Decision of the Federal Administrative Court by 30 March 2010 (case no.: – BVerwG 1 C 8.09 –)
(Excerpt of the full version)
The Complainants’ (leapfrog) appeals are denied. The matter in these proceedings is their request for a national visa for subsequent immigration of dependents. In compliance with appealable law the Administrative Court correctly found that Complainant 1 does not meet the requirements for an entitlement to subsequent immigration as a spouse (1.). Consequently Complainants 2 through 6 also have no entitlement to subsequent immigration (2.).
1. According to Section 6 (4) Sentence 2 in conjunction with Section 30 (1) Sentence 1 No. 2 of the Residence Act, an entitlement to a visa for subsequent immigration as a spouse to join a foreigner is subject to the prerequisite, inter alia, that the spouse must be able to communicate in the German language, on a basic level at least.
1.1 The Administrative Court properly assumed that this requirement for subsequent immigration also applies to old cases for which the application, as is the case here, was filed before the amendment of the Residence Act took effect. (…)
1.2 It is not in dispute that Complainant 1 has no knowledge of German whatsoever, and therefore does not meet the requirements of Section 30 (1) Sentence 1 No. 2 of the Residence Act.
1.2.1 The requirement of being able to communicate in the German language, on a basic level at least, describes the language level required for an entitlement to subsequent immigration. The spouse must be able to communicate in German in ‘at least a rudimentary manner’. According to No. 188.8.131.52. of the General Implementing Regulations of the Federal Ministry of the Interior for the Residence Act of 26 October 2009 – the Implementing Regulations to the Residence Act – this requirement corresponds to the definition of the language skills at level A 1 of the Common European Framework of Reference for languages (CEFR). (…) This description is suitable for determining in more detail the requirement under Section 30 (1) Sentence 1 No. 2 of the Residence Act for the ability to communicate in the German language at a basic level. In particular, it makes it clear that no exaggerated requirements may be set for language capability.
1.2.2 The ability to communicate in German at a basic level also includes a basic knowledge of the written German language. To that extent, to be sure, the wording of Section 30 (1) Sentence 1 No. 2 of the Residence Act is not unequivocal. This is because ‘language’ as a means of communication may also refer only to spoken and heard language. The same applies to the term ‘communicate’. However, it is evident that a basic knowledge of the written language is also required in cases of subsequent immigration of a spouse, if one compares this provision with other provisions of the Residence Act that require certain skills in the German language. (…) The requirement of being able to communicate in German on a basic level at least is intended to encourage the persons concerned to acquire a basic knowledge of German even before they enter the country, so as to facilitate their integration in German territory. Additionally, on the evidence of the statement of reasons for the bill, the provision is intended to combat forced marriages. These are – preventively – to be at least made more difficult. Furthermore – after the fact – the acquisition of the language is intended to enable victims to lead an independent social life in Germany. But a swift integration into the local environment presupposes that the foreigner must in any case be able to read and write simple sentences in German, since this form of communication is of great significance in many regards. A basic knowledge of the written language furthermore makes it easier for the victims of forced marriages to avail themselves of offers of assistance and options for their own independent social development.
1.3 Complainant 1 does not meet the requirements under which an exception can be made to the language requirements by way of Section 30 (1) Sentence 2 and 3 of the Residence Act.
1.3.1 The Administrative Court properly assumed that in particular, Complainant 1 cannot invoke Section 30 (1) Sentence 3 No. 2 of the Residence Act. According to that provision, Section 30 (1) Sentence 1 No. 2 of the Residence Act is irrelevant if a spouse is unable to provide evidence of a basic knowledge of German on account of a physical, mental or psychological illness or disability. This provision is based on the idea that sick and disabled foreigners must still be eligible for subsequent immigration to join a spouse. According to the Administrative Court’s findings of fact, against which no procedural objections have been raised and which are therefore binding on this Court, there is no reason to believe that Complainant 1 cannot acquire a basic knowledge of the German language on account of illness or a disability. By the same token, nor is her illiteracy caused by an illness or disability. The difficulties generally associated with acquiring literacy as an adult are not sufficient for an exception under this provision.
1.3.2 Complainant 1 also does not meet the requirements of Section 30 (1) Sentence 3 No. 4 of the Residence Act. According to that provision, the language requirement does not apply if by virtue of his or her nationality, the foreigner may enter and stay in the Federal territory without requiring a visa for a period of residence which does not constitute a short stay. From the wording and system applied in Section 30 of the Residence Act we may deduce that the privileged visa status must be held not by the spouse who is subsequently immigrating, but by the spouse who lives in Germany and possesses the original entitlement. This requirement is not met here because the husband of Complainant 1, as a Turkish national, has no privileged visa status. According to Section 4 (1) Sentence 1 of the Residence Act in conjunction with Article 1 (1) of Council Regulation (EC) No. 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, of 15 March 2001 (OJ L 81 p. 1), and its Annex I, Turkish nationals must normally have a visa in order to enter and stay in the Federal territory.
