Thomas Pue,
German lawyer.
Specially for "Zagranitsa".
Russian German Vladimir Bauer, his wife Olga, their common child Igor, and 16-year-old Nadezhda - Olga's daughter from her first marriage, are filing an application for admission to Germany. V. Bauer fulfills all the necessary prerequisites for being granted the status of a late resettler and receives an admission decision. His wife and his own child are included in this decision as family members. What is the situation of stepdaughter Nadezhda?
If Nadezhda has not reached the age of 18 at the time of resettlement, she may move to the Federal Republic of Germany together with her mother and her husband under the status of a minor foreign family member. This age limit is very important. The application to the German embassy for an entry visa for resettlement in Germany must be submitted before Nadezhda turns 18. In Germany, she will be considered a foreigner, not a German resettler, like the other family members. Nevertheless, Nadezhda will receive a residence permit and, if certain conditions are met, may later be naturalized as a citizen of the Federal Republic of Germany on a general basis.
I would like to emphasize the following point. The practice of the competent German authorities described by me is today the generally accepted solution to the question of joint resettlement of a non-German child of the spouse of a late resettler. The Aliens Act, however, does not provide reliable guarantees for foreign children, so local deviations from the practice I have described are possible.
Adoption and the status of a descendant of a German resettler
I would like to modify my example somewhat. As is known, the application of a Russian German for the status of a late resettler is processed over several years. So by the time V. Bauer receives his admission decision, stepdaughter Nadezhda has turned 18. This means the end of the drama. Under no circumstances can Nadezhda resettle in Germany together with the other family members, even under the status of a foreigner. Including her in the admission decision under the status pursuant to §8 BVFG is an apparent solution. She will not receive an entry visa or will be deported from Germany if she nevertheless manages to resettle in the Federal Republic together with her parents.
This problem can be solved by timely adoption (adoption. - Ed.) of Nadezhda by her adoptive father Vladimir Bauer. If the adoption is carried out before Nadezhda turns 18, she will be equated by the competent German institutions with the natural children of the Russian German and receive the status of a descendant according to §7 BVFG. With timely adoption of the child (before the age of 18), the child's actual age at the time of resettlement does not play any role. If Nadezhda is adopted at age 17, she will always be able to move to Germany under the status of a descendant. In addition to the very possibility of resettlement, the status of a German resettler - and Nadezhda will be considered one, despite her two Russian parents - is significantly more favorable than the status of a foreigner.
The situation changes dramatically if the child is adopted after reaching 18 years of age. The German authorities believe that such adoption does not create a basis for resettlement in the Federal Republic of Germany as part of the family of a late resettler. This means that Nadezhda will not be granted the status under §7 BVFG, despite a legally conducted adoption in the country of origin of the Russian German. It is equally important to complete the procedure before V. Bauer's resettlement to Germany. After that, one must immediately file an application to include the adopted daughter in the admission decision under the status of a descendant.
If V. Bauer returns from Germany to carry out the adoption, the procedure will be recognized as legal, but he will not be able to include his adopted daughter in the admission decision. Such inclusion can be made only before the time the main applicant (V. Bauer) leaves for permanent residence in Germany. This situation can sometimes be resolved by other means, which I will not dwell on in this article. I never tire of repeating: the most reliable way for joint resettlement is to adopt the child before he or she turns 18 and to include him or her in the admission decision of the main applicant as a descendant before the latter resettles in Germany.
I would like to point out the lack of clarity in the law regarding many individual situations in the area of resettlement to the Federal Republic of Germany within the framework of the repatriation of Russian Germans. This is understandable; no law can cover all the diversity of life. Thus, the refusal of the Federal Administrative Office to include an adopted child in the admission decision of a late resettler, if the adoption was made after the child reached 18, does not have a reliable legislative basis. Nevertheless, the general legal trend is moving in this direction, which once again speaks to the importance of timely execution of all necessary legal acts.
With regard to the adoption itself in the country of origin of the repatriate, I would like to make the following remarks: adoption must serve to create genuine parent-child relationships and correspond to a similar procedure in the Federal Republic of Germany, as practiced by the youth welfare office (Jugendamt). In other words, it must not be a fictitious adoption designed to create a legal basis for the adoptee to resettle in the Federal Republic of Germany. The competent German authorities do not conduct a scrupulous examination of the minutest details of family life and the adoption procedure, but nevertheless the adoption must have a certain substance.
Adoption and German citizenship
Another constellation of this same exemplary Bauer family. V. Bauer does not speak German, so he cannot claim the status of a late resettler. But he can still move to Germany without any problems. During World War II, Vladimir's father Konrad Bauer, as a child in Ukraine, was granted German citizenship by the occupation German authorities. K. Bauer passed this citizenship on to his son by inheritance. Vladimir and his biological children have been German citizens from and by virtue of birth. After checking the circumstances of the case, the Federal Administrative Office issues V. Bauer and his biological son Igor certificates of German citizenship. What does the situation look like for his wife Olga and her daughter Nadezhda?
Vladimir and Igor can obtain German passports at the German embassy and move to the Federal Republic of Germany. Olga and Nadezhda remain in Kazakhstan for now. V. Bauer must register as a resident in Germany, after which he begins the family reunification procedure. The reunification of a foreign spouse with his or her German partner does not cause particular problems. It is not linked to material prerequisites or the availability of living space for the German spouse. The only condition is the intention of the German partner to actually lead a married life on the territory of the Federal Republic. Olga Bauer will be able to reside in Germany together with her husband, but under the status of a foreign wife of a German citizen. She will not have the status of a German resettler, as would be the case when moving to the Federal Republic together with her husband under the status pursuant to §7 BVFG.
Stepdaughter Nadezhda is not V. Bauer's biological daughter. She did not acquire German citizenship from him. An adoption that conforms to the law can help in this case too. Upon the fact of adoption of his stepdaughter Nadezhda by V. Bauer, she becomes a German citizen. The application for the adoption procedure must be submitted before Nadezhda turns 18. This is a very significant point. Adoption in connection with resettlement under the status of a late resettler must be completed before the child reaches 18. In connection with the inheritance of German citizenship, filing an adoption petition before the child reaches 18 is considered sufficient. If V. Bauer files the adoption petition after his stepdaughter turns 18, this adoption will have no consequences with regard to Nadezhda's citizenship.
Effectiveness of foreign adoption
The effectiveness of a foreign adoption is equated to the German procedure. Foreign and German adoption have equal legal force and significance. In all cases where families of potential resettlers have foreign children under the age of 18, I advise checking the legal situation and, in justified cases, conducting the adoption procedure without delay in the competent institutions of the country of residence. This way you will save yourself from many unpleasant surprises.
This article serves the purpose of general information and cannot replace individual consultation with Rechtsanwalt Thomas Puhe Jahnstr, 17, 60318 Frankfurt-am-Main Tel.: 069-59-79-66-82, fax: 069-59-79-66-86 E-mail: [email protected]