Germany - Federal Administrative Court, 18 April 2013, 19 C 9.12

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Headnote: 

In principle both parents may claim the right to join an unaccompanied minor refugee.  

This right to join a child will only apply up until the point that the latter comes of age.

Parents may present a claim for a visa by means of an application for temporary legal protection before the child comes of age. 

Facts: 

This procedure concerns the issue of how claims for parents to join unaccompanied minor refugees can be implemented. The son of a Yiddish family from Iraq, born on 1 December 1992, travelled alone to Germany and applied for asylum. He was granted refugee status in June 2009.

In November 2009 his parents and siblings applied for a visa from the German embassy in Damascus for the family to be reunited. The embassy stated that only the parents would be able to obtain a visa. The father then travelled to Germany and obtained residence permit status. However, the visa applications made by the mother and siblings of the minor refugee living in Germany were declined.   

The Administrative Court of Berlin decided in November 2010 that the refugee’s mother did have the right to claim family reunification but that the siblings did not. The High Administrative Court of Berlin-Brandenburg overturned this decision and decided in December 2011 that neither the mother nor the siblings of the refugee living in Germany had the right to claim family reunification. In the case of the mother, the original claim to join her son had been invalidated because the father had resided in the interim in Germany. One of the requirements for her claim had been that “no parent with personal custody” was permitted to reside in Germany. In the case of the siblings, the requirement of “exceptional difficulty” demanded by law had not been fulfilled.

The family appealed to the Federal Administrative Court against the decision of the High Administrative Court for a review.

Decision & Reasoning: 

At the time of her application for a visa in November 2009, the Applicant was authorised to claim the issuance of a visa to join her minor son who was recognised as a refugee in Germany. The German embassy acted unlawfully by only issuing one parent with a visa for family reunification.

This is evident from the clear wording of the German Residence Act on the subject in addition to Article 10 (3) (a) of Directive 2003/86/EC. The latter obliges Member States to grant minor unaccompanied refugees the right to be joined by “first-degree relatives in an ascending line”. The Directive thus grants both parents the right to claim family reunification and not simply one parent.  

Even if there are other minor children requiring care in the home country, this does not justify any limitation on the right to family reunification. Pursuant to Article 6 (2) of the German Basic Law,  decisions relating to the care of their children are primarily the responsibilty of the parents. 

The Applicant’s claim for family reunification is not invalidated by the fact that her minor son was no longer without parental support following the arrival of his father in March 2010. Article 2 (f) of the Directive states that an individual is only to be considered as an “unaccompanied minor person” for as long as he is “not actually in the care” of a responsible adult.  This applies in cases in which a parent travelled to Germany with the minor person at the outset or was already in the country to welcome the latter.  However, if both parents arrive in the country at the same time or within a short period, it cannot be assumed that a responsible adult was already residing in Germany. Otherwise the competent authorities would be able to honour the claim for family reunification, for which both parents are eligible in principle, through unlawful means.

However, the claim for family reunification made by the mother of the refugee living in Germany was invalidated by the fact that her son reached the age of 18 on 1 December 2010. Her claim cannot be upheld by the fact that her application was made prior to that date. Her claim could have been enforced with the help of temporary legal protection before her son reached the age of 18.

The siblings of the refugee living in Germany did not from the outset have the right to join their brother even before the time of the application. In order to obtain such a right, a situation of “exceptional difficulty” would have to prevail in relation to the family unity meaning that the family member living in Germany or abroad would not be in a position to lead an independent life. Problems existing in the country of origin which stem only from political circumstances do not, however, constitute exceptional difficulties in this context. 

Outcome: 

The review was rejected. The mother did initially have a claim to join her son who was recognised as a refugee in Germany but the claim was invalidated as in the meantime her son reached the age of 18. The siblings did not have any claim to join their brother even at the time of the visa application.

Observations/Comments: 

See also asyl.net M20813

Other sources cited: 

Hailbronner/Carlitz, in: Hailbronner, EU Immigration and Asylum Law, 2010, p. 253, margin number 9.

Commission statement on the directive of 1 December 1999 – KOM <1999>638 conclusive.

Marx, in Gemeinschaftskommentar Aufenthaltsgesetz, February 2013, clause 36, margin number 25.

Case Law Cited: 

Germany - Federal Administrative Court, 25 June 1997, 1 B 236.96