Although the media increasingly tell us that the world has become global and transparent, that new information technologies have rendered distance meaningless, and that each of us, to some degree, feels the pull of social networks, marriage as a form of social life still requires partners to actually be close to each other. And once a state border and a residence status stand in a couple's way, the optimism of journalists gets tossed straight in the bin, and attorneys must step onto the "stage" instead.
Dmitri came to Germany from Belarus around six years ago. He soon married an EU citizen in Berlin and settled into the ordinary, measured life of a German burgher: work, family, trips abroad. But after a while, something in the relationship went wrong. A wall of misunderstanding grew between them, their interests diverged more and more, and the lack of any prospect of reconciling them made staying married pointless. One more important detail spurred the decision to divorce: Dmitri's feelings for a woman he had parted from before moving to Germany flared up again with new intensity — and it turned out his former partner's feelings for him were still strong too. So Dmitri filed for divorce. After the statutory period of living apart, Dmitri and his Berlin wife were divorced. Having notified the immigration authority of the change in his marital status, Dmitri traveled to Belarus.
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).
Dmitri did not go to Belarus intending to spend the rest of his days enjoying Belarusian dairy products and watching Alexander Grigoryevich's mustache on TV. Dmitri married Inna and returned to Berlin to begin preparing for his wife's move to Germany, based on family reunification with him. But something went wrong, and a state border materialized before Dmitri right there in the immigration official's office. The newlyweds were left with no choice but to conduct their married life over the internet. The problems stemmed from Dmitri's status following his divorce. Something in his paperwork did not satisfy the officials, who kept refusing to grant him a permanent residence permit. And while his case dragged on, another department of that very same authority was simultaneously reviewing his family-reunification case. Everything kept getting delayed, eating away at any confidence in the future. With about two months left before his residence permit expired, Dmitri turned to attorneys.
Permanent Residence Permit
A permanent residence permit (Niederlassungserlaubnis) has no expiry date — it is granted for an unlimited period.
The main requirements for obtaining a Niederlassungserlaubnis are set out in Section 9 AufenthG (Aufenthaltsgesetz, the Residence Act).
A foreign national is entitled to apply for a permanent residence permit if:
• the foreign national has already held a temporary residence permit for five years. This period must be continuous, so any extended periods spent outside Germany may be deducted;
• the foreign national is able to support themselves independently;
• the foreign national has made pension insurance contributions (mandatory or voluntary) for at least 60 months, or can prove entitlement to benefits from some other insurance or social security institution;
• over the past three years, the foreign national has not been convicted of a willful offense and sentenced to a juvenile penalty, imprisonment of at least six months, or a fine of at least 180 daily rates. This three-year limitation period begins running once the person has finished serving their sentence;
• the foreign national is permitted to work, either as an employee or under some other special work permit;
• the foreign national has a sufficient command of German, along with a basic understanding of the legal system, the social order, and the fundamentals of everyday life in Germany;
• the foreign national has sufficient housing for themselves and their family members
Enough to Confuse the Devil Himself
In Dmitri's case, every condition set out by law had been met. He had no fines, had lived permanently in Germany for over five years, had paid his pension contributions, and had a decent income and an apartment. So what was stopping officials from granting Dmitri a permanent residence permit? Our firm's attorneys requested Dmitri's case file (Akten) from the immigration authority. At the same time, we sent a request to the department handling family-reunification matters, asking it not to issue a decision on Dmitri's case until his status had been resolved.
The documents we received from officials — or rather, their quality — made the reasons for the delay in Dmitri's case abundantly clear. His file's record of his stay in Germany was in such a state of disarray that no phrase describes it better than the Russian saying "enough to make the devil break his leg." Officials lacked the energy, the time, and perhaps even the inclination to put the file in proper order. Dmitri himself, however, had also inadvertently added to the confusion in his immigration file. The issue was that Dmitri worked as managing director of three companies simultaneously. This simply did not compute for an official. It is one thing for a person to be a businessman who owns and manages several companies at once — for some reason, this raises no questions. But an employee working as director at three companies at the same time looked like sheer nonsense. In reality, all three companies carried out the same line of business and belonged to the same owner. Why all three legal entities were used remains unclear, but it had nothing to do with Dmitri's own case.
Having sorted through the tangle of information contained in the immigration authority's records, and having prepared an explanation of Dmitri's work at three companies at once — pointing out that his combined working hours did not exceed the statutory limit of forty-eight hours per week — our firm's attorneys accompanied Dmitri to the officials whose decision would determine his status in Germany and the future of his family life, given the recent change in his marital status. Half an hour later, Dmitri had his permanent German residence permit in hand. It felt like a miracle to him. Immediately after obtaining this long-awaited document, our attorneys submitted every necessary ground for a positive decision on family reunification to the corresponding department of the immigration authority.
Don't Celebrate Too Soon
One might expect the story to end there. It didn't. The very next day, our law firm received a phone call. In a shaken voice, Dmitri reported that his wife had been refused by the German embassy in Minsk. A scanned document received by email indicated that Dmitri did not hold a permanent German residence permit and had no stable income, and that the family-reunification request could not be granted on this basis.
Our attorneys immediately contacted officials at the immigration authority, and it emerged that the information sent to the embassy in Belarus for review had left the authority two weeks before the decision granting Dmitri his permanent residence permit. Whether through error or intent, our request to suspend the review had been ignored — and, unfortunately, from that point on we had to proceed through the formal procedural channels, which required additional time and effort.
Our attorneys challenged this decision from both the immigration authority and the German embassy in Belarus, on the grounds that the information relied on for that decision was inaccurate. The appeal was reviewed within a short time — which one might chalk up to good luck. But the actual outcome of the case was entirely thanks to our firm's attorneys. Inna received her permit to enter Germany on the basis of family reunification. Despite all the worry, the story ended well. It could easily have gone otherwise.
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