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Created on Tuesday, 20 October 2009 12:07

Last Updated on Friday, 28 December 2012 18:46

Proof of German Knowledge when Immigrating to a German

The Indian Alka has applied for a residence permit for family union to join her German husband. The German authorities are giving her a headache because she allegedly cannot prove to have sufficient knowledge of the German language. This article will tell you of what the OVG Berlin-Brandenburg had to say to this problem with its judgment of April 28, 2009 (re: OVG 2 B 6.08).

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Alka does not have any special education and is without a job living in a village. Her husband is in early retirement from VW. Her native language is Panjabi. She also speaks Hindi and has a little command of English. She wed her husband on August 16, 2004.

In May 2006, she applied for a visa to enter Germany to reside there on the grounds of family reunion. The foreigners office approved the application. However, the consulate denied it because Alka could not show that she had sufficient command of German. She is not able to build simple sentences with subject, predicate, and object using the common usual words. Alka can only say some German words but not build sentences.

Starting February 2008, she was participating in a daily German course for three hours for over three months. Her later attempts to pass the test SD1 remained unsuccessful.

Alka denies this. It is sufficient to be able to orally communicate and that has to suffice. Written command is not vital. She further argues that this legislation requiring proving simple German command with a language certificate from Goethe-Institut or a licensed language school violates German constitutional and European law.

This regulation infringes the protection of the married couple (art. 6 I GG). Integration may just as well be fostered after entry by visiting language courses. A vast majority of the partners wanting to subsequently follow their spouses to Germany are blocked by this regulation because there is not the infrastructure to learn German everywhere.

This requirement also violates the non-discrimination precept in art. 3 I GG. There is no material reason to privilege buddy countries with exceptions to language requirements. Further, art. 7 II Directive on Family Reunification is infringed because demanding proof of language abilities upfront is not a measure to foster integration. Also art 8 I ECHR is violated because her husband only has the choice to either relocate abroad or waive cohabiting with his wife.

This case has no merits. The denial of granting a residence permit for family reunification is legal. Grounds for granting such permit are in §6 IV 1, 1 i.c.w. §§27 I, 28 I cl. 1 no. 1 AufenthG. Being a citizen of India, the plaintiff requires a national visa to enter Germany, which is to be applied for before entry. §27 I AufenthG sets out the rules for a residence permit for family reunion. This will be the case, when the German has his habitual residence in Germany.

According to §28 I no. 5 AufenthG, the foreign spouse of a German must be able to at least have a simple command of the German language. This legal provision aims at implementing the Directive on Family Reunification. This directive determines that persons wanting to enter Europe are encouraged to obtain knowledge of the language of their future country of residence - before entering. Next to this stands the statutory motive to improve the protection of victims of forced marriages. The language requirement is understood as a preventive measure so that they do not as easily become victims. In any case, this is to help lead to an independent life and enables accessing to assistance from other agencies. Only the level A1 - GER is required.

Alka did not prove that she fulfilled the language requirements. Neither did she present a language certificate from any school nor did she in other manner show that she can communicate with the minimum command of German. She proved but the opposite with her contention that "written command" cannot be expected. Having the ability to only use single words in very few, strongly limited topics (especially only related to receiving funds) is by no means satisfactory. Having reading and writing abilities are also expected. The argument, to learn after entering cannot be heard because integration courseshave a different goal than that of entry for making a home.

Violation of Constitutional Protection of the Family - Art. 6 I GG

The ruling case law of the Federal Constitution Court shows this right of art. 6 I GG in such manner that it encompasses the freedom to choose one's spouse and establishing a family as well as the right to cohabit or not. When it comes to foreigners, the BVerfG has laid down the legal basics more closely. When applying for residency when married to a German, then the authorities have to consider the marital relationship with such special attention to meet the great importance of a marriage.

