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Therefore, to begin with, I would like to note that in the fall of last year, the Federal Administrative Court (BVA), which is the highest instance for legal disputes involving resettlers, abandoned its previous judicial practice regarding the need for knowledge of the German language and declared a new approach to this issue in its decisions.
To provide a complete and objective picture of the interpretation of the language issue for German resettlers, let us first examine the origins arising from the Federal Expellee Law (BVFG) itself. This document contains the legal prerequisites and conditions for accepting ethnic Germans as late resettlers and their family members for permanent residence in Germany.
Many ask why late resettlers upon arrival in Germany enjoy numerous privileges compared to other immigrants. The reason is that they are returning to their historical homeland, not simply moving to another country. That is why they themselves and certain members of their families receive German citizenship simultaneously with the issuance of the corresponding certificate (Spataussiedlerbescheinigung); also, the German employment agency provides them with integration support, including language courses. As for resettlers of the older generation who suffered in the post-war period, they receive so-called “integration assistance” (pauschale Eingliederungshilfe), and persons with status under Section 4 of the BVFG have the right to recognition of foreign pension periods according to the Foreign Pensions Act (FRG).
However, I would like to draw attention to the fact that not all ethnic Germans can count on these legal consequences, but only those who, in addition to their German descent (from one or both parents), also fulfill all other conditions formulated in the law.
One of these conditions is knowledge of the German language. Section 6, Paragraph 2, No. 2 of the BVFG states that the parents, one parent, or other relatives of the candidate for late resettlement must have passed on to him or her such indicators confirming German descent as language, upbringing, and culture. That is why language tests are conducted, which, unfortunately, become a difficult or even insurmountable obstacle for many ethnic Germans to move to Germany.
But the law makes an exception and allows recognition of an ethnic German resettler who does not speak German only if it was objectively impossible or there were disproportionate obstacles to passing on such language knowledge within the family (Section 6, Paragraph 2, Sentence 2 of the BVFG). In this context, we are talking about truly rare exceptions that can probably only be mentioned with regard to Germans who grew up in the years and regions of widespread persecution of persons of this nationality. At the same time, the persecution must, firstly, be demonstrable and, secondly, reach such a scale that speaking German was dangerous for health or life not only in public places but also within the walls of one's own home. Other extraordinary situations may also fall under the exception, where the fate of a particular candidate for resettlement differs sharply for some reason from that of the majority of his or her compatriots.
Can a particular situation compensate for the lack of knowledge of the German language as an exception? This is a question that requires an individual and thorough analysis by a specialist. The basic principle of the Federal Expellee Law remains unchanged: an ordinary candidate for resettlement must know the German language from childhood.
I want to note immediately that the court did not cancel either the need for language knowledge formulated in the law, or the administrative practice of conducting “language tests.” These decisions also do not annul rejections that were not properly contested within the one-month period and therefore became legally binding (usually irreversible), nor rejections whose validity was confirmed in court in the past without the possibility of further appeal. I consider it necessary to emphasize this especially, because as a lawyer specializing in these legal matters, I am often approached by people with rejections not contested in time – say, two years old – who have heard about the new decisions of the Federal Administrative Court and believe that now they can count on a review of their case. Unfortunately, such a possibility does not exist, and the lawyer's assistance in moving such sponsors to Germany can only consist of finding other opportunities formulated in other laws.
Such opportunities include, for example, including the “reject” retroactively in the admission decision of other direct-line relatives (if the special prerequisites of Section 27, Paragraph 2 of the BVFG are met); conducting a procedure to establish the existence of German citizenship, if there are sufficient factual and legal grounds for it; sometimes it is possible to obtain a residence permit in Germany under the Foreigners Act, etc. All these measures do not lead to obtaining the status of a late resettler, but if successful, they give the applicant the right to reside in Germany with various statuses. Conversely, for those who have received a rejection and have not yet missed the one-month deadline, I strongly recommend seeking the assistance of a lawyer – in order to analyze and use all available chances to obtain an admission decision, which can often be achieved if not through administrative means, then through judicial proceedings.
But let us return to the essence of the decisions of the Federal Administrative Court in Berlin. They are best conveyed by the main theses, some of which were intended for publication in the professional legal press. Here is a translation of one of them into Russian: ** «The provisions of Paragraph 6, Subparagraph 2, Sentence 1 No. 2 of the BVFG, which regulate the requirement of knowledge of the German language, require that such language skills be transmitted to the candidate for resettlement by both or one of the parents or by other relatives, as a rule, from infancy to the beginning of an independent life.»
