Immigration Law: Children entered Germany without a visa to join their father and intended to stay here.

Case Overview

After their visa applications were denied, the plaintiffs entered Germany without permission.

In this case from the VGH Munich, two children (plaintiffs) entered Germany to join their father, who was already residing in the country. The father held a residence permit under § 19c AufenthG. The plaintiffs applied for residence permits (child reunification under § 32 AufenthG) with the defendant in Germany. Prior to this, the plaintiffs had applied for entry visas at the German Embassy in North Macedonia, which were denied.

Foreigners‘ Authority Denied the Issuance of Residence Permits

The defendant rejected the plaintiffs‘ applications for residence permits and their request for temporary suspension of deportation. The plaintiffs were ordered to leave the country by October 2, 2021. The authority threatened deportation to North Macedonia if they failed to comply and imposed an entry and residence ban for one year from the date of deportation.

The Lower Administrative Court Confirmed the Rejection by the Foreigners‘ Authority

The initially appealed administrative court dismissed the plaintiffs‘ lawsuit on January 10, 2023, stating that the general requirements for issuance were not met. The plaintiffs did not possess valid passports, as required by § 3 in conjunction with § 5 para. 1 no. 4 AufenthG (the presented passports were only valid until March 6, 2022) and did not submit new passports despite multiple court requests. Furthermore, the required visa procedure under § 5 para. 2 AufenthG for issuing a residence permit under § 32 AufenthG had not been followed. An exception under § 39 sentence 1 no. 3 AufenthV did not apply, as the conditions for the plaintiffs‘ claim to a residence permit had not arisen after their entry.

The Administrative Court Viewed the Missing Visa Procedure as a Ground for Rejection

The administrative court found that the strict legal requirement, under which the authority would have no discretion, was not present. Although the claim under § 32 para. 1 AufenthG is mandatory, since not both parents with custody were in Germany, the residence permit should only be issued under the conditions specified in § 32 para. 3 AufenthG. The (intended) discretion of § 32 para. 3 AufenthG precluded a strict legal claim. Moreover, the factual requirements for waiving the visa procedure under § 5 para. 2 sentence 2 AufenthG were not present; there were no special circumstances at the time of the decision that made it unreasonable to complete the visa procedure. The plaintiffs‘ argument concerning school attendance was not considered a special circumstance, as it generally applies to all school-age foreigners required to complete the visa process. The appeal of the denial of a suspension of deportation was also unfounded. Whether the appeal was inadmissible due to the lack of a specific request for temporary suspension of deportation could be left open, as the plaintiffs had no claim to a suspension of deportation under § 60a para. 2 AufenthG. The deportation was neither factually nor legally impossible under § 60a para. 2 sentence 1 AufenthG, nor did mere school attendance, without an imminent completion, create a claim to discretionary suspension under § 60a para. 2 sentence 3 AufenthG.

The Plaintiffs Applied for Leave to Appeal the Decision of the Administrative Court

The plaintiffs applied for leave to appeal the decision at the VGH Munich.

Decision of the VGH Munich:

The VGH Munich denied the appeal against the administrative court’s decision.

During the appeal process, the plaintiffs presented valid passports, arguing that they now fulfilled their passport obligation under § 3 AufenthG. Thus, they claimed to have a right to residence permits under § 32 para. 1, para. 3 AufenthG (child reunification) and that the general issuance requirements were met (visa obligation and passport obligation).

The VGH Munich did not follow this reasoning. The administrative court correctly stated that the lack of general issuance requirements, particularly the requirement to apply for the necessary visa before entry under § 5 para. 2 sentence 1 AufenthG, precluded the issuance of a residence permit.

The VGH Munich Found No Exception to the Visa Requirement

The plaintiffs could not claim an exception under § 39 sentence 1 no. 3 AufenthV from the obligation to apply for a residence permit from abroad through the visa process. This applies because the conditions for a claim under § 32 para. 1 AufenthG did not arise after the plaintiffs‘ entry. Although the declaration of consent required under § 32 para. 3 AufenthG for family reunification with one parent with custody was submitted on February 16, 2020, after the plaintiffs‘ entry, the conditions of § 39 sentence 1 no. 3 AufenthV can only be fulfilled by a strict legal claim, meaning that all mandatory and regular requirements must be met, leaving no room for administrative discretion. This was not the case here.

The Plaintiffs Do Not Have a Claim to Child Reunification

The plaintiffs do not have a claim to child reunification under § 32 AufenthG, as this requires both parents or the sole parent with custody to have a residence permit. This requirement was not met either at the time of the application or at the time of the Senate’s decision. The father residing in Germany with a residence permit under § 32 para. 1 no. 1 in conjunction with § 19c AufenthG did not have sole custody.

