Germany: Higher Administrative Court for Berlin and Brandenburg, 4th September 2018, OVG 3 S 47.18, OVG 3 M 52.18
Keywords:
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
A birth certificate is not a decision within the meaning of paragraph 108 FamFG. As a child grows older the need of beeing looked after by both its parents decreases. There is no necessity for interim order in the case of family reunification, when the child is about to come of age, as the right to subsequent immigration is not lost upon the child’s coming of age according to the CJEU.
Facts:
By way of interim order, an Iraqi applicant seeks to receive a visa for subsequent immigration to reunite with his daughter, who lives in Germany. His daughter and her maternal mother are both recognised refugees living in Germany. In the Iraqi documents, not the maternal mother, but the wife of the applicant is documented as the daughter’s mother. According to the applicant, his daughter’s maternal mother waived her right to custody over the child voluntarily. In the opinion of the appellant, the daughter has a right dervied from paragraph 36 sections 1 and 2 AufenthG to live with her rightful parents who also are entitled to custody over her.
Decision & reasoning:
First, the Higher Administrative Court (OVG) examines the question of whether the daughter’s descent is to be determined according to Iraqi or German law. According to Art. 1 section 1 sentence 1 EGBGB, the descent of a child is to be determined according to the law of the state in which the child has its habitual residence. The applicant argues that his daughter’s Iraqi descent continues to exist, despite her move to Germany, as her habitual residence used to be Iraq and her move to Germany was caused only by flight. The OVG however decided that a person’s status of descent can change and determines the daughter’s descent according to German law, arguing that German law is more effective in helping the daughter to live with her maternal mother.
The OVG then examines the question of whether the daughter’s birth certificate constitutes a decision within the meaning of paragraph 108 FamFG. According to paragraph 108 section 1 FamFG, except for decisions in marital matters, foreign decisions are to be recognised in Germany and there is no need for a special procedure. Paragraph 108 FamFG, however, requires that the decision in question settles a legal question or a legal consequence finally as a result of a substantive review of the facts. In the view of the OVG, it does not follow from the birth certificate that a substantive examination of facts took place and no legal consequence is to be derived from it. Therefore, the birth certificate does not constitute a decision within the meaning of paragraph 108 FamFG.
Furthermore, the OVG stated that it is a prerequisite for the right to subsequent immigration derived from paragraph 36 section 1 AufenthG, that no parent entitled to custody lives in Germany. The appellant argues that according to the case law of the German Constitutional Court (BVerfG) and the European Court of Human Rights (ECtHR) the child’s contact with both its parents is in its best interests. The OVG however noted that the BVerfG and the ECtHR determine the scope of the right defined in Art. 6 GG and Art. 8 ECHR in the light of the child’s age. It concludes that in the case of the applicant’s daughter, due to the fact that she is nearly of age, the need for contact with her other parent has significantly decreased.
Finally, the OVG finds that there is no need for interim relief in a case of subsequent immigration, where a child is about to come of age, as – according to the case law of the CJEU - the right to subsequent immigration is not lost upon the child’s coming of age. The time limit of three months after protection has been granted - determined by the CJEU - within which subsequent immigration can be applied for, is not applicable to the case where an application has been made before the child has come of age.
Outcome:
Appeal denied.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Jeunesse v. the Netherlands [GC], no. 12738/10 |
| CJEU - C 550/16 - A and S |
Other sources:
Domestic Case Law
VG Berlin, 18th July 1018 – 4 L 150/18
OLG Hamm, 28th March 2012 – 12 UF 295/11
OLG Celle, 22nd May 2017 – 17 W 8/16
OLG Hamm, 18th June 2004 – 9 UF 153/02
OLG Karlsruhe, 30th Dezember 1998 – 13 U 69/98
BVerfG, 23rd January 2006 – 2 BvR 1935/05
BVerfG, 11th Oktober 2017 – 2 BvR 1758/17
BVerwG, 18th April 2013 – 10 C 9/12