1.4 Nor does one find anything different from an examination of the standstill clauses for Turkish nationals under the laws of association. The language requirement does not violate either Article 41 (1) of the Additional Protocol to the Agreement of 12 September 1963 establishing an association between the European Economic Community and Turkey for the transitional phase of association – the ‘Additional Protocol’ – or Article 13 of Decision No. 1/80 of the EEC/Turkey Council of Association on the development of the association, of 19 September 1980 (ANBA 1981 p. 4) – ‘Decision No. 1/80’. Nor can Complainant 1 avail herself of these provisions and her husband’s Turkish nationality to claim the exception under Section 30 (1) Sentence 3 No. 4 of the Residence Act. (…)
1.5 The prerequisite for subsequent immigration under Section 30 (1) Sentence 1 No. 2 of the Residence Act, which according to Section 6 (4) Sentence 2 of the Residence Act must be met even before entering the country, is compatible under European law with Article 7 (2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ L 251 p. 12), known as the Family Reunification Directive. That Directive governs the requirements for family reunification with a third country national who is residing lawfully in the territory of a Member State (Article 1 of the Directive). It applies here, since the husband of Complainant 1 is a third country national (Article 2 (a) of the Directive) and, as a ‘sponsor’ (Article 2 (c) of the Directive), meets the residency-law requirements under Article 3 of the Directive. Under Article 4 of the Directive, the Member States are to authorise entry and residence of the family members it lists, subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16 of the Directive. This corresponds with a subjective right to family reunification. The group of favoured family members also includes the sponsor’s spouse (Article 4 (1) (a) of the Directive) Article 7 (2) of the Directive, however, opens up the possibility for Member States – in deviation from the provisions of the Directive that are otherwise binding – to require that third country nationals must comply with immigration measures. If, as in the present case, for the subsequent immigration of a spouse the national legislators require an acquisition of a basic knowledge of German before entering the country, this is a permissible integration measure within the meaning of the Directive. To the extent that under Article 7 (2) para. 2 of the Directive, integration measures do not apply to refugees and their family members until the persons concerned have been granted family reunification, it can be concluded by argumentum e contrario that in other cases of subsequent immigration, integration measures can also be required even before entry. If the person desiring subsequent immigration does not comply with such national requirements, the Member State can refuse entry for that person. (…)
1.6 Requiring a basic knowledge of the language even before entering the country is fundamentally compatible with the special protection that marriage and the family enjoy underArticle 6 of the Basic Law, Article 8 of the European Convention on Human Rights, and Article 7 of the Charter of Fundamental Rights, and thus regularly also complies with the further requirements of the Family Reunification Directive.
1.6.1 Marriage and the family are placed under the special protection of the system of government by Article 6 of the Basic Law. Making contingent the grant of a residence ‘title’ to a foreigner for subsequent immigration as a dependent upon the possession of a basic knowledge of the language falls under both Article 6 (1) and Article 6 (2) Sentence 1 of the Basic Law. According to the case law of the Federal Constitutional Court, these provisions contain not only this fundamental right as a defensive right in the classic sense, but also an institutional guarantee, as well as a statement of a fundamental valuational principle for the entire area of private and public law affecting marriage and the family. However, the requirement of a basic knowledge of the language for the subsequent immigration of a spouse to join a foreigner residing in Germany does not represent an intervention in the rights of freedom under Article 6 of the Basic Law. (…)
1.6.2 Marriage and the family furthermore fall under the protection of Article 8 of the ECHR. The European Convention for the Protection of Human Rights and Fundamental Freedoms ranks as a federal law at the national level, by way of its transformation into German law. But at the level of constitutional law, the text of the Convention and the associated case law of the European Court of Human Rights also serve as an interpretive aid in deciding the content and scope of fundamental rights and the constitutional principles of the rule of law. At the level of the European Community, the fundamental rights guaranteed under the European Convention for the Protection of Human Rights and resulting from the common constitutional traditions of the Member States have become a part of European law as general principles. This is determined by the Lisbon Reform Treaty that took effect on 1 December 2009 (Article 6 (3) of the consolidated version of the Treaty on European Union – TEU – OJ 2010 C 83 p. 1). The change in law that occurred during the present appeal proceedings must be taken into account here, since the Administrative Court – if it were deciding in place of the Federal Administrative Court – would in its turn have to take that change into account.
