- BVerfGE 76, 1
2 BvR 1226/83 et alEhegattennachzug-decision
- 12 May 1987
- Nomos Verlagsgesellschaft
1. Neither Art. 6(1) nor Art. 6(2), first sentence, of the Basic Law establishes a basic right allowing foreign spouses or family members to claim that they are entitled to join their foreign spouses or family members legitimately living in the Federal Republic of Germany.
2. The duty of the state to protect marriage and family is fulfilled when persons entitled to basic rights are able to claim under Art. 6(1) and (2), first sentence, of the Basic Law that in deciding on a request for residency under § 2(1), second sentence, of the Aliens Act, the responsible authorities and courts pay regard to the existing marital and familial ties to persons living in the Federal territory, and this in a manner corresponding to the great weight that the Basic Law unequivocally assigns to the protection of marriage and family.
3. The impairment of the concerns of marriage and family by way of the requirement of three years of marriage as a prerequisite to joining spouses living in the Federal Republic exceeds the degree that those affected must tolerate, even with regard to opposing public interests.
Order of the Second Senate of 12 May 1987 -- 2 BvR 1226/83 et. al. --
in the proceedings relating to the constitutional complaints by S. et. al.
a) the Order of the Baden-Württemberg Higher Administrative Court (Verwaltungsgerichtshof) of 23 June 1983 -- 13 S 878/83 --
b) the Order to the Freiburg Administrative Court (Verwaltungsgericht) of 17 March 1983 -- 4 K 233/82 --, -- 2 BvR 1226/83 --
c) the Order of the Administrative Appeals Court (Oberverwaltungsgericht) for the State of Lower Saxony and Schleswig-Holstein of 13 December 1983 -- 11 OVG B 1201/83 --
d) the Order of the Schleswig-Holstein Administrative Court of 20 October 1983 -- 14 D 129/83 --, -- 2 BvR 101/84
e) the Order of the Baden-Württemberg Higher Administrative Court of 27 January 1984 -- 1 S 2190/83 --
f) the Order of the Stuttgart Administrative Court of 21 July 1983 -- VRS 7 K 1250/83
and application for the issuance of a temporary injunction -- 2 BvR 313/84
1. The constitutional complaint in the proceedings 2 BvR 101/84 is hereby rejected.
2. The Orders of the Freiburg Administrative Court of 17 March 1983 -- 4 K 233/82 -- and the Baden-Württemberg Higher Administrative Court of 23 June 1983 -- 13 S878/83 -- violate Article 6(1) and (2), first sentence, of the Basic Law. They are hereby quashed. The matter is referred back to the Freiburg Administrative Court.
3. The Orders of the Stuttgart Administrative Court of 21 July 1983 -- VRS 7 K 1250/83 -- and the Baden-Württemberg Higher Administrative Court of 27 January 1984 -- 1S 2190/83 -- violate Article 6(1) of the Basic Law. They are hereby quashed. The matter is referred back to the Stuttgart Administrative Court.
4. The State of Baden-Württemberg is hereby ordered to reimburse the complainants in the proceedings 2 BvR 1226/83 and 2 BvR 313/84 the necessary expenses.
EXTRACT FROM GROUNDS:
The Complainants are Turkish and Yugoslavian nationals. They object to the imposition of waiting periods prior to being able to join their Turkish and Yugoslavian family members living in the Federal territory. The Senate has joined their complaints of unconstitutionality for a common decision.
1. As the economic recovery in the Federal Republic of Germany following World War II began to stabilize in the mid-1950s, this was accompanied by the full employment of German nationals available to the labor market at that time. The sustained economic growth led to the situation where the German labor market was no longer capable of fully covering the workforce requirements of the state and industry. For this reason, the Federal Republic of Germany subsequently concluded agreements with a variety of European states -- in particular, Turkey and Yugoslavia -- as well as non-European states for the recruitment of so-called "guest workers" (Gastarbeitnehmer).
In these so-called "recruiting states" (Anwerbestaaten), commissions of the Federal Agency for Job Placement and Unemployment Insurance (today, the Federal Employment Agency; Bundesanstalt für Arbeit) were set up and charged with selecting the workers to be recruited. If they fulfilled the health requirements and were able to be placed in a German job listed with the Federal Agency, the nationals of these states interested in gainful employment were issued a so-called identity card (Legitimationskarte), which enabled them without any additional visa to enter the Federal territory in order to take up work.
2. With the approval of the Federal Government, the Federal Minister of Labor and Social Affairs terminated the guest worker recruitment by way of the so-called "recruitment stop" (Anwerbestopp) of 23 November 1973. Since then, entry for the purpose of employment by nationals of a state not a member of the European Community (EC) is no longer allowed.
3. The Aliens Act (Ausländergesetz), stemming from the year 1965, contains no provisions regarding the admissibility of entry into the Federal Republic by spouses or children under an obligation to obtain a residency permit in order to join foreigners lawfully living in the Federal territory. The only provision of relevance here is the general rule found in § 2(1) of the Aliens Act, which governs the initial issuance of a residency permit. The rule reads:
Aliens who enter the area covered by the operation of this Act and wish to reside there are in need of a residency permit. The residency permit may be issued when the presence of the alien does not interfere with the concerns of the Federal Republic of Germany.
Shortly after promulgation of the Aliens Act, the Conference of State Ministers of the Interior adopted the "Principles of Alien Policy," which also took up the issue of family members joining foreign workers. Accordingly, the permission to join a worker from a recruiting state (so-called first-generation aliens) living in the Federal territory was to be made dependent on one year of domestic residency by the affected party. Further-reaching restrictions were initially not imposed.
1. The continued steady climb in the number of foreigners in the Federal territory that was registered in spite of the recruiting stop in the late 1970 s and early 1980 s -- which, in addition to the increased influx of persons seeking asylum, was primarily attributed to family members joining foreigners (especially, Turkish nationals) -- initially prompted the Ministers of the Interior of several states, and then ultimately the Federal Government as well, to take action.
a) The Aliens Decree by the Baden-Württemberg Minister of the Interior of 20 October 1981 made permission for spouses to join first-generation aliens dependent on the observance of a three-year waiting period beginning with the marriage itself (Ehebestandzeit).
b) On 2 December 1981, the Federal Government passed the following resolution:
1. The Federal Government hereby requests the states, as immediate regulation for the social control of families joining aliens from non-EC states (with the exception of those entitled to seek asylum and quotas of refugees), immediately to exclude by way of federally uniform state resolutions the following groups of persons from entry in order to join aliens:
a) young aliens of ages 16 and 17,
b) alien children, when only one parent resides in the Federal Republic of Germany (exceptions for half-orphans and children of divorced or single persons)
d) spouses of aliens who entered the Federal Republic of Germany as children of aliens or were born here, when they have not lived here at least eight years without interruption, have not yet reached the age of 18 and the marriage has not been in existence for one year.
Exceptions are provided to these restrictions for hardship cases. The restrictions are only not to be applicable in those areas where there are no doubts with regard to integration policy. In addition, for the restriction on spouses joining aliens, a transitional regulation is to be provided for.
The Federal Government charges the Federal Minister of the Interior with urging upon the state Ministers of the Interior the need for prompt realization of the foregoing recommendations.
2. The Federal Minister of the Interior is charged with preparing legislation on the recommendations under 1b) and c) with express regulation in the Aliens Act.
No restrictive measures were recommended for spouses joining first-generation aliens. For these aliens, the requirement of a period of one-year residency by the spouse living here prior to entry into the Federal territory was to remain unchanged.
2. On the basis of a proposal by the Federal Government, the states thereafter issued corresponding administrative regulations or amended existing ones. However, federally uniform control of the decisions of state authorities on alien matters, specifically, spouses joining aliens living in the Federal territory, did not come about.
126.96.36.199 When a family intends to join an alien who is living in the Federal territory and has apparently been residing here for some time, this is -- insofar as not opposed by Number 188.8.131.52 or Number 184.108.40.206 -- permissible when he is in possession of adequate housing and is able to support the family from his own income.
220.127.116.11 In principle, it is not permissible for a family to join an alien who himself has entered the Federal Republic of Germany in the course of joining his family or was born here.
Exceptions can be made when the alien who is living in the Federal territory
-- is at least 18 years of age,
-- has lawfully resided in the Federal territory for 8 years without interruption,
-- is in possession of unlimited residency permit,
-- can support the family from his own income, and when
-- adequate housing is available, as well as
-- the marriage has existed for at least three years.
2.6.3 Conditions for Familial Entry
18.104.22.168 Circle of persons entitled to enter
In principle, only the spouse of the alien and his unmarried children younger than 16 years of age are able to enter to join the alien. Children will not be allowed to join a parent living alone in the Federal territory when the other parent is living abroad.
22.214.171.124 Waiting period
126.96.36.199.1 It is only possible for families to join aliens who have been lawfully residing in the Federal territory for at least three years since the marriage.
If family members enter the Federal Republic prior to this period and, following a three-month tourist residency, apply for the issuance of a permit for continued residency, this is as a rule to be denied. Renewed tourist residency is only possible following an interruption of at least three months.
The Alien Authorities may -- apart from the cases listed in Number 188.8.131.52 -- make exceptions for the entry of families to join
-- nationals of European states, and
-- nationals of non-European states, the states of Australia, Israel, Japan, Canada, New Zealand and the U.S. …
184.108.40.206 In cases of extreme hardship, further exceptions may be made with the approval of the President of the Regional Administration (Regierungspräsidium).
b) In Bavaria, the area of spouses joining second-generation aliens from recruiting states was likewise made subject to the requirements of a three-year marriage and eight-year residency of the spouse living in the Federal territory. For spouses joining first-generation aliens from recruiting states, the Bavarian State Ministry of the Interior continued only to require one year of residency in the Federal territory.   Cf. No. 3.1 and 3.2 of the Decree of 17 May 1983, published in Ausländerrecht der Bundesländer-Familienzusammenführung (Materialen), Mitteilungen der Beauftragten der Bundesregierung für Ausländerfragen, March 1986, pp. 4 ff.c) The remaining states basically followed the recommendations of the Federal Government. They elected not to require a marriage period for entry to join first-generation aliens. In the area of entry to join second-generation aliens, they introduced the requirement of a one-year marriage and eight-year residency of the spouse living here; in Hesse, a minimum residency of five years was demanded.   Cf. id. at (Übersicht), pp. 7-8.d) Efforts by the Baden-Württemberg Ministry of the Interior to introduce a federally uniform requirement of three years of marriage met with no success.
The complainants object to the judicial confirmation of the immediate enforcement of the denial of their requests to join their spouses/fathers with respect to the requirements of eight-year residency and, in Baden-Württemberg, three-year marriage.
1. Constitutional Complaint: 2 BvR 1226/83
a) Complainant 1), born in 1949, and her son from a previous marriage, Complainant 2), born in 1969, are Yugoslavian nationals. Complainant 1) received a divorce from her first husband in Yugoslavia in 1978. Custody of Complainant 2) was awarded to Complainant 1). On 28 July 1982, Complainant 1) was married in Yugoslavia to her present husband, a Yugoslavian national born in 1949. On 1 April 1971, he entered the Federal territory with an identity card to take up work. He is presently employed as a steel worker with a steel and metal company in Freiburg im Breisgau. On 25 January 1982, he received an unlimited residency permit. He is living together with a son from a previous marriage and with Complainant 1) and Complainant 2) in an 65-m2 apartment.
b) Complainant 1) and Complainant 2) entered the Federal territory on 30 July 1982. On 6 September 1982, Complainant 1) indicated her residency to the City of Freiburg, as responsible authority for aliens. At the same time, she applied for the issuance of a residency permit for the purposes of family unification. By order of 12 October 1982, the Alien Authority denied the application, placed a deadline of one month following delivery of the order on Complainant 1) to leave the country, and threatened her with deportation plus costs in the event of failure to observe the deadline. At the same time, the Authority restricted Complainant 2)'s permit-free residency to a period of one month following delivery of the order and directed immediate enforcement of these measures. The Complainants filed an objection to these actions, which was rejected by a decision of 14 December 1982.
c) The Complainants lodged a complaint with the Administrative Court in Freiburg against the denial of the residency permit; at the same time, they applied for suspensive effect for their appeal. By way of order of 17 March 1983, the Administrative Court refused the complainants' applications. By way of order of 23 June 1983, the Higher Administrative Court rejected the complainants' remedy to the foregoing order, stating:
When the public interest in a temporary delay in joining spouses is basically given priority to the interest in an immediate joining, this is based on material reasons corresponding to the purpose of the Aliens Act. The regulation in Baden-Württemberg's Aliens Decree, controlling in this case, is based on a policy understanding that it is presently necessary to restrict the previous practice in the area of the joining of non-privileged aliens in order to guarantee that the existing possibilities for taking on such persons in the Federal Republic of Germany are not overtaxed. If no restrictions were placed on the entry of foreign spouses, this would increase the already high unemployment among foreign population groups. Moreover, the regulations on the entry of families -- which are also appropriate for this, as has been consistently held by this tribunal -- are in place in order to prevent the conclusion of possible "specious marriages" to promote and support the readiness of marital partners living in the Federal territory to return to their countries of origin.