It follows that the court ruled that a candidate for resettlement fulfills the legal requirements for admission if he acquired knowledge of the German language in childhood (approximately until the age of majority). This is necessary, and at the same time sufficient! On the contrary, the knowledge that this candidate possesses at the time of submitting the application for admission or, say, during the 'Sprachtest' is not a direct basis for assessing the presence or absence of these skills, nor for deciding whether to grant the status of a late resettler or to refuse it, but can only serve as indirect evidence of the acquisition of these skills in the past.
In other words, according to the court, the results of the 'Sprachtest' cannot serve as an actual confirmation of belonging to the German nationality (within the meaning of the BVFG, which requires knowledge of the language), but only as a criterion for the transmission of German language skills in the past. From the court practice, it follows that the Expellee Law considers as a person of German nationality not every ethnic German, but only those who fulfill all the requirements of the law. As often happens, the legal term does not coincide with the colloquial concept of 'person of German nationality'.
Let us imagine a situation: citizen N. lives in Ukraine and is German by father. His mother is Ukrainian, as is his wife, and he is 56 years old. He works with Ukrainian colleagues and lives next to representatives of the same nationality. If N. has poor command of German, he nevertheless has a good chance of being recognized as a late resettler. If, during his time living in his parents' home, he acquired knowledge of German from his German father, then it only needs to be confirmed that this actually happened at an age approximately up to 18 years. After decades have passed since N. left his parents' home and began living exclusively in a Ukrainian-speaking environment, it is not surprising, but quite logical, that he has lost the language skills acquired nearly 40 years ago. Accordingly, the results of the language test should be evaluated. Thus, if N. receives a rejection on the grounds that he demonstrated far from perfect knowledge of German during the test, then such a rejection should be challenged, and as a result, it will most likely be declared invalid.
Another example. 25-year-old S. applied for admission as a late resettler. After some time, he was invited for a language test, during which it turned out that S. was unable to understand a single question asked to him without the help of a translator from German to Russian. In such a case, I can say that the rejection was completely justified. Therefore, if he wishes, S. should look for other ways to move to Germany, if such exist in the current legislation and in his specific situation. The fact is that even taking into account the new decisions of the Federal Administrative Court, S. does not meet the conditions for recognition as a late resettler. If he had acquired at least minimal knowledge of German in the family circle, it is hard to imagine that 7 years after reaching the age of majority, this knowledge would have 'erased' from his memory to such an extent that he cannot remember even individual words. In the absence of any extraordinary circumstances, the logical conclusion is that German was never spoken in S.'s family, and as a result, he will be refused admission. Challenging such a rejection is most unlikely to succeed.
I would also like to note that the age of majority is not necessarily the age from which the formation of national, including linguistic, self-awareness would automatically be considered complete. Every situation is individual and allows for exceptions. According to the court, the important moment is the so-called 'beginning of an independent life'. Both cases are conceivable where a person leaves the parental home, say, at the age of 14, and situations where he lives with his parents until old age. Therefore, the court refrains from defining the exact age by which the transmission of language and other confirming signs must or can be completed, but emphasizes that in most cases this age coincides with the age of majority.
Thus, to summarize: it is important for a candidate for resettlement to demonstrate and prove that he learned German in the family circle and in his parental home during the period he was there. The Expellee Law does not require that the applicant constantly practice or improve the language in his subsequent independent life. I also want to remind once again that persons who learned German as a foreign language in adulthood do not meet the conditions for acceptance – the latter require that the transmission of language knowledge occurred specifically in the family. This follows from the meaning of the entire Expellee Law, the essence of which is to accept into Germany Germans who grew up and were raised in a national environment, and not persons capable of learning foreign languages. That is why your command of the dialect is a trump card and direct confirmation of German nationality within the meaning of the BVFG. After all, as is known, dialects are not taught in courses. When taking the language test, do not be shy to speak the dialect if you know it, and do not try to phrase your speech in standard German.
The decisions under consideration are gratifying because the court unequivocally abandoned the previous interpretation of the Expellee Law, according to which knowledge of the German language had to be “so profound that the person comprehensively mastered this language in adulthood, in accordance with origin and level of education.” Such an interpretation, by the way, not only did not correspond to the letter of the law and did not take into account the peculiarities of the fate of ethnic Germans from the former USSR, but also contradicted the administrative practice of the Federal Administrative Office, which recognizes candidates with much less extensive knowledge as late resettlers. Otherwise, exclusively “Russian” Germans who speak fluent German would have to be in Germany as late resettlers, which, as everyone knows, is far from the truth.
