Germany: Administrative Court Berlin, 26.11.2019, 38 L 442.19 V
| Country of Decision: | Germany |
| Court name: | Administrative Court Berlin |
| Date of decision: | 26-11-2019 |
| Citation: | 38 L 442.19 V |
Keywords:
| Keywords |
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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:
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).