All this time, active work was boiling behind the scenes, and back in the summer of 2005, an agreement was reached between the Conference of Ministers of the Interior and the Central Council of Jews in Germany. It predetermined the main features of the future admission rules. On November 25, 2005, the Conference of State Ministers of the Interior with the participation of the federal minister approved this draft. The conference's decisions acquire force only if consensus is reached, which is why discussions and departmental elaborations of the draft took so much time. As an emigration lawyer working with this topic every day, I would like to give my assessment of the creation of the responsible politicians and officials of various ministries and departments.
The previous admission practice was based on the Law on Measures for Refugees Admitted within the Framework of Humanitarian Aid Operations (Gesetz ueber Massnahmen fuer im Rahmen humanitaerer Hilfsaktionen aufgenommene Fluechtlinge). This legislative act was adopted by the then West German parliament to admit a certain contingent of Vietnamese refugees. Its arbitrary application to Jewish emigrants from the former USSR at the end of the 20th and beginning of the 21st centuries was associated with administrative and technical inconveniences, and therefore was supplemented by various departmental instructions.
The backdrop to the sharp and, frankly, unexpected freezing of the admission of contingent refugees was the new immigration law (Zuwanderungsgesetz), which came into force on January 1, 2005. According to politicians and ministerial lawyers, this legislation deprived Jewish immigration of its legal basis. Now the current principles for admitting Jewish immigrants are enshrined in §23 of the Residence Act (Aufenthaltsgesetz, AufenthG). Specific instructions to executive bodies were coordinated and approved by the Conference of Interior Ministers. I would like to note that applications submitted before June 30, 2001 will be considered on the basis of previous instructions.
The new admission procedure is more thorough and requires greater administrative costs than the previous rules. Therefore, the first admission approvals (Aufnahmezusage) should be expected in mid-2006.
Citizenship factor
Citizens of the Baltic states are excluded from the admission program. Applications are accepted from citizens of the successor states of the USSR and, depending on circumstances, stateless persons. Applicants must actually reside in the territory of the CIS and have no history of resettlement to a third country. The term 'third country' primarily means Israel. The guidelines do not contain the concept of a 'hardship case' for former residents of Israel.
National factor
Candidates for admission to the Federal Republic of Germany must belong to the Jewish ethnic group within the meaning of Soviet passport system regulations. This affiliation must be confirmed by documents from the Soviet period before 1990. Proof of one Jewish parent is a sufficient prerequisite for admission.
New documents from the post-Soviet period are not recognized as confirmation of Jewish origin. In other words, in the determining documents (passport, military ID, birth certificate) issued before 1990, the applicant must be recorded as a Jew or have one Jewish parent.
Social factor
The applicant's personal qualities give reason to expect that he will quickly free himself from social dependence (social assistance, unemployment benefits) and soon after moving to Germany will get on his own feet. The social prognosis should be made primarily with regard to the main applicant, and secondarily taking into account his family environment. The initial social prognosis is based on the applicant's own data on his education, previous places of work, knowledge of foreign languages, and future plans. The initially discussed age limit of 45 years was not included in the admission rules.
Of course, the question immediately arises: what should be understood by a 'short-term' dependence on social support? It is clear that people of retirement and pre-retirement age will obviously never be able to lead an independent lifestyle, unless they possess great wealth, but that is a fantasy. The current state of the German labor market is ambiguous. On the one hand, opportunities for the employment of foreigners and the need for foreign labor have sharply declined over the past decades. On the other hand, in export-dependent Germany, the demand for qualified personnel with knowledge of foreign languages, international markets, and work experience abroad remains consistently high. Many Jewish immigrants who came to Germany over the last 15 years have found a decent place of work. The role of people from the CIS countries in the development of business and trade relations between Germany and the rapidly growing economies of the CIS countries is also great.
The rules for admitting Jewish immigrants close access to the country for obvious lifelong recipients of social assistance. By the principle of reverse logic, it follows that admission to Germany is not excluded for those who have certain chances of employment, even if they have to fight for a job. Knowledge of the German language, professional knowledge and work experience, business connections should be reasonably involved in developing the social prognosis. A serious guarantee from a German employer to provide the applicant with a job after moving to Germany may be useful. Secondly, the professional prospects of the non-Jewish spouse should be considered. It may very well be that he has better employment chances than the main applicant. This circumstance can also serve as an important argument in favor of the family.
Victims of National Socialism are not subject to the requirement of independence from social support. The concept of victim is not clearly defined in the guidelines. I would extend it to those who, in childhood, lost one of their parents during the genocide of Jews by Nazi Germany.
Competent German authorities must facilitate family reunification. This means that for the sake of family reunification, the authorities may waive the preparation of a social prognosis. This preferential rule applies to applicants who submitted applications between June 30, 2001 and January 1, 2005. For many applicants, this clause may prove to be a lifeline when one part of the family resides in Germany and the other in one of the CIS countries.
