The point is that the spouse could not pass the German language test, citing her illiteracy. The competent German authorities rejected the application for reunification and advised the resident of Germany to realize his family life in the country of common citizenship.
«This requirement by the German authorities violates the constitutional right of a German citizen to live in his own country (Artikel 11 Grundgesetz), as well as the associated constitutional protection of family cohabitation and marriage (Artikel 6, Grundgesetz),» the high court ruled. A German citizen cannot be compelled to leave the country or be forced to choose between the constitutional right to reside in his own country or the right to protection of family life. «These rights are linked and are realized simultaneously,» emphasized the judges of the highest administrative court. A German citizen cannot become the subject of a decision by the foreigner's office or the politico-migration considerations of the authorities.
The Federal Administrative Court did not abolish the language test for foreign spouses, but the practical consequences of the judicial decision are great:
– Inability to learn the language locally for internal, external, or family reasons exempts from taking the German language test;
– Proven unsuccessful efforts to learn the language within a year give the right to reunite with the German spouse in Germany without a language test. (This refers to healthy and theoretically capable persons who for some reason cannot master a foreign language at the required level.)
– The applicant must convincingly prove why he cannot learn German despite all efforts. (The foreigner's office checks the applicants' statements.)
– The foreign spouse gets the opportunity to take the test after relocation during the first period of life in Germany. Failing the test during the period of residence in Germany leads to restrictions on the residence permit in the FRG.
– Denial of family reunification can be appealed in the Berlin Administrative Court.
Thomas PUE,
German lawyer.