| Documentation Database: | Questionnaires: Family Reunification Directive 2003/86/EC Germany |
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| Subject | Comparative study on the implementation of the Family Reunification Directive 2003/86/EC in (25) Member States | ||||||||||||||||||||||
| Data from other countries | Go to Questionnaire (with links to the answers of all other countries) | ||||||||||||||||||||||
| This Form | Data by Germany (25/04/2007) | ||||||||||||||||||||||
| Section | Question | Answer | |||||||||||||||||||||
| A. General | |||||||||||||||||||||||
| A.1 | top Q: Has the Directive been implemented in your country? If so, please add the references and the texts of relevant legislative and administrative measures and the dates they entered into force. | ||||||||||||||||||||||
| answer Germany | A: The Directive has not been implemented yet. A preliminary inofficial draft of the Federal Ministry of Interior has been submitted for comments to the Länder. Until now (January 25, 2007) no official has been approved by the Federal Government. It is expected that a draft containing the implementation of 10 directives on immigration and asylum law will be submitted to Parliament in March/April 2007.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| A.2 | top Q: Has there been a political or public debate on the implementation of the Directive? If so, please summarize the main issues of the debate. | ||||||||||||||||||||||
| answer Germany | A: There is a political debate on the amendment of the immigration law (Zuwanderungsgesetz) which entered into force on January 1, 2005. The Federal Ministry of Interior on March 30 and 31, 2006 have held a public hearing on the evaluation of the immigration law asking for comments by the Länder as well as refugee organizations, churches and organizations representing groups of foreigners. Family reunion issues have been raised during the debate particularly in relation to the plans of the Federal Ministry of Interior to introduce additional integration requirements for family reunion. A major public debate has taken place on the issue of forced marriages. Within the Federal Chamber various Länder have proposed additional legislation to make a forced marriage a punishable offence and exclude family reunion of spouses forced into a marriage by different legal instruments like raising the minimum age etc.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| A.3 | top Q: What have been the main changes in the national law or practice due to the Directive. Please indicate for each change whether it improved or deteriorated the legal status of third country nationals and their family members? Did it make the national rules more strict or more liberal? | ||||||||||||||||||||||
| answer Germany | A: Major changes of the proposed legislation concern:
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| A.4 | top Q: Are there already judgments of national courts applying or interpreting the Directive? If so on which issues? | ||||||||||||||||||||||
| answer Germany | A: (see A.5)
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| A.5 | top Q: Did the judgment of the Court of Justice of 27 June 2006 in the case Parliament v. Council (C-540/03) already have any effect on the implementation of the Directive, the national practice or case-law or the legal literature? If so, please specify the effects. | ||||||||||||||||||||||
| answer Germany | A: The Court Judgment of 27 June 2006 in the case Parliament v. Council (C-540/03) so far has had no effect on the implementation of the Directive, the national practice or case-law or the legal literature. There are of course articles on the courts Judgment, but so far no substantial impact on the legal debate.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B. Questions on specific provisions | |||||||||||||||||||||||
| B.1 | top Q: Article 3(1): How is the clause: who has reasonable prospects of obtaining the right of permanent residence implemented in the national law? |
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| answer Germany | A: The Aufenthaltsgesetz 2004 provides in sec. 29 that a family relative in order to join a foreigner, the foreigner must possess a settlement permit or residence permit. There is no other clause referring to the prospect of obtaining a right of permanent residence. The draft bill does not make substantial changes. It is envisaged that in addition to a settlement permit or a residence permit a right of permanent residence under EC-law will be included.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.2 | top Q: Article 3(3):
Will a third country national also having the nationality of your country be able to rely on the Directive? |
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| answer Germany | A: Third country nationals having German nationality will not be able to rely upon the Directive. Their legal status is exclusively regulated by general principles of German nationality. |
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.3 | top Q: Article 3(3):
Are nationals of your country and their third country national family members entitled to the same treatment, to a more privileged treatment or to less favourable treatment as provided in the Directive? Please specify the differences. |
