Germany: Administrative Court of Berlin relies on “humanitarian provision” to grant family reunification to an underage beneficiary of subsidiary protection despite temporary exclusion

Tuesday, November 7, 2017

On 7 November 2017, the Administrative Court of Berlin ruled in case VG 36 K 92.17 V, which concerned the complaint brought by a Syrian family who attempted to request a visa in order to be reunited with their son, an unaccompanied minor who was granted subsidiary protection in Germany. However, in view of the temporary suspension of family reunification rights for beneficiaries of subsidiary protection in Germany from March 2016 to March 2018, the family was denied an appointment before German consulate authorities.

First, the Administrative Court of Berlin found that, while procedural law requires that an action for failure to act can only be brought three months after a personal application for an administrative act has actually been made, the personal application cannot be a prerequisite for an action for failure to act in this case, since they were not given appointments to request for family reunification. Secondly, the Administrative Court concurred with other German courts and found that the temporary suspension of family reunification for beneficiaries of subsidiary protection does not infringe EU law, international law or the constitutional principle of equal treatment. Thirdly, the Administrative Court of Berlin ruled that this suspension can be, in principle, subject to constitutional review since the humanitarian provision (paragraph 22 of the German Residence Act - Aufenthaltsgesetz) allows for exceptions to be made in cases of particular hardship. Finally, the Administrative Court ruled that, in the case in question, the unaccompanied minor living in Germany suffered from post-traumatic stress disorder and depression, making the reestablishment of the family unity imperative for humanitarian reasons. In such cases, the Court concluded, the best interest of the child should be the primary consideration and no consideration must be given to migration policy priorities, to the fact that the separation of the family was planned or to the fact that the applicant was 16 at the moment of the decision, an age at which the child’s need for family care is considered to decrease.

Based on an unofficial translation by the ELENA Weekly Legal Update. The EWLU would like to thank Meral Zeller, Communications and Events Assistant at ECRE.

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Best interest of the child
Family reunification
Subsidiary Protection