Moreover, the plaintiffs cannot derive a legal claim to a residence permit under § 16f para. 2 AufenthG. This is precluded by the fact that § 16f para. 2 AufenthG provides for discretion on the legal consequence side, which inherently does not convey a strict legal claim under § 5 para. 2 sentence 2 alternative 1 AufenthG. It can therefore be left open whether the plaintiffs sufficiently substantiated the conditions under § 16f para. 2 AufenthG (cf. § 86 para. 1 sentence 1 half-sentence 2 VwGO), which might have prompted the administrative court to initiate further factual investigations ex officio under § 86 para. 1 sentence 1 half-sentence 1 VwGO. However, it should be noted that the letters or certificates from the schools submitted do not clearly show that they meet the requirements of § 16f para. 2 no. 1 (especially school with an international orientation) or no. 2 AufenthG (especially school not primarily publicly funded and preparing students for international qualifications, qualifications of other states, or state-recognized qualifications).

The discretionary waiver option under § 5 para. 2 sentence 2 alternative 1 AufenthG also requires a strict legal claim, which is not met in this case. It is also not apparent that the specific requirements of § 36 para. 2 AufenthG (requiring exceptional hardship) were met for the first plaintiff, who had reached the age of majority at the time of the Senate’s decision, apart from the fact that this provision also allows for discretion.

The administrative court also rightly found that it was not unreasonable to require the plaintiffs to complete the visa procedure under § 5 para. 2 sentence 2 alternative 2 AufenthG. To avoid repetition, reference is made to the relevant explanations in the first-instance judgment, which the Senate agrees with (analogous to § 130b sentence 2 VwGO). Additionally, the plaintiffs‘ arguments in the appeal process are addressed as follows:

It Is Compatible with the Constitutional Protection of Marriage and Family to Wait for an Embassy Decision

The constitutional protection of marriage and family under Article 6 GG generally allows requiring a foreigner to obtain the necessary visa in their home country to reunite with a family member lawfully residing in Germany.

The typical time delay associated with the visa procedure must usually be accepted by the person seeking to enter Germany. The mere existence of a family unit does not generally make it unreasonable to follow the visa procedure, nor does the fact that a small child may be involved, as it is the foreigner’s responsibility to arrange departure procedures and timing as family-friendly as possible in consultation with the relevant foreigner’s authority.

A forecast must be made regarding the likely separation time if the visa procedure is followed. Such a forecast can be omitted if, in a specific case, it is compatible with Articles 6(1) and (2) GG to permanently deny the foreigner and their family member the right to live together in Germany, for example, because the family life can be reasonably maintained outside Germany.

The Visa Process Serves as a Means to Control Immigration

In the balancing decision (whether a temporary separation is reasonable given the forecasted separation time), it must be considered that the rules in § 5 para. 2 sentence 1 nos. 1 and 2 AufenthG protect important public interests. The requirement to enter with the necessary visa ensures that the conditions for granting a residence permit for family reunification are examined before entry to prevent the immigration of persons who do not meet these conditions. The (subsequent) obtaining of the required visa for family reunification should not be seen as a mere formality. General preventive aspects should also be considered to ensure that the visa process can effectively serve as an important control instrument for immigration. § 5 para. 2 sentence 2 AufenthG counteracts incentives to create reasons for staying after illegal entry, thus rewarding such behavior by waiving the visa process conducted abroad. The deliberate circumvention of the visa procedure should not go unpunished to avoid undermining this important immigration control tool. Exceptions to the visa requirement under § 5 para. 2 sentence 2 AufenthG should therefore be interpreted narrowly.

Based on these principles, it is compatible with the constitutional protection of the family under Article 6 GG (or Article 8(1) ECHR) in this case to require the plaintiffs to obtain the necessary visa.

The Plaintiffs Also Have No Claim to a Suspension of Deportation

Finally, the administrative court also rightly denied a claim for suspension of deportation. No factual or legal impossibility of deportation within the meaning of § 60a para. 2 sentence 1 AufenthG is apparent. In particular, neither Article 6 GG nor Article 8 ECHR, as stated above, prevents the plaintiffs‘ deportation. Urgent humanitarian or personal reasons for discretionary suspension under § 60a para. 2 sentence 3 AufenthG have also not been demonstrated or are apparent, especially since the plaintiffs have already successfully completed their schooling, which was nearing completion in the 2021/22 school year, according to the oral hearing before the administrative court (cf. hearing protocol from January 10, 2023).