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| answer Germany | A: Third country national family members of German nationals are presently enjoying a privileged treatment in relation to family members of third country nationals having a residence right in Germany. Compared to the standard of the Directive, privileges apply with respect to the requirement to make reunion dependent upon the capability of the sponsor to prove sufficient resources to maintain the living of a family member. According to the existing section 28 exceptions are possible on a discretionary basis from the general requirements of sickness insurance and sufficient resources. The draft bill envisages an obligatory exception in cases of minor children of German nationals and parents of a minor German entitled to child care and a discretionary exception in case of spouses of a German national.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.4 | top Q: Article 4(1):
Has the right to family reunification of spouses and minor children been codified in national law? If so, please mention the relevant provisions of national law. |
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| answer Germany | A: The right to family reunification of spouses and minor children is regulated in sec. 27-32.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.5 | top Q: Article 4(1) and 4(6): (children over 12 or 15 years)
Does the national law of your country provide special rules concerning the admission of children aged over 12 or 15 years? |
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| answer Germany | A: Section 32 of the Residence Act admits family reunion as a rule only until the age of 16. Minor unmarried children who are 16 years of age and older can only be granted a residence permit if they have a command of the German language or if it appears on the basis of the child's education and way of life to date that he/she will be able to integrate into the way of life which prevails in the Federal Republic of Germany, and both parents or the parent possessing the sole right of care and custody hold a residence permit or settlement permit. Minor unmarried children of foreigners who are under 16 years of age shall be granted a residence permit if both parents or the parent possessing the sole right of care and custody posses a residence permit or settlement permit. Minor unmarried children of foreigners may otherwise be granted a residence permit only if necessary in order to prevent special hardship on account of the circumstances pertaining to the individual case concerned. The child's wellbeing and the family situation are to be taken into consideration in this connection. No changes are envisaged in the draft bill. |
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.6 | top Q: If children over 15 are prevented from applying for family reunification under what conditions are they entitled to reside considering the obligation for Member States second sentence of Article 4(6)? | ||||||||||||||||||||||
| answer Germany | A: The special hardship clause of sec. 32(4) as well as the exceptional clause of sec. 32(2) (see above) are probably in accordance with the provision of the Directive to provide for exceptions 'by way of derogation', since Art. 4(6) does not provide for any criteria to make exceptions from an age limit.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.7 | top Q: Is your country barred from using the exceptions in Article 4(1) last sentence and Article 4(6) by the standstill-clauses in those two provisions? | ||||||||||||||||||||||
| answer Germany | A: Germany is barred from using the exception in Art. 4 (1) last sentence since at present there is no provision restriction family reunion of minor children over 12; Germany may use, however, the clause of Art. 4 (6) since the legislation of the date of the implementation of the Directive provides for an age limit of 16.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.8 | top Q: Article 4(3) (unmarried partners)
Has the provision on the admission of unmarried partners been implemented in national law? If so, under what conditions do they have a right to family reunification? |
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| answer Germany | A: According to sec. 27(2) of the Residence Act the provisions of family reunion apply mutatis mutandis to enable the establishment and maintenance of a registered partnership in the federal territory. Registered partnership is only possible for partners in a homosexual relationship. There is no registered partnership for partners of different sex. The same conditions apply as regulating the immigration of dependence to join a German national, to join a foreigner (sec. 29), the immigration of spouses and the independent right of residence of spouses (sec. 32). The provisions of sec. 32 on reunion of minor unmarried children of a foreigner, however, are not applicable (sec. 32). According to the draft bill no change is envisaged.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.9 | top Q: Article 4(5) (minimum age spouse)
Does the national law require a minimum age for the admission of spouses that is higher than 18 years? If so what is the minimum age? |
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| answer Germany | A: Admission of spouses under sec. 30 does not require a minimum age for the admission of spouses. It is suggested to raise the minimum age of both spouses to completion of the 21st year. The proposal is highly controversial. A recent proposal as noted in the media by the Federal Ministry of Interior suggests an age limit of 18 in addition to integration requirements.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.10 | top Q: Article 5(2) (documents and fees)
What kind of documentary evidence has to be presented with a family reunification application? |
