Lately, our fellow late resettlers have often approached our law firm with questions about the possibility of changing their status from Section 7 to Section 4. We will try to clarify these questions based on case law and expert explanations.
Terms used (material drawn from Wikipedia, the free encyclopedia).
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).
Late resettlers (Aussiedler — resettler; from 1993, Spätaussiedler — late resettler) are persons of German ethnicity or German nationals falling under the Act on the Affairs of Displaced Persons and Refugees, adopted in 1953, together with their family members, who resettled permanently in Germany under that Act's admission procedure.
Descendants — persons born of someone, i.e. people of future generations.
Ancestors — deceased relatives (grandparents, great-grandparents, forebears), i.e. those who lived before.
The Act on the Affairs of Displaced Persons and Refugees (Gesetz über die Angelegenheiten der Vertriebenen und Flüchtlinge — Bundesvertriebenengesetz — BVFG) — a German federal law governing the admission and integration in Germany of forcibly displaced persons and refugees of German ethnicity who left their places of settlement during and after the Second World War, as well as the admission of ethnic German resettlers from Eastern Europe and the countries of the former USSR.
The Federal Office of Administration (Bundesverwaltungsamt — BVA) — a German federal government agency under the Federal Ministry of the Interior, headquartered in Cologne, that handles numerous administrative and managerial matters across various German ministries — including processing the applications and documents of candidates for late resettler status.
The Federal Administrative Court (Bundesverwaltungsgericht — BVerwG) — one of Germany's five highest courts, competent to hear public-law disputes that do not involve constitutional-law relationships and do not fall within the jurisdiction of the other highest courts. Its decisions are considered final and cannot be appealed.
The Higher Regional Court (Oberlandesgericht) — a general-jurisdiction court of appeal. The regional courts (Landgericht) located within its territory fall under its regional authority. The Higher Regional Court in turn falls under Germany's Federal Supreme Court.
Retroactive effect of a law — the application of a law or other legal norm to events that occurred before it entered into force.
Articles have recently appeared in the Russian-language press claiming that descendants of late resettlers living in Germany now have the opportunity to change their status from descendant of a late resettler to late resettler — that is, from Section 7 to Section 4. These claims are based on a decision of the Higher Administrative Court of North Rhine-Westphalia dated 26 May 2014. We too are familiar with this sensational decision. We are also aware, however, that Germany's Federal Administrative Court disagreed with the legal interpretation adopted by the Higher Administrative Court of North Rhine-Westphalia, and overturned that decision in its own ruling of 16 July 2015.
Let us set out the facts of the case. An applicant born in the former USSR with German roots, together with his wife (also of German descent) and their children, applied for admission as a late resettler. In October 1993 they were issued an admission decision in which the applicant was included as the spouse of a late resettler — his wife being the one designated as the late resettler. In March 1994 the entire family moved to Germany. In May 1994 the wife was issued a certificate granting her late resettler status under Section 4 of Germany's Act on the Affairs of Displaced Persons and Refugees, while the applicant himself was granted status under Section 7. In November 2009 the applicant applied to also be issued a certificate granting him status under Section 4. This application was rejected on the grounds that he had not proven that he had continuously, right up until leaving the resettlement areas, declared his belonging to the German people, since his passport and his children's birth certificates listed his nationality as "Russian." The applicant challenged this refusal in court. The court of first instance ruled against him. The applicant again appealed the refusal to a higher court. The second-instance court — the Higher Administrative Court of North Rhine-Westphalia — ruled in the applicant's favor, applying the 2013 version of the Late Resettlers Act, and ordered that the applicant be issued an admission decision as a late resettler, a late-resettler certificate, and status under Section 4. Germany's Federal Administrative Court, however, disagreed with this decision and overturned it. In its ruling, the Bundesverwaltungsgericht held that the Higher Administrative Court had improperly given the law retroactive effect. The Bundesverwaltungsgericht reasoned as follows: the second-instance court had applied the law in force at the time it reviewed the case and issued its decision. This is only possible, however, where the law itself expressly provides for it. In establishing late resettler status, the Late Resettlers Act itself, in Section 4(1) and (2), states that a late resettler is a person of German ethnicity who left the resettlement areas as part of the admission of resettlers and settled in Germany within six months. In other words, the law precisely defines the time frame for recognizing a person as a late resettler. An applicant must satisfy every prerequisite for recognition as a late resettler under the law in force at the time of their arrival in Germany. That is, the question of the applicant's belonging to the German people must be resolved under the law in force at the time of their arrival in Germany. The applicant arrived in Germany in 1994. Accordingly, the question of whether to issue him a late-resettler certificate must be resolved under the law in force in 1994 — that is, the Act on the Affairs of Displaced Persons and Refugees as amended on 2 June 1993. The version of the Act amended on 30 August 2001 expressly established, in Section 100a, retroactive effect for its innovations — applications for a late-resettler certificate were to be assessed under the Act as amended on 30 August 2001. However, the new version of the Act, adopted in 2013, contains no provisions expressly giving it retroactive effect. Consequently, in deciding the plaintiff's application for a late-resettler certificate, filed in 2009, the authority or court must apply the Act as it stood in its 2001 version.
Under the 2001 version of the Resettlers Act, an applicant must not only provide evidence of belonging to the German people but must also prove that they acquired their knowledge of German within the family — that is, that they can converse on simple topics in dialect. Finally, they must prove that they continuously, right up until leaving the resettlement areas (Aussiedlungsgebiet), openly declared belonging solely to the German people — meaning German nationality must be recorded in their passport and in every subsequent document.
In overturning the Higher Administrative Court of North Rhine-Westphalia's decision to issue the applicant a late-resettler certificate, the Federal Administrative Court found that an applicant who came to Germany under the admission decision granted to his wife as a late resettler had no need to obtain his own separate admission decision. Moreover, obtaining an admission decision is not a precondition for issuing a late-resettler certificate and therefore confers no advantage on the applicant.
The Federal Administrative Court thus confirmed that persons who were included in the admission process for late resettlers (spouses and descendants) may apply for a certificate recognizing their own late resettler status even after entering Germany. This applies, however, only to those who were not refused on the basis of their own independent application for admission as a late resettler. In other words, persons who, while still in the resettlement areas, did not file their own application for admission as a late resettler may also hope to obtain late resettler status if they can prove their belonging to the German people under the law in force at the time they settled permanently in Germany. A court reviewing such an application, however, may find that persons who applied for a certificate as a descendant of a late resettler thereby waived any claim to late resettler status itself.
Summing up the foregoing, it can be concluded that, at present, there is no legal basis allowing descendants of late resettlers who are already living in Germany to change their status from descendant of a late resettler to late resettler.
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