The regulation's restriction as to time is apparently supposed to give effect primarily to the protective function of Art. 6(1) of the Basic Law. This limitation nevertheless does not mean that the regulation misses its mark or could only extend to that which would no longer be justified by Art. 6(1) of the Basic Law. The warning function with respect to aliens who only or primarily marry in order to acquire a permit for residency in the Federal territory comports with the time restraint on the entry of spouses, since marriages would hardly be concluded for this purpose if the latter were to appear unattainable in the near future. With respect as well to the promoting and supporting of the readiness of the spouse living here to return to his country of origin, the time limit of three years makes good sense. It is in all respects justified when it is assumed that a readiness to return is most likely during the first years of marriage.
A violation of Art. 6(1) of the Basic Law is also not present in other respects. This constitutional norm does not guarantee aliens whose family members are already residing in the Federal territory any right of residency going beyond ordinary law. The requisite balancing of, on the one hand, public interests weighing against entry and residency with, on the other, familial concerns of the affected aliens against the standard of reasonableness is assured when the disputed administrative provision does not give concrete shape to the negative barriers of § 2(1), second sentence, of the Aliens Act but rather facilitates and calls for a discretionary ruling of the authorities in individual cases in which constitutional law is able to be given its due significance. There are no legal misgivings with the balancing undertaken in the Complainants' case. Since Complainant 1) was married in July 1982, it is impossible to see a constitutionally impermissible restriction on the basic right of Art. 6(1) of the Basic Law, especially since Complainant 1) was not prevented from visiting her husband for several weeks at regular intervals. In view of the legal justification of the duty of Complainant 1) to exit immediately, it is also in the public interest that Complainant 2) also leave the Federal territory at the same point. He is not in possession of an autonomous right to reside in the Federal territory with his stepfather.
d) With their complaints of unconstitutionality, the Complainants object to the orders of the Administrative Courts. They assert a violation of their basic rights under Art. 6(1) and (2) of the Basic Law. In support of their claim, they allege: The requirement of a three-year marriage, which Complainant 1) was unable to fulfill, imposes substantial difficulties on the formation of a family. It forces the separation of family members and thereby interferes with the core of Art. 6 of the Basic Law, which the public authorities are required to protect under the Constitution. When the requirement of protection under Art. 6 of the Basic Law is to be provided with any sort of a realistic core, then it must especially come to bear in the first years of marriage and the establishment of a family. As regards choking the flow of aliens into the Federal Republic, the three-year marriage rule is inappropriate, since the affected aliens may and would enter the Federal territory following the three-year period. With respect to the purpose mentioned by the Administrative Courts of preventing "specious marriages," it is to be noted that such marriages are normally concluded between aliens and German nationals. Moreover, it cannot be said that the marriage between Complainant 1) and her husband was specious, as can be seen from both their domestic life and the fact that Complainant 1) also cared for her husband's son from a previous marriage and that the husband provided for the maintenance of Complainant 2). In any event, in such a case the reference to battling "specious marriages" disregards the high rank of the object to be protected by Art. 6 of the Basic Law. Art. 6(2) of the Basic Law is likewise alleged to have been violated. This constitutional norm also protects the position of Complainant 1) in raising her husband's son from a previous marriage.
e) Following expiry of the three-year period, Complainant 1) received the residency permit for which she had applied. The Complainants assert a continuing interest in a decision on the merits with regard to their complaint of unconstitutionality.
2. Constitutional Complaint 2 BvR 101/84
a) The husband of Complainant 1), born in 1961 and father of Complainants 2) and 3), is, as are the Complainants, a Turkish national. On 25 February 1978, he entered the Federal Republic for the purpose of family reunification in order to join his father, who was living in the Federal territory as a recruited worker. He was subsequently granted a limited residency permit, which was repeatedly extended. On 10 February 1983, he received an unlimited residency permit. He is employed as a chemical worker in a company in Neumünster (Schleswig-Holstein). On 7 September 1981, he married Complainant 1), born in 1964, in Turkey. On 16 July 1982, a daughter, Complainant 2), was born to the couple.
b) On 19 October 1982, Complainant 1) applied for the issuance of a three-month visitor's visa at the Embassy of the Federal Republic of Germany in Ankara. On 7 December 1982, Complainant 1)'s application was granted, and on 1 January 1983, she entered Federal territory and resided with her husband. Prior to expiry of her visa, Complainant 1) applied with the City of Neumünster, as responsible Alien Authority, for the issuance of a residency permit in order to be able to remain with her husband, along with Complainant 2). On 25 April 1983, she notified the Alien Authority that she was expecting another child; delivery date was to be 20 December 1983.
By way of order of 16 May 1983, the Alien Authority turned down the application and gave Complainant 1) one month following delivery of the order to leave the country, threatening her with deportation in the event of refusal. At the same time, the Alien Authority limited the permit-free residency of Complainant 2) to the point at which Complainant 1) was to leave the country. Immediate enforcement of this limitation was not directed.
c) The Complainants filed an objection to this order. At the same time, they applied to the Schleswig-Holstein Administrative Court for suspensive effect for their appeal. The Court held Complainant 2)'s application as inadmissible; her objection was said to have suspensive effect in the concrete case. Complainant 1)'s application was held to be unsubstantiated, since the appeal applied for in the main matter lacked prospect for success. In any event, the issuance of a residency permit is opposed by the application (without errors of discretion) of the Guidelines of the Schleswig-Holstein Ministry of the Interior for Family Entry, according to which eight years of domestic residency on the part of Complainant 1)'s husband is a prerequisite to her being able to join her husband. As has been clarified by holdings of higher courts, the discretion of the Alien Authorities was said to be directed and restricted by such Guidelines. The Court was not of the opinion that the eight-year residency requirement was contrary to higher-ranking law. The limitation on spousal entry and this requirement are to prevent the dangers that might arise from a massive immigration of aliens, especially in the economic and social fields, and that might substantially affect the German population, as well as that of aliens living here. Following the recruiting stop in 1973, said the Court, familial entry proved to be the main possibility for aliens to acquire a right of residency in the Federal Republic of Germany. The declared political goal of trimming, or at least of not increasing, the number of aliens living in the Federal territory is in danger of being thwarted in this area through immigration pressures. The extent to which alien entry was treated generously or restrictively was held to be a political decision, which the courts may only review for whether it is in harmony with statutory and constitutional law. This was alleged to be the case here.
Complainant 1) was particularly unable to rely with success on Art. 6 of the Basic Law, said the Court. This constitutional provision does not directly award family members of aliens living in the Federal Republic of Germany with a right of residency. The public interest in limiting the entry of aliens must, on the contrary, be balanced with the special interest in maintaining the family in accordance with the principle of reasonableness. Accordingly, it must be decided whether the public interests weighing against residency are so important that they clearly outweigh the dangers to be expected for the existence of the family in the event of a denial of the permit, such that the latter is also reasonable in light of the protective requirements of Art. 6(1) of the Basic Law. In this sense, the Court had no reservations with the fact that familial entry is made dependent on whether the alien living in the Federal Republic is familiar with local customs and lifestyles and is no longer "foreign" with respect to them. In this regard, the length of residency is an important criterion. The Court had no indication for holding the selection of a residency period of eight years to be improper and a different length -- e.g., five or ten years -- to be more correct. The partners were aware at the time of marriage that only one of them was in possession of a permit to reside in the Federal Republic of Germany and that this could lead to difficulties for their life together. Above all, however, it had to be considered that aliens of the same nationality can conduct their marriage in their native country, such that there is no insurmountable coercion that they live apart. The situation remains unchanged even when one considers that -- as here -- one of the spouses has a well-ensured economic position on the basis of firm employment, whereas he would have to build up a new existence in his native country. Insofar as alien families have to accept temporary separation in this regard, this is a result of private considerations of an economic nature, which are not appropriate for establishing a claim against the state. The requirement of eight years of residency was also held not to be an inappropriate means for limiting spousal entry. In particular, it does not argue against its propriety that entry may take place at a later point, since even the temporary restraint on entry is a legally commendable goal. In addition, the Court assumed that a certain number of cases involving aliens seeking entry have definitively forewent familial entry on account of this barrier and have set up the family unit in the relevant native country. Such a decision would correspond to life experiences; contrary observations were not apparent to the Court. In the instant case, a contrary ruling is also not called for because Complainant 1) is now expecting a second child. To the extent that she is unable to travel due to the pregnancy, this could be taken into account with a temporary postponement. The Administrative Court also approved of the deadline for exit and the threat of deportation.
The complaint lodged by Complainant 1) alone was rejected by the Administrative Court of Appeals for the States of Lower Saxony and Schleswig-Holstein by order of 13 December 1983. In its reasoning, the Court basically referred to the comments of the lower court.
On 23 November 1983, Complainant 1) delivered her second child, Complainant 3).
d) With their complaints of unconstitutionality, the Complainants assert a violation of their basic rights under Art. 6 of the Basic Law. They assert: It is improper to claim that they could set up the family unit in Turkey. The husband of Complainant 1) and father of the other two Complainants, as well as his entire parental family, have for years lived in the Federal Republic of Germany; the husband has a well-ensured job here and is integrated in the economic and social life. His income assures the maintenance of the entire family, such that public interests are unaffected by their residency. It is absurd to terminate now the residency of Complainant 1) and the two minority-age children, although it is to be assumed from the order of the Schleswig-Holstein Ministry of the Interior that they all would have a claim to a residency permit in three years.
e) Complainant 1) has since received a (limited) residency permit, since the requirement of eight years of residency on the part of her husband has been fulfilled. The Complainants claim a continuing interest in a determination of unconstitutionality of the attacked decisions.
3. Complaint of Unconstitutionality 2 BvR 313/84a) The husband of the Complainant, born in 1954, is, as is the Complainant, a Turkish national. In 1966 he entered the Federal territory to join his parents, who were living here as workers. At age 16, he received a residency permit. Since March 1976, the Complainant's husband has been employed as a machinist with an automobile company in Sindelfingen. On 9 July 1982, he married the Complainant, born in 1966, in Turkey. On 13 September 1982, the Complainant applied for the issuance of a three-month visa with the General Consulate of the Federal Republic of Germany in Istanbul in order to visit her husband. Following this granting of this application, the Complainant entered the Federal territory in mid-December 1982.
b) On 3 March 1983, she applied for the issuance of a residency permit. By way of order of 18 March 1983, the City of Sindelfingen denied the application, ordered the complainant to exit the country by 10 April 1983 and threatened her with deportation in the event that she failed to fulfill her obligation to exit.
c) The Complainant lodged an objection to this order, which has since been rejected. At the same time, the applied with the Stuttgart Administrative Court for suspensive effect for her appeal.
By way of order of 21 July 1983, the Court granted the application due to the inappropriate shortness of the exit deadline, to the extent that the objection was directed at the threat of deportation; in all other respects, the application was rejected.
d) The Complainant filed an appeal with regard to the rejection with the Baden-Württemberg Higher Administrative Court, which was rejected by way of order of 27 January 1984. The Higher Court made reference to the consistent holdings of all of its Senates dealing with the law of aliens, according to which the Guidelines at issue do not give concrete form to the so-called negative barriers of § 2(1), second sentence, of the Aliens Act ("Concerns of the Federal Republic of Germany") but rather merely contain regulations binding as to discretion. As such, they were held to be compatible with higher-ranking law, especially with Art. 6(1) of the Basic Law:
The restrictions on familial entry served to overcome the considerable and, in part, nearly irresolvable economic and social problems that resulted from an uncontrolled immigration of aliens into the Federal Republic of Germany. For instance, especially aliens were affected by the constantly high unemployment. Likewise, the appropriate integration of a substantial portion of aliens living here was commonly held to create difficulties that would only be aggravated through continued, massive immigration. This was particularly to be expected from unrestricted entry of spouses. This group of persons regularly make their way into the Federal Republic at an age in which the desire for employment is natural and in which, on the other hand, the ability and readiness to integrate is considerable lower than with, for instance, schoolchildren. With respect to their numbers, this group of persons is also significant from the standpoint of immigration policy, as was made clear from the report of the Commission on "Alien Policy." In view of the dimension of the requests for entry to be expected in this regard, it is beyond doubt that a restriction according to uniform criteria is proper and corresponds to the purpose of legal discretion under § 2(1), second sentence, of the Aliens Act. In particular, the three-year marriage requirement is a legally permissible regulation. Although it is correct that by this regulation a certain number of spousal entries will not be precluded but merely delayed, this does not mean that the marriage requirement is to be viewed as improper or inappropriate and contrary to purpose. On the contrary, it is to be expected that equal application of the regulation would prompt a considerable number of aliens living in the Federal Republic of Germany and willing to marry either to forego marriage with a partner of non-German nationality or to return to their native countries in order to avoid lengthy separation from their spouses. It is also not unrealistic to hope that the marriage requirement will aid in preventing aliens from marrying persons seeking primarily to obtain a residency permit in the Federal Republic of Germany, regardless of whether this involves so-called specious marriages. The time requirements for marriage thus belong to those criteria that aim in a legally unobjectionable manner at conforming immigration to the possibilities in the Federal Republic of Germany for accepting such persons vis-à-vis the present economic and social conditions and at limiting immigration to those cases in which the protection of marriage justifies an acceptance of the risks associated with immigration. The application of the regulation is not precluded simply because other states have in place shorter time requirements for marriage. An administrative provision of the Federal Government under § 51 of the Aliens Act has thus far not made such a requirement binding.
