Family Reunion Without Secured Livelihood?

Is this permissible or is it not? That is the question. The BVerwG (re 1 C 3.08), highest administrative court in Germany, decided it on April 30, 2009.

A 53 year-old Turk, as well as her husband and six joint children live in Germany. In 1990, after the husband vainly applied for asylum, he divorced his then wife and married a German. As time passed, his children moved to him in Germany. In 1997, he divorced his German wife, he married his former Turkish wife again in 1998. She entered Germany with a visa for family reunion. Since her arrival, neither of them have had sufficient income to cover their livelihood. The foreigners office denied her application for a residence permit on these grounds.

The BVerwG held that the foreigners office decided correctly. When applying for the first time for a permit for family reunion (§30 AufenthG), as in this case, the office has no discretion on whether to grant it or not, even if the alien does not have sufficient funds to live (§5 I no. 1 AufenthG). A differentiation of this requirement is not even necessary in this case to protect marriage and family (art. 6 GG, art. 8 ECHR). In overruling the lower court's legal opinion, there is no basis possible according to the rules of deporting foreigners when married in Germany. Further, it is important, that the duration of a marriage has no weight when a person applies for the first time - as opposed to a foreigner that has already been living for a longer period in Germany.