Other hardship cases (Haertefall) are conceivable. Here I am thinking of the issue of reunification of two foreign spouses in Germany. As is known, a foreigner residing in Germany must be able to support the other spouse from his or her own means. Only then will the German authorities permit reunification in Germany. Many elderly foreigners will never be able to meet this requirement in their lives. Therefore, one should ask whether this constellation qualifies as a hardship case. Here, the development of legal practice should be observed.
Language factor
The applicant must have basic knowledge of the German language. To prove this, he must present a certificate of category A1. The examination for the certificate can be taken at the Goethe Institute in the applicant's country of residence. I assume that applicants will alternatively be offered to take the examination at a German diplomatic mission.
The applicant must be able to read and understand a text of medium complexity and to express his thoughts on paper to a limited extent. He must understand simple German speech and orally express his current life needs. Under no circumstances is the applicant required to have fluent command of written and spoken German.
The language requirements are feasible, but without preparation, it will not be possible to pass the examination successfully by rushing it. In family reunification, in the consideration of applications from victims of National Socialism, and in other hardship cases, the office for the admission of Jewish immigrants may waive the language requirements.
Religious factor
The applicant must not belong to any faith other than Judaism. Anyone who professes to be a believing Orthodox Christian will not be able to obtain consent for admission. The applicant must prove his eligibility for admission to one of the Jewish communities in Germany. The proof is a positive qualified assessment from the Central Welfare Board of Jews in Frankfurt am Main (Zentrale Wohl-fahrtsstelle der Juden in Frankfurt am Main). The Union of Progressive Jews (Union der Progressiven Juden) participates in the preparation of the assessment and may express its opinion on the matter.
The criterion of eligibility for admission significantly worsens the legal position of applicants compared to previous regulations. Previously, only belonging to a denomination not associated with Judaism effectively closed the path to the status of contingent refugee. Halakhic religious norms were not applied in the practice of the offices for the admission of Jewish immigrants, and membership in one of the Jewish communities in Germany was not a prerequisite for admission. As is known, persons of Jewish origin through the paternal line are not accepted into the Jewish community. This did not close their path to the status of contingent refugee. Now everything looks different.
It is to be expected that only descendants of Jewish mothers will receive a positive qualified assessment. I believe that descendants of Jewish fathers can also fulfill the criterion of eligibility for admission. To do so, they must prove their affiliation with Judaism in the country of origin.
The Union of Progressive Jews does not interpret Halakhic norms so strictly, and its opinion may deviate from the conclusion of the Central Welfare Board of Jews in Frankfurt am Main. More precisely, one can comment on this topic after practical experience has been accumulated.
Political factor
Politically significant persons of the former USSR cannot be admitted to Germany under the program for the admission of Jews from the former USSR. Having held a certain party, state, or economic position in the past may lead to the rejection of a petition for the status of Jewish resettler. Specifically, it concerns the exclusion from the number of potential resettlers of persons who in the country of origin enjoyed or abused the privileges of power.
Persons should not be admitted to residence in Germany if they, through their actions, violated human rights and the principles of the rule of law, as well as abused their official position. Resettler status cannot be granted to a former political or economic leader who, during his active period, infringed the legitimate interests of others. This rule corresponds to §5 of the Federal Expellees Act (BVFG). The Federal Expellees Act regulates the admission of ethnic German resettlers to Germany. In the process of admitting German repatriates, judicial practice has been developed for the application of §5 BYFG. The offices for the admission of Jewish immigrants must orient themselves to this practice.
Judges, militia officers, prosecutors, and army officers up to the rank of lieutenant colonel are not considered pillars of the totalitarian regime. All these positions exist in democratic countries as well. Excluding circumstances cover the performance of political functions important for maintaining the communist system. Refusals to admit individuals on grounds of political significance in the former USSR can be appealed to the competent administrative court.
Admission to Germany is prohibited for convicted criminals. An exception is made for human rights activists who, in Soviet times, suffered punishment for political activities. Strictly following the text of the guidelines, the road to Germany is closed for all applicants convicted under criminal articles. This rule also covers those convicted of minor offenses.
Time will tell whether there is room for maneuver here. I believe, for example, that the conviction of the perpetrator of a car accident that he caused through simple carelessness should not close the door to Germany for him. Well-founded suspicions of membership in an organized criminal group or terrorist organization exclude the applicant from the list of candidates for immigrant status.
Family members
The spouse and unmarried minor children living in a family community with the eligible applicant may be accepted into Germany as part of the family. A novelty is the requirement of a three-year family union at the time of filing the application for resettlement to Germany. Obviously, in this way the authorities are trying to prevent sham marriages with the aim of creating a basis for the non-Jewish spouse to reside in Germany. After resettlement in Germany, such marriages of convenience quickly break down. The German authorities no longer intend to tolerate this situation, and therefore adopted the new rule.
The spouse and minor children over 14 years of age must possess basic knowledge of the German language at the level of the certificate Pruefungszeugnis A1. Children under 14 years of age are not required to prove their knowledge of German. Consent to accept the family with children under 14 is conditioned on the need to actually resettle before the child reaches 15 years. Otherwise, the child is removed from the acceptance consent, and his re-inclusion is linked to passing the German language exam successfully. Difficult cases are conceivable in which the authority for accepting Jewish immigrants may waive the examination of the adolescent's knowledge of German.
