Attorney for Family Reunification - Lawyer for Family Reunion

Important Considerations for Spousal Family Reunification:It is essential to be aware that the Aliens Office and the German Embassy will carefully examine the seriousness of your marriage during a separate and simultaneous interview with both spouses. According to the Federal Administrative Court (Bundesverwaltungsgericht), the burden of proving the seriousness of the marriage lies with the applicants.The higher administrative court (OVG Berlin-Brandenburg) has set a guideline stating that the more your marital partnership deviates from conventional norms, the more crucial it becomes to provide additional factual explanations justifying the reasons for these differences. This is to ensure that the relationship aligns with typical criteria for marital cohabitation. (See Berlin-Brandenburg Higher Administrative Court, judgment of 29/01/2009, OVG 2 B 11 .08).Given the requirement to demonstrate the seriousness of your marriage, it is highly advisable to prepare thoroughly before applying for the visa.

Language Test Requirements for Family Reunification in Germany:

Currently, foreigners entering Germany for family reunification with their German spouse are required to demonstrate German language proficiency at level A1.

However, there has been a recent development in this ruling due to a decision by the Federal Administrative Court in Leipzig. The court has restricted the validity of the statutory requirement for language proficiency in cases of family reunification with foreign spouses of German citizens.

Unlike foreign nationals seeking reunion visas, where language skills are typically a prerequisite, spouses can now be granted visas even if they are in the process of acquiring simpler language skills. The visa can be issued, especially if passing the German test is not feasible within a year (Federal Administrative Court ruling dated September 4, 2012 - 86/2012).

In my view, German embassies should not generally exclude visa applicants who have not passed the language test, given the Federal Administrative Court's decision on March 3, 2010 - BVerwG 1 C 8/09, which applies to individual cases. The German regulation should not hinder individuals entitled to a residence permit under § 28 of the Aliens Act (family reunification with a German citizen) from applying for a visa. The Federal Administrative Court, in its guiding principle on reunification of visa applicants with their foreign spouse living in Germany under § 29 of the Aliens Act, states that "the absence of a general exemption for hardship cases shall not affect the constitutionality of the regulation, as to avoid disproportionate separation of couples in individual cases, other solutions such as issuing a residence permit for language acquisition under § 16 paragraph 5 of the Aliens Act can be implemented."

Regarding the decision of the Constitutional Court on March 3, 2011 - 2 BvR 1413/10, which requires successful participation in the language course and passing the A1 language test, it does not eliminate the need for individual case assessment. The court notes that the burden of learning the language typically associated with domestic cohabitation in Germany can be overcome in the foreseeable future due to the minor requirements of the language test. However, it is also recognized that additional efforts for the family unit may be necessary, such as visits or even establishing the family reunion entirely abroad if language skills cannot be acquired within a reasonable timeframe.

This implies that if language skills cannot be acquired promptly, a visa must be issued when one spouse is a German citizen. In my estimation, this could also apply in cases where language skills are available but the language test does not yield a positive result. The court's individual case evaluation might lead to the issuance of a visa.

In conclusion, I believe that the recent decision of the Federal Administrative Court may not align with the EU family reunification directive, as the directive emphasizes integration without necessarily mandating a language test. Additionally, in my opinion, the burden of proving the seriousness of the marriage should not be required by the EU directive. Instead, the Federal Republic should bear the burden for cases involving fictitious marriages.

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