General Requirements for the Reunification of Spouses in Germany
The general principle of family reunification is standardised in § 27 (1) German Residence Act:
The temporary residence permit to enable foreign dependants to rejoin foreigners in the federal territory so that they can live together as a family (subsequent immigration of dependants) is granted and extended to protect marriage and the family in accordance with Article 6 of the Basic Law.
The prerequisites for family reunification in Germany depend, among other things, on the nationality of the family member already living in Germany. § 28 German Residence Act regulates family reunification with German nationals, while § 29 German Residence Act regulates family reunification with foreigners. More specific regulations for the subsequent immigration of a spouse to a third-country national living in Germany are standardised under § 30 German Residence Act.
Visa and Residence Permit
According to § 28 (1) German Residence Act, spouses and unmarried minor children of a German citizen as well as parents of an unmarried minor German child are entitled to join them in Germany. The Freedom of Movement Act (FreizügG/EU) allows EU citizens to travel to and reside with their spouse living in Germany without the need to obtain a visa or residence permit beforehand.
If, on the other hand, the spouse joining the spouse is not an EU citizen, he or she will need a visa to enter Germany. The purpose of the visa (for family reunification) should be stated in any case. The application for such a visa must be made at the German consulate or the German embassy of the country where the spouse joining the spouse has his or her permanent residence. The passport of the joining spouse and proof of the marriage must be presented. Only after a visa has been issued can the residence permit for the third-country national joining the spouse be applied for.
Requirements for the Reunification of Spouses
Stricter conditions apply to the reunification of a third-country national’s spouse than to that of a German or EU citizen. As a rule, however, the following requirements must be met by the partner already living in Germany:
- Secure residence status (e.g. EU Blue Card, settlement permit, permanent residence permit – EU).
- No interest in deportation
- Sufficient living space (e.g. proof through a tenancy agreement).
The spouse moving in must also be able to prove that he/she has sufficient knowledge of German. However, exceptions to this requirement are possible. This is the case, for example, if the spouse holds an EU Blue Card or if the acquisition of German language skills is unreasonable or impossible due to mental, psychological or physical illness or for other reasons. However, whether such an unreasonable situation exists will be examined in detail.
Furthermore, it is required that both spouses have reached the age of 18 and that the spouse living in Germany can provide a secure livelihood for himself/herself and his/her dependents. Proof of secure subsistence must be provided. An exception is only made if the subsequent immigration is to a German spouse.
Marriage is of particular relevance for family reunification in the form of spousal reunification. To obtain a residence title for family reunification, proof of marriage must be provided. According to § 27 (1a) German Residence Act, spousal reunification is excluded if the marriage was only concluded to enable the person joining the family to reside in Germany or if it is assumed that a person was coerced into the marriage. In principle, a formal marriage is not sufficient. Family reunification requires a marriage in which the spouses want to live in a community and feel a sense of responsibility for each other. Accordingly, a “marriage of convenience” or sham marriage is an exclusion criterion for the reunification of the partner(s).
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In addition, the following must be considered concerning the marriage: If the marriage did not exist at the time when one of the spouses moved to Germany for the first time, a total of two years must elapse during which the spouse holds a valid residence title to bring the spouse joining him/her to Germany. Accordingly, the spouse of an asylum seeker cannot join him/her in Germany.
Subsequent Immigration of a Same-Sex Partner
According to § 27 (2) German Residence Act, family reunification in the form of the subsequent immigration of a life partner is no different from the subsequent immigration of a spouse. Furthermore, the European Court of Justice (ECJ) ruled in 2018 that there should be no restrictions by national law regarding the right of free movement of a European Union citizen. This entails the obligation to treat same-sex and heterosexual marriages concluded abroad equally in terms of the free movement of spouses. Thus, the family reunification of a same-sex couple must be recognised in all member states of the European Union, even if the marriage of a same-sex couple is not possible or prohibited in the respective country.