The resettlement of ethnic Germans who previously lived in the areas of forced resettlement (the countries of the former USSR, Estonia, Latvia, Lithuania, Poland, the Czech Republic, Slovakia, Hungary, Romania, Bulgaria, Yugoslavia, Albania and China) to Germany can be roughly divided into three major periods:
1. 1992-1996: the collapse of the Soviet Union, the opening of borders, and Germany's authorities giving persons of German ethnicity the opportunity to return to their ancestors' homeland;
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.
2. 1996-2012: requirements for prospective late resettlers were tightened (knowledge of the regional dialect, German proficiency since early childhood, difficulties with recognizing documents issued by former USSR states, and so on), leading many applicants to be refused a permit to enter Germany;
3. 2013 to the present: the law now sets out considerably softer requirements for applicants, and reopening cases previously refused has been made possible.
Nevertheless, even though Germany's stance toward ethnic Germans has de jure become more lenient, the Federal Office of Administration continued de facto to scrutinize prospective late resettlers fairly closely — and when an applicant sought to reopen a case, it categorically refused to alter its earlier decision on certain points.
Stepan (name changed), a native of Kazakhstan and an ethnic German on his father's side, became a client of our law firm. Stepan's grandfather had once been persecuted by the Soviet authorities and exiled to a special settlement, where our client's father was born. Stepan's grandfather had dreamed his whole life of returning to Germany together with his son, but unfortunately neither of them managed to do so. Stepan's father passed away when Stepan was only ten, but during his lifetime he had instilled in his only son a love of German traditions and culture. This is why, as a grown, established man who had raised two daughters, our client was overjoyed to learn of the opportunity to resettle in Germany as an ethnic German and set about pursuing it. Rather than let matters take their own course, he even sought help from a German attorney, who was meant to provide him with legal assistance and oversee the entire process.
Despite all of Stepan's efforts, however, the competent authority refused to grant him late resettler status. Since a professional attorney was handling the matter, Stepan did not, at the time, look closely into the reasons for the refusal, simply instructing his attorney to challenge the decision. Time passed, however, with no news from the attorney. Concluding that the process had presumably not been resolved successfully, our client resigned himself to this and continued his ordinary life in Kazakhstan.
In 2014, upon learning that German authorities were giving ethnic German resettlers a second chance, Stepan decided to seize it right away and came to our law firm. In his conversation with our attorney, our client explained that all he currently knew was that his case had been refused back in 1996, and that he had been unable to find out what had happened afterward, since he had lost contact with his previous attorney.
To establish the facts of the case and assess the chances of reopening the late resettler status procedure for Stepan and his family, our attorney submitted a request to the competent authority for access to the case file. Upon receiving the relevant documents, the attorney carefully reviewed the entire chronology of events and discovered that, after Stepan was refused in 1996, his attorney at the time had informed the Federal Office of Administration in writing that the refusal decision would be challenged and had requested a stay of its execution. However, that attorney had never actually submitted the written justification required for the appeal. Moreover, in 2013 Stepan's previous attorney had informed the competent authority that he no longer represented Stepan's interests on this matter. As a result, the authority had concluded that our client had abandoned the appeal.
Learning of this, Stepan was very surprised, as he had never intended to close the process and had never instructed his attorney to do so. It appeared that his former attorney had simply withdrawn from the case after losing contact with his client.
The case file showed that Stepan had been refused late resettler status for several reasons:
1. an insufficient level of German proficiency (at the time, our client had an intermediate level of German but did not speak any dialect forms);
2. insufficient grounds for recognizing our client as an ethnic German (Stepan had spoken Russian since childhood and had only begun learning German in secondary school; from age ten he had been raised solely by his mother, who was Russian by nationality and could not instill German traditions in him, and so on);
3. Stepan's service and career advancement within the Soviet Union's Ministry of Internal Affairs.
Our attorney explained to Stepan that the law now imposed considerably softer requirements on all three points, meaning it was possible to apply to reopen the procedure. Our client supported this idea, and a petition to reopen the late resettler status procedure was submitted to the competent authority. Some time later, however, our firm received the authority's decision — another refusal. The authority based its refusal on the fact that our client, having started out as an ordinary locksmith, had very quickly risen through the ranks, becoming a lead engineer at a municipal housing utility, then a police captain, and later a lead specialist in a foreign-trade department. In the authority's view, such rapid career advancement could only be attributable to special privileges granted in exchange for cooperation with the totalitarian Soviet regime. Stepan's professional activity was thus deemed to fall within Section 5(2)(b) of Germany's Act on the Affairs of Displaced Persons and Refugees (Bundesvertriebenengesetz), precluding the grant of late resettler status. Since the law did not provide for softer requirements on this particular point, there were no grounds to reopen the procedure. The authority also found that the requirements had not been legislatively eased with respect to the other points cited in the refusal (level of language proficiency and recognition as an ethnic German). Moreover, the authority stressed that the refusal had never been properly appealed, since the client had abandoned the appeal, meaning the authority's decision had become final.
