The requirements for level A1 are not very high and correspond to simple German. However, people busy with work and daily life find it difficult to find time to study the language. It is even harder for elderly people and residents of remote regions to learn German. The law provides for exemption from the test due to exceptional circumstances, especially due to serious illness. The Federal Administrative Court has softened the requirements of the law and created another exceptional circumstance: unsuccessful, provable, one-year efforts to learn German give the right to demand a family reunification permit even without a language certificate.
The language requirement of the law was challenged in various courts, including the ECJ. The plaintiffs and their lawyers argued their claims based on the constitutional protection of the family. After all, even a well-educated young or middle-aged city dweller with a habit of studying needs 12-18 months to obtain a language certificate. All this time, the spouses are forced to live separately, which violates family rights.
The high European court made its decision on a complaint from the Netherlands, where the rules for spousal reunification are similar to German standards. Overall, the ECJ did not follow the plaintiffs' arguments. The ECJ recognized the right of the state to require preliminary integration efforts from foreign spouses even during their residence in the country of origin. A certificate of knowledge of the language of their future country of residence is considered such a permissible preliminary effort.
Nevertheless, the ECJ decision has positive aspects. The court obliged the European Union (EU) countries to provide generous exceptions in their national legislation to ensure fairness based on the circumstances of each individual case. When making a decision, the authority must take into account the age, education level, income level, health status, and other personal circumstances of the spouses. If the actual life circumstances of the applicant do not allow him or her to learn German to the required level and obtain a level A1 certificate, the authority must exempt such an applicant from the excessive requirements of learning German and taking the exam for the language certificate.
Actually, such an approach should be considered self-evident. Unfortunately, German law was more geared towards 'keeping out', regardless of the costs. Now the legislator is preparing a new version of §30 Aufenthaltsgesetz, in which it intends to put the ECJ's instructions into law. These instructions are aimed at creating a general and broadly interpreted concept of hardship, which significantly exceeds the narrow current interpretation of German officials.
Overall, the ECJ decision is not so bad and provides room for argumentation in favor of the applicant based on the actual circumstances of the case. All competent German authorities responsible for processing family reunification applications should already be guided by this ECJ decision, without waiting for changes in national legislation.
Every rejection of a family reunification application must be checked for aspects of hardship that hinder language learning in the specific circumstances of the case. Rejections must be appealed in the manner and within the time limits provided by law. Usually, the appeal period is one month after receiving the refusal decision. Of course, it is possible to submit a new application for reunification after a rejection, citing now-learned German language or new circumstances – for example, illness. Nevertheless, a rejection burdens the applicant's personal file and further delays family reunification.
Thomas PUE,
German lawyer.