"Failure is simply the opportunity to begin again, this time more wisely."
Henry Ford
Processing Times
A German embassy is required to process a family reunification application within a reasonable time — an unjustified delay can be challenged through an action for failure to act (Untätigkeitsklage).
As our law firm's practice shows, many clients often underestimate the importance of certain events and arrangements, or overestimate their own knowledge and abilities — leading to endless hassle and worry, while the goal still ends up unachieved. Only then do disappointed, frightened clients rush to an attorney, wanting to know whether the situation can still be fixed. But fixing something is always far harder than doing it correctly from a legal standpoint in the first place, which is why our law firm strongly recommends always thinking a step ahead and consulting a professional attorney in good time.
Sofia (name changed) became a client of our law firm around two years ago, when she and her mother decided to move from Kyrgyzstan to Germany to join her grandmother, who had obtained late resettler status and moved to Germany back in the 1990s. At the time, our client's mother Maria (name changed) already had a family of her own, so she was not willing to so drastically upend her settled life for something entirely unknown. Yet with each passing year, Maria thought more and more about what awaited her daughter in the future. Her divorce from her husband was the last straw that tipped the balance in favor of Germany.
Understanding just how burdensome the late resettler status procedure was, Maria and Sofia unanimously decided that this was a matter requiring the help of an experienced attorney — someone who could not only correctly complete the required forms, assemble the right arguments and provide the necessary evidence, but also defend the client's position when dealing with government bodies that adhere strictly to the letter of the law.
Our attorney helped our client and her mother quickly satisfy every statutory requirement, and successfully concluded the case when Sofia and Maria received the corresponding permit to enter Germany (Einbeziehungsbescheid).
It turned out, however, that Sofia had already been in a relationship for several years with a young man, Boris (name changed), and the two married just a couple of weeks before her departure for Germany. They celebrated their wedding lavishly and then parted ways, intending to reunite just a couple of months later, once Boris obtained the corresponding family-reunification visa.
Believing this to be a fairly straightforward matter, since Sofia and Boris were officially married and entitled to reunification, our client sent her husband an invitation letter herself, and Boris, in turn, submitted the necessary documents to the German embassy in Kyrgyzstan.
After a very lengthy review of the submitted documents, the embassy invited Boris to an interview to clarify the circumstances of the case in more detail. Sofia received a similar invitation, but hers was scheduled at the immigration authority in Germany. The purpose of such interviews with spouses applying for family reunification is often precisely to determine whether the marriage between them is a sham. To that end, the spouses are asked identical questions about their personal lives, habits, daily routines and personal preferences.
Both our client and her husband were taking part in such an interview for the first time, and were consequently quite nervous, answering the questions somewhat haltingly as they tried to work out exactly what information the officials wanted to hear. The questions, however, seemed so basic that Sofia and Boris gradually relaxed, reasoning that since their relationship was genuine, everything should be fine.
Some time later, however, our client's husband received an official refusal from the German embassy in Kyrgyzstan, denying him a family-reunification visa on the grounds that there was reasonable suspicion the marriage between Sofia and Boris, entered into just before her departure for Germany, was a sham.
Shocked and dismayed by this news, Sofia immediately came back to our law firm, hoping to find out whether there was any chance of challenging the decision so that the couple could live together in Germany.
Our attorney told Sofia that, to determine the reasons for the refusal, we first needed to review the case file, and accordingly submitted corresponding requests to both the immigration authority in Germany and the German embassy in Kyrgyzstan.
Having carefully reviewed the case file, the attorney explained to our client that the main reason for the refusal was the discovery of discrepancies between the answers Sofia and Boris had given during their separate interviews. Our attorney noted a degree of bias in how those answers had been assessed, since even answers that were similar in meaning but not identical had been treated as entirely different. In addition, the attorney identified inaccuracies in translation, since although both Boris and Sofia answered the questions in Russian, the translation had not been done by professional translators but simply by acquaintances of theirs with some knowledge of German.
On the basis of these facts, our attorney, after discussing the circumstances of the case with our client, decided to appeal the refusal of the visa.
In the corresponding objection, subsequently filed with the consular section of the German embassy in Kyrgyzstan and with the immigration authority in Germany, the attorney drew attention to the fact that, in reviewing Sofia's and Boris's answers, no account had been taken of the fact that those answers could not have been perfectly identical, since two different people had answered the questions and might reasonably assess a situation differently or simply choose a different word to describe the same circumstance.
