MIGRATION MANAGEMENT WITHIN FAMILY REUNIFICATION

Abstract

Family reunification is one of the purposes of stay within the Residence Act. The granting of the residence permit is fundamentally designed as a claim and must be granted if the requirements are met. In the course of ongoing forced migration, family reunification has become the focus of debates for ways to limit refugee migration. Since Article 6, Paragraphs 1 and 2 of the German Basic Law on the protection of marriage and family do not give rise to a right to entry, although its scope of protection must be taken into account when designing regulations on family reunification, the legislative scope for action is limited. The German legislature has decided that family reunification should be limited for persons with subsidiary protection status. Subsidiary protection is an element of protection that is shaped by EU law, which occurs alongside national asylum law and refugee protection, which is also shaped by EU law. Different requirements apply to these protective elements. Upon recognition, a humanitarian residence permit is issued, which differs in length depending on the protection status. While in the case of recognition as a person entitled to asylum or refugee status, the residence permit is initially issued for a period of one year, the duration in the case of subsidiary protection is only one year. In all cases there is the possibility of an extension. This different length of stay and the lower prospect of staying are the starting point for the restriction of family reunification for persons entitled to subsidiary protection in Section 36a of the Residence Act. As specified in the regulation as an example, family members of a person with subsidiary protection status can be granted a residence permit for the humanitarian reasons. The family reunification is now made dependent on the existence of further prerequisites in addition to family ties and is also designed not as a right but as a discretionary clause. In addition, the number of visas is limited to 1000 per month. Concerns about this restriction of family reunification were raised, in terms of possible violation of Article 6 Paragraphs 1 and 2 and Article 3 Paragraph 1 (Equality before the law) of the German Basic Law. Based on this, the following article carries out a constitutional analysis.