Aliens law: Proof of language skills when reuniting with a German spouse (§ 28 AufenthG)

If a German citizen has taken a foreigner as a spouse and would like the foreigner to move to Germany, Article 6 of the Basic Law (protection of marriage and family) has a special effect on the German citizen. In principle, he or she should not be denied the right to live with his or her spouse and family in Germany. For this reason, the foreign spouse moving to Germany is legally entitled to a residence permit, provided that the German spouse has their habitual residence in Germany and fulfils the other requirements for immigration.

One of these requirements is proof of the foreign spouse's basic knowledge of German, Section 28 (1) sentence 5 AufenthG in conjunction with Section 30 (1) sentence 1 no. 2 AufenthG. In normal cases, the spouse must be able to provide proof of basic German language skills before entering the country. Knowledge of the German language is an elementary prerequisite for successful integration into German society. With this requirement, the German state wants to ensure that you can participate in social life right from the start.

But what are basic German skills?

Basic knowledge of the German language corresponds to "Competence level A1 of the Common European Framework of Reference for Languages". This means that you understand and can use very simple sentences. For example, you should be able to ask for directions or communicate in everyday situations such as shopping. You should also be able to introduce yourself and others and be able to answer questions about yourself and other people. Examples of this would be where you live or who you know. You should also be able to write a little in German, for example to fill in an official form with your personal details.

And how can you prove that you have a basic knowledge of German?

As a rule, German language skills must be proven at the German embassy or consulate general when applying for a visa for the subsequent immigration of spouses. For this purpose, a language certificate based on a standardised language test in accordance with the "Standards of the Association of Language Testers in Europe" (ALTE) must be enclosed with the application documents. It should be noted that only the German diplomatic mission abroad where you apply for the visa will decide whether to recognise the language certificate. However, special proof is often not required if it is clear from the personal interview at the embassy or consulate general that you have the required knowledge of the German language without any doubt.

Exceptions to proof of basic German language skills (spouse reunification without language test)

However, there are exceptions to the obligation to provide proof of basic German language skills. In general, no proof of language skills is required if the spouse is a citizen of one of the countries listed in § 41 of the Residence Ordinance, if there is a recognisably low need for integration or if it is impossible to acquire language skills due to mental or physical disabilities. Even with certain residence permits, such as the EU Blue Card, the spouse joining the family does not have to provide proof of German language skills.

Proof of language proficiency is not required before entering Germany if the spouse is German and has previously exercised their European right to freedom of movement by spending a longer period of time in another EU member state. In addition, proof of language proficiency prior to entry is waived if it is impossible or unreasonable for the foreign spouse to acquire the language abroad or if they have not been able to acquire sufficient language skills within one year despite their efforts. Proof is also not required if the spouse or the spouse joining them is a national of an EU member state (except Germany) or EEA state (Norway, Iceland and Liechtenstein) or Switzerland. There are also hardship regulations that were introduced in Section 30 (1) sentence 3 no. 2 of the Residence Act (AufenthG) with the Act on the Revision of the Right of Residence and the Termination of Residence of 27 July 2015.

Spouse is unable to learn the language due to physical, mental or psychological illness or disability

The requirement for proof of language proficiency does not apply if it is not possible or reasonable for the spouse joining the family to make efforts to acquire basic German language skills before entering the country due to special circumstances in the individual case. This does not only apply to circumstances that directly affect the ability to speak and write. For example, physical disabilities that prevent the foreigner from attending a language course and practising the skills at home can also be taken into account.

The embassy or immigration office is not actually allowed to demand an A1 certificate

It should also be noted that the Higher Administrative Court of Berlin-Brandenburg stated in a ruling of 16 January 2008 that the Residence Act (Section 28 AufenthG) does not prescribe a specific form of proof for the required language skills. This view is also held in the literature, where the demand for a specific language certificate is regarded as an unlawful practice (see Rennert, Ausländerrecht-Kommentar, 9th edition, § 30 AufenthG, para. 34). This means that the embassy or immigration authority may not actually insist on proof in the form of an A1 certificate. An interview should also be sufficient.

What exactly is meant by impossibility or unreasonableness?

Unreasonableness can result, among other things, from the fact that it is not possible or not reasonable for the spouse joining the family to acquire basic German language skills within a reasonable period of time for particular personal reasons or due to the particular circumstances in their home country. In the opinion of the Federal Administrative Court, a boundary between the regular and exceptional case is to be drawn at a delay in reunification of around one year (BVerwG, judgement of 4 September 2012 - 10 C 12/12 - BVerwGE 144, 141, para. 28). Accordingly, unreasonableness applies if the foreign spouse has endeavoured to obtain proof of language skills for a year without success. The same also applies if it is unreasonable to expect the spouse joining the family to make efforts to learn the language from the outset because language courses are not offered in the home country or attending such facilities is associated with a high security risk. In such cases, there is no need to wait for the one-year period to expire (BVerwG, judgement of 4 September 2012 - 10 C 12/12 - BVerwGE 144, 141, para. 28). When examining the reasonableness, other personal circumstances (e.g. illness or unavailability), the availability of learning opportunities, their costs and accessibility, which could prevent the attendance of learning opportunities, must be taken into account in particular, and alternative options must also be examined (BVerwG, judgement of 4 September 2012 - 10 C 12/12 - BVerwGE 144, 141, para. 28). In such a case, the generally proportionate requirement of reunification would become a disproportionate and permanent obstacle to reunification, which would be unreasonable. In principle, the German spouse must not be forced to marry abroad, as the fundamental right under Article 11 of the Basic Law grants him or her the right to reside in Germany. A contrary view would also be unreasonable for him.

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.

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