The new version of the law will come into force after being signed by the federal president and will take effect after publication in the 'Federal Law Gazette'. In all likelihood, this will happen before the Bundestag elections, which will take place in September 2013. We would like to present some details of this act to our readers.
Previously, the conditions for granting the status of late resettler under §4 BVFG were: birth before January 1, 1993, proof of German origin (sufficient at the level of grandparents, sometimes great-grandparents), declaration of belonging to the German people (alternatively – by comparable means for persons without a record of nationality in personal documents), and knowledge of spoken German as a half-forgotten but native language. There are other requirements, but they are not as significant. Refusals to parents do not deprive their children of the opportunity to obtain their own status as late resettlers. These criteria were developed over many years, having also received the blessing of the highest administrative court of Germany.
Over the years, compliance became increasingly difficult. The generation of Russian Germans born on the Volga and in other areas of compact residence of Russian Germans is passing away, and with them the actively used native German language at home. In many post-Soviet countries (for example, Russia and Ukraine), the documentary record of nationality has been abolished, which complicates the declaration of belonging to the German people for the young and middle generation of Russian Germans. (Many Russian Germans failed solely on the requirement of declaration, even though other criteria for late resettler status were met.) It became difficult to prove the use of German in the family circle, since almost all relatives and fellow villagers had moved to Germany.
The new status prerequisites are as follows:
– Proof of descent from an ancestor of German nationality or a German citizen is still required. No changes have occurred here.
– Proof of recognition of belonging to the German people is required. The word 'only' in relation to the German people has been removed from the previous law. This is an important change. It opens the door to late resettler status for persons with previous records of non-German nationality. Persons without a record of nationality can prove declarative recognition in 'other' ways. Previously, the legislator required proof by 'alternatively comparable' means. The new version of the law does not contain an exact definition of 'other' paths, but the concept of 'other' is significantly broader than 'alternatively comparable'. Here the legislator introduced significant relaxations to the previous law.
– The replacement of the requirement of declarative recognition of belonging to the German people and family transmission of the German language with proof of knowledge of German at level B1 seems significant. This is important for young people without a documented record of nationality or with insufficient family transmission of German language knowledge. Now, German origin combined with a qualified language certificate at level B1 can open the way to late resettler status without proof of other prerequisites. This is particularly interesting for young, well-educated residents of large cities in CIS countries.
– Recognition of belonging to the German people is now possible by proving knowledge of the German language acquired in the family circle. This is an important innovation. For example, as in the case of Ukrainian citizen V. Schmidt, aged 50, who speaks the Swabian dialect used in his family circle. In his first Soviet passport, he was recorded as Ukrainian by his mother. Now, family knowledge of German will help him acquire late resettler status, despite the passport entry. Interestingly, the new law simply speaks of 'family knowledge', without requiring the ability to speak the simple German learned in the family at the time of resettlement, as the previous version of the law required. Possibly, the legislator lowered the requirements for the level of German learned in the family. This issue needs judicial clarification. I also see chances of success for persons who demonstrably spoke German in childhood but lost many language skills over many decades of living in a foreign-language environment.
– For some complication of the resettlement situation, the legislator still requires knowledge of simple German at a sufficient level at the time of resettlement, but it can also be acquired in language courses.
– Various exceptions for the sick and disabled are still allowed.
Summarizing the innovations, the following conclusions can be drawn:
* Persons of German origin with a permanent record of German nationality can receive a decision on admission after proving elementary knowledge of German acquired outside the family.
* Persons of German origin without declarative belonging to the German people and without family transmission of German language knowledge can achieve late resettler status by obtaining a certificate of qualified knowledge of German at level B1.
* Persons of German origin with a previous record of non-German nationality can achieve admission by proving family transmission of German.
* Also, a concession has been made in the procedure for re-examination of cases already closed by refusal. The reopening of admission proceedings in Germany is not tied to a specific time limit. Here we are talking about a significant improvement in the legal positions of interested parties and a change in legislation in their favor. This gives the right to long-rejected applicants for late resettler status to demand reconsideration of their application. And although in some cases such reopening will not succeed (for example, under the circumstances of §5 BVFG), still many former refuseniks now have justified hopes to move to Germany/Europe under the preferential status of a German resettler.
* The right to include descendants under §7 BVFG has been newly regulated. Previously, the rule of waiting for the inclusion of all descendants in the country of origin applied. After the main applicant's resettlement to Germany, inclusion was only permitted under special circumstances. Thus, a late resettler who moved to Germany without waiting for the inclusion of their children and grandchildren in the admission decision could, as a rule, only see their relatives during guest visits. In any case, reunification was achieved only with great difficulty and in some cases.
At the end of 2011, for elderly Russian Germans suffering from separation, the possibility was created to include descendants in the admission decision retroactively under the hardship rule. The new version of the law provides for the possibility of including descendants retroactively without hardship circumstances. Rejected applicants for descendant status seeking retroactive inclusion in the main applicant's admission decision may submit new applications. Under the new rules, they are not bound by a deadline.
Important is the abolition of the requirement for knowledge of the German language for minor descendants of late resettlers. Previously, we faced a sad situation where teenagers over 14 were required to prove basic knowledge of German. Children aged 12 to 14 had to prove participation in German language lessons at school. The new law abolishes all these requirements. Knowledge of German must only be proven by young people over 18.
Thus, one must be patient until the law comes into force. After that, completely new migration and repatriation prospects will open up for rejected applicants for German resettler status under §§4 and 7 BVFG and for the younger generation of Russian Germans. Until the law comes into force, the previous rules apply. It is particularly important to include the spouse and descendants in the admission decision before the main applicant's resettlement to Germany.
T. PUE,
German lawyer.