Demanding language abilities do not hamper the legal concept of marriage. Such would be when the state damages, disturbs or in other manners negatively impacts the status of being married. Art. 6 GG does give a guaranteed right to a foreign spouse wishing to subsequently follow his or her German spouse to Germany. The constitution entrusts this issue to general legal provisions. These provisions must be reasonable. One general provision is always applicable that foreigners (even such as married to Germans) will not always be able to cohabit in the Federal Republic of Germany.

The constitution will be infringed, when a spouse cannot or when it is not reasonable for a spouse to follow abroad. Such will be the case, when a German child's mother lives in Germany then it cannot be reasonably required from the child to leave to Germany to cohabit with his father. Measured on that, the requirement of having to learn upfront before entering Germany (§30 I 1 no. 2 AufenthG) is no impediment.

The goals of this regulation, i.e. to foster integration and combat forced marriages are legitimate reasons for establishing such provisions. Having knowledge of the language will negate to an extent the use of a coercion. Disregarding that, it evidently fosters a quicker and better social integration when a newly arriving foreigner can already communicate in the native language. This existing prerogative of the lawmaker is to be respected because there is no measure known that can achieve the statutory goals less invasively and more effectively.

The linguistic requirements are also reasonable. Weighing the public interests of marriage with the rule of protection of the family and marriage in art. 6 I GG, the lawgiver is not required to grant permission for subsequent family reunion with less requirements than they now exist - simple command of German. The linguistic requirements and their implications are not that inconsequential but they are acceptable in order to meet higher public interests. New marriages might be burdened in such manner that some time will have to pass until cohabitation is possible. However whenever a person wishing to follow his or her spouse to Germany can already show knowledge of German prior to or around the marriage date then no waiting will be necessary. On the other hand, like in the reported case, it can happen that several years will pass until cohabitation will be possible. This requirement remains reasonable even when it cannot be excluded that the necessity of German may lead to practically hindering cohabitation. The language demand is quite small - in view of any educational, cultural differences.

Alleged Violation of Art. 3 GG - Non-Discrimination

Pursuant to constitutional non-discrimination provision, nobody may be privileged in regard to his origin, gender, descent, race, language, home, i.a. This provision generally determines that no identical facts may be treated differently without adequately weighty reason. It is for the lawgiver to decide to choose which facts will lead to the same legal consequences - in as far as the choice is unbiased and reasonable. The constitution does not require that the choice be the most practical, or fairest solution. However, the requirements for an unbiased and reasonable decision - like in this case - are higher when different groups of persons are to be treated differently and even more when constitutional rights are touched.

Following these standards, the plaintiff Alka has not been infringed in her constitutional rights. The requirement to prove linguistic abilities before emigrating is also dependent on whether the citizen belongs to a buddy country or not. Such citizens do not need a visa to enter Germany (§30 I 3 no. 4 AufenthG). This differentiation is based on the typically reduced need for integration (support) in terms of the integration law. This is typically the case for persons with higher education or professions that need a higher education for their job. The reason behind this is strong economic and political ties between Germany and the buddy countries. The court considers this differentiation as reasonable and unbiased.

Alleged Violation of European Law and Law of Nations

>Requiring German does not constitute any violation of community law and especially not Directive on Family Reunification. Art. 7 II of this directive gives member states the right to demand from citizens of third land countries that pursuant to national law they partake in integration measures.

Violation of Art. 8 European Human Rights Convention

There is no infringement of art. 8 EHRC recognizable when certain foreigners have to learn German in order to enter and live in Germany. According to this provision, every person has the right that his or her private and family life be respected. Subsection 2 further determines that offices may only touch such right when it based on a statute and is necessary in a democratic society to maintain national and public order for the economical prosperity of the country, among other reasons. The ruling case law of the European Court of Justice does not give any grounds that a country can in general be required to respect the wish concerning cohabitating of aliens in its territory by always granting such permission. Only in such special situations where the protection of the family, especially maintaining a family relationship, can any rights be derived from art. 8 EHRC. This provision cannot be so widely interpreted that a country must always grant permission to members of a family subsequently follow.