Likewise, neither Art. 6(1) of the Basic Law nor the principle of rule by law (Rechtsstaatsprinzip) has been violated. The requirement of protection and support under Art. 6(1) of the Basic Law does not guarantee aliens whose spouses live in the Federal territory an absolute right to a residency permit. On the contrary, the Alien Authority has to decide on the basis of a balancing of interests whether the public interests weighing against residency are so important that they clearly outweigh the dangers to be expected for the existence of the marriage in the event of a denial of the permit; if this is the case, the denial of the permit is compatible with Art. 6(1) of the Basic Law. In addition to the weight attached to the reasons arguing against entry, decisive for this balancing is the situation in which the affected aliens decided to marry and then to seek entry. The objective is not merely ruling out the possible detrimental economic and social consequences of permanent residency on the part of the person seeking entry but also avoiding as far as possible the long-term detrimental consequences of massive, continuous immigration. This is, of course, not possible without the establishment and application of uniform aspects. On the other hand, the application of the marriage-length requirements could very well lead to considerable risks for the existence of the marriage. The regulation does not deprive the spouse already living in the Federal territory of his right to residency, but it does actually force him to decide either to accept a more or less often interrupted separation from his spouse until such time at the marriage-length requirement has been fulfilled or to begin or continue the marriage in the common native country. A decision in favor of the second possibility would in many cases lead to a loss of employment in the Federal territory and to difficulties in reintegration in the native country. The affected parties who solely fail to fulfill the marriage-length requirement would likely decide to accept a temporary separation with its possible large risks for the existence of the marriage. This does not, however, indicate that the regulation is unconstitutional. Even those second-generation aliens who have resided in the Federal Republic for more that eight years, possess an unlimited residency permit and are able to provide for the common support of the family from their own income can be expected to return to their native countries in order to conduct a marriage with the partner of choice without the threat of deportation or interruption. Aliens in this group were originally granted residency solely for the purpose of being raised in the care of their parents. This purpose was fulfilled once they reached majority age or left their parents' home. In addition, it was known, or should have been known, to the affected parties since the introduction of the new entry provisions that the future spouse could only remain here for brief visits during the first three years of marriage and that the marriage could only be conducted jointly without interruption in the native country. The affected marital parties have the opportunity prior to the marriage to adjust to the conditions of joint life with respect to the provisions of residency law. Furthermore, when an alien living here chooses a spouse in his native country, this is an indication that the relations in that country are not entirely foreign to him. Moreover, his reintegration in the circumstances in his native country can be assisted and facilitated by the spouse and the latter's family living there. In view of the foregoing, there are no reservations with respect to constitutional law when the decree attaches more weight to the public interests in the entry regulation than to the danger that exists from application of the regulation for the existence of the marriage of the entry applicant. It is not contrary to Art. 6(1) of the Basic Law that the marriage-length requirement reduces the willingness of aliens seeking to marry in choosing a spouse living abroad. In addition, the Aliens Decree leaves latitude for taking special circumstances into consideration in individual cases.
The pertinent regulation is also not contrary to Art. 1(1) of the Basic Law. The spouse seeking entry is not degraded to an object of state action by the fact that the permit to enter is temporarily denied on account of the marriage-length requirement. This merely represents a temporary denial of a right of residency that still needs to be justified. This does not call into question the subjective quality of the affected party. The situation is no different in view of the fact that with equal treatment of the waiting period, the conduct of other aliens is to be controlled. The intention of preventing the danger of marriages and entry wishes for reasons having nothing to do with marriage does not make the temporary denial of entry itself then an attack on human dignity when in an individual case, there are no concrete indications for such motives. The opposite opinion fails to consider that the marriage-length requirement is merely a criterion that, when present, set aside immigration policy reservations in the interest of the marital partners, since it is more readily able to be assumed that the spouse is unable to be prompted to return and the marriage justified the exception of the immigration stop. To this extent, the negative decision of the Alien Authority also relates to the personal conduct of the entry applicant. There are no international treaties opposing this practice.
With respect to these decisions, the City of Sindelfingen placed by way of order of 20 February 1984 a deadline on the Complainant of exit prior to 31 March 1984; at the same time, it threatened the Complainant with deportation in the event of failure to adhere to this deadline.
e) With the complaint of unconstitutionality, the Complainant asserts a violation of her basic rights under Arts. 1(1), 3(1) and 6(1) of the Basic Law. In so doing, she claims: Her husband has lawfully resided in the Federal territory for more than 18 years and has been employed since 1971. He is also in possession of an unlimited residency permit. With respect to this residency status, the decisions made against her are unreasonable and violate Art. 6(1) of the Basic Law. Her husband cannot be expected in view of the described circumstances to return with her to their common native country in order to avoid a three-year separation. Especially by way of the issuance of an unlimited residency permit, the conduct and planning of her husband's life has adjusted to permanent residency in the Federal territory. It is not in harmony with Art. 6(1) of the Basic Law when aliens living in the Federal territory and seeking to marry are forced to forego the choice of marital partner living abroad on account of administrative provisions. Under the case law of the Federal Constitutional Court, Art. 6(1) of the Basic Law guarantees the right to marry a partner of one's choosing. Accordingly, public authorities are to refrain from every measure that is suited to influencing this in a certain manner by indicating detrimental consequences in choosing a certain partner. The requirement at issue here is moreover ill-suited to prompting second-generation aliens living in the Federal territory to return to their native countries. A relief to Federal territory from the burdens of the entry of aliens can in this manner at best be achieved only temporarily. In view of this, it is unreasonable to expect the marital couple to tolerate the dangers of a three-year separation. Insofar as this sort of separation is supposed to prevent specious marriages, the Complainant is thereby degraded as an object of state action. Neither she nor her husband can be accused of improper conduct. Moreover, marriage represents not only an action that is not disapproved of but on the contrary an action protected as a basic right. Therefore, measures of aliens law cannot be supported in her case by general, preventive reasons. If this is nevertheless to transpire, then this represents a violation of her human dignity. A violation of Art. 3(1) of the Basic Law is made out by the fact that in Baden-Württemberg, a three-year marriage requirement is demanded, whereas in other states, only one year is called for. This stands in contradiction to the requirement of uniform administrative practice under § 51 of the Aliens Act together with Art. 84(2) of the Basic Law in enforcing the Aliens Act.
In the name of the Federal Government, the Federal Minister of the Interior entered a statement on the complaints of unconstitutionality; in the proceeding 2 BvR 1226/83 and 2 BvR 313/84, the Baden-Württemberg Ministry of the Interior and opponents of the procedure have rendered opinions. In the proceeding 2 BvR 101/84, the Minister-President of the State of Schleswig-Holstein submitted an opinion. The President of the Federal Administrative Court submitted opinions on behalf of the 1st Appellate Senate responsible for the law of aliens.
1. a) The Federal Minister of the Interior has indicated with respect to complaint of unconstitutionality 2 BvR 1226/83 that at issue here is the entry of the spouse of an alien who entered the Federal territory as recruited guest worker for the purpose of employment. The recommendations of the Federal Government of 2 December 1981 on immediate measures for social control of familial entry of aliens from non-EC states does not extend to such a case. Measures limiting entry in this area were also not considered by the Federal Government. Therefore, he has refrained from submitting an opinion in this case.
b) With regard to the complaints of unconstitutionality 2 BvR 101/84 and 2 BvR 313/84, the Federal Minister of the Interior first makes reference to the basic position of the Federal Government with respect to alien policy as described in the Response by the Federal Government of 3 October 1984 to the Major Interpellation (Große Anfrage) on Continued Development of the Law of Aliens.   BT-Drucks. 10/2071. He stated further:
aa) The termination of the recruitment of guest workers from non-EC states ordered in November 1973 did not result in a sufficient decrease in the immigration of aliens into the Federal territory. The main cause of continuing immigration has been the entry of spouses and minority-age children of guest workers. The number of aliens living here rose particularly rapidly between 1978 and 1981, climbing from 650,000 to 4.63 million over this period. Further growth is to be expected. This has given rise to integration problems that are threatening to get out of hand; in particular, the formation of ghettos in concentrated municipal areas is cause for concern. In order to prevent such developments and associated social problems, the Federal and state governments have agreed to limit the entry of families to join aliens living here. A focal point in this decision was the entry of spouses to join aliens who entered the Federal territory as children of alien guest workers or who were born here.
bb) The requirement of uninterrupted residency of at least eight years is based on the consideration that the lengthy presence of the alien spouse seeking to be joined guarantees that he has firm roots in the Federal territory -- particularly, through the creation of economic and social existence -- such that he is able to facilitate the integration of the spouse joining him. Furthermore, in this regard, none of the recommendations on alien policy contained in the Report of the Commission "Alien Policy" of 24 February 1983 has questioned the eight-year residency requirement. This requirement -- found in Schleswig-Holstein as well as in other states -- normally makes it possible for the alien spouse presently living in the Federal territory to acquire an unlimited residency permit. In the event that he does not fulfill the requirements for the attainment of such a position, one may assume that weighty reasons arguing against a minimum of integration are present. This circumstance as well justifies the imposition of an eight-year requirement. On the other hand, improper results would be reached if the acquisition of such permits were the only criterion. For instance, children of alien workers who live in their homes are, pursuant to No. 4(3) of the General Administrative Provisions of the Federal Government on § 7 of the Aliens Act, ultimately able to acquire an unlimited residency permit regardless of the extent of their integration, namely, even when they have lived less than five years in the Federal territory. Under these circumstances, it is not unreasonable to force spouses to choose between setting up family life in their common native country or restricting themselves to visiting each other until such time as the eight-year period has expired. This situation remains unchanged even when the affected spouses -- as in the proceeding 2 BvR 101/84 -- have children and wish to raise them together in the Federal territory.
cc) With regard to the marriage-length requirement, the decisive factor was that prior to the restriction on familial entry, the number of cases increased in which aliens married not out of a serious desire to set up a marital relationship but rather solely in order to make it possible for the spouse living abroad to enter the Federal territory and acquire access to the German workforce. This was supposed to be made more difficult through the imposition of a waiting period. Whereas the Federal Government considered one year of marriage to be appropriate to this end, the State of Baden-Württemberg has imposed a three-year period with the reasoning that the affected couple should be put to the test as to whether they might not prefer to set up a marital relationship in the (common) native country. The deviation by Baden-Württemberg from the recommendation of the Federal Government is not injurious; the recommendation does not represent a general administrative provision within the meaning of Art. 84(2) of the Basic Law and § 51 of the Aliens Act, since it was not enacted with the consent of the Federal Council. Thus, the states are not prevented from issuing their own administrative provisions that deviate from the above in order to implement the Aliens Act.
The Federal Government concurs in constitutional recognition given to the marriage-length requirement by the Federal Administrative Court in its judgment of 18 September 1984.   BVerwGE 70, 127; NJW 1984, p. 2775. Neither the basic right in Art. 6(1) of the Basic Law nor the right of parents to the upbringing of their children under Art. 6(2) of the Basic Law guarantees families an absolute right of entry in order to join aliens living here. In addition, the Complainant in the proceeding 2 BvR 313/84 is unable to claim that her reliance on continued favorable treatment of her application is worthy of protection.
dd) The control of discretion on the part of the Alien Authorities by way of decree by the responsible State Minister also meets with no constitutional reservations in the instant context. Likewise, the restriction on spousal entry to second- and subsequent-generation aliens does not contradict the sense and purpose of the stabilization regulation found in No. 4 of the Administrative Provisions of the Federal Government on § 7 of the Aliens Act. This regulation, adopted in the Administrative Provisions in 1978, guarantees a more favorable residency status solely to aliens who have entered as workers and their family members already living here. It does not regulate the issue of subsequent familial entry. Finally, there are no constitutional reservations to the fact that as a consequence of the denial of a residency permit for the spouse seeking entry, the common, minority-age children are also temporarily unable to reside with the parent living in the Federal territory. This does not represent a violation of Art. 6(1), (2) or (3) of the Basic Law.