But according to the settled case law of the European Court of Human Rights, the Convention also does not guarantee a foreigner any right to enter a given country and reside there. However, measures regarding immigration may affect the right of respect for family life under Article 8 of the ECHR. That article guarantees everyone the right to respect for his private and family life. Interference is permitted only under the circumstances set forth in Article 8 (2) of the ECHR. This provision is primarily intended to protect the individual from arbitrary acts by the national authorities. But effective respect for family life can also give rise to positive obligations. In both cases, a balanced equilibrium must be sought between the contrasting interests of the individual and society; and in that regard, the state enjoys a certain margin of appreciation. The scope of the state’s obligation to accept relatives of resident immigrants is based on the special circumstances of those involved, and the general interest. Article 8 of the ECHR does not obligate the Contracting States in general to respect a married couple’s choice of their marital residence in the state or to consent to a family reunification within the state’s territory. Nor does it guarantee a right to choose the place best suited for establishing a family life. The upshot is that Article 8 of the ECHR also requires one to find a balanced solution according to the principles of proportionality. In so doing, the special circumstances of those involved must be taken into account, on a case-by-case basis. In this connection, however, with regard to the question of whether subsequent immigration by dependents would be an adequate means of establishing a common family life, the court regularly attaches importance to the question of whether this is the only possibility for developing a family life, for example because there are impediments to establishing a residence in another country, or because there are special circumstances that make it impossible to expect such an establishment of residence.
1.6.3 At the Community level, in addition to Article 8 of the ECHR attention must also be paid to Article 7 of the Charter of Fundamental Rights. The Charter of Fundamental Rights (OJ 2007 No. C 303 p. 1) was incorporated as a binding part of primary law under the Treaty of Lisbon (Article 6 (1) TEU). According to Article 51 (1) of the Charter of Fundamental Rights, the Charter applies to the institutions and bodies of the European Union with due regard for the principle of subsidiarity, and to the Member States only when they are implementing Union law. Under Article 52 (3) of the Charter of Fundamental Rights, however, the right to respect for family life under Article 7 of the Charter of Fundamental Rights corresponds in meaning and scope to Article 8 of the ECHR.
1.6.4 Finally, at the European level, account must be taken of the Family Reunification Directive. That directive provides a better legal position in that it grants an independent right to family reunification, provided that the conditions established in the Directive are met. Substantively, the Family Reunification Directive must be interpreted and implemented by the Member States in conformity with Article 8 of the ECHR and Article 7 of the Charter of Fundamental Rights. Thus (also) under Community law, the Member States must exercise the margin of appreciation allowed to them under the Directive in line with the criteria developed by the European Court of Human Rights with regard to Article 8 of the ECHR. Moreover, they must comply with the principles laid down in Article 5 (5) and Article 17 of the Directive. Article 5 (5) of the Directive obligates the Member States to have due regard to the best interests of minor children. Under Article 17 of the Directive, if an application is rejected, the Member State must take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State, and of the existence of family, cultural and social ties with his/her country of origin. These criteria correspond to those taken into consideration by the European Court of Human Rights when it reviews whether a state which has refused an application for family reunification has correctly weighed the competing interests against one another.
1.6.5 If neither Article 6 of the Basic Law nor Article 8 of the ECHR and Article 7 of the Charter of Fundamental Rights confers an entitlement for the subsequent immigration of a spouse, and if the Family Reunification Directive also allows the Member States a margin of appreciation – ultimately to be measured against Article 8 of the ECHR – with regard to the requirement for a knowledge of the language, the question whether protection of marriage and the family is compatible with the prerequisite for subsequent immigration under Section 30 (1) Sentence 1 No. 2 of the Residence Act, which in accordance with Section 6 (4) Sentence 2 of the Residence Act must be met even before entering the country, depends on whether that prerequisite complies with the principles of proportionality. With their requirement that even before entering the country, the spouse of a foreigner must be able to communicate in German on a basic level at least, the national legislators must take adequate account of the existing marital and family ties to foreigners lawfully living in the Federal territory, and must find a fair balance between the private interests of the concerned persons
in living together in the Federal territory, and the contrasting public interests pursued with the regulation. This is fundamentally the case. The language requirement serves to promote integration and prevent forced marriages. These are legitimate legislative objectives. Under normal conditions, it lies within the broad margin of appreciation of the legislators whether the instruments chosen to achieve those objectives are sufficiently promising. It is not evident that the requirement of a basic knowledge of German before entering the country is manifestly unsuitable for the purpose. (…)
1.6.6 The provision of the law is also not unconstitutional for offending against Article 6 of the Basic Law in that it contains no general exception to avoid a disproportionate burden. If the spouse desiring subsequent immigration, for reasons that are beyond his or her control, is unable to acquire a basic knowledge of the language within a reasonable time, and at the same time the spouse living in Germany is objectively unable to establish a marital cohabitation outside Germany, for reasons of fact or law, or cannot reasonably be expected to do so because of special circumstances, under national constitutional law it is not mandatory to grant a residence title for family reasons, but rather the constitutionally imperative balancing of interests can be achieved otherwise, by means of simple law, for example by granting a residence title for a temporary residence for purposes of acquiring the language (Section 16 (5) of the Residence Act). Thus with regard to the special protection of marriage and the family, the provision takes due account of the objective importance of the protective and promotional imperative of Article 6 of the Basic Law, in its configuration as a
statement of valuational principle.
