Berlin Administrative Court, Decision of August 30, 2023, Case No.: 19 L 272/23 V
In many cases, it may be necessary to file an urgent application with the Berlin Administrative Court if a foreign national living in Germany or a German citizen wants to bring a third-country national to Germany.
Examples include:
- When someone is needed to attend a funeral in Germany
- When someone is needed to attend a birth in Germany
- When someone is needed to attend a wedding in Germany
In all these examples, an urgent application can be filed with the Berlin Administrative Court. The defendant in such cases is the Federal Republic of Germany, represented by the relevant German embassy or consulate.
In the case discussed here, the Berlin Administrative Court dealt with an urgent application for a visa for family reunification filed by a (still) minor daughter to join her mother living in Germany. The application was filed because the applicant was nearing adulthood, and both she and her mother feared that she would no longer qualify for child reunification after reaching adulthood.
Case Background:
Palestinian Woman Residing in Syria Applied for a Visa for Family Reunification
The applicant, born on August 31, 2005, a Palestinian by ethnicity with a habitual residence in Syria, applied for a visa at the Embassy of the Federal Republic of Germany in Rabat before reaching adulthood.
The Embassy in Rabat Did Not Decide, So the Applicant Filed an Urgent Application
The family reunification was intended to allow her to join her mother, who resides in Germany with a residence permit according to Section 25(2) Sentence 1 Alternative 2 of the Residence Act (AufenthG) as a person entitled to subsidiary protection. Due to the embassy’s delay in making a decision, the applicant filed an urgent application with the Berlin Administrative Court.
Decision of the Berlin Administrative Court
For the application for an interim injunction to be justified, both a reason for the injunction and a claim for the injunction must be present. The applicant must credibly demonstrate the existence of these two requirements.
Berlin Administrative Court Did Not See a Reason for an Injunction
A reason for an injunction exists if the applicant credibly demonstrates that disadvantages are imminent, making it unreasonable to wait for a decision in the main proceedings (lawsuit).
Normally, an interim injunction should not preempt or exceed the main issue. Granting a visa as interim relief would preempt the main issue, as it would definitively grant the right to enter associated with the visa, rendering the purpose of effective prior entry control moot, and would lead to a continued exercise of the residence rights granted by the visa (see OVG Berlin-Brandenburg, decision of October 13, 2015 – OVG 2 S 51.15 – juris para. 3).
No Serious Disadvantages Would Befall the Applicant
Such preemption is permissible due to the requirement of effective legal protection under Article 19(4) Sentence 1 of the Basic Law (GG) only if waiting for the main decision would result in serious and irreparable disadvantages and, additionally, if there is a high probability of success in the main proceedings, even based on the limited review possible in interim relief (cf. BVerwG, judgment of April 18, 2013 – BVerwG 10 C 9.12 – juris para. 22 and OVG Berlin-Brandenburg, decision of April 28, 2017 – OVG 3 S 23.17 – juris para. 1).
Child Reunification Would Be Possible Even After Adulthood
These (strict) requirements, according to the Berlin Administrative Court, were not met. The applicant had not credibly demonstrated the required reason for an injunction. The fact that the applicant would reach the age of 18 by the end of the day did not suggest any loss of rights concerning the desired visa. The applicant could not be denied the visa solely because she would exceed this age limit. The issuance of this visa does not require that the applicant be a minor at the time of the administrative or judicial decision.
The legal basis for the requested visa for family reunification with a person entitled to subsidiary protection is Section 36a(1) Sentence 1 Alternative 2 of the Residence Act. This requires that the applicant is a minor. However, according to established case law, this requirement only needs to be met at the time of application—not at a later decision.
For Claims Linked to an Age Limit, the Situation at the Time of Application Applies
In cases involving claims tied to an age limit, the relevant situation for assessing the legal and factual circumstances is generally the time of the last oral hearing or decision in the trial court. However, according to the Federal Administrative Court, an exception applies for claims linked to an age limit. If the claim requires the applicant to be a minor, this condition must be met at the time of application. Other conditions for child reunification must also be met at the time of reaching the age limit and at the time of the last oral hearing or decision in the trial court so that all conditions are simultaneously met at least once. Changes in circumstances after this point in favor of the applicant cannot be considered. This principle, initially developed for child reunification under Section 32 of the Residence Act, also applies to child reunification with a parent entitled to subsidiary protection under Section 36a of the Residence Act, as the Federal Administrative Court has ruled. The application of these principles aligns with the case law of the Higher Administrative Court.
The Defendant Had Already Acknowledged This Legal Situation Through Its Conduct
The applicant need not even fear that the defendant might ignore these legal principles and reject her visa application due to exceeding the age limit. The defendant had already stated in its brief dated August 29, 2023, that no loss of rights would occur due to the applicant reaching adulthood. This indicated that the defendant intended to base its future decision on the applicant’s visa application on this case law, which it evidently agreed with.
Since there was no reason for an injunction, there was no need to assess whether a claim for an injunction or the other conditions for preempting the main issue were present.
Source: Berlin Administrative Court
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