For example, when asked what sport Boris practiced, Sofia answered that he went to the gym. Boris, however, described this activity as bodybuilding. In our attorney's view, these answers could reasonably be regarded as consistent, but the German embassy in Kyrgyzstan concluded that Sofia lacked knowledge of what sport her husband practiced.
Another answer the attorney paid particular attention to concerned the question of what Sofia was doing in Germany. Sofia said she was attending language courses — that is, learning German. The record based on Boris's answer, however, stated that Sofia was "studying at university." The attorney pointed out that the translation from Russian to German had not been done by a professional translator, and that the word for "studying" could easily have been mistranslated, since someone without strong German skills might not know that the verb "studieren" specifically means "to study at university" rather than "to learn" in the general sense.
The attorney also noted that certain aspects of everyday life in the post-Soviet space had not been properly understood. In particular, when asked what Boris had given our client for her birthday the previous year, Boris listed every gift, including a festive dinner and flowers. Sofia's answer did not mention the flowers, since these are traditionally regarded as an accompaniment to a gift rather than a gift in themselves. The German embassy in Kyrgyzstan, however, took the view that flowers also counted as a gift, and therefore treated the answer as inconsistent.
The attorney also asked that it be taken into account that Boris had been given the interview record, drawn up in German, to sign, even though his German was only at a basic level, meaning he could not verify that his answers had been recorded correctly.
Having thus carefully matched a counter-argument to each of the embassy's points, the attorney awaited the decision to be issued by the German embassy in Kyrgyzstan following consultation with the immigration authority in Germany. Some time later, our law firm received that decision — but it again stated that the refusal to grant Boris a family-reunification visa remained in force, on the grounds that there was evidence the marriage was a sham. No rebuttal of the arguments our attorney had raised was provided in the decision.
Our attorney explained to Sofia that there were two possible courses of action from here. The first option was to wait for the three-month period to elapse and then reapply for the visa, going through another interview. This, however, still carried the risk of answers being misinterpreted. While our attorney could attend Sofia's interview in Germany and help steer her answers appropriately, no one would be able to assist Boris in Kyrgyzstan, and he might well be even more anxious the second time, dreading another refusal.
The reason: based on our law firm's experience, even when clients are accompanied at an interview and their answers are professionally translated into German, our attorneys very often find inconsistencies in the interview record that they must ask to have corrected immediately. If a client attends the interview alone, there is a substantial risk that any errors will go unnoticed and could later be used against the client.
For this reason, the attorney considered the second option preferable: challenging the visa refusal decision in court. Sofia was initially alarmed at this prospect, but after weighing the pros and cons with the attorney, agreed to file the corresponding court action.
In the action filed with Germany's administrative court, in addition to the arguments described above, our attorney also emphasized that the marriage could not be considered a sham, since Sofia and Boris had been in a relationship for more than three years and had lived together, running a shared household, for over a year. Corresponding photographs — including wedding photos — the couple's correspondence, evidence that our client had periodically flown from Germany to visit her husband, and other proof of the genuineness of Sofia's and Boris's relationship were submitted.
Some time later, in the course of the written proceedings, our law firm received a response from the immigration authority in Germany stating that it sided with our client and would apply for Boris to be granted the corresponding family-reunification visa, provided our client withdrew her court action. Sofia was thus offered a settlement, which she gladly accepted.
Our attorney negotiated with the immigration authority, and the parties agreed on the terms of the settlement. Just a couple of days after those terms were discussed, however, our client informed us that her husband — who by then was living in Russia — had once again been summoned to the German embassy in Kyrgyzstan for an interview on his level of German proficiency, since his language certificate had been obtained a year and a half earlier.
Both Sofia and Boris were in a panic, as Boris urgently needed to fly to Kyrgyzstan, and the couple no longer knew what to expect from the consulate.
Although this condition had not previously been raised by the embassy, the attorney reassured the couple that there was a way forward. The attorney contacted the consular section of the German embassy in Kyrgyzstan and explained that Boris was currently residing outside Kyrgyzstan and could not attend an interview at the relevant embassy, but that he would without fail submit a new certificate confirming his basic level of German proficiency.
Having submitted the required certificate and withdrawn her court action, our client fulfilled the terms of the settlement. The German embassy in Kyrgyzstan, in turn, issued Boris his visa, and the immigration authority in Germany completed the remaining paperwork, allowing Sofia and Boris to be reunited once again.
This shows that an attorney engaged to protect a client's legal interests can not only assess the situation, weigh every available fact and argument, and devise the strategy best suited to the client in each specific case, but can also skillfully defend the client's position throughout negotiations, steadily working toward the intended goal.
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