Language test preventing foreign spouses from joining partners in Germany, say critics

If you want to move to Germany to join a family member or spouse, a German family reunification visa will allow you to live and work in Germany. However, applicants have to meet certain requirements, one of which is passing a German language test in their home countries. But too many spouse reunification visa applicants often fail due to the language test, say critics.

In 2018, more than 58,000 people came to Germany via the so-called spouse reunification (Ehegattennachzug) visa. Many of them had to pass a German test before being allowed to move to Germany. Since 2007, persons from mostly non-EU states who want to join their spouses in Germany have to demonstrate a basic proficiency of the German language.

In 2014 and 2015, the European Court of Justice (ECJ) issued two judgments imposing restrictions on such language tests:

• In 2014, the ECJ ruled that exemptions had to be granted to spouses of Turkish nationals. To demand language tests across the board violates the so-called standstill clause of the Association Agreement, which the EU (then EEC) concluded with Turkey in 1970. As a result, EU Member States are not allowed to introduce regulations that prevent Turkish workers from settling in the EU.
• In 2015, a second judgment followed which applies to all immigrating spouses. The ECJ ruled that EU Member States may require language proficiency prior to entry, but this should not make family reunification “excessively” difficult for the immigrating spouses.

What is the legal situation today?

The German federal government introduced a so-called hardship clause (Härtefallklausel) to the language requirement in 2015. It allows persons in exceptional cases to join their spouses even without taking a language test. A case of hardship could apply under the law if “due to special circumstances” a person could not learn German before entering Germany. What is meant by “special circumstances”, however, is not explained in detail in the law.

The Federal Administrative Court had created a similar exemption in 2012 for spouses of German nationals. According to the court, no language test is necessary if the immigrating person was not able to reach the A1 level German language level for a year despite making efforts. A1certifies that candidates have acquired very basic language skills on the six-level scale of competence laid down in the Common European Framework of Reference for Languages (CEFR).

Many fail the language test

How many people make use of the hardship regulation, according to the federal government, is not known. One thing is certain: Many who want to move to their spouses in Germany fail the language test. In 2018, they were 16,198 persons – about one third of all test participants (48,130).

In practice, hardship clause has so far had little effect, critics say. And language requirements continue to be a major hurdle for spouse reunification.

“Hardship regulation often does not work in practice. We have handled cases in which spouses have tried unsuccessfully to pass the German test dozens of times. Many of them would have had to fall under the hardship clause because they had learning deficits or limited access to language courses. But only a few knew about the regulation. For example, we had the case of a 67-year-old Iranian who wanted to move to his wife and children in Germany – but always narrowly failed the language test. Only thanks to the efforts of his children that he was able to successfully apply for an exception under the hardship regulation,” says Swenja Gerhard, a lawyer at the Association of Binational Families and Partnerships, iaf e.V.

“The Goethe-Institut has been offering courses for people who want to move to their spouses in Germany since 2007. We are dealing with a very diverse clientele, many of them are young and able to learn, but there are also people who only attended school for one to two years and therefore have considerable learning difficulties, especially for middle-aged people, they come to us and ask, “Why do I have to learn German? I just want to spend the last part of my life with my spouse in Germany,” said Nuray Acun, Representative for Language Courses and Examinations at the Goethe-Institut in Izmir (Turkey).
“And even if people want to learn German, they aren’t often good language courses, for example, in eastern Turkey. Nevertheless, the hardship clause rarely comes into play because the consulate usually insists that the applicants pass the language test.”

This is why critics are calling on the federal government to ensure that the language requirement for family reunification is interpreted in such a way to prevent applicants from being subjected to undue hardship and couples forced to live apart.

Femi Awoniyi

Article based on an original article (in German) written by Fabio Ghelli of Medien Integration