Definition and legal basis of family asylum
Das Family asylum is a term from German asylum law and refers to the special protection granted to certain family members of already recognized persons entitled to asylum or refugees. The aim of family asylum is the unity and reunification of the family, ensuring the special protection interest of the family as recognized in the Basic Law and in international law.
The legal basis for family asylum is found in particular in Sections 26 and 27 of the Asylum Act (AsylG) as well as in international agreements, such as the Geneva Convention Relating to the Status of Refugees. In addition, regulations of the European Union, specifically the EU Qualification Directive, play a significant role.
Requirements for the granting of family asylum
Circle of beneficiaries
Family asylum can only be granted to certain relatives of persons entitled to protection. According to Section 26 (1) AsylG, these include:
- Spouses or registered life partners
- Minor unmarried children
Special rules apply to the recognition of a minor who is entitled to asylum or refugee status. In such cases, according to Section 26 (3) AsylG, the parents of a minor unaccompanied person entitled to protection can also be granted family asylum.
Requirements for the family relationship
The family relationship must have existed already in the country of origin. According to international and German law, the aim is to avoid the separation of a deserving, family community existing in the country of origin.
Time of asylum application
In order to be eligible for family asylum, it is generally required that the conditions for granting it exist at the time of the asylum application and continue to exist. Family members joining later must submit their asylum application within a certain period after the principal right-holder’s recognition (three-month period according to Section 26 (4) AsylG).
Distinction: Family asylum and family reunification
Family asylum is expressly to be distinguished from the granting of residence for the purpose of family reunification in accordance with Sections 27 et seq. of the Residence Act (AufenthG).
- Family asylum means the recognition of an independent asylum or refugee status for family members, based on the relationship to the recognized person entitled to protection.
- Family reunification only grants a residence permit for the purpose of living together with the principal right-holder, without the granting of an independent protection status.
The distinction is significant, for example, in terms of rights and scope of protection (e.g. duration of stay, access to social benefits, rights to employment).
Procedure for applying for family asylum
Competent authority and procedure
The Federal Office for Migration and Refugees (BAMF) is the competent authority for deciding on applications for family asylum. The application can be submitted during the asylum hearing of the family member or subsequently, within the specified time period.
It is important to note the obligations to provide evidence of the existence of the family relationship, in particular through documents, birth certificates, or marriage certificates.
Reasons for decisions and grounds for rejection
The BAMF examines whether the legal requirements are fulfilled. Grounds for rejection may exist in cases of:
- Non-existence or doubt regarding the family relationship
- Loss of the protection status of the principal right-holder
- Exceeding the application deadline, unless there is a subsequent entitlement
- Independent asylum grounds of the applicant are given priority
Scope of protection through family asylum
Legal status of recognized family members
Through the granting of family asylum, the affected family members receive the same protection status as the principal right-holder. This includes:
- Status as a person entitled to asylum or refugee status in accordance with the Geneva Convention
- Right of residence with privileged conditions (e.g. exemption from visa requirements)
- Access to integration and social benefits
- Rights arising from the asylum status, such as family reunification for their own family members
Duration and permanency of the protection
The family asylum status is generally linked to the continued existence of the protection claim of the principal right-holder. If the BAMF expires or revokes the principal status, the family asylum generally expires as well (Section 26 (5) AsylG).
International and European references
Family asylum stands in the context of international and European legal regulations on refugee protection:
- European Convention on Human Rights (ECHR), in particular Art. 8 (Respect for family life)
- Geneva Convention: Protection obligations towards the family of refugees
- EU Qualification Directive (2011/95/EU): Harmonization of international protection and family rights within the EU
The structure of family asylum in Germany is based on these requirements and ensures that the regulations are in line with European and international standards.
Comparable regulations in other countries
Various countries have comparable regulations for family reunification and family protection within their asylum law. However, the exact scope and conditions for family asylum vary. In particular within the European Union, there are partly harmonized, partly independent regulatory systems, whereby the Federal Republic of Germany is considered a pioneer in the comprehensive regulation of family asylum compared to the rest of Europe.
