The area of law concerning recognition of late-resettler status is one of the core practice areas of our law firm. Regularly encountering the widest range of questions on this topic, and drawing on years of experience resolving them, our firm always enjoys sharing interesting stories with readers. We also actively track legislative changes and case law in this field — which is precisely what allows us to succeed in these matters.
In late 2016, for instance, the Federal Administrative Court (Bundesverwaltungsgericht, judgment of 27 September 2016, BVerwG 1 C 17.15) ruled on a case concerning the inclusion of an adopted grandchild in an admission permit (Aufnahmebescheid) issued to a late resettler for entry to Germany. The case involved a late resettler from Kazakhstan who had arrived in the Federal Republic of Germany in 1997 under the relevant program. In May 2012, he applied to have his grandson included in his Aufnahmebescheid — but the grandson was not biological; he had been adopted by the resettler's own son in 2011. The Federal Administrative Office (Bundesverwaltungsamt) refused the application, and the resettler's subsequent appeal to Germany's Administrative Court was likewise unsuccessful, as was his further appeal to the Federal Administrative Court and a subsequent review. The court based its decision on the finding that, because the grandson had been adopted by the resettler's son, he could not be treated as a descendant who remained in the home country with a right to move to Germany. § 27(2), sentence 3 of Germany's Federal Act on Displaced Persons and Refugees (Bundesvertriebenengesetz – BVFG) defines such descendants: the right to subsequently join an already-recognized resettler belongs to relatives/descendants who existed as such at the time of that resettler's move. Although the grandson had been born in 1997 — the same year as the resettler's move — he did not meet the statutory requirement, since he was only adopted into the family in 2011. The law providing for a resettler's family to subsequently join them exists to allow a family separated by one member's resettlement to reunite. In this case, the court held that no such reunification could be at issue, since no family relationship existed between the resettler and his grandson (descendant) at the time of the resettlement itself.
Appealing BVA Refusals
A refusal by the Bundesverwaltungsamt (BVA) to recognize late-resettler status can be appealed before an administrative court — typically within one month of receiving the refusal.
Recently, a young woman, Anastasia (name changed), came to our firm with a story remarkably similar to the case above. When she was a small child, her parents were killed in a terrible car accident, leaving her orphaned. She lived in a small German village, where her mathematics teacher, Eleonore (name changed), happened to be ethnically German. Since the village was tiny, everyone knew each other well, so when the teacher learned what had happened, she did not hesitate to take the girl in. She had never had a family of her own and had always dreamed of children. In time, Anastasia found a new family, and her math teacher effectively became her mother. However, to avoid any suggestion of favoritism at school between a student and a teacher, and to sidestep the complications of reissuing documents, only legal guardianship over the minor was formally arranged. This also allowed the girl, as an orphan, to continue receiving state benefits. A formal adoption certificate was only issued after Anastasia finished school and enrolled at university.
Years later, Eleonore decided to apply for late-resettler status. She quickly obtained it and moved to Germany. The question of family reunification then arose, and Anastasia filed an application with the Federal Administrative Office — but, just as in the case above, she was refused on the grounds that she was an adopted, not biological, child. She then came to us for legal help with the reunification.
We immediately filed an objection (Widerspruch) with the authority to challenge the refusal, laying out the situation in detail. This was necessary because the authority had handled the case in a very formalistic and superficial way, without examining the actual family relationship. We pointed out that although the adoption occurred a few months after Eleonore obtained her admission permit (Aufnahmebescheid), several circumstances made this case fundamentally different. First, Eleonore did not actually move to the Federal Republic of Germany until more than six months after receiving her Aufnahmebescheid, and was accordingly registered as a late resettler only at that later point — by which time the adoption had already taken place. Second, we cited the Federal Administrative Court's 27 September 2016 judgment described above and drew the authority's attention to a crucial distinction: that ruling concerned the impossibility of reunification precisely because no family relationship existed at all between the resettler and his grandson (descendant) at the time of the resettler's move — the boy's adoption was not even contemplated when the man received his Aufnahmebescheid in 1997, and he only entered the family in 2011, so no relationship between them could have existed at that point. In our client's case, by contrast, a close family relationship between mother and daughter already existed long before Eleonore obtained her Aufnahmebescheid: for nearly four years, Anastasia had been living with Eleonore, whom she regarded as her mother and who was formally her legal guardian. Having set out these points in detail, we asked the authority to reconsider our client's case.
After reviewing our objection and all the supporting documents submitted as evidence, the Federal Administrative Office granted our client's application for family reunification. Anastasia was overjoyed and deeply grateful for the work we had done on her behalf.
As we have mentioned before, we frequently share stories like this with our readers, because we believe they offer a clear and instructive example that a way out can be found in almost any difficult situation — even one that may seem hopeless at first glance. Achieving that, however, is difficult without the perspective of an experienced and qualified lawyer. So if you intend to take any legally significant step, we recommend seeking comprehensive legal advice as early as possible, so you can set off on the right path from the very start.
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