may enter Germany visa-free for up to three months, no visa was required in this case. She planned to stay with her husband in Germany for about a month, then return to Ukraine and file an application for a long-term residence permit for herself and her elder child. Every one of us has, at some point in life, run into the fact that "man proposes, but God disposes." After two weeks in Germany, Lyubov's health suddenly deteriorated, and she began experiencing constant pain. Unfortunately, the woman's worst fears were confirmed — the pregnancy was seriously at risk. After seeing a gynecologist, our future client was prescribed nothing but bed rest, since there was a risk of miscarriage. Traveling anywhere in the next two months, the doctors said, was simply out of the question. At the same time, an official at the immigration authority (Ausländerbehörde), in an oral consultation, briefly explained that "the law was not written to be broken." Lyubov and her son were therefore required to leave the country as soon as possible, before their permitted period of visa-free stay in Germany expired, and to apply for a national visa from Ukraine, as required. On top of that, her husband's stable income fell short of the minimum required to fully support two adults and two children. This created an almost hopeless situation — the woman could lose her long-awaited child before she even made it back to Ukraine. What's more, even if she successfully made the trip home and filed the reunification documents from Ukraine, there was a substantial risk of refusal due to her husband's insufficient earnings.

Since immigration law is one of our law firm's core practice areas, we were glad that Lyubov brought such a difficult matter to us specifically. Without wasting any precious time, we set about preparing a detailed petition to the immigration authority. Our main arguments were as follows:

· The need to leave the country, in Lyubov's situation, endangered her pregnancy as well as the woman's own physical and mental health. This fact was confirmed by corresponding medical certificates and reports.

· Although her husband's salary — a German citizen — was below the established minimum at the time, his steady income and savings were sufficient to support the family until the child's birth. Her husband had clear prospects for career advancement at the time. Lyubov herself, an experienced accountant with excellent German-language skills, could find a suitable job some time after the second child's birth.

· Our client's second child was entitled to German citizenship by birth, given that his father is a German citizen. Naturally, once he was born, Lyubov would be obligated to care for and look after him. It was clear that it was in the interest of both the newborn and the whole family to remain together in Germany.

· Our client's elder child, also a minor, needed his mother's care. Sending him back to Ukraine or anywhere else alone was not an option, since he had no relatives able and willing to look after him. Separating him from his mother in this case, leaving him to face harsh reality alone in Ukraine, would therefore have been extremely inhumane.

Having examined these and other supporting arguments set out by our firm's attorney in the aforementioned petition, along with the accompanying documents, the official agreed to accommodate the request and treat the case as exceptional. Fortunately, our client and her elder son were permitted to remain in Germany until the second child's birth, and shortly after the delivery, the mother and elder son were granted German residence permits under §§ 28 and 32 of the Aufenthaltsgesetz, respectively — family reunification.

We are sincerely glad that, thanks to our firm's attorney's professionalism, we succeeded in convincing the official of the exceptional nature of Lyubov's case. We wish our client's entire family happiness and prosperity in their new home. We are confident that, over time, they will certainly manage to overcome their financial difficulties and establish a steady, high family income — after all, a strong family is a force capable of moving mountains. And should any question arise regarding paperwork for permanent residence, starting a business, or drawing up a marriage contract, we will always be glad to help them and provide reliable legal support.

Immigration & Residence Law

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