Literature and case law
Case law regarding family asylum issues is constantly evolving, especially with respect to the requirements of evidencing family relationships and the application of the relevant protection provisions. Relevant judgments are rendered regularly by the Federal Administrative Court and the Federal Constitutional Court.
Summary
Family asylum is a central instrument of German asylum law for the protection of the nuclear family of recognized persons entitled to asylum and refugees. It provides the legal basis for an independent protection status for certain relatives and ensures the constitutional and international right to family life, even in cases of flight and displacement. The detailed legal regulation contributes to legal certainty in the sensitive area of international protection and comprehensively implements European as well as international minimum standards.
Frequently Asked Questions
What requirements must be met for the granting of family asylum?
For family asylum in accordance with Section 26 of the Asylum Act, it is decisive that a family member, usually the so-called principal right-holder (often a parent or spouse), has been granted refugee status under Section 3 (1) AsylG or asylum under Art. 16a GG. The central requirement for family asylum is the existence of a family living community at the time of departure from the country of origin and at the time of the decision on the asylum application. Persons primarily eligible are the spouse and minor unmarried children of the principal right-holder. It must be demonstrated that the family was separated by flight or persecution and that the reunification takes place or is intended to take place within Germany. For the spouse, the marriage must have already existed in the country of origin. The residence permit for family members under family asylum is generally granted for the same period as for the principal right-holder.
Can family asylum also be granted if the principal right-holder is only entitled to subsidiary protection?
Family asylum is in principle only available to relatives of persons who have been granted refugee status or asylum under Art. 16a GG. Relatives of persons who have only been granted subsidiary protection under Section 4 AsylG or a ban on deportation under Section 60 (5) or (7) AufenthG are generally not entitled to family asylum under Section 26 AsylG. In such cases, the regulations on family reunification in accordance with Sections 29 et seq. AufenthG apply, but they differ significantly in scope and requirements from those for family asylum and are subject in particular to certain restrictions for persons entitled to subsidiary protection (e.g., quotas, waiting periods).
Are there deadlines within which family asylum must be applied for?
The application for family asylum must in Germany generally be submitted without undue delay, that is, immediately after becoming aware of the asylum or refugee status of the principal right-holder. There is, however, no fixed statutory deadline. Nonetheless, the principle of prompt action can lead to the exclusion of family asylum if the application is submitted late without good reason, for example, only after years, and, as a result, the connection to the flight situation is no longer directly evident. For children born in Germany, it is possible under certain conditions for recognition of asylum in relation to the principal right-holder to take place at a later date, if the requirements were met at the time of birth.
What legal consequences does the granting of family asylum have for those concerned?
Once family asylum is granted, the favored family members obtain the same protection status as the principal right-holder, i.e., generally refugee status under Section 3 AsylG or asylum under Art. 16a GG. The legal status extends in particular to a residence permit in accordance with Section 25 (1) or (2) AufenthG under the same conditions and for the same period as the principal right-holder. This offers advantages regarding settlement permits, access to the labor market, family reunification, and other measures that foster integration. In addition, the granting of family asylum affords comprehensive protection against deportation.
Can family asylum also be withdrawn?
Family asylum status can also be revoked or withdrawn if the general requirements for this are met under asylum law. This is the case, for example, if the asylum or refugee status of the principal right-holder ceases to exist or if it later emerges that false information was provided or circumstances were concealed that were relevant to the granting of family asylum (Sections 72 et seq. AsylG). If the living community dissolves later and the reason for protection thus ceases, this can also affect the continuation of family asylum, whereby an individual case assessment must always be carried out.
What is the difference between family asylum and family reunification?
Family asylum and family reunification are different legal institutions: In the case of family asylum under Section 26 AsylG, family members are formally granted asylum status themselves on the basis of the principal right-holder’s asylum or refugee recognition, to which a residence permit and protection rights are linked. In the case of family reunification under Sections 29 et seq. AufenthG, relatives only receive a residence permit for the establishment or continuation of the family living community, but no independent asylum status or refugee protection. Family reunification is often subject to additional requirements such as language skills, proof of means of subsistence, or waiting periods, especially in the case of persons entitled to subsidiary protection and derived residence rights. Where the legal requirements are met, the route of family asylum is generally more advantageous.