1.6.7 Even if the provision of law is compatible with Article 6 of the Basic Law at the national level, and complies in principle with the requirements of European law under the Family Reunification Directive and the right to respect for family life under Article 8 of the ECHR and Article 7 of the Charter of Fundamental Rights, the refusal of a visa must also conform to these standards in the specific individual case, and must in particular also be consistent with the case law of the European Court of Human Rights on the right to respect for family life under Article 8 of the ECHR. In this connection as well, the Court sees no questions of doubt to be referred to the European Court of Justice. In the present case the refusal to grant a visa for the subsequent immigration of a spouse is not disproportionate in light of the cited case law of the European Court of Human Rights. It is not evident that Complainant 1 is unable to acquire the required basic knowledge of the language within a reasonable time for reasons beyond her control. Moreover, there are no objective impediments to establishing a marital cohabitation outside Germany, and the Complainant’s husband can reasonably be expected to return to Turkey under the present circumstances. The time that can reasonably be expected for learning a language in the case of subsequent immigration of a spouse depends not only on the objectives of the prerequisite for subsequent immigration, but also on the specific circumstances of the particular case. Here it must be borne in mind that acquiring the language is an integration step that not only is in the public interest, but also will personally benefit the person desiring subsequent immigration and his or her family after entering the country. Consequently – including with regard to the waiting periods that are permissible under Article 8 of the Family Reunification Directive – a period of roughly two to three years is as a general rule within the realm of reasonable expectation, unless circumstances especially deserving of protection are present. (…)
1.7 The language requirement does not result in an impermissible discrimination in the case of Complainant 1.
1.7.1 There is no violation here of the special provision of equality before the law under Article 3 (3) Sentence 1 of the Basic Law. That Article provides that no person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. This prohibition against discrimination presumes a causal connection between the favouring or disfavouring and the characteristics listed in Article 3 (3) Sentence 1 of the Basic Law; the favouring or disfavouring must therefore be precisely because of one of these characteristics.
a) If the requirements of Section 30 (1) Sentence 1 No. 2 of the Residence Act are not met, the refusal of a residence title is linked not to the fact that the foreigner speaks a specific language, but rather the fact that he does not have a basic knowledge of the German language. He is therefore not disfavoured ‘because of his language’.
b) If spouses seeking subsequent immigration must meet the language requirement only after entering the country, because they entered the country without a visa, or if they are entirely exempted from the obligation to provide such evidence because they are married to an individual who does not need a visa under Section 30 (1) Sentence 3 No. 4 of the Residence Act, this is not founded on grounds of the homeland and origin of either spouse. The term ‘homeland’ refers only to their place of origin in terms of birth or residence; the term ‘origin’ moreover refers to their class and social background and roots. Neither Section 41 of the Residence Regulation nor Section 30 (1) Sentence 3 No. 4 of the Residence Act is tied to these two criteria. The deciding factor for the privileges is the privileged visa status of either the subsequently immigrating spouse or the spouse holding the original entitlement, on the basis of their nationality. These points of connection are not among the characteristics listed in Article 3 (3) of the Basic Law that are supposed to provide a minimum of assurance against discrimination.