2. The Baden-Württemberg Ministry of the Interiorhas submitted the following remarks with regard to both of the complaints of unconstitutionality (2 BvR 1226/83 -- "first generation" -- and 2 BvR 313/84 -- "second generation") regarding the marriage-length requirement in Baden-Württemberg:
a) The regulations at issue are a component of the measures that had become necessary for exercising social control of familial entry in order to limit the number of aliens living among the population, which increased substantially despite the recruiting stop of 1973. The requirement of a three-year marriage initially serves to prevent so-called specious marriages, which were concluded with increasing frequency prior to the new regulation. In addition, the objective is prompting affected parties to consider whether they might prefer to set up or continue the marital relationship in the common native country. It is important to bear in mind here that the spouse seeking entry has usually spent his or her whole life in the native country and the spouse living in the Federal territory, at least part of his life, and that both spouses possess the nationality of this country. The focus of the lives of the spouses thus far clearly is centered in the native country, which therefore makes it possible to expect them to lead their married life in that country.
b) Art. 6 of the Basic Law is not violated by the requirement of a three-year marriage. To the extent that the Complainants' reliance on this constitutional norm does not fail for the reason that they -- in contrast to their spouses -- as yet lack adequate ties to the legal system of the Federal Republic of Germany, they are nevertheless only able to derive from Art. 6 of the Basic Law protection against official and court decisions denying residency when the denial of residency status in the Federal territory represents unreasonable hardship for them or their children. Such a case cannot be made out for the reason that the Complainants were able to visit their spouses during the waiting period and that they could expect to be able to join them following expiration of the waiting period. The prerequisites for an exemption from the waiting period were not present in the Complainants' cases. Moreover, they are unable to claim that their reliance on continued favorable treatment of their applications is worthy of protection.
3. In his comments submitted in the proceeding 2 BvR 101/84, the Minister-President of the State of Schleswig-Holstein makes reference to the dramatic rise in the number of aliens since late 1981. The main cause for this has been familial entry. Continued rapid growth in both alien immigration as a whole and familial entry in particular has been predicted. On the basis of the existing figures, a growth of some 2.4 million persons -- of these, roughly 700,000 family members seeking entry -- has been estimated for the next 20 years. The regulation issued by way of Decree of 29 June 1982, which restricts discretion, is proper and in harmony with the purpose of the statutory entitlement under § 2(1), second sentence, of the Aliens Act. This applies in particular to the requirement of uninterrupted residency of eight years as a prerequisite for a spouse's entering the Federal territory to join a so-called second-generation alien. The demands of Art. 6 of the Basic Law have been satisfied. By way of the entry regulations, high-ranking interests of the public good, which clearly outweigh the interests of the affected parties, have been protected against detrimental impacts. Spouses of second- or subsequent-generation aliens living here have sought to enter the Federal Republic of Germany at an age in which, on the one hand, the desire for employment is self-evident and, on the other, the ability and willingness to integrate, however, is considerably lower as compared with that on the part of school-age children. The expectations entertained with respect to employment have not, or only inadequately, been able to be fulfilled due to unemployment problems in the workforce. Unlimited spousal entry would thus increase even further the already high unemployment figures among aliens and impede adequate integration within the alien population living here for some time and prepared to remain here. It must also be taken into consideration that a second- or subsequent-generation alien who has lived here less than eight years is normally not so rooted in the economic and social life of the Federal Republic of Germany and so removed from life in his native country that it cannot be expected of him that he return to his native country when he chooses to marry an alien who is not in possession of residency status in the Federal territory. The foregoing is not changed by reference to the fact that the number of aliens living in the Federal territory has decreased since 1982. This figure is nevertheless nearly 4.5 million persons; the share of aliens among the population in overcrowded areas reaches as high as 20-25 %. The question cannot be answered with certainty as to the number of families who will seek entry to join alien workers in the future. The number of alien spouses living in non-EC states has been estimated at 80,000 to 100,000. For the period extending to 1990, it is expected that a potential 300,000 future spouses of aliens living in the Federal territory will seek entry. Under these circumstances, efforts will have to be continued for the foreseeable future to keep in check the entry of families of aliens from non-EC states.
4. The opinions submitted by the Cities of Freiburg im Breisgau and Sindelfingen, opponents of the proceedings 2 BvR 1226/83 and 2 BvR 313/84, are basically in agreement with those of the Baden-Württemberg Ministry of the Interior.
5. The 1st Appellate Senate of the Federal Administrative Court, which is responsible for the law of aliens, submitted the following comments on the complaints of unconstitutionality:
a) The question of whether a compulsory reason for denial is present within the meaning of § 2(1), second sentence, of the Aliens Act can be left aside when a discretionary decision justifying the denial of residency permit is at hand. Such a decision must be made on the basis of an appropriate balancing of public interests with the interests of the alien, in accordance with the purpose of the discretionary entitlement. In so doing, consideration may be given to economic, social and political circumstances. The authorities are not restricted to warding off dangers in the narrow sense of police law. They are empowered to give effect to public interests of relevance for residency rights, even when in an individual case a compulsory reason for denial within the meaning of § 2(1), second sentence, of the Aliens Act in not (yet) present. Since the flow of aliens may very well take on considerable proportions, possibilities for controlling and shaping this are necessary prior to the occurrence of an impairment to the interests of the Federal Republic of Germany. Discretion may be controlled by administrative provisions, including via a general delineation of groups of persons to whom, within the limits of the law, permanent residency is normally to be refused. The discretionary entitlement under § 2(1), second sentence, of the Aliens Act, not only makes it possible to keep the flow and presence of aliens within appropriate boundaries corresponding to the interests and abilities of the Federal Republic of Germany but also to give proper consideration to the special circumstances in the individual case. The exercise of discretion is subject to considerable limitations, especially on account of higher-ranking law. It is limited by the principle of rule by law (Rechtsstaatsprinzip), including the principles deriving from this, as well as the social-state principle (Sozialstaatsprinzip) and basic rights, including the value system they embody, i.e., also by Art. 6(1) and (2) of the Basic Law.
b) In its judgments of 18 September 1983,   BVerwGE 70, 127; NJW 1984, p. 2775; VBlBW 1984, p. 411. the Senate held the Baden-Württemberg waiting-period regulation to be not a concretization of negative barriers but rather an administrative provision binding the discretion of the Alien Authorities under § 2(1), second sentence, of the Aliens Act. It considered the resolutions of the Federal Government of 2 December 1981 to be merely recommendations on the state governments, which neither established a duty on the part of the states to issue corresponding administrative provisions nor checked the power of the states to restrict more severely the flow of aliens by way of general administrative provisions. The fact that other states followed the recommendation of the Federal Government and required merely a one-year waiting period following marriage was not viewed by the Senate as a violation of Art. 3(1) of the Basic Law, since equal treatment must only be assured vis-à-vis the administrative authorities provided with responsibility by separation of powers. The deviation in the waiting period was also not seen by the Senate as a violation of the principle of allegiance to the Federal Government, nor was it considered to be a discrepancy in enforcement that was so substantial that it no longer comported with the requirement of uniform enforcement of Federal laws.
In its judgments, the Senate stated that the waiting-period regulation at issue is supported by general reasons of immigration policy. It left open the question of whether the purpose of "battling specious marriages" alone justifies the waiting period, since a further purpose of more central importance -- prompting the marital couple to set up their marital and familial life in their native country -- supports the requirement of a three-year marriage. The waiting period gives a marital couple cause to consider whether they might consider doing just this. In the opinion of the Senate, there is no reason to doubt that the waiting period is appropriate for attaining this goal, even though alien workers and their families, on account of the economic conditions in their native countries, will in numerous cases nevertheless return following expiration of the waiting period. In addition, the need for the waiting period was not called into question by the Senate. It is clear that with only a one-year waiting period, the stated purpose is not able to be attained as effectively as with a longer period. The Senate expressly noted that the purpose of the waiting period is not to keep spouses seeking entry temporarily out of the Federal territory or to cause aliens living in the Federal territory to forego the choice of a marital partner living abroad.
The Baden-Württemberg waiting-period regulation is not contrary to the protective requirement of Art. 6(1) of the Basic Law. The disadvantages for residency status flowing from the regulation do not directly affect family and marriage. Although a spouse seeking entry is not exempted from the basic administrative practice of denying permanent residency, the regulation nevertheless provides him with more favorable treatment with respect to aliens who are not married to an alien living in the Federal territory, since the former are able to enter following fulfillment of the requirement of a three-year marriage. The protective requirement of Art. 6(1) of the Basic Law is thus not limited to a mere prohibition on detrimental treatment with regard to residency status. On the one hand, according to the holdings of the Senate, this does not provide aliens who have family members in the Federal territory with an absolute right of residency; on the other, in the interpretation and application of § 2(1), second sentence, of the Aliens Act, marital and familial concerns must be taken into account. In exercising discretion, public interests weighing against residency must be balanced with the special interests in the unity and maintenance of marriage and family under the standard of reasonableness. In applying this principle, the Senate has decided that -- as measured against the weight of the purposes pursued with the waiting period -- despite the normally complete integration of the spouse living in the Federal territory, it is not unreasonable to force the affected spouse to choose between setting up the marital and familial relationship in the native country or to accept separation during the waiting period. In so doing, the Senate has also taken into consideration the fact that hardship can be reduced by way of visits of reasonable duration and that, inter alia, there is thus no reason to fear that the affected marriages and families are seriously endangered by the limitation on entry. Exceptions may be restricted to atypical circumstances; such are not present when children have been born to the couple. If parents may be made to choose between setting up the marriage in the native country or observing the waiting period, then there is no need for the public interest in restricting further immigration to bow to the interests of such persons, who wish to care for and raise their children in the Federal territory. Finally, the Senate has decided that the application of the waiting period is not contrary to the international obligations of the Federal Republic of Germany when cases of Turkish nationals are involved. Specifically, it does not violate the agreement on the establishment of an association between the European Economic Community and Turkey of 12 September 1963, together with the Additional Protocol of 23 November 1970, as well as Order No. 1/80 of the Association Council.
The Federal Constitutional Court has requested that the Federal Government and the governments of the states provide information on certain issues of spousal entry, in particular: on the bases of the prognoses made in 1981 with respect to the number of requests for entry, on possible alternatives regarding measures undertaken, on development in entry conduct since 1982, and on present expectations for future developments in this conduct. The governments have submitted the requested information to the extent possible.
1. The Federal Minister of the Interior stated that familial entry has to be considered the main cause for the continuing strong immigration of aliens following the recruiting stop in 1973, since in addition to requests for political asylum from aliens from non-EC states, it is the sole possibility of significance for acquiring a right to long-term residency in the Federal territory. As well, the shift in the age structure that has been noted among the alien population between 1973 and 1981 has underlined the appraisal. An effective limitation on further immigration by aliens into the Federal territory was therefore unable to be achieved without restrictions on familial entry. In the area of entry by children, however, the Federal Government has only been able to make well-founded estimations with the aid of statistics compiled by the Federal Institution for Labor with regard to statutory allowances for children. In other areas, statistical data has been lacking; such could only be acquired by resort to an evaluation of the relevant files maintained by the Alien Authorities. The recommendations of the Federal Government of 2 December 1981 were based on an estimation of the total number of aliens who will be entitled to entry up to the end of this century. In the course of a model estimation undertaken in 1981 on the development of the share of the overall population of the Federal Republic of Germany comprised by aliens, the following potential entry figures were established: 500,000 children from non-EC states, 250,000 spouses from non-EC states, and 600,000 possible future spouses of alien children and young persons living in the Federal territory who will be of marrying age by the year 2000. Based on these figures, it has been assumed that 350,000 children under the age of 18, 175,000 spouses of alien workers and 200,000 future spouses of second-generation aliens will also seek entry. The Alien Policy Commission has arrived at comparable figures in its report of 24 February 1983. Also taken into account in 1981 were the expected immigration of persons seeking asylum, as well as workers and their family members resulting from the accession of Greece, Portugal and Spain to the European Communities. Assumptions with respect to the effects of requirements of spousal entry subsequently introduced have not been made. On the contrary, considerations focused on the material consequences of the planned new regulation for affected persons. The Federal Government has acknowledged that the Federal Republic of Germany carries a special responsibility toward workers recruited up to 1973, but it does not see itself obligated to permit immigration of family members for endless generations. The number of alien family members seeking entry can be constantly renewed by way of marriage and birth. The Federal Government does not consider itself to be constitutionally obligated to children and grandchildren of recruited workers to accept long-term immigration for familial reasons -- the extent of which is solely dependent on personal decisions of the affected persons -- at the expense of the interests of the Federal Republic of Germany. Beyond the assumptions made in 1981, it is at present not possible to make any predictions with respect to familial entry. Entry of alien family members and the reasons for the issuance or denial of applications for residency permits have not been statistically recorded. Furthermore, developments in cross-border movements of persons is unable to be even approximately predicted with reliability, since these are determined by such aspects as future economic developments, the expectations of the affected persons in this regard and personal circumstances, all of which cannot be predicted with sufficient certainty.
