Aktualisiert am:
Federal Administrative Court, November 16, 2010, Case No.: 1 C 20.09
When applying for spousal reunification to Germany, a distinction must be made between reunification with German citizens (§ 28 Abs. 1 No. 1 Residence Act) and with foreign nationals (§ 30 Residence Act).
If one of the spouses holds German citizenship, Article 6 of the Basic Law (GG) provides special protection to the German citizen. It is generally not to be denied to the German citizen to live with their spouse and family in Germany. Therefore, securing livelihood (§§ 5 Abs. 1 No. 1, 2 Abs. 3 Residence Act) is usually not a prerequisite for spousal reunification with Germans due to the unrestricted residence right of Germans in the country, according to § 28 Abs. 1 S. 3.
Spousal reunification with foreign nationals is governed by § 30 Residence Act. § 30 Residence Act requires that the foreign national holds one of the residence permits listed exhaustively in § 30 Abs. 1 No. 3 letters a to f Residence Act and, in the case of residence permits under § 30 Abs. 1 No. 3 letters d to f, meets the additional requirements specified. Additionally, the livelihood of both spouses and any minor children living with them must generally be secured.
The Federal Administrative Court had to decide a case regarding spousal reunification with a foreign national and the related issue of secured livelihood in the judgment mentioned above.
Facts of the Case:
Turkish man seeks spousal reunification with his wife living in Germany
The plaintiff, a 37-year-old Turkish national, sought a residence permit as a spouse under § 30 Abs. 1 Residence Act. In 2002, the plaintiff married a Turkish woman living in Germany, with whom he had three children. In 2005, he entered Germany with a visa for family reunification.
After the entire family started receiving Hartz IV benefits, the immigration authority refused the residence permit.
After the plaintiff began receiving benefits under the Social Code II (SGB II) for himself, his wife, and their youngest son in September 2006, the defendant (Land Berlin) denied the plaintiff’s application for a residence permit in 2008, stating that the family’s livelihood was not secured. The Administrative Court of Berlin dismissed the lawsuit, while the Higher Administrative Court of Berlin-Brandenburg ordered the defendant to issue a residence permit.
Higher Administrative Court only considered the livelihood of the foreign spouse as relevant
The Higher Administrative Court believed that it was sufficient if the livelihood of the arriving foreign spouse was covered. This was the case here, as the plaintiff’s income was now sufficient for his own needs, even if it was not enough for his wife and minor son.
Federal Administrative Court Ruling:
The Federal Administrative Court rules that all family members must be provided for
The Federal Administrative Court did not follow the view of the plaintiff and the Higher Administrative Court of Berlin-Brandenburg in the above decision. According to the BVerwG, it is not sufficient if the arriving spouse can cover their own needs in isolation but relies on public social benefits for their spouse and children. Spousal reunification generally requires that not only the livelihood of the arriving foreign spouse but also the livelihood of the family unit be covered without resorting to public social benefits. This was not the case here, as the family continued to receive benefits under the SGB II.
Source: Federal Administrative Court
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