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| answer Germany | A: The applicant has to prove by submission of the necessary documents the existence of a family relationship (marriage certificate, birth certificate etc.) in addition to the usual requirements. It is reported recently that German consulates also require with respect to nationals of specific states of origin proof of the authenticity of documents provided. In some cases, experts on the quality of documents are consulted on the expense of applicants (up to € 250.- )
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.11 | top Q: Does the applicant have to pay any fees and, if so, what is the (total) amount of those fees? | ||||||||||||||||||||||
| answer Germany | A: The general provisions on fees according to the Residence Regulation (Aufenthaltsverordnung) of November 25, 2004 apply. At present, at residence permit of validity of more than one year is subject to a fee of € 60.-. Visas are normally charged with € 35.-. There is a whole range of provisions on exceptions and reductions of fees laid down in sec. 52 for spouses and children of Germans as well as for parents of Germans and other categories of foreigners (refugees, students etc.). Additional fees may arise for special administrative requirements such as examination of documents etc.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.12 | top Q: Article 5(3) (place of application)
May an application be submitted when the family members are already residing in the Member State? |
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| answer Germany | A: As a rule, third country nationals must apply for a visa entitling to take up residence for family reunion before entering Germany. Under sec. 4 foreigners shall require residence title in order to enter and stay on the federal territory. The granting of a residence permit or a settlement permit presupposes under sec. 5(2) of the Residence Act that the foreigner has entered the country with the necessary visa and has already furnished the key information required for granting the title in his/her visa applications. These requirements, however, may be waived if the pre-requisites qualifying a foreigner for the granting of a residence title are met or if special circumstances relating to the individual case concerned render a subsequent visa application procedure unreasonable (sec. 5(2), 2nd sentence). This provision is applied when there is a right of residence based upon family reunion.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.13 | top Q: Article 5(4) (length of the procedure)
Is there any time limit for the decision on the application by the administration? |
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| answer Germany | A: There is no time limit for the decision on the application by the administration and according to the draft bill not time limit is envisaged.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.14 | top Q: Article 5(5) (interest of the child)
How is the provision that Member States 'shall have due regard to the best interests of minor children' implemented in national law? |
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| answer Germany | A: There is no special provision in the Residence Act whereby Member States shall have due regard to the best interests of minor children. It is assumed that sec. 32 on reunion of children which provides for regular reunion of children up to 16 years and special reunion on the basis of an exception clause for children over 16 years are in accordance with the Directive's provisions since sec. 32(4) last sentence provides that 'the child's wellbeing and the family's situation are to be taken into consideration in this connection'.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.15 | top Q: Article 6 (public policy exception)
How has the public policy and public security exception been implemented and defined in the national law? |
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| answer Germany | A: There are no special provisions in the chapter on family reunion on public policy and public security exceptions. Section 5 providing for general conditions for the granting of a residence title, however, requires that no grounds for expulsion apply. Section 5(1) No. 2 thus refers to the provisions on mandatory and regular expulsion (sec. 53 and 54). Both provisions contain a number of public policy specifications particularly on grounds like having committed a crime, drug offences, belonging to terrorist activities, participating at acts of violence, endangering the free democratic order etc. It is not possible to describe even rudimentary the interpretation of these clauses in national jurisprudence (for details see Hailbronner, Ausländerrecht, vol. II, commentary on sec. 53 and 54). Approximately 90 per cent of all cases are related to some kind of criminal activities. |
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.16 | top Q: What are the similarities and differences compared to the definitions of the same notions in the context of free movement of EU citizens? | ||||||||||||||||||||||
| answer Germany | A: Generally speaking, the main differences arise from the restrictions and the European Court of Justice interpretation of the public order clause which requires a higher threshold by excluding minor offences and requiring a concrete danger of repeated offences, while under general aliens law foreigners may also be expelled under German law for the very fact of having committed certain types of offences like drug offences or such offences which according permanent jurisprudence are suitable to prevent other foreigners from engaging in such activities (general prevention).
