It all started in Lower Saxony, which proposed somewhat easing the procedure for admitting late resettlers. The relevant federal parliamentary commission discussed the petition, and the result far exceeded all expectations. The law is the law; fulfilling the prerequisites stated in the law grants the right to the status of a late resettler. Now, applicants who previously failed to obtain this status or descendants of a late resettler can update their application.
Let us focus in more detail on the new rules. So, the law permits submitting applications to reopen closed proceedings for admission to Germany under the status of a late resettler. According to administrative procedural rules, closed proceedings are reopened only in exceptional cases. This was the case throughout the entire period of admitting Russian Germans—since 1955. Fifty-eight years later, the German parliament deemed it necessary to make an exception for Russian Germans. Now, applicants whose applications were rejected many years ago can submit repeated applications.
The admission conditions have become more complex, although they are in the applicant's favor. Previously, knowledge of the German language acquired outside the family or failure to prove a permanent record of German nationality led to rejection, with rare exceptions. Now, there are many more conditions giving the right to the status of a late resettler. Failure to meet one requirement can be compensated by meeting another (or others).
Since September 13, 2013, the status of a late resettler is granted to persons of German origin or descendants of a German citizen. Origin is considered even at the third or fourth generation level, even if the applicant's actual connection to the German people is not so tangible. Difficulties may arise in the process of proving the ancestor's belonging to the German people if that ancestor died back in 1939.
Interesting is the provision on descent from a German citizen. In 1918-1945, foreigners who fell within the scope of German legislative regulations could become German citizens under various circumstances. Most naturalized foreigners belonged to the German people, but a non-German minority also went through naturalization. Thus, the descendants of a Russian woman who acquired German citizenship in 1944 (such cases are known) can claim the status of a late resettler. And although such a situation is not common in practice, it is still a precedent.
The applicant for the status must affirm their belonging to the German ethnic group. The word "only" has been removed from the new law, meaning previous records of non-German nationality are now permitted. Of course, these changes to the declaratory record must be credible and consistent with the applicant's internal self-perception. Otherwise, the admission authority may accuse the applicant of a fictitious declaration for the practical purpose of moving to Germany.
Citizens of CIS countries without a record of nationality in their internal passport (Russia, Ukraine) can prove their belonging to the German people in other ways. The law does not specify this concept, so there is full scope for disputes with the authority. In particular, young, unmarried, non-conscription-liable, and childless persons will not be able to documentarily prove their declaratory belonging to the German people. Here, the law provides an opportunity to compensate for the absence of a documentary declaration by presenting a language certificate B1. I remind you that B1 is the level of German language proficiency required for naturalization. The level is quite high, but it is quite achievable for young, well-educated residents of megacities.
Knowledge of the German language does not necessarily have to be inherited. On the other hand, such knowledge (i.e., instilled in the family) will allow compensating for a record of non-German nationality or its absence without a B1 language certificate. Family-acquired knowledge of German can "outweigh" a documentary declaration of belonging to the German people. Let me give an example. 53-year-old Vladimir Ivanov speaks not very well but confidently in the Swabian dialect he inherited from his mother. In his documents, like his father's, there is a record that he is Russian. Here, his knowledge of the language will work in his favor.
The law says nothing about the degree of proficiency in German as a native language. So, depending on the circumstances, quite a low level of conversational German is sufficient. It is important that this knowledge was acquired precisely in childhood and youth within the family. From the new law, it follows that simple understanding of German speech is quite enough, even without the ability to conduct an active dialogue. Some of my clients say that as children they understood their parents' German speech, but responded to them in Russian. So now such a level can be considered sufficient for recognizing knowledge of German as a native language. Undoubtedly, the final decision lies with the court.
There remains a requirement stating that by the time of relocation to Germany, every adult must be able to conduct a conversation in simple German. Depending on the situation and the relocation status, this may be German at the level of a native language or learned at level A1, Start Deutsch 1, or B1. Exceptions are possible for the sick, disabled, or due to individual circumstances.
So, a summary can be made:
* Persons of German origin with a record of German nationality must demonstrate knowledge of the German language. Thus, they fulfill the criteria for issuing a decision on admission with the status of a late resettler under §4 BVFG.
* The absence of a permanent record of German nationality can be compensated by providing evidence that knowledge of the German language (even at a low level) was acquired in the family or learned to level B1.
* The inclusion of descendants in the decision on acceptance of a late resettler retroactively has been simplified. This inclusion is no longer conditional on proving a case of hardship. The requirement remains for the descendant of the late resettler to present a language certificate at level A1 or to prove the impossibility of acquiring the required knowledge of the German language.
* Rejected applicants for retroactive inclusion under the descendant status (§7 BVFG) may submit repeated applications for inclusion. I recommend simultaneously (in justified cases) submitting applications for status assignment under §4 BVFG as well. It makes sense to relocate to Germany under descendant status and conduct proceedings on status upgrade on the spot.
* Status under §4 BVFG means recognition of foreign work experience with the German pension fund, payment of compensation for living in conditions of unfreedom for persons born before April 1, 1955, and granting German citizenship to the foreign spouse immediately after relocation to Germany without loss of original citizenship. Otherwise, the non-German spouse will have to live in the country with foreigner status for many years, and only after fulfilling the prerequisites (one of which is renunciation of original citizenship) and paying all fees and charges, undergo naturalization on general terms.
* Relocation under descendant status (§7 BVFG) while retaining the option to upgrade to §4 BVFG is technically difficult and requires professional support. Without such support, the likelihood of irreversible mistakes is too high. By the way, children under 18 are included in the acceptance decision of ancestors without proof of German language knowledge.
T. PUÉ, German lawyer.