Germany: Administrative Court Berlin, 26.11.2019, 38 L 442.19 V

Country of Decision:
Country of Applicant:
Date of Decision:
26-11-2019
Citation:
38 L 442.19 V
Court Name:
Administrative Court Berlin
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Germany - AufenthG (German Residence Act) - Article 36a para 1 sentence 2
Germany - Residence Ordinance (AufenthaltsVO) - Article 31
Germany - Court Costs Act (GKG) - Article 39
Germany - Court Costs Act (GKG) - Article 52
Germany - Administrative Court Act (VwGO) - Art. 154.1
Germany - Administrative Court Act (VwGO) - Art. 155
Germany - Administrative Court Act (VwGO) - Art. 161 para 2
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Headnote: 

Applications for a visa for family reunification with subsidiary protection beneficiaries must be treated as particularly urgent if the holder of the right of residence is about to reach the age of 18. The Immigration Office must ensure that such applications are processed preferentially and expeditiously.

Facts: 

The applicants have submitted applications for the issuance of a visa for family reunification.

The Immigration Office did not process the applications for a long time. Since the person entitled to family reunification is about turn 18, the applicants have filed an application for temporary legal protection.

Only after filing the request for temporary protection, did the Immigration Office examine the visa documents and granted its necessary approval in accordance with Sec. 31 of the Residence Ordinance (Aufenthaltsverordnung - AufenthVO). Prior to this, the competent representation authority abroad had sent the files to the Immigration Office pointing out the urgency. Furthermore, the representation authority abroad and the authorised representative of the applicant tried to contact the Immigration Office for several days without success.

Decision & Reasoning: 

Since the Immigration Office approved the visa application, a decision on the merits was not necessary. The Court was only required to decide on the costs.

The costs are imposed on the applicants and the Immigration Office in equal parts and the Immigration Office bears its extrajudicial costs. The obligation of the Immigration Office to bear the costs arises from the fact that the granting of the requested visas failed solely due to the lack of consent according to Sec. 31 of the Residence Ordinance. The visas were ready for decision.

Since the holder of the right of residence was about to reach the age of 18, the Immigration Office should have treated the visa applications for family reunification in a particularly urgent manner pursuant to Sec. 36a para 1 sentence 2 of the Residence Act (Aufenthaltsgesetz - AufentG). The urgency results from the fact that in the case of family reunification with minors entitled to subsidiary protection, the time of the court decision or the entry of the person to be reunited is decisive for the question of minority. If the age of 18 is reached, different and stricter rules for family reunification will be applied. In such a case, the Immigration Office must ensure preferentially and expeditiously processions.

Observations/Comments: 

The summary was written by Theresa Richter, LLM-student at Queen Mary University (London). 

Case Law Cited: 

VG Berlin, 29. August 2019 - VG 38 K 57.19 V

VG Berlin, 3. April 2019 - VG 38 K 26.18 V

VG Berlin, 29. March 2019 - VG 38 K 27.18 V