After agreeing on next steps with the client, our attorney filed an appeal against the decision of Germany's Federal Office of Administration. In that appeal, the attorney first noted that, at the time our client was refused late resettler status, the older version of Germany's Act on the Affairs of Displaced Persons and Refugees was in force, under which an applicant was not recognized as a late resettler if they had held a special political or professional position that could only have been attained through a special connection to the totalitarian system. The new version of that Act, by contrast, provides that late resettler status is denied only to persons who performed a function of particular importance to maintaining the communist regime. Under the new version of the law, therefore, even an applicant who held a special position is entitled to late resettler status provided they did not perform specific functions supporting the communist regime. This amounted to a relaxation of the requirements, providing grounds for reopening the procedure.
The attorney also noted that Stepan had in fact never held any special position, whether professional or political, and had, moreover, never been a member of the Communist Party of the Soviet Union, as confirmed by the relevant certificates. Having started his professional life as a locksmith, our client found work at a municipal housing utility, where he was immediately given the position of lead engineer owing to his qualifications. This position was not considered prestigious and was poorly paid, but employees of the housing utility were provided with an apartment — something particularly important to Stepan at the time, as he had a young child. Some time later, Stepan was told he had to work off his mandatory job placement after completing his education, and was accordingly assigned as an auto mechanic to a relevant division of the Ministry of Internal Affairs. There could thus be no talk of any special position. Furthermore, our client only became a lead specialist in a foreign-trade department after the collapse of the USSR — again thanks to his professional knowledge, since the company in question dealt in automobile sales.
In addition to this argument, our attorney emphasized that descent from a person of German nationality was confirmed by Stepan's birth certificate, which stated that his father was German; that a sufficient level of German proficiency had been confirmed by a corresponding language certificate; and that his identification with German nationality followed from the fact that our client celebrated German holidays with his family and belonged to the corresponding German community in Kazakhstan.
Moreover, under the amendments made to the Act mentioned above, the requirements concerning the level of German proficiency and recognition of the applicant as an ethnic German were substantially relaxed. In particular, proficiency in a dialect form of German is no longer a mandatory requirement — submitting the corresponding language certificate is sufficient. In addition, an applicant is no longer required to have spoken German within the family since early childhood, and elements of upbringing and the instilling of German traditions no longer play a particular role in confirming German origin. It was thus only after these amendments were made to German law that Stepan gained a chance of obtaining late resettler status, which is why the procedure to reopen his case was initiated.
As for our client's earlier abandonment of the appeal against the Federal Office of Administration's refusal, the attorney noted that Stepan had lost contact with his previous attorney and had never given any instruction to discontinue the appeal process. The attorney had merely informed the competent authority that he no longer represented the client's interests in that matter — meaning the client had not abandoned the appeal itself. The authority never responded to Stepan's first attorney's notice, never issued a new decision, and never notified anyone that any statutory deadline had expired. Consequently, that authority's decision refusing late resettler status had never actually been issued.
A carefully argued appeal was submitted to Germany's Federal Office of Administration, but once again a refusal was received.
Stepan, determined to fight to the end, instructed our attorney to represent his interests in court. Accordingly, the attorney filed a corresponding court action setting out the circumstances of the case in great detail, along with every argument in our client's favor and the necessary evidence. The attorney placed particular emphasis on the procedural aspect of the matter, noting that the competent authority had never issued a final decision, that the applicant had never abandoned his appeal, and that the authority's review of the matter had been suspended at Stepan's request.
During the court hearing, the representative of the competent authority agreed with our attorney's arguments and acknowledged that the late resettler status procedure, initiated back in the 1990s, had never been concluded — meaning every subsequent decision of Germany's Federal Office of Administration was set aside.
Our attorney, for his part, withdrew the petition to reopen the procedure, and the case was instead considered on its merits as an appeal against the authority's original decision. Both the court and Germany's Federal Office of Administration agreed with the attorney's arguments; once Stepan retook the language test, the authority was obligated to issue a permit to enter Germany. The case was successfully concluded in our client's favor, with all costs of the proceedings borne by the authority.
To avoid further contact with German government bodies, the attorney insisted that Stepan take the language test not at the consular department but at a licensed testing center instead. In addition, all further correspondence and negotiations with the competent authority were to be conducted exclusively through our law firm. In this way, the attorney continues to keep the situation firmly under control, providing the authority only with the information strictly necessary, until the client is finally issued the corresponding permit to enter Germany.
This example shows that, with the qualified assistance of an experienced attorney who is willing to search for the necessary arguments and evidence, knows how to defend a client's interests, and is not afraid to use every available opportunity, you have the chance to achieve the desired outcome even in an extremely difficult, seemingly hopeless situation.
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