Immigration Law

Basic Law Article 2, 3 (1), (3), Article 6 (1), (2), Article 20
Residence Act Section 4 (1), Section 6 (4), Section 9 (2), Section 16 (5), Section 30 (1), Sections 32, 51, 104 (2) and (3), Section 104a
Residence Regulation Section 41
Aliens Act 1990 Section 20 (4)
Aliens Act Implementing Regulations of 1965 Section 5
ECHR Article 8
TEU Article 6 (1) and (3)
TFEU Article 18
Treaty Establishing the European Union Article 12
Directive 2003/86/EC Article 4, 5 (5), Article 7 (2), Articles 8, 16, 17
Directive 2003/109/EC Article 5 (5), Article 15
Directive 2004/83/EC Article 33
Regulation (EC) No. 539/2001 Article 1 (1)
Charter of Fundamental Rights Article 7, 21, 51 (1)
Decision No. 1/80 Article 13, 16 (1)
Additional Protocol Article 41 (1) to the Agreement of 12 September 1963

Headwords:
Visa; third country national; family reunification; subsequent immigration of spouse; marriages between foreigners; subsequent immigration of children; language acquisition; integration; forced marriage; communication on a basic level; language level; language framework; knowledge of written language; illiteracy; acquiring literacy; originally entitled person; privileged visa status; integration measure; integration requirement; marriage and family; family life; cohabitation; compassionate balance; proportionality; separation; possibility of return; unequal treatment; prohibition of discrimination; language; homeland; origin; nationality; standstill clause; prohibition on further restrictions; freedom of establishment; freedom to provide services; access to the labour market; effect in procedural law; inauthentic retroactivity; protection of legitimate expectation.

Headnote:
1. The requirement introduced in August 2007 by the Directive Transposition Act that a spouse desiring to immigrate subsequently to join a foreigner living in Germany must be able to communicate in German at a basic level at least (Section 30 (1) Sentence 1 No. 2 Residence Act) is compatible with Article 6 of the Basic Law, Article 8 of the ECHR and Article 7 (2) of Directive 2003/86/EC.

2. The absence of a general exception for hardships does not stand in opposition to the proportionality of the provision, since remedies can be found in other ways to avoid a disproportionate separation of a married couple in individual cases, for example by granting a residence title for purposes of acquiring the language under Section 16 (5) of the Residence Act.

3. The ability to communicate in German on a basic level as required under Section 30 (1) Sentence 1 No. 2 of the Residence Act requires that the spouse must have a basic oral and written knowledge of German at level A 1 of the Common European Frame of Reference for Languages (CEFR).

4. In cases of the subsequent immigration of dependents, third country nationals cannot avail themselves of the European-law prohibition on discrimination on grounds of nationality under Article 18 of the TFEU (formerly Article 12 Treaty Establishing the European Union) and Article 21 (2) of the Charter of Fundamental Rights.

Judgment of the First Division, 30 March 2010 - BVerwG 1 C 8.09 (German Version)