Higher Administrative Court Berlin-Brandenburg, 13.01.2025, Ref.: OVG 3 S 3/25
On 13 January 2025, the Higher Administrative Court (OVG) of Berlin-Brandenburg issued a decision on the topic of family reunification of siblings under the case number OVG 3 S 3/25. The case concerns the question of whether underage siblings from Iraq are entitled to a visa if their parents have already been granted a visa for family reunification with their son entitled to subsidiary protection in Germany.
Case Background
The applicants, three minor children aged 6, 11 and 16, had tried to obtain a visa to enter Germany together with their parents. Their parents had already received a visa for family reunification with their son living in Germany, but this was only valid until the son reached the age of majority.
The Berlin Administrative Court rejected the siblings' application, whereupon the family lodged an appeal with the Berlin-Brandenburg Higher Administrative Court. The court also ruled against the applicants and at the same time rejected the application for legal aid.
The legal basis
Several legal provisions of the Residence Act (AufenthG) became relevant in the proceedings:
- § Section 32 (1) no. 3 AufenthG: Regulations on the subsequent immigration of children.
- § Section 36a (1) AufenthG: Family reunification for beneficiaries of subsidiary protection.
- § Section 5 (1) no. 1 AufenthG: Requirement to secure a livelihood.
- § 22 AufenthG: Admission on humanitarian grounds.
The court found that the livelihood of the underage applicants was not secured and therefore there was no entitlement to a visa.
Reasons for the decision of the OVG Berlin-Brandenburg
The court rejected the complaint for the following reasons:
- Failure to secure a livelihood: The applicants were unable to prove that their livelihood was secure, which is a mandatory requirement for the issue of a visa in accordance with Section 5 (1) No. 1 AufenthG.
- Limitation of the parents' visa: The court argued that the parents' visa was limited in time, as it automatically expires when the son comes of age. This leaves no room for the siblings to join them at the same time.
- Not an atypical situation: According to the court, the possibility that a parent could apply for asylum after entering the country does not constitute an atypical situation that would justify an exception to the requirement to secure a livelihood.
- Housing requirements not met: The applicants were unable to provide evidence of sufficient accommodation within the meaning of Section 29 (1) sentence 1 no. 2 AufenthG. The accommodation provided was assessed as a temporary solution and not as long-term accommodation.
Significance for practice
This decision illustrates the strict requirements that are placed on the reunification of family members of beneficiaries of subsidiary protection. Securing a livelihood is particularly relevant here, as this is a key requirement for the successful issue of a visa.
The judgement also shows that the legislator does not generally regard the reunification of siblings as part of the nuclear family, but only allows it in exceptional cases in accordance with Section 36 (2) Residence Act.
Conclusion
The judgement of the OVG Berlin-Brandenburg makes it clear that the reunification of siblings with persons entitled to subsidiary protection in Germany is subject to strict legal conditions. Without a secure financial basis and sufficient living space, a favourable decision is unlikely. Families wishing to reunite with their siblings should therefore ensure in advance that all requirements are met in order to avoid unnecessary delays and rejections.
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