The Case: Woman from India Sues for Family Reunification
The case in question involved an Indian national who still lives in India. She wanted to obtain a family reunification visa so she could move to Germany to join her adult son. The son is a German citizen.
The plaintiff based her request, among other things, on her age and various health issues. She explained that she needed assistance with daily tasks and relied on family support. She also noted that her daughter lives in Germany with her family.
The Consulate General rejected her application. The reason given was that there were no so-called exceptional circumstances. However, this is a prerequisite for parents to be allowed to move to Germany to join their adult children.
The woman filed a lawsuit against the decision with the Berlin Administrative Court.
Exceptional Hardship – What Does the Law Say About Family Reunification?
In Germany, family reunification for parents joining their adult children is permitted only in exceptional cases (so-called cases of hardship). The legal basis for this is Section 36(2) of the Residence Act.
The law states that parents of adult children may only be granted a residence permit if there are exceptional circumstances. This means that the parent’s situation in their country of origin must be so difficult that it would no longer be reasonable to deny their request to join their child.
In practice, this hurdle is very high. Extraordinary hardship may exist, for example, if the person in question can no longer live independently and relies on assistance that can only be provided by family members in Germany.
Simply wanting to live with one's own children in old age is not sufficient grounds for a parent sponsorship visa.
Why the court did not find that there were exceptional circumstances
In the plaintiff’s case, the court concluded that the requirements were not met. While the court acknowledged that the plaintiff has health limitations and needs assistance in her daily life, it found that she is still largely able to live independently in her apartment.
The court found that she is able to manage her daily life with assistance. She receives help, for example, from acquaintances, friends, and service providers. The court therefore concluded that the plaintiff is not necessarily dependent on her son’s support in Germany. The court further noted that assistance could also be arranged in India, for instance through caregivers or other support personnel.
In the court’s view, age-related illnesses generally do not constitute grounds for family reunification on the basis of exceptional hardship. Many people experience health limitations as they age and require assistance. That alone does not constitute exceptional hardship.
New special rule for skilled workers makes it easier for parents to join their children
Effective March 1, 2024, a new provision has been added to the Residence Act (Section 36(3) AufenthG) that makes it easier for parents to join skilled workers in certain cases. The provision applies primarily to skilled workers holding a Residence permit :
- Section 18g of the Residence Act (EU Blue Card)
- Section 18a of the Residence Act (skilled workers with vocational training)
- Section 18b of the Residence Act (skilled workers with academic qualifications)
- Section 18c(3) of the Residence Act (Settlement permit Skilled Workers)
- Section 18d of the Residence Act (Research Professionals)
- Section 18f of the Residence Act (Residence Permit for Mobile Researchers)
- § 19c(1) of the Residence Act (Other Employment Purposes; Civil Servants)
- or with an ICT card or a mobile ICT card
Unlike in the case of traditional family reunification, however, there is no automatic right to this. This means that the Foreigners' office allow parents to join their children, but is not required to do so.
This rule also applies only if the skilled worker received their Residence permit on or after March 1, 2024. It is also temporary and remains in effect only until the end of 2028.
In the case of the plaintiff from India, the court also addressed the special provision for skilled workers: The plaintiff viewed this as unequal treatment. Although her daughter, who also lives in Germany, holds an EU Blue Card, she received it before the effective date of March 1, 2024. Therefore, the family is not subject to the new rule on parental reunification.
The plaintiff’s son, on the other hand, is a German citizen—and the skilled worker provision does not apply to him either. The plaintiff argued that parents of German citizens are at a disadvantage compared to parents of certain foreign skilled workers when it comes to family reunification.
Court still considers unequal treatment permissible
The court confirmed that there is indeed unequal treatment. Nevertheless, it does not consider this to be a violation of the Constitution.
In its reasoning, the court explained: The legislature aims to attract more skilled workers from abroad. The simplified family reunification process is intended to serve as an incentive for these skilled workers to choose Germany.
The court considers this objective to be reasonable. It is also important to note that the special provision applies only for a limited period of time. The court therefore concludes that the unequal treatment does not violate the Constitution.
What the ruling means
The ruling confirms how strict the rules are in Germany regarding family reunification for parents seeking to join their adult children. Reunification is only possible in rare, exceptional cases. Even health issues are usually not sufficient grounds for a visa.
The decisive factor is always whether there are exceptional circumstances. However, this threshold is very high. According to case law, such circumstances exist only if:
- the person in question can no longer live independently
- there is a significant need for care
- the person is absolutely dependent on family support
- if this assistance cannot be organized in the country of origin
- and separation from the family would therefore no longer be reasonable
Simply wanting to live with one's own children in old age is not enough.
At the same time, the ruling makes it clear that the new special provision for certain skilled workers may remain in effect. It remains to be seen whether this will change in the future. The court has allowed an appeal. This means that a higher court may review the case again.
