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The decision in the Dogan case does not provide any legal certainty with regard to the family reunification in Germany


After the Dogan judgment was issued in Germany a discussion took place how the applicable law has to be changed regarding the language requirements in matters of family reunion. Accordingly, the party "Die Linken" has, rightly, repeatedly stressed the need for a review of § 30 AufenthG with the aim to adapt the provision to the relevant legal specifications of the European Law.

The German Government has refused to repeal the language requirement in § 30 AufenthG, because in Dogan, the Court stated that a restriction under Article 41(1) of the Additional Protocol is prohibited unless it falls within the restrictions referred to in Article 14 of the decision 1/80 or in so far as it is justified by an overriding reason in the public interest, is suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it.

The German Government submits that even if the language requirements could be considered to be a restriction within the meaning of Article 41(1) of the Additional Protocol, it would nevertheless be justified by the objective of combating forced marriages. It claims that the acquisition of basic language skills before admission into the host Member State promotes the integration of spouses into the society of that State, increases the likelihood that they will develop an independent social life, while diminishing the control exercised by their in-laws, and makes it possible for them, if necessary, to approach the authorities in order to obtain protection.

For that reason, the German Government wants to establish a hardship provision, which isn't compatible with the European law. It should be taken into account in this regard that the spouse is entitled to the subsequent immigration of dependents. It is, therefore, a matter of a restriction on a fundamental right. This can´t be compared with a hardship provision which has the objective to enable family reunification – this is something completely different. The encroachment on the spouse's general right of family reunification as a result of the language requirement isn´t proportionate.

Any kind or restriction requires an individual examination of applications for family reunification. The fundamental purpose of such individual examination is to uphold the effectiveness of the right of family reunification so far as possible and avoid undermining its main objective, which is to enable family reunification. Therefore, Article 41(1) of the Additional Protocol precludes all national legislation which makes it possible to deny the exercise of the right to family reunification based on an exceptional case, without the possibility of a comprehensive case-by-case evaluation based on the specific circumstances.

Furthermore, I do not share the German Government's view that alternative measures, such as the obligation to participate in integration and language classes after admission into Germany, would not be as effective as acquiring language skills beforehand in order to prevent the social exclusion of victims of forced marriages. As has already been stated by the opinion of Advocate General Mengozzi on 30 April 2014, "such an obligation would bring those persons out of their family context, thereby promoting contact between them and German society. The members of their families who exercise control over them would have no other option but to allow such contact which, in the absence of a similar obligation, could otherwise be prevented in practice, despite the person in question having a basic knowledge of the German language. In addition, regular contact with the bodies and persons responsible for organising those classes could help create conditions conducive to spontaneous requests for assistance from victims, as well as facilitate the identification and reporting to the competent authorities of situations requiring intervention."

Mainz, 21. August 2014

Dr. Dienelt

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