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.17 | top Q: Article 7(1)(a) and (c)(income and housing)
How is the income requirement specified in the national law? |
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| answer Germany | A: Under sec. 5(1) No. 1 the granting of a residence title requires that the foreigner's livelihood is secure. Security of livelihood under sec. 2(3) of the Residence Act is assumed when he/she is able to earn their living, including adequate health insurance coverage, without recourse to public funds. For the purposes of this definition, such funds do not include child benefits, child raising benefits and public funds, which are based on contributions or which are granted in order to enable residence in the federal territory. Contributions to the household income by family members shall be taken into account in connection with the issuance or extension of a residence permit in the context of family reunion. It is suggested to somewhat specify the requirement of sufficient resources in the draft bill.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.18 | top Q: What is the level of net monthly income required (in euros)? | ||||||||||||||||||||||
| answer Germany | A: The level of net monthly income required is orientated at the monthly income of social assistance benefits for persons seeking employment. However, at present there is no specified amount of income. The necessary resources are determined on an individual basis according to the age, profession and family situation as well as health situation of an applicant. Guidelines are laid down in administrative orders of the Länder. |
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.19 | top Q: Is there a housing requirement in force, and if so, what is the minimum surface of the accommodation (in square meters)? | ||||||||||||||||||||||
| answer Germany | A: There is a housing requirement under sec. 29(1) No. 2, whereby sufficient accommodation must be available. There are a number of exceptions to the housing requirement for particular categories of foreigners (refugees, spouses and children of German nationals etc.). Sec. 2(4) of the Residence Act generally defines the space which is required to accommodate a person in need of accommodation according to the standard in state subsidise welfare housing. Living space which does not comply with the statutory provisions for Germans with regard to condition and occupancy is not considered as adequate for foreigners either. Children up to the age of 2 are not included in calculation of the sufficient living space for the accommodation of families. The draft bill until now does not contain any indications for a change of these provisions.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.20 | top Q: Article 7(2) (integration measures)
Are family members required to comply with integration measures? If so, do they have to comply before or after admission and what are they actually required to do (follow a course, pass a test, etc.) |
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| answer Germany | A: Under the existing legislation there are no requirements as a precondition for family reunion with the exception of residence permits granted to children over 16 years of age. Spouses and children, however, are subject to the general provisions on integration requirements once they have received a residence title. The Residence Act has introduced an obligation to attend an integration course consisting of a language course as well as a course imparting some knowledge of the legal system, culture and history in Germany (see sec. 43-45 Residence Act).
The draft bill envisages as a requirement for family reunion of spouses that the spouse may communicate in German. This provision, however, is highly controversial and subject to further political debate. |
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.21 | top Q: Are there any positive or negative sanctions (privileges, subsidies, fines, residence rights or other) attached to the integration measures? | ||||||||||||||||||||||
| answer Germany | A: Section 44a provides that if a foreigner fails to meet his/her attendance obligation for reasons for which he/she is responsible prior to extending his/her residence permit, the competent foreigners authority shall inform the foreigner of the consequences of his/her breach of the obligation and of the failure to attend the obligation course. For as long as a foreigner fails to meet his/her obligation to attend an integration course, the body proving the foreigner's benefits may reduce the benefits by 10 per cent for the period of non-attendance, after being duly informed by the foreigners authority. In case of non-compliance with the obligation to attend, the prospective charge to cover costs may also be levied in advance in a single sum by issuing an official notice of fees.
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| B.22 | top Q: Does the national law distinguish between the concepts 'integration conditions' and 'integration measures' (compare Article 4(1) last indent and 7(2))? | ||||||||||||||||||||||
| answer Germany | A: German law does not distinguish between the concepts 'integration conditions' and 'integration measures' as yet.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.23 | top Q: Article 8 (waiting period)
Is there any waiting period before the family reunification application can be filed? |
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| answer Germany | A: Section 30 on family reunion of spouses does not provide for a waiting period before the family reunification application can be filed.
The draft bill does not contain a provision introducing a waiting period as a condition of family reunion although the issue of a waiting period has been raised in the public debate. |
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.24 | top Q: Article 9(2) (privileges for refugees)
Which privileges granted by the Articles 10-12 are in the national law limited to family relationship that predate the entry of the refugees? |
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| answer Germany | A: Sections 27-32 of the Residence Act do provide for a number of privileges for refugees, particularly with regard to the general requirements of sufficient financial resources and adequate health insurance. Sec. 29(2) provides that these requirements may by waived in the case of the spouse and the minor, unmarried children of recognised refugees or persons being entitled to subsidiary protection. While presently there is still a discretion contained in the law, the draft bill will abolish the discretion and replace it by an obligation to grant a residence permit irrespective of the fulfilment of the general conditions. However, as yet there is nothing in the draft bill on the particular provisions of Art. 10-12 of the Directive. Consequently, the law does not distinguish between a family relationship that predates the entry of the refugees and a family relationship established after the entry of the refugees.
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| B.25 | top Q: Do other protected persons than Convention refugees benefit from the provisions of Chapter V of this Directive? | ||||||||||||||||||||||
| answer Germany | A: Section 29 includes persons entitled to subsidiary protection.
