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DE: The Regional Administrative Court of Berlin granted an interim measure for family reunification to a minor with subsidiary protection status

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Other Source/Information
Interim Measures
Original Documents
Relevant Legislative Provisions
National law only (in case there is no reference to EU law/ECHR)
Germany, Regional Administrative Court [Verwaltungsgericht], Applicant v Principal Immigration Officer, No 38 L 510/23 V, 28 December 2023. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
Case history
Other information

The Regional Administrative Court of Berlin decided in an interim procedure pursuant to Section 123(1) sentence 2 of the Administrative Court Code on whether to allow family reunification pursuant to Section 36a(1) sentence 2 of the Residence Act of a Syrian applicant (mother) to her minor son who had subsidiary protection in Germany. The Immigration Office had rejected the application for family reunification after it had requested from the Federal Office of Justice an extract from the Federal Central Criminal Register (BZR) in relation to the minor, which was not provided despite the completeness of the information.

The Regional Administrative Court of Berlin reiterated that the right of a parent of a minor under Section 36a(1) sentence 2 – irrespective of the fulfilment of other requirements for family reunification – terminated as soon as the child turned 18 years old, so that the necessary urgency for an interim measure was given if the child's 18th birthday was imminent.

The Regional Administrative Court of Berlin further noted that the positive requirements for the granting of a visa to the applicant in the context of family reunification were generally met. As regards the exclusion ground of the conviction to certain criminal offences of the person residing in Germany, the court decided that the information contained in the asylum files of the BAMF and the Immigration Office were sufficient to prove such convictions, as all law enforcement agencies were obliged to notify the BAMF and the immigration authorities of criminal proceedings against people seeking protection. An extract of the BZR was therefore not strictly required. Therefore, the lack of an extract from the BZR could not be held against the minor and the Immigration Office failed to provide sufficient evidence that he had been convicted of a serious offence. 

However, the court noted that even if all the requirements under Section 36a(1) of the Residence Act were met, the authorities were in principle entitled to the exercise of discretion with regard to issuing a visa. In the present case, however, the court held that this discretion was "reduced to zero", not least because the exercise of discretion was limited by the fact that a selection decision must subsequently be made according to certain criteria.

Based on the above, the Regional Administrative Court of Berlin granted the interim measure in the form of a provisional issuance of the visa because otherwise the applicant risked a loss of rights and because the delay in time was attributable to an authority.

Country of Decision
Court Name
DE: Regional Administrative Court [Verwaltungsgericht]
Case Number
No 38 L 510/23 V
Date of Decision
Country of Origin
Family Reunification
Minor / Best interests of the child
Serious (non-political) crime
Subsidiary Protection