The court emphasizes that in the procedure for recognition of late resettlers, the decisive criterion is not the predominant use of German as a colloquial language in everyday life and throughout its entire duration, but the fact that this language was transmitted to the candidate for resettlement in the parental home. However, the language must be transmitted to an extent at least worthy of mention, because the more intensively the German relatives of the candidate for resettlement taught the latter the native language, the more likely this person developed a foundation for a German national identity, which is the condition for acceptance.
From the court decision: “All this does not mean that the child had to acquire exclusively or predominantly knowledge of only the German language. Such a narrow interpretation is not justified either by the text of the law itself or by the legislative materials on it. Such an understanding would be ignoring reality in the regions where Germans live. Anyone who grew up not in an exclusively or predominantly German environment naturally had to learn the state language of their country of residence from childhood, otherwise he would be “speechless” in nursery, kindergarten, or school. Therefore, it is sufficient if the child learned and used both German and the state language in the parental home, i.e., grew up in a multilingual environment. In this case, German does not necessarily have to be the predominant language of communication compared to the state language.
Based on the actual existence of other languages in the regions of origin of ethnic Germans, the legislator, within the framework of paragraph 6, paragraph 2, sentence 1, No. 2 BVFG, does not require from parents of either different or the same nationality that they transmit predominantly German speech to the child. It is quite sufficient if the parents taught their child German and spoke to him in this language in the way they themselves knew it.”
Hence another main thesis from one of the new decisions of the Federal Administrative Court, which best defines the meaning of the language test being conducted: “Knowledge or ignorance of German at the time of departure from the place of settlement and entry into Germany, although not a legislative prerequisite, is significant as an indicator allowing judgment as to whether knowledge of German was transmitted in childhood or not.”
Thus, proficiency in German at the time of taking the language test is no longer considered a condition set by law for the acceptance of resettlers, but only as a means of proving that the candidate for resettlement received such knowledge in childhood (in the past!), even if, for example, together with the Ukrainian language. Accordingly, only the knowledge that existed at that time is relevant.
But it should be remembered that knowledge acquired in the past must also be reflected in the present. It is clear that it may weaken, but it is unlikely to disappear completely. Depending on the length of stay in the parental home, specific circumstances, the person’s natural ability for languages, level of education, time elapsed since leaving the parental home, and the opportunity to speak German outside this home, a decision on the acceptance of the candidate as a late resettler must be made.
However, I would like to draw attention to the fact that the principle “no rule without exception” almost always applies in German legislation. Ignorance of the German language, from the point of view of the law, can be compensated by the following condition defined in paragraph 6, paragraph 2, sentence 2 BVFG: “The prerequisites according to number 2 are considered fulfilled if the transmission of confirming features was impossible or unsafe due to the situation in the region of origin.”
Based on the court's legal point of view that learning German in the parental home should have taken place from infancy until reaching independence, it is logical to assume that the impossibility or unsafety of using German should also fall precisely during the period of the candidate's personality formation for resettlement, and not be present throughout their entire life up to the submission of the application. In such cases, it is usually about persons who in childhood and early youth were most strongly discriminated against because of their German nationality. These are usually older people whose parents were under the commandant's office in those distant times, in places of forced deportation of Germans, and were subjected to repression. Those affected need to clearly state these facts when appealing a denial or, in some cases, already at the time of filing an application, present them to the Federal Administrative Office (BAV).
Germans whose childhood and youth fall directly in the post-war period can also count on a special approach to the "language" problem. The BAV and many administrative courts in Germany that have to deal with resettler cases believe that in the absence of a direct threat to health and life, members of a German family, even if they were discriminated against on the basis of nationality in public life, were nevertheless not deprived of the opportunity to speak German within the walls of their own home. Even taking this as true, it should be assumed that a person placed in such a situation will logically have a corresponding level of language knowledge.
Indeed, one cannot expect from a German living under persecution and oppression, who has the opportunity to speak their native language only within the walls of their own home, the same knowledge of this language as from a person who could use their native language in public life without fear. It is clear that during the period of forced resettlement of Germans from their permanent places of residence, language learning was possible only to a limited extent, and usually only "by ear." It is naive to think that such Germans had, for example, books in German or other auxiliary aids for learning it. All this must be taken into account when making a decision on admission, applying relaxed requirements regarding knowledge of the German language to such persons.
In our practice, we often encounter clients who are very interested in all aspects of future life in Germany. We, in turn, for a more objective assessment of German peculiarities, have recently introduced the practice of conducting joint legal consultations with German lawyers into our work. By the way, at the end of May this year, a well-known lawyer from Berlin, Nicolas Krahn (law firm Krahn, Peter & Prettin), is coming to us, with whom we plan to hold consultations for a week.