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| B.26 | top Q: Article 10(3) (family members of unaccompanied minors)
Are the parents, legal guardians or other family members of a refugee who is an unaccompanied minor, entitled to a residence permit under national law? |
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| answer Germany | A: Parents, legal guardians or other family members of a refugee may only receive a refugee permit under the general clause of Sec. 36, whereby another dependent of a foreigner may be granted a residence permit for the purpose of family reunion if necessary in order to avoid particular hardship.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.27 | top Q: Article 11 (lack of documents)
Which rules on alternatives to official documents in case of lack of official documents proving the family relationship are provided for in the national law? |
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| answer Germany | A: There are no specific rules providing for exemption from requirements for refugees or their family members. Since there is no legislative provision on necessary documents, it is up to the administration to examine whether a refugee can provide sufficient evidence for issuing a residence permit to family members.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.28 | top Q: Article 12 (exemption from requirements)
From which requirements for family reunification, mentioned in Article 7 or Article 8, are refugees or their family members explicitly exempted by national law? |
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| answer Germany | A: -
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.29 | top Q: Article 13(1) (visa facilitation)
How has the obligation to grant third country family members 'every facility for obtaining the required visas' been implemented in national law? |
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| answer Germany | A: There is no specific provision in the Residence Act or in the regulations for facilitation to obtain the required visa for third country family members.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.30 | top Q: Article 14 (equal treatment)
How has the right of admitted family members to 'access to employment and self-employment in the same way as the sponsor' been implemented in national law? |
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| answer Germany | A: Under sec. 29(5) of the Residence Act the residence permit granted to a family shall entitle the holder to pursue an economic occupation insofar as a foreigner, who is being joined by his/her dependents by way of subsequent immigration is entitled to pursue an economic activity or if marital cohabitation has lawfully existed in the federal territory for at least two years.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.31 | top Q: Did your country make use of the exception to that equal treatment allowed under Article 14(2) of the Directive? | ||||||||||||||||||||||
| answer Germany | A: The draft bill provides for a possibility to restrict the possibility to take up employment if the residence permit of the foreigner to whom a family member moves has been restricted by a special clause whereby the competent authority may exclude an extension of the residence permit in the case of a stay which is of only a temporary nature and in accordance with the purpose of residence.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.32 | top Q: Article 15 (autonomous residence permit)
After how many years are spouses, unmarried partners and children entitled to an autonomous residence permit under national law? What other conditions are they required to fulfil in order to obtain such a permit? |
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| answer Germany | A: Under sec. 31 of the Residence Act in the event of termination of marital cohabitation, the spouse's residence permit shall be extended by one year as an independent right of residence unrelated to the purpose of the subsequent immigration of dependents, if
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.33 | top Q: Article 15 (autonomous residence permit) (2) Under what conditions can an autonomous residence permit be obtained before the period of time normally required under national law? |
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| answer Germany | A: The requirement for marital cohabitation of two years, however, shall be waived if necessary to enable the spouse to continue his/her residence in order to avoid particular hardship. Particular hardship shall be deemed to apply if the obligation to return to the country of origin resulting from the termination of martial cohabitation threatens to substantially erode the foreigner's legitimate interests, or if the continuation of marital cohabitation is unreasonable due to the erosion of the foreigner's legitimate interests; such legitimate interests shall also include the wellbeing of a child living with the spouse in a family household. In order to avoid abuse, extension of the residence permit may be refused if the spouse relies upon social welfare for reasons for which he/she is responsible.
No substantial changes are envisaged by the draft bill. |
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.34 | top Q: Article 16(1)(a) (resources)
Is the income of family members taken into account for the calculation of the sufficient resources at the time of the renewal of the permit? |
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| answer Germany | A: Section 2(3) explicitly provides that contributions to the household income by family members shall be taken into account in connection with the issuance or extension of a residence permit in the context of the subsequent immigration dependents.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.35 | top Q: Article 16(1)(b) (real family relationship)
Does the national law allow for refusal or withdrawal of a residence permit on the ground that the family member does no longer live in a real marital or family relationship? If so, which criteria have to be fulfilled under national law? Is the ground applicable to the relationship between parents and minor children? |
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| answer Germany | A: Under general principles of the Residence Act a residence permit may be withdrawn on the ground that the family member does no longer live in a real marital or family relationship. With respect to renewal of a residence permit this follows already from the requirement that the conditions of continuing family relationship must still be proven unless a residence permit has been issued for another reason. The criteria to be fulfilled under national law have been developed by the jurisprudence of administrative courts (extension of the residence permit granted for family reunion is subject to the same regulations as applied to issuance. The criteria under which a residence permit may be withdrawn are laid down in the Administrative Procedure Acts of the Länder, which allow for a withdrawal or revocation of administrative decisions provided that certain conditions are met. Since an existing family relationship is considered by administrative jurisprudence as a condition for a residence permit the termination of a family relationship will be considered as a reason to withdraw a residence permit, always provided that spouse has not yet achieved an independent right of residence under the conditions described previously. Children will receive an independent, unlimited right of residence under the conditions of sec. 35. A minor foreigner who possesses a residence permit will thereby by granted a settlement permit if he/she has been in possession of a residence permit of five years on reaching the age of 16. The same applies if
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.36 | top Q: Article 16(4) (marriage of convenience)
Does the national law contain provisions on fraud or on marriages or partnerships of conveniences? Is so are the definitions, checks and practices in conformity with Article 16(4)? |
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| answer Germany | A: As yet there are no specific provisions on marriages of convenience in the Residence Act. However, in the administrative jurisprudence principles have been developed concerning the implications of a marriage of convenience for residence permits. If a marriage of convenience is proven, a residence permit will not be issued or withdrawn for fraud.