Consent to acceptance loses its validity for all non-Jewish family members if the main applicant dies before resettlement to Germany. The same applies if he files for divorce or divorces his non-Jewish spouse before the whole family departs for Germany.
Resettlement deadlines
Consent to acceptance must be used within one year after the applicant is notified of its issuance. This means that within a year, an application for a visa for entry into Germany for permanent residence must be submitted to the German embassy. Consent not used within a year automatically loses its validity. Holders of expired consents for acceptance are not entitled to re-apply.
In exceptional situations, the validity of the acceptance consent may be extended. To do this, the Jewish emigrant must submit a written petition, solidly substantiating it, for example, by a long-term illness of family members, unusually complex problems in obtaining a foreign passport and other frictions with local authorities, the need to complete studies, or military service.
Appealing refusals, repeat applications
Petitioners rejected on the grounds of unproven belonging to the Jewish people cannot submit a repeat application for acceptance. I recommend that rejected applicants appeal the refusal within the time limits provided by law, after which they should seek advice from a specialist. A lawyer has at his disposal a toolkit that allows him to provide effective assistance to his client. Ways to express disagreement may be a remonstration petition to the embassy, a departmental protest, or a complaint to the competent administrative court in Germany.
The submission of repeat applications for acceptance is possible if the refusal was based on insufficient knowledge of German or a negative social prognosis. An improvement in German language skills, a change in the applicant's professional or social situation give him the right to demand a re-examination of the application due to changed circumstances. This is regulated in §51 of the Administrative Procedure Act (Verwal tungsverfahrensgesetz). It is important to know that a repeat application must be submitted no later than three months after the change in situation. For example, after completing German language courses or finishing studies at a higher education institution.
The directives give a second chance to quota refugees who lost their residence permit in Germany automatically by December 31, 2005, due to absence of more than 6 months. This concerns recognized quota refugees who, for various reasons, left Germany and have been living in their country of origin for a long time. Until June 30, 2007, they may submit a petition for a visa to re-enter Germany. This rule does not apply to quota refugees admitted to residence in Germany after January 1, 2005.
Residence permit in Germany
The legal position of non-Jewish family members has worsened. Previously, family members immediately after resettlement received a permanent residence permit and the same rights as the main applicant. This rule led to various abuses. The dissolution of the marital union soon after resettlement in Germany, ‘fresh’ marriages shortly before departure for Germany raised suspicions of the fictitiousness of marital relations. The impression arose that the marriage was a pretext for creating a basis for residence in Germany through the ‘marrying off’ of a future Jewish immigrant. These suspicions are difficult to prove, so after the dissolution of the marital union, non-Jewish spouses could continue to live in Germany without problems.
Now family members will receive a residence permit (Aufenthaltseriaubnis) for a period of one year, according to §23 Abs. 1 Aufenthaltsgesetz. Then this permit is extended each time by two years. Non-Jewish family members can obtain a permanent residence permit only within the framework of the general legislation on the legal status of foreigners. Its issuance is conditioned on knowledge of the German language, the absence of criminal offenses, and independence from public support.
For the first two years, the right of the non-Jewish spouse to reside in Germany now depends on the state of her family relationship with the main applicant. If the marriage community dissolves within the first two years, – the non-Jewish spouse may be deported from the country. After two years of living in a marital community, she acquires a residence permit in Germany that is independent of family relations. The law provides exceptions to this rule. Abuse and beatings by the spouse, abuse of children, and other severe manifestations of domestic violence allow the situation to be classified as a hardship case. In such cases, the foreigners authority may extend the non-Jewish spouse's residence permit outside the specified two-year period of joint residence.
In Germany, the main applicant receives a permanent residence permit (Niederlassungseriaubnis) in accordance with §23 Abs. 2 Aufenthaltsgesetz. This status gives him a secure right to reside in Germany for life.
Registration in Germany
Jewish immigrants are distributed to places of residence across all federal states according to a key agreed between the states. The place of residence is indicated in the passport of the Jewish resettler as a restrictive note. A foreign immigrant does not have the right to move to another locality without the permission of the authorities. If he wants to move to another city, – he must first obtain permission from the foreigners authority. The existence of a workplace outside the distribution area certainly allows one to demand the removal of the restrictive note. Until the restriction is removed, it has full legal force.
Regardless of the location of the workplace, the removal of the restrictive note can be demanded in the following cases:
- restoration of a family community with a spouse or minor child residing in another locality. (Moving to reunite with minor children may be of interest to men who wish to maintain intensive contact with their child at the mother's and child's place of residence. This move must not lead to the person moving giving up their job and becoming dependent on public support.);
- the desire to move is due to the need to care for an infirm relative;
- on the basis of the "Temporary Enforcement Instructions" to the Residence Act. These instructions do not recommend extending the validity of the restrictive note for a period exceeding two years.