1.7.2 Presenting evidence of language competence in cases of a spouse’s subsequent immigration also does not violate the general principle of equality under Article 3 (1) of the Basic Law to the detriment of Complainant 1. That principle provides for equal treatment of all persons before the law. It applies to disfavouring and favouring equally. But legislators are not forbidden from making any differentiation. In this regard, virtually any reasonable consideration may be a possible reason for unequal treatment. To begin with, it is the legislator’s duty to choose those matters to which the legal consequences in question are to be linked. But this selection must be objectively justifiable and not irrelevant. Article 3 (1) of the Basic Law does not require the legislator to choose the most just and most functional solution. But the general principle of equality leads to limits that depend on the matter to be regulated and the differentiating characteristics, and those limits may range from a simple prohibition of arbitrariness to a strict tie to requirements of. Here the limits become narrower the more seriously the unequal treatment may impair the exercise of constitutionally protected freedoms. In the case of an unequal treatment of groups of persons as well, the legislator is regularly subject to strict bounds. It is true that he may in principle decide at will which characteristics he will consider definitive for equal treatment or unequal treatment. But if a norm treats one group of persons it concerns differently from other persons it concerns, sufficient justification for unequal treatment is not yet established if the legislator has taken account of a distinguishing characteristic that is suitable by nature. Rather, in regard of the extent of the differentiation as well, there must be an inner connection between the existing differences and the differentiating provision, and that connection must be citable as an objectively justifiable distinguishing aspect of sufficient. (…)
1.7.3 The unequal treatments discussed above also do not give rise to a violation of the prohibition on discrimination on grounds of nationality under Community law. That prohibition does not apply here to Complainant 1 and her husband, as third country nationals. The general prohibition of discrimination on grounds of nationality has been an integral part of European Community law from the very start. Since the Treaty of Lisbon took effect, that prohibition has been contained in Article 18 of the consolidated version of the Treaty on the Functioning of the European Union (OJ 2008 C 115 p. 47) – the TFEU. (…) The personal scope of applicability of the prohibition on discrimination on grounds of nationality under European law neither is explicitly limited to citizens of the Union, nor mentions third country nationals. A certain limitation can at most be deduced from the wording ‘within the scope of application’. However, one can see from the case law of the European Court of Justice that that court has hither to declined to apply Article 18 of the TFEU, or its predecessor provision under Article 12 of the Treaty Establishing the European Union, to third country nationals. In a number of decisions, the ECJ has viewed discrimination against third country nationals as not conflicting with European law, but in this connection it also did not explicitly clarify that the prohibition on discrimination applies only for citizens of the Union, and cannot be applied in any case in favour of third country nationals. However, it is evident from the meaning and purpose of the prohibition against discrimination on grounds of nationality that it does not apply in the present case. The general prohibition on discrimination on grounds of nationality represents a fundamental principle of the Community, without which the goal of a functioning internal market and an increasingly close integration of the Member States and their citizens cannot be achieved within the Union. This does not apply in the same way to third country nationals. Although the integration of third country nationals lawfully residing in the Union is likewise an important goal for social reasons, it is not a guiding precept of the European Idea. (…) The result is that third country nationals generally cannot rely on the prohibition of discrimination on grounds of nationality. (…)
1.8 Finally, the statutory tightening of the requirements for an entitlement to subsequent immigration of a spouse also does not violate the constitutional prohibition on retroactive effect in old cases in which the application for a visa – as in this case – was filed before the Directive Transposition Act took effect. The language requirement that was introduced without a statutory transitional provision has only an inauthentic retroactive effect, since the provision relates only to matters not yet concluded and future legal relationships. There are no apparent constitutional reservations regarding the principle of protection of legitimate expectation and the principle of proportionality. The spouse of a foreigner lawfully residing in the Federal territory was not in a position to assume that an entitlement to subsequent immigration that might possibly have existed under the previous status of the law would be immune to subsequent statutory restrictions. The legislators remedied any hardships primarily with the provisions for exceptions in Section 30 (1) Sentence 3 No. 2 of the Residence Act. Disproportionate results can furthermore be remedied by other means by way of simple law, as already explained above. Moreover, the constitutional protection of legitimate expectation does not provide protection against all disappointments; only an extension of confidence – i.e., an ‘investment of confidence’ that has led to a legal position or equivalent other dispositions – is deserving of constitutional. Nothing has been argued or is apparent here for any intervention in such a legally protected legal position.
2. If Complainant 1 has no entitlement to family reunification, the same also applies for Complainants 2 through 6. They do not meet the requirements of Section 32 (3) of the Residence Act for an entitlement to (isolated) subsequent immigration of dependents, since their father does not have sole custody. Nor can they be granted a visa for subsequent immigration of dependents via discretionary channels – to Complainants 2 through 5, born before 1 January 2005, by way of Section 104 (3) of the Residence Act in conjunction with Section 20 (4) No. 2 of the Aliens Act of 1990, and for Complainant 6, born after 1 January 2005, by way of Section 32 (4) of the Residence Act. According to the Administrative Court’s findings of fact, there is no reason to believe there is any special hardship that could justify a subsequent immigration of the children without their mother.