The draft bill provides in sec. 27(1a) that family reunion is only admissible if it has been confirmed that the marriage or the family relationship has not been established exclusively for the purpose to create a residence right for the spouse or the family member in the federal territory. |
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.37 | top Q: Article 17 (relevant considerations)
How has this clause, requiring that certain specific elements are to be taken into consideration in the decision making on residence permits and removal orders, been implemented in the national law? |
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| answer Germany | A: There are no specific provisions corresponding to Art. 17 in the Residence Act relating to residence titles for the purpose of family reunion. However, principles as laid down in Art. 17 are applied according to administrative regulations in accordance with a permanent jurisprudence of administrative courts. So far, no specific provisions containing the principles of Art. 17 are envisaged in the draft bill.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.38 | top Q: Article 18 (judicial review)
Are the sponsor and his family members entitled to have a negative decision reviewed by a court or independent tribunal? If so, please specify the relevant provisions in the national law and the scope of the judicial review (full review, review on legality or marginal control only)? |
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| answer Germany | A: According to general rules on judicial review, an applicant for a residence permit including applicants for family reunion as well as the sponsor are entitled to judicial review by a court under sec. 42 of the Administrative Court Procedure Act in connection with Art. 19(2) of the Basic Law. The courts fully review the administrative decision. The only restriction applies with regard to refusal of a visa for tourist purposes and of a visa and a passport substitute which are not subject to appeal. Objections or legal actions against the refusal of an application for issuance or extension of a residence title, however, have no suspensary effect.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| B.39 | top Q: Article 18 (judicial review)
Is (publicly funded) legal aid available for an appeal against a decision to refuse fam-ily reunification or to withdraw the residence permit of a family member? |
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| answer Germany | A: No. Under German law there is no publicly funded legal aid for an appeal. Under general principles of court procedure law an applicant who does not have sufficient means my apply for legal aid . Legal aid will be granted if on preliminary survey the appeal has a chance of success. |
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| C. Final questions | |||||||||||||||||||||||
| C.1 | top Q: What are in your view the main strengths and weaknesses of the Directive? | ||||||||||||||||||||||
| answer Germany | A: The debate on the implementation of the Family Reunion Directive has not attracted that much public attention as might be expected. Some public debate has taken place on the restrictions of family reunion envisaged by the draft bill concerning spouses, particularly with regard to the additional integration requirement to be able to communicate in the German language. However, in the press there is very little notice of the provisions of the Family Reunion Directive. Frequently, the debate is taking not much attention of the Directive's provisions. One of the reasons may be that the most severe restrictions laid down in the Family Reunion Directive as options are not applicable to the German legal situation since previous plans to reduce the age limit to below 16 years have not been taken up by the coalition government.
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| C.2 | top Q: Please add any other interesting information on the Directive or its implementation in your country that might be relevant for our study. | ||||||||||||||||||||||
| answer Germany | A: -
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| C.3 | top Q: Please send us copies of the relevant laws and regulations, of any legal or other publications on the Directive or of judgments of national courts applying or interpreting the Directive, if possible in electronic form. | ||||||||||||||||||||||
| answer Germany | A: No documents are annexed.
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AUS BEL CYP CZE DEN EST FIN FRA GFR GRE HUN IRE ITA LAT LIT LUX MAL NET POL POR SVK SVN SPA SWE GBR |
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| D. Table | |||||||||||||||||||||||
| D.1 | top Q: This table refers only to mandatory provisions of the Directive.
Please choose for each article one of the four alternative labels:
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| answer Germany | A: Table is not applicable for Germany at this stage. | ||||||||||||||||||||||
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