2. The Baden-Württemberg Ministry of the Interior has, in addition, submitted the following comments:
The State of Baden-Württemberg exhibits the highest share of aliens among the population of all states in the Federal Republic of Germany; in 1981 it registered its highest figure of 942,000 aliens, or 10.1 %. It was assumed that in coming years, of 265,00 young persons from non-EC states living in Baden-Württemberg and wishing to marry, roughly one-third would choose a spouse from the native country; as a result, some 90,000 spousal entries have been estimated. With regard to measures thus enacted, it was assumed that spousal entry to join first-generation aliens living here continues in principle to be permissible with respect to the fact that they had been recruited to work here and that such measures should be limited to battling specious marriages. Such an obligation was not considered to be called for with regard to second-generation aliens. Therefore, the requirement of a three-year marriage for persons in this group was introduced with the objective, inter alia, of prompting affected persons to consider whether they might not wish to establish or continue the marital relationship in the native country. In so doing, account was made for the fact that a second-generation alien living in the Federal territory who fulfills all requirements for spousal entry except for the marriage-length requirement is normally able to be naturalized without difficulty and can then seek entry for his spouse. For humanitarian reasons, it was decided not to impose a total prohibition on spousal entry to join second-generation aliens. Statistical data are not present on the development of entry conduct since 1982. This would only be possible by evaluating all files held by the Alien Authorities. It was decided not to proceed in this manner since it would require an unreasonable amount of administrative effort. However, a decrease in the number of all aliens living in Baden-Württemberg has been recorded. This demonstrates that the measures to control familial entry have achieved the desired effect.
3. The Director of the Bavarian State Chancellery has indicated that until 1981, the share of aliens in many cities and communities of the Federal Republic of Germany grew to more than 15 % in some neighborhoods, even to more than 30 % in some cases. This development has resulted in an overburdening of the infrastructure of the Federal Republic of Germany, especially in the social and educational sectors. This is accompanied by problems in the housing and labor markets, with aliens being particularly affected. The existing figures on movements of persons between the Federal Republic of Germany and other states since the recruiting stop in 1973 have demonstrated that the main cause of the growth in the share of aliens among the population of the Federal Republic of Germany has been familial entry. The entry potential expected in 1982 comprised roughly 430,000 children from non-EC states and 215,000 spouses from non-EC states. This was accompanied by future spouses of second-generation aliens, a figure difficult to estimate; at that time, 900,000 aliens from non-EC states, who would become of marrying age in the next 16 years, were living in the Federal Republic of Germany. Assuming that (only) one-third of these persons would choose to marry a person from their native countries, a potential for spousal entry of 300,000 persons was estimated for this group alone. It is thus clear that the need to take action was urgent. It was decided not to make an absolute prohibition on spousal entry for second-generation aliens in exchange for relaxing naturalization requirements, since such a relaxation was not considered to be desirable. The main objective of the three-year marriage requirement in place in both Baden-Württemberg and Bavaria was to prompt the affected young families to consider moving permanently to their native countries. With a significantly shorter waiting period, it is not possible to assure the attainment of the objective. A three-year separation does not appear to be unreasonable, especially since it can be interrupted by regular visits. In the years following 1981, the extent of immigration by aliens into the Federal territory decreased significantly. The main cause for this has to have been the measure for the control of familial entry. The decrease in entry may not, however, be equated with a decrease in the potential for familial entry. The Federal Republic of Germany continues to be exposed to a strong immigration pressure. This is to be seen not only from the renewed growth in the number of persons seeking asylum but also from the fact that is has often been attempted to achieve the entry of children and spouses by deceiving German authorities; in Munich, more than 1,000 cases have come to light in which the permit for familial entry was acquired by way of false information and documents. Finally, it is to be noted that the Federal Republic of Germany will be faced with the problems of familial entry with respect to the alien generation currently growing up here for the next 25 years. The recruitment of aliens for work, which was terminated more than 10 years ago, must not have the far-reaching consequence that immigration for endless generations has to be permitted.
The constitutional complaints are admissible.
1. From the submissions of the Complainants, it does not appear to be ruled out that the connection between them and their family members living in the Federal territory, as well as their desire for residency, is covered by the factual scope of protection afforded by Art. 6 of the Basic Law, that the personal scope of protection afforded by Art. 6 of the Basic extends to them, and that the attacked decisions impermissibly interferes with the connection with their family members protected by Art. 6 of the Basic law.
2. In addition, Complainants 2) and 3) in the proceeding 2 BvR 101/84 are affected by the attacked judicial decisions. Although these decisions establish only a duty on the part of the mother, Complainant 1), to leave the Federal territory at once, the case law of the Federal Constitutional Court recognizes that an alien's duty to exit also affects his family members entitled to stay -- such as Complainants 2) and 3) -- and can permissibly be attacked with a complaint of unconstitutionality.  BVerfGE 51, 386, 395. Complainants 2) and 3) are affected by way of the fact that they have been expected under the complained-of court decisions to live separated from a parent for a considerable length of time or at least that they are prevented from living with both parents together in the Federal territory.
3. The original interest in a decision on the merits has not been removed in light of the fact that the waiting period imposed on the Complainants has expired following filing of the complaints of unconstitutionality and that Complainants 1) in the proceedings 2 BvR 1226/83 and 2 BvR 101/84 have received the residency permits for which they had applied. The Federal Constitutional Court has consistently held that the issue of how a change in the facts affects a pending complaint of unconstitutionality is to be decided on a case-by-case basis with reference to the type of sovereign act attacked, the significance of the asserted constitutional guarantee and the purposes of the complaint of unconstitutionality.  Cf. BVerfGE 33, 247, 257; BVerfGE 50, 244, 247-48. Under these aspects, there is a continued interest in a decision on the merits in the instant cases. It would not be consistent with the basic significance of the issues raised by the complaints of unconstitutionality if the requirements for a ruling by the Court on these issues were no longer to be present with expiration of the waiting period. Moreover, the burdens to which aliens seeking entry are exposed in the event that they do not fulfill the waiting-period requirements -- the confirmation by the Administrative Court of their duty to exit the Federal Republic of Germany immediately -- are often restricted to a period within which a decision on the merits is unable to be reached due to the backlog before the Federal Constitutional Court. The possibility for clarifying the constitutionality of this requirement by the Federal Constitutional Court would otherwise be dependent on the time requirements in an individual case. This would be inappropriate. As long as a fundamental decision by the Federal Constitutional Court is lacking with regard to the constitutionality of waiting periods for permitting familial entry, this would be tantamount also for those affected by these deadlines to an unreasonable shortening of their legal protection if they were forced to accept the fact that time factors beyond their control determine whether they will be able to obtain the sought-after decision on the merits by the Federal Constitutional Court. Cf. BVerfGE 74, 163, 172-73.
4. a) The requirements of § 90(2), first sentence, of the Federal Constitutional Court Act have been fulfilled. In each of the disputes, all legal remedies had been exhausted with the decisions by the Higher Administrative Court and the Administrative Appeals Court.  Cf. BVerfGE 59, 63, 82. In the proceedings 2 BvR 101/84, however, not all of the Complainants in all available instances sought provisional legal protection. On the contrary, only Complainant 1) has submitted an application under § 80(5) of the Administrative Court Ordinance and attacked the Administrative Court's decision of denial with a complaint. Nevertheless, this exhaustion of remedies is also effective for Complainants 2) and 3). Their assertions have been adequately brought forward by Complainant 1) for review and decision. Sense and purpose of the requirement of exhaustion of remedies has thus also been satisfied in that Complainants 2) and 3) seek the granting of legal protection by the Federal Constitutional Court.  Cf. BVerfGE 51, 386, 395-96.b) The Complainants also need not surmount the general principle of subsidiarity of the complaint of unconstitutionality on which § 90(2), first sentence, is based. According to this principle, a complaint of unconstitutionality is as a rule inadmissible when the complainant is or was able to eliminate in some other manner the alleged constitutional violation or to achieve this other than by introducing a complaint of unconstitutionality.   Cf. BVerfGE 33, 247, 258; consistent holdings. Under this aspect, the Federal Constitutional Court has ruled restrictively on the admissibility of complaints of unconstitutionality against decisions by administrative courts in proceedings regarding provisional legal protection; it has held that a complainant can be required to exhaust main remedies prior to resorting to the Federal Constitutional Court.  Cf. BVerfGE 51, 130, 138 ff., proceedings under § 123 of the Administrative Court Ordinance; BVerfGE 53, 30, 52 ff., proceedings under § 80(5) of the Administrative Court Ordinance; BVerfGE 70, 180, 187-88, proceedings under § 80(6) of the Administrative Court Ordinance. The extent to which the principle of subsidiarity of complaints of unconstitutionality place limits on the admissibility of complaints of unconstitutionality against decisions of administrative courts in urgent cases is not in need of a definitive ruling here. In the instant proceedings, it does not prevent a decision on the merits for the following reasons:
The Complainants assert that they should have been accorded provisional legal protection; by way of Art. 6 of the Basic Law, they allege a claim to be able to conduct their family life without interruption in the Federal territory. The complaints are or were unable to realize with the required remedies the objective pursued with the complaints of unconstitutionality, i.e., no time limits on setting up a family unit in the Federal territory. By foregoing resort to the Federal Constitutional Court prior to a definitive decision on these remedies, they would have had to accept a lengthy separation from their family members living in the Federal territory or to forego familial life together with them in the Federal territory at least for a considerable period of time. Furthermore, for the evaluation of the issues raised by the complaints of unconstitutionality, there is no need for further clarification of the actual circumstances in the individual case. The Administrative Courts conducted in the attacked decisions more than only a summary review of the facts. With regard to the state of the law as well, they conducted an extensive review, including constitutional law. Moreover, the Federal Administrative Court, as supreme competent tribunal, dealt with the issues raised, basically approving the standpoint of the Administrative Courts in a number of fundamental decisions.   Cf. supra sec. A(IV)(5), as well as NJW 1985, p. 2099; InfAuslR 1985, p. 129. Finally, the complaints of unconstitutionality are of general importance.   Cf. BVerfGE 53, 30, 53-54,
The complaints of unconstitutionality 2 BvR 1226/83 and 2 BvR 313/84 are founded. The complaint of unconstitutionality 2 BvR 101/84 is unfounded.
Art. 6 of the Basic Law provides marriage and family with the special protection of the state; in addition to a basic right functioning as a defensive right (Abwehrrecht) in the classic sense, Art. 6 contains both an institutional guarantee and a fundamental norm decisive as to values.   BVerfGE 6, 55, 71 ff. With regard to the three-year marriage requirement, the duty to protect and support marriage and family following from this constitutional provision has not been adequately taken into consideration; in all other respects, there are no constitutional reservations to the attacked decisions.
1. The scope of applicability of the constitutional guarantee afforded by Art. 6(1) of the Basic Law extends to the Complainants and their marital and familial communities.
a) From the standpoint of the German legal system, these communities have, however, international aspects on account of the nationality of the Complainants. The extent to which Art. 6(1) of the Basic Law is applicable to such communities must be ascertained from the Constitution itself; in so doing, the rules of German conflicts law, which is secondary to the Constitution, on the recognition of foreign judgments -- by way of which or due to which such communities are established or dissolved -- can only be drawn upon for a point of reference.   Cf. BVerfGE 31, 58, 77. The scope of protection afforded by Art. 6(1) is not limited to marriages and families with purely domestic contacts; on the contrary, it covers marital and familial communities regardless of where and under which legal system's standards they are established and whether the legal effects of the marital or familial bond are to be judged according to German or foreign law.   Cf. BVerfGE 62, 323, 330. This does not, however, mean that such marital and familial communities as bigamy -- which are entered into pursuant to foreign law and which do not comport with the concept of marriage and family under the Basic Law -- fall in all cases within the scope of protection afforded by Art. 6(1) of the Basic law. A conclusive ruling on this matter is nevertheless not necessary here, since the Complainants -- each of whom is living in one marriage and family -- are bonded in communities that are not contrary to the concept of marriage and family prevailing under the Basic Law.
b) The protection afforded by Art. 6(1) of the Basic Law covers the freedom to marry and set up a family   Cf. BVerfGE 31, 58, 67. and the right to marital and familial life.
aa) The waiting-period regulations to be reviewed here do not interfere with Art. 6(1)'s scope of protection insofar as this guarantees the right to marry and set up a family. Although they may lead to the situation where an alien living in the Federal territory foregoes marriage and the establishment of a family with an alien living in his native country or elsewhere outside the Federal Republic of Germany, their effect represents at most an indirect impairment of the freedom to marry and set up a family that does not touch upon this freedom as such. This effect is a consequence of the burden borne by aliens in general from time immemorial that they may not reside in the Federal territory when they are not in possession of a corresponding legal entitlement only attainable upon fulfillment of specific conditions.
bb) On the other hand, the scope of protection afforded by Art. 6(1) of the Basic Law is affected to the extent that it covers the right to marital and familial life.
(1) The Complainants and their family members are seeking this sort of life. Thus, one of the essential conditions for the unleashing of the protective effects offered by Art. 6(1) of the Basic Law vis-à-vis residency law comes into view. Only when, in addition to legal, actual bondage between spouses and their family members (this being normally expressed as care for a household community) exists or is (re)established within a reasonable period is an application of Art. 6(1) of the Basic Law properly justified from the aspect of residency law. To this extent, the reach of the protective effects of Art. 6(1) of the Basic Law is determined by the rules found in §§ 1353(1), second sentence, and 1626 ff. of the Civil Code, which also have a general impact on the constitutional concept of marriage and family; these rules are based on the notion that spouses are bound with one another in a marital community and that minority-age children receive care and upbringing in household life together with their parents.   Cf. BVerfGE 48, 327, 339.(2) Art. 6(1) of the Basic Law is not applicable in the instant cases simply because, for instance, the Complainants, whose family members are living in the Federal territory on account of a specific status of residency, seek to exercise their right to marital and familial life in the Federal Republic of Germany, even though the marital and familial unit could be established in the respective native country. The decisions made by the Authorities in applying the contested waiting-period regulations did not rescind, but rather kept intact, the entry and residency prohibition under § 2(1), second sentence, of the Aliens Act. The permanent establishment of a familial community would only have been possible for the Complainants during the period in which the prohibition applied when the spouse/father living in the Federal territory were to return to the native country and cut his ties to Germany, e.g., to the economic and social position he had achieved, as well as personal ties. From a legal standpoint, such a return would have meant the definitive extinguishment of any residency permit or right he may have had. In attempting to reenter, he would then be treated like other aliens seeking entry and residency for the first time; in particular, he would be covered by the recruiting stop. Consequently, the Complainants as well would no longer be able to receive the permit for permanent residency in the Federal territory. The pressure laid upon the affected party to accept for a lengthy period a physical separation from his family members or to renounce conclusively an existing right to residency and leave the Federal Republic of Germany is capable of interfering with marital and familial life and must therefore be measured against Art. 6(1) of the Basic Law. The situation is no different than in those cases in which the residency of an alien married to a German national is, contrary to the will of the spouses, terminated or from the outset not allowed by way of deportation or non-extension of a residency permit.   Cf. BVerfGE 19, 394, 397; BVerfGE 35, 382, 408; BVerfGE 51, 386, 397-98.c) In that they represent aliens seeking to join family members in the Federal Republic of Germany, the Complainants are not precluded from the possible protective effect of Art. 6(1) of the Basic Law vis-à-vis residency.
aa) Since Art. 6(1) of the Basic Law makes reference to "marriage" and "family," its protection runs to communities of persons who as such basically do not appear in legal relations under civil law or public law. Instead, the relevant legal norms of civil law and public law normally refer only to the individual members of these communities. Against this background, it appears to be unreasonable to assume that the protection afforded by Art. 6(1) of the Basic Law applies only the community as a whole.   Cf. BVerfGE 6, 55, 71 ff.; BVerfGE 13, 290, 297-98. The personal scope of protection afforded by Art. 6(1) thus covers also the spouses and family members affected by an act of public authority.
In addition, it is to be assumed that each individual member of the community protected by Art. 6(1) is included in the norm's personal scope of protection and is therefore entitled to assert this with regard to a decision by administrative authorities or courts affecting the marital or familial community.   Cf. BVerfGE 51, 386, 395; BVerfGE 31, 58, 68. Art. 6(1) of the Basic Law protects marriage and family not merely in the interest of individual freedom of the spouses and family members but also for the sake of the freedom of the individual in the community and the maintenance of this community, as is made clear by the designation "marriage" and "family" in Art. 6(1). This protection in favor of the community covers all of its members, even when the measure by public authority is addressed only to an individual member. With respect to spouses and family members, there is only one, joint marriage or family. It would be contrary to the essence of the ideal of unity of marriage and family and the equal rights of spouses set down in Art. 3(2) of the Basic Law   Cf. BVerfGE 10, 59, 67. when the scope of protection afforded by Art. 6(1) were to be substantively and procedurally restricted to a certain marital partner or family member with regard to a sovereign act falling within the norm's material scope of protection. The unity of marriage and family and the equal rights of spouses would be no less disturbed when protection under Art. 6(1) of the Basic Law were only to be available to a spouse or family member by way of a derived right, i.e., pursuant to and within the limits of the legal position or legal actions of the other spouse or some other family member.
For the present context of spousal and familial entry, this means:
First, the spouse currently living in the Federal territory and any children living with him are affected in the scope of protection afforded by Art. 6(1) of the Basic Law if and to the extent that the other spouse/parent is denied residency in the Federal territory for the purpose of marital and familial life. Such a denial also prevents those persons living here from maintaining marital or familial life. It is irrelevant whether their own residency status thereby remains unaffected.
Second, the spouse/parent seeking entry, as well as any children seeking to join a parent in the Federal territory, are not precluded from this scope of protection insofar as the issue is that one of them has been prevented from setting up marital and familial life in the Federal Republic of Germany.
bb) However, it may appear basically questionable whether the scope of protection afforded by constitutional guarantees also extends to those aliens seeking entry and residency who have not yet made their way into the territorial sovereign area of the Federal Republic of Germany.   Cf. Isensee, VVDstRL 32 (1974), pp. 61 ff. Although the Complainants have established contact with the territory of the Federal Republic of Germany through their visits with family members, with the expiration of their visas, they are on the same level as aliens living outside the Federal territory seeking entry and permit to permanent residency with their family members. However, an alien's lack of contact with the sovereign territory of the Federal Republic of Germany does not result in the inapplicability of Art. 6 of the Basic Law when the affected party is bound in marriage and family -- thus in a constitutionally protected manner -- with another person who, for his part, has already established contact with the sovereign territory of the Federal Republic of Germany. This is precisely the case when -- as here -- what is sought is spousal or familial entry to join an alien lawfully living in the Federal territory.
d) It can be left aside whether the basic right in Art. 6(1) of the Basic Law is interfered with when an alien married to a German national, an alien married couple, an alien family or an individual member of such a community of persons is placed under a duty to leave the Federal Republic of Germany and thus a -- tacit or express -- right of residency is terminated, at least for the purpose of marital or familial life in the Federal territory. The Complainants were (originally) not granted such a right. They were initially only permitted to reside for a limited period of time for the purpose of a visit with their family members in the Federal Republic of Germany. An interference with the right to marital and familial life guaranteed by Art. 6(1) of the Basic Law could thus only be made out in the denial of continued residency if Art. 6(1) were to establish a basic-rights claim for alien spouses and family members to entry and residency for the purpose of joining their alien family members living in the Federal territory. The wording, history and sense and purpose of Art. 6(1) of the Basic Law provide no basis for such a claim. Moreover, the contrary opinion would be difficult to harmonize with Art. 11 and Art. 16(2), second sentence, of the Basic Law. Art. 11 guarantees the right of access to and residency in the Federal territory only to German nationals. Art. 16(2), second sentence, protects only persons persecuted on political grounds. In the absence of special points of reference, it is not possible to derive a claim to entry and residency from other norms of the Constitution. Art. 6(1) of the Basic Law offers just as few points of reference as do other comparable basic-rights guarantees. Thus, for example, no one seriously considers that Art. 5(3), first sentence Basic Law, provides a foreign scientist seeking entry into the Federal territory because the object of his research is located here with a direct claim to entry and residency. The Basic Law instead widely leaves it to the legislature and the executive to determine to what extent and under what conditions aliens are to be provided with access to the Federal territory. This neither prohibits generous admission of aliens nor requires such a practice. Within the wide framework comprised by it, the legislature and -- within the permissible limits set by the latter -- the executive branch are to decide on whether and at what number of non-Germans among the overall population the immigration of aliens into the Federal territory is restricted or whether and up to what extent such immigration is tolerated or assisted; in particular, according to the Constitution, it is initially a matter for the legislature and the executive to decide on whether and to what number aliens are recruited to work in the Federal territory and whether children of recruited workers are provided with a right to residency following a certain period of time that is independent of existing familial bonds, or whether for social, economic or other reasons, such a procedure, which forms the likely basis for a multi-generation immigration of aliens into the Federal territory, is not undertaken.
2. The scope of protection of Art. 6(2), first sentence, of the Basic Law is likewise affected by the attacked decisions. Art. 6(2), first sentence, guarantees the exercise of parental responsibility in the interest of child welfare.   Cf. BVerfGE 51, 386, 398; BVerfGE 59, 360, 381-82. The constraint on spouses set up by the denial of residency at issue here to accept a separation from their families or to terminate existing residency in the Federal territory was suited to placing substantial burdens on the care and upbringing of their children. Such burdens are covered by scope of application of Art. 6(2), first sentence, of the Basic Law. Protective effects for residency status that are capable of arising under Art. 6(2), first sentence, and that can be asserted by each of the affected spouses do not however extend beyond those under Art. 6(1) of the Basic Law; in particular, Art. 6(2), first sentence, also does not guarantee any basic-rights claim to entry into the Federal territory.
3. On the other hand, the relative separation prohibition of Art. 6(3) of the Basic Law, which forms a limitation for measures in the exercise of Art. 6(2), second sentence,   Cf. BVerfGE 60, 79, 88-89. does not come into consideration as a standard of review in the present context. Art. 6(3) of the Basic Law affects interference that is aimed at a separation of children from the parents in favor of the establishment of state influence in bringing them up when parents have failed to do so.   Cf. BVerfGE 24, 119, 142; BVerfGE 74, 102, 122 ff.
4. The same goes for Art. 6(4) of the Basic Law, which entitles every mother to the protection and care of the community. This claim is available to the mother regardless of whether there exists or is sought a complete, familial community between her, the child and the father of the child. Since in the present context, the issue is the setting up of such a community and not the position of Complainants 1) as mothers, the attacked decisions are exclusively to be measured against Art. 6(1) and (2), second sentence, and not against Art. 6(4).
5. In addition to the above-mentioned subjective rights, Art. 6 of the Basic Law also contains an institutional guarantee and a "basic norm decisive as to value."   Cf. BVerfGE 6, 55, 71 ff.; BVerfGE 24, 119, 135; BVerfGE 31, 58, 67 ff.; BVerfGE 51, 386, 396-87; BVerfGE 62, 323, 329.a) The waiting-period requirements at issue here are as such not capable of interfering with marriage and family as constitutionally recognized institutions. The institutional guarantee of Art. 6 of the Basic Law is not only affected when the provisions forming the core of marriage and family law, namely, those of civil law, are widely restructured or rescinded. It may also be violated when certain features of the ideal of marriage and family on which the Constitution is based are indirectly interfered with. However, this is not the case here. A regulation such as the one at issue here, which prevents a limited circle of persons for a lengthy but reasonable period of time from realizing the desire to live together as spouse or family without absolutely preventing such life together or unreasonably expecting that the unity of marriage and family be set up under worse conditions, is not capable of drawing into question the essential elements of the ideal of marriage and family underlying Art. 6(1) and (2), second sentence.
b) Nevertheless, the waiting-period regulations at issue here are in part incompatible with the "basic norm decisive as to value" found in Art. 6 of the Basic Law, which -- as is normatively set forth in the wording of Art. 6(1) of the Basic Law -- places on the state the duty to protect and support marriage and family.   Cf. BVerfGE 6, 55, 72; BVerfGE 55, 114, 126.This duty corresponds to a claim by the bearer of the basic rights under Art. 6(1) and (2), first sentence, that when making a decision on a request for residency under § 2(1), second sentence, of the Aliens Act, the competent authorities and courts give consideration to the existing marital and familial bonds of the applicant to persons living in the Federal territory in such a way as comports with the great importance attached by the Basic Law in Art. 6 to the protection of marriage and family. The affected persons need not accept that these aspects are unreasonably neglected and that he is prevented from taking up permanent residence with close family members living in the Federal territory. The attacked decisions and the underlying administrative provisions do not take adequate account of this; the waiting-period regulations submitted for review here are only partly compatible with § 2(1), second sentence, of the Aliens Act in the manner required by Art. 6(1) and (2), first sentence, of the Basic Law. The Complainants' basic rights under Art. 6(1) and (2), first sentence, are thus violated by the attacked decisions insofar as they affect these waiting-period regulations.
aa) In exercising their duty to take appropriate consideration of existing marital and familial relations in making general rules on the issuance of residency permits, the competent organs are often faced with competing public interests or interests of private third parties. If this is the case, then familial concerns of the applicant of the contrary public or private concerns are to be balanced with the objective of a "gentle compromise." The Federal Constitutional Court may review whether such a balancing took place and whether basis and results of the balancing have met the requirements arising under Art. 6(1) and (2), first sentence Basic Law, that the marital and familial bonds of aliens seeking residency with their family members living in the Federal territory be given due regard. The regulations to be enacted must comport with the principles of reasonableness and the prohibition on excessiveness, which necessarily result as guiding rules of all state action from the principle of rule by law and, in essence, from the very nature of basic rights themselves.   Cf. BVerfGE 19, 342, 348-49; BVerfGE 23, 127, 133, with further references. Interference in the sphere of freedom is accordingly only permissible when it is indispensable to protect public interests.   Cf. BVerfGE 35, 382, 401. The means selected must thus be suited and necessary to paying regard to the guaranteed public and private concerns to the requisite extent, but the degree of burden on the individual -- here, through the denial of a residency permit -- must also stand in a reasonable relationship to the advantages for the public interest.   Cf. BVerfGE 38, 281, 302. In applying this standard, the Federal Constitutional Court must pay regard to the discretion possessed by the competent organs in fulfilling their duties of protection and support.   Cf. BVerfGE 21, 1, 6; BVerfGE 48, 346, 366; BVerfGE 62, 323, 333. See also BVerfGE 56, 54, 80-81, with further references. This does not mean, however, that the Federal Constitutional Court is limited to the mere review of whether an apparent violation of the duties of protection and support under Art. 6(1) and (2), first sentence, is present. The extent of review of the Court instead corresponds to the rank and significance of the object to be protected by basic rights at issue and the special features and the affected area under scrutiny.
The personal quality that marriage and family as affected objects of basic-rights protection display, as well as the high rank attributed to them in the structure of the Basic Law, argues in favor of a more extensive review by the Court. Marriage is the legal form of wide-ranging bond between man and woman; it is the sole basis for a complete familial community and as such the condition for the best possible bodily, mental and spiritual development of children.   Cf. BVerfGE 25, 167, 196. Marriage and family correspond to spiritual nature of humans, which is set up on the basis of dialogue. In addition, assistance in life, which an individual is able to receive in marriage and family, is of fundamental importance for the system of community life.
On the other hand, the competent state organs are, as explained, provided with wide discretion in the area of aliens law. This discretion can, however, also be taken into account in a manner other than by a limitation of constitutional review to an apparent violation of the protection and support duties arising under Art. 6(1) and (2), first sentence, of the Basic Law. The discretion with regard to aliens law, provided under the Constitution to the legislature and the executive, is to be observed in the following manner: the circle of public and private interests that may be pursued with the aid of residency regulations to the detriment of the protection and support of marriage and family is not to be unreasonably constricted, and political organs' power to appraise with respect to future circumstances and developments is to remain intact as is necessary in order to balance between the concerns of marriage and family and contrary public or private concerns. In this regard, the Federal Constitutional Court only review such determinations, as with the appraisals underlying the instant cases, merely, but in any event at least, for whether they are tenable. A mere review of whether they are not apparently untenable would ignore the rank and significance of the objects of legal protection served by Art. 6(1) and (2), first sentence, of the Basic Law that are at stake; on the other hand, an intensive review would not comport with the special qualities of the area at issue or with the possibilities for forming a judgment of adequate certainty.   Cf. BVerfGE 50, 290, 332-33.
bb) The opinions submitted by the Federal Government and the state government of Schleswig-Holstein indicate that the introduction of the requirement of eight-year residency, which is decisive for the proceeding 2 BvR 101/84, was preceded by a balancing of the public interests pursued by it and the concerns of marriage and family. The bases and result of this balancing are not constitutionally objectionable.
(1) The demand of an eight-year, uninterrupted residency by the spouse living in the Federal territory as a prerequisite for the other spouse and children to enter is to ensure that the marital and familial community is only established in the Federal territory once the spouse seeking to be joined has formed a secure basis in the Federal territory for providing for his needs and those of his family members and, from a social standpoint, has become integrated into local conditions; advanced integration by the spouse living here is to aid the spouse joining him in a rapid, secure integration, this also serving the good of the public. The objective that this requirement is to serve has been adequately defined.
(2) It also withstands appraisal against the Constitution. The demand for far-reaching economic and social integration is not directed at complete adoption of German lifestyles and habits, which would interfere with the overall personality of the affected alien; rather, the objective is merely his integration in the sense of alignment within the external order of the Federal Republic of Germany. This takes account of a possible interest of the affected person protected by Art. 1(1), Art. 2(1), Art. 4(1) and Art. 5(1) of the Basic Law in being able to preserve one's national and cultural identity.
Whether public interests pursued with residency regulations enjoy a constitutional rank is irrelevant for the instant context. The Basic Law does not preclude the protection of objects of basic-rights protection from being downgraded to a certain extent in favor of other concerns that are not of a constitutional rank.
(3) The regulation at issue here is based on the assumption that eight-year residency by an alien in the Federal territory normally results in his far-reaching alignment with the economic and social life of the Federal Republic of Germany. This assumption involves the appraisal of future events.
On the basis of the above-described standard of tenability, the pertinent regulation is not constitutionally objectionable. The rule maker and the Alien Authority that took action in the case of the Complainants under 2 BvR 101/84 operated under the assumption that a lengthy period of residency is necessary in order to achieve the desired integration. The establishment of this period has been, as is to be drawn from the comments submitted by the Federal Government on the complaint of unconstitutionality, set up according to the eight-year period under No. 4 a of the Alien Administrative Provisions on § 8. This does not appear materially unreasonable with regard to the high degree of integration required to attain a residency permit. It is not indicated that the experience of the authorities or otherwise has revealed that following an eight-year, uninterrupted residency by aliens in the Federal territory, extensive integration is not, at least typically, able to be noted. Therefore, the competent organs were under no duty to "take a second look" with regard to their appraisal of the effects of the requirement at issue.   Cf. BVerfGE 49, 89, 130; BVerfGE 65, 1, 55-56, with further references.
(4) It is also unable to be determined that some means were or could have become available that would have allowed the objective to be achieved in some other manner less burdensome to the marriage and family of the affected persons without substantial detriments for other public or private concerns. In particular, the requirement of residency of at least eight years cannot be opposed by reference to the fact that § 8(1) of the Aliens Act is based on a residency of five years for the issuance of a residency permit. The requirement of five-year domestic residency in § 8(1) of the Aliens Act is a minimum requirement that must be fulfilled if the issuance of a residency permit is not to be legally precluded; in the event that this requirement is satisfied and the affected person is integrated into the economic and social life of the Federal Republic of Germany, the Act confers on him only a claim that a decision on the issuance of a residency permit is made within mandatory bounds of discretion. § 8(1) of the Aliens Act thus is not based on any legislative assessment that would be incompatible with the appraisal on the part of the executive at issue here.
The same applies to the objection that no regulation is necessary since the requirements for entry also include the -- constitutionally unobjectionable -- requirement that the spouse living here possess an unlimited residency permit, as well as his ability to provide for the support of the marital and familial life from his own income. It is correct that the demand of an unlimited residency permit is constitutionally not objectionable. Art. 6(1) and (2), first sentence, of the Basic Law normally does not require that the desire of an alien for marital and familial life in the Federal territory must be met when the focus of his life or that of his spouse does not lie here. The fact that the focus of an alien's life is the Federal Republic of Germany can, despite that notions and desires of the affected persons, only be assumed when his domicile is assured in the Federal territory in the long term vis-à-vis residency or when he has a claim to a right of permanent residency.   Cf. Verwaltungsgerichtshof Baden-Württemberg, InfAuslR, pp. 177-78. It is thus not untenable to assume that an unlimited residency permit alone in not sufficient in order to achieve the objective pursued with the requirement of eight-year residency for familial entry. The issuance of an unlimited residency permit pursuant to § 7(1) of the Aliens Act presupposes a fundamentally lower degree of integration than that upon which familial entry is based.   Cf. No. 4(1)-(3) of the Alien Administrative Provisions on § 7. It is also tenable to assume that the requirement of a residency permit on the part of the spouse living here together with the additional requirement that the affected persons must be capable of providing for the common support of the family from his own income is not appropriate for attaining the purpose on which the attacked regulation is based.
Finally, it may be tenably assumed that an investigation of the individual case when certain aspects of advanced integration are present alone does not permit an adequately certain conclusion as to whether the degree of integration has been attained that normally is reached with eight-year residency.
(5) The balancing undertaken by the competent organs between the concerns of marriage and family and the public interests on which the attacked regulation is based fulfills the objective weight of the requirement of protection and support under Art. 6(1) and (2), first sentence. With regard to Art. 6(1) and (2), first sentence, it is not unreasonable to expect a so-called second-generation alien living in the Federal territory and seeking entry for his spouse and children to forego family unification in the Federal territory prior to the expiration of eight years of residency or to set up the family unit in the relevant native country. Art. 6(1) in no respect obligates the competent organs to make permission for such entry dependent on a degree of integration in the economic and social relations of the Federal Republic of Germany lower than that which can be attained within a period of eight years. It is true that aliens who have made use of the possibility open to them of setting up an economic and social existence in the Federal Republic of Germany often view the conditions in their native countries as increasingly foreign the longer they live here and the more they become rooted in local conditions. This also applies when their integration is only external. Even a maintenance of their bonds to their cultural, religious, national and other traditions does nothing to change the fact that the actual focus of their life has shifted to the Federal Republic of Germany. On the other hand, family members of this circle of persons have spent a considerable part of their lives in their respective native countries and have normally been raised for lengthy periods in the Federal Republic of Germany by their parents, who share their heritage. In addition, a marriage occurring during this eight-year period with person not living in the Federal territory and integrated in the living conditions of the native country is connected with this country.
As a result of the foregoing and in view of the weight that must be assigned to the concerns pursued with the regulation, it is not in violation of the protection and support requirement of Art. 6(1) and (2), first sentence, of the Basic Law when the affected parties are expected to resettle in their native countries insofar as they wish to set up at once a community with their spouses without any limitation as to time. Art. 6(1) and (2), first sentence, is not capable of providing protection against the economic difficulties that may be associated with such a resettlement. Extraordinary circumstances, which would have made unreasonable a return to the common native country by the husband of Complainant 1) in the case based on the complaint of unconstitutionality, 2 BvR 101/84, have neither been demonstrated nor are they evident. The fact that two children were born to him and Complainant 1) prior to expiration of the eight-year period does not lead to the assumption that an atypical fact pattern would have been made out. The regulation at issue was also made with respect to the interests of children of aliens seeking entry. Under Art. 6(1) and (2), first sentence, it is normally not unreasonable to deny entry in order to avoid possible detriments for the development of the child that could arise when neither of the parents is familiar with the living conditions in the Federal Republic of Germany.
cc) The comments by the Baden-Württemberg Ministry of the Interior on the complaints of unconstitutionality 2 BvR 1226/83 and 2 BvR 313/84 indicate that also the demand for a three-year marriage as prerequisite to entry was based on a balancing of the concerns of marriage and family with the public interests pursued with the waiting-period requirement.
The result of this balancing does not fulfill the familial concerns protected by Art. 6(1) and (2), first sentence Basic Law. The impairment of these concerns by the regulation at issue exceeds the degree that must be accepted by the affected persons with regard to the principle of reasonableness. The public concerns at stake do not justify such a far-reaching neglect of their interests protected by basic rights.
(1) According to information provided by the Federal Government, the Baden-Württemberg Ministry of the Interior and the head of the Bavarian State Chancellery, the requirement of a three-year marriage is to aid in preventing aliens from acquiring a permit to enter as well as for residency and work by means of a "specious marriage," i.e., a bond not aimed at marital life; in addition, the requirement is to prompt married couples to consider whether, instead of accepting a separation for the duration of the waiting period, they might not prefer to set up the marital and familial community from the outset in the relevant native country and permanently to forego marital and familial life in the Federal territory. These objectives are not, as indicated by the above-mentioned information, self-serving; rather, their pursuit aids in limiting (further) entry of aliens into the Federal territory, which in turn is to prevent a looming intensification of existing economic and social problems.
(2) No reliable data has been supplied on the effects of the marriage-requirement on partners of "specious marriages" who seek entry and residency as well as a permit for work; furthermore, it is not apparent that such data could have been gained or become available, if at all, within a reasonable period of time and with a justifiable effort. The competent organs therefore had to content themselves with an estimation on the basis of assumptions regarding the presumed intentions and desires of "specious spouses." In do doing, they apparently operated under the assumption that since "specious marriages" were concluded with the goal of prompt realization of the underlying residency objectives, the imposition of a waiting period of three years following marriage would thus thwart the conclusion of such marriages. This estimation is just as untenable as the assumption that at least the partner to a "specious marriage" living in the Federal Republic of Germany is normally interested in avoiding a long-term legal bond with his partner seeking entry into the Federal territory, from whom is demanded a waiting period of three years.
The same applies with respect to the effects of the regulations at issue on alien spouses who desire to set up a marital community. Here as well, reliable data is neither attainable nor able to be attained in a reasonable period of time and with a justifiable effort. The competent organs therefore had to rely on estimations, which were based on their own experiences and opinions. The expectation that the imposition of a waiting period of three years following marriage would result in a curtailment of entry in a not insubstantial number of cases was based on the untenable estimation of the reaction of the affected marital couples to the prospect of having to live apart for the duration of this period, aside from short-term visits. It is true that in view of the poor economic situation in the most important countries of origin of aliens living in the Federal territory, it may seem doubtful whether more than just a very low number of them -- particularly with regard to longer periods of residency -- would leave the Federal Republic of Germany and drop out of the local working life in order to live in a marital community immediately following the marriage. However, the essence of the matter is a period of three years, a time frame that is so substantial that it seems at least tenable to assume that a considerable number of affected persons would not accept a separation from their spouses for this period -- in spite of the possibility of visits -- and would opt to resettle abroad.
From the standpoint of the Constitution, there are no reservations to the fact that the competent organs adhered to this estimation. Even when one assumes that the above-described doubts are not without weight, a duty to examine these doubts would only have arisen if this were occasioned by experiences in the practices of administrative authorities or by data generated elsewhere. According to the comments submitted at the request of the Federal Constitutional Court of 12 February 1985, this was not the case; the Baden-Württemberg Ministry of the Interior and the head of the Bavarian State Chancellery have asserted that the general development -- namely, a decrease in the share of aliens among the overall population between 1982 and 1983 and the drop in the number of alien immigrants into the Federal Republic of Germany in 1982, 1983 and 1984 -- allows one to assume that the measures for the control of familial entry "took hold." This standpoint is at least not untenable in the sense that some other standpoint must clearly be given preference.
(3) It is also unable to be determined that for limiting alien entry, a waiting period beginning with marriage was not necessary or that it was possible to achieve the objective of limiting entry with measures that were less burdensome for the affected marriages and families and did not have substantial detriments for other public or private concerns.
(i) According to the comments submitted here, it is and was to be expected on the basis of earlier experience that in a number of cases, aliens would only offer the pretense of the desire to set up a marital community in the Federal territory when applying for a residency permit. It is not apparent that this estimation is untenable. A basis for the contrary assumption is also not offered by the fact that the Federal Minister of the Interior and the Baden-Württemberg Ministry of the Interior did not or could not give precise figures as to their determination that the number of cases in which marriages were concluded for non-marital, i.e., residency, purposes had occurred with increasing frequency.
The demand of a three-year marriage is a general instrument, which is applied without regard for whether in the individual case, a "specious marriage" is actually present. Although this does not mean that true marriages have been made a tool in "battling specious marriages," the requirement of a three-year marriage might nevertheless be constitutionally impermissible when the applications for residency permits submitted under false pretenses of a desire to establish a marital community could effectively be countered with an instrument that did not measure each individual case against one and the same standard. The opinion of the competent organs that such an instrument does not exist is in any event not untenable. Arguing in favor of this is, in particular, that a review by the authorities in the individual case would only uncover the presence of a "specious marriage" upon awareness of circumstances stemming from the highly personal sphere. It would, however, be difficult to harmonize with Art. 1(1) of the Basic Law, together with Art. 2(1) of the Basic Law, if the administrative authorities were to undertake to obtain this information officially. The result would be the same if affected parties were unconditionally burdened with demonstrating that their marriage is not a "specious marriage." Furthermore, it is at least not untenable to assume that it is far beyond the possibilities of the administrative authorities for the alien authorities to conduct a review of each application for a residency permit, submitted with the (apparent) objective of marital life in the Federal territory, for whether a "specious marriage" is present.
It is also not necessary to do away with the requirement of a certain marriage length with respect to the fact that a "specious marriage" often become quickly evident -- e.g., through the affected persons' permanently living apart -- and that the residency of the "specious spouse" may normally be terminated following entry by way of a subsequent limitation on the residency permit issued to him (§ 7(4) of the Aliens Act) or by deportation due to violation of the provisions of residency law (§ 10(1), No. 7 of the Aliens Act). The constitutionally unobjectionable goal of the marriage-length requirement is to prevent from the outset the residency of aliens based on the false pretense of the desire to marry. In order to achieve this, regulatory measures under §§ 7(4) and 10(1), No. 7 are inappropriate.
The competent organs were also not disposed to dispensing with a marriage length of three years for the reason that it is to be presumed that "specious marriages" of spouses seeking entry into the Federal territory are typically concluded with the aim of, in addition to obtaining a right of residency, acquiring as soon as possible a permit to work in the Federal territory. It is indeed possible -- notwithstanding contrary obligations under international law -- to grant residency permits for the purpose of spousal entry with the special notation under § 7(3) of the Aliens Act "employment not permitted" and to maintain this over lengthy periods of time. Nevertheless, it is untenable to assume that such a procedure does not assist in effectively battling "specious marriages" since "specious spouses" seeking entry to the Federal territory normally also desire forbidden employment and therefore the lack of prospects for a work permit in the near future will not have any appreciable effects on the readiness to conclude such marriages.
On the issue of whether to alleviate entry based on "specious marriages," a less burdensome instrument such as a waiting period of less than three years comes under consideration, the States of Baden-Württemberg and Bavaria merely stated in the comments submitted with regard to the complaints of unconstitutionality that a waiting period of less than three years is incapable of guaranteeing the effective "battling of specious marriages." This assumption sharply contrasts with the appraisal by the Federal Government and the other states, which have held a period of one year, in any event less than three years, to be sufficient. Although the contrary standpoint is subject to not insubstantial reservations, it is insufficient for declaring it as being unconstitutional. It does not transcend the boundaries of tenability when it is assumed that a waiting period of less than three years, at least for spouses of "specious marriages" seeking entry, is not appreciably long enough in order to exercise lasting effect on the affected persons.
(ii) To the extent that the requirement of a certain marriage length serves the objective of countering entry into the Federal territory in cases involving "proper marriages," it might be considered unconstitutional if in view of a small number of entry requests to be expected, public authorities were not required to take action with regard to the aim of countering an increase in existing economic and social problems threatened by an rise in the share of aliens among the overall population. In the opinion of the competent organs, this was however not the case: despite the ending of the recruitment of aliens workers in 1973, the number of aliens in the Federal Republic of Germany subsequently climbed considerably; cause for this was alleged to be primarily the increased immigration of persons seeking asylum and a growing number of spousal and familial entries; an end to this development was unable to be expected and is presently unable to be seen. This appraisal is not untenable:
There is no indication that the growth in the share of aliens among the overall population in the Federal Republic of Germany since 1973 was only to be attributed to a minor degree to the entry of spouses and families and that the main cause lay -- beyond the climb in the number of persons seeking asylum -- in other circumstances, such as higher birth rates among aliens living here. Findings that could have facilitated a reliable determination or estimation of entries that had to be expected in 1981 were lacking, as is to be taken from the comments submitted upon the request by the Federal Constitutional Court. The cause for this absence of findings is not only lack of statistical data but also -- and especially -- the fact that it is difficult to record or estimate the circumstances that influence the tendency of aliens living here to choose as spouses nationals of their native countries or some other foreign state that do not permanently reside in the Federal territory, as well as the efforts of the affected persons to gain entry into the Federal territory. These include, in particular, cultural influence to which the circle of persons at issue here is subject, economic and social developments within and without the Federal Republic of Germany and the corresponding expectations of the affected persons and their particular individual qualities.
It was therefore impossible for the competent organs to ascertain on the basis of existing, incomplete statistical data exactly what "entry potential" had to be expected and to derive an estimate of foreseeable entries from this. As is to be seen from the submitted comments, the Federal Government came to the opinion in this manner that by the year 2000, the Federal Republic of Germany could expect that 200,000 future spouses of second-generation aliens would seek entry;   Cf. also BTDrucks. 9/1629, p. 3. Baden-Württemberg expects for its territory 90,000 future spouses of young aliens by 1997. It cannot be determined that this estimation was untenable -- for instance, due to arbitrary exceeding of the underlying assumptions. Furthermore, it is not constitutionally objectionable that the competent organs relied on these and continue to expect a considerable immigration strain in the area of spousal and familial entry.   Cf. Report by the Commission "Alien Policy", composed of representatives of the Federal Government, the states, and communities, of 24 February 1983, p. 8. It is in any event tenable to take the drop in the number of entries and the share of aliens among the overall population as an indication for the "taking hold" by the measures to control familial entry but not as an indication of a dwindling number of entry desires by alien spouses and family members. It is not apparent that findings had become known that could have or did facilitate a reliable evaluation of future developments in this area or that such findings -- at least with a justifiable effort in time and resources -- were to be or could have been obtained. On account of the above-described uncertainties typical for this area, statistical recording of both residency-permit applications made for the purpose of marital and familial life in the Federal territory and decisions on these by the competent authorities would also have been unable to assist in making such an evaluation.
(iii) Also constitutionally unobjectionable is the appraisal that entry-limiting measures less burdensome to aliens seeking marital and familial life than the requirement of a three-year marriage and not accompanied by detriments for other concerns were not or are not available.
It is clear that the complete exclusion of spousal entry -- even with simultaneous easing of naturalization conditions -- would not be such a measure.
The assumption that the prospect of separation of less than three years -- interrupted by visits -- would not prompt the affected spouses to consider the possibility of conducting the marriage in the (common) native country does not transcend the boundary of untenability. Even the reliance by the competent organs on this standpoint is ultimately not constitutionally objectionable. This also applies when one assumes that states requiring a marriage length of only one year have noted a decrease in immigration and in the share of aliens among the overall population. This circumstance merely involves an indication for the assumption that a demand for a marriage length of less than three years is also suited to limiting entry to a noticeable degree. A minimum of certainty here is only able to be achieved -- if at all -- with an expense of time and resources that without representing a constitutional violation, is to be considered as untenably high.
(4) The competent organs have nevertheless failed to balance the affected persons' concerns of marriage and family with the public interests underlying the requirement of a three-year marriage in a manner comporting with the protection and support requirement of Art. 6 of the Basic Law, thus violating their basic rights under Art. 6(1) and (2), first sentence, of the Basic Law.
The highly predominant number of marriages between aliens involves true marriages and not "specious marriages." Accordingly, the principal objective of the marriage-length regulations under review here is the limitation of entry by alien spouses who do not simply give the pretense of desiring marital life in the Federal territory. The evaluation of these regulations' propriety is thus primarily to be measured against the normal case of a marriage corresponding to the understanding of Art. 6(1) and (2), first sentence, of the Basic Law. The objective of limiting the entry of aliens may be accorded considerable weight under the Constitution. It may be expected of a foreigner who has married a non-German national living abroad -- even if he has resided in the Federal territory more than eight years -- that, by way of the imposition of a waiting period beginning with the marriage as a condition of entry, he seriously consider whether he may not decide to set up the marital community in the relevant native country. By the selection of his spouse, he has demonstrated a (continuing) association with this country. The length of the waiting period for entry must therefore be bounded by the scope of that which is still reasonable under the protection and support requirement of Art. 6 of the Basic Law. This scope is substantially exceeded by the requirement of a waiting period of three years.
In those cases turning on this requirement, the spouse seeking to be joined normally has not only acquired a right to permanent residency in the Federal territory and established an well-ensured economic and social existence, but he has also spent a considerable portion of his life in the Federal Republic of Germany. For first-generation aliens, this results from the fact that they normally entered the Federal territory prior to 1973, the year of the so-called recruiting stop; for second- and subsequent-generation aliens, this stems from the requirement of residency of eight years or from the fact that they joined their parents at a pre-school age or were born here. As the length of residency grows, integration in the local lifestyle increases; at the same time, alienation from the native country becomes more marked. The desire by an alien seeking entry for marital and familial life in the Federal Republic of Germany, a desire protected by Art. 6(1) and (2), first sentence, of the Basic law, is thus to be accorded growing weight with increasing length of residency by the spouse in the Federal territory.
The degree of integration typically attained by a second-generation alien after eight years is not -- in keeping with the objective of this residency requirement -- to be considered insignificant. Even for first-generation aliens, it may be assumed that residency of eight years leads to lasting integration in the lifestyle of the Federal Republic of Germany.
Moreover, of decisive relevance is that in contrast to the above-described residency requirement, young marriages are without exception affected by the requirement of a three-year marriage. The demand placed upon the marital couple to decide between accepting a lengthy separation or resettling abroad falls in the initial phase of the (intended) marital life, which is often characterized by the birth of children and in which the demands placed on the affected persons by the marital community and parenthood are for the first time experienced and must be overcome. It therefore normally represents a heavy burden and threat to a young marriage when the couple is forced to decide between only being able to live together for short intervals during visits over a period of three years or having to resettle abroad and forego completely an economic and social position that had been built up over years. The requirement of a three-year marriage is also able to lead to a threat to a young marriage in that young married couples are often not in a position to assess the consequences of a lengthy separation and in recognition of these dangers, to decide against the establishment of the marital community in the native country. Finally, the regulation at issue poses a threat to marriages because it can occasion young couples to marry too early in order to avoid a separation of more than three years.
In those cases affecting first-generation aliens, the weight accorded to the desire, protected under Art. 6(1) and (2), first sentence, of the Basic Law, to enter the Federal territory is increased by the fact that the Federal Republic of Germany had recruited these aliens to work in the Federal territory. Although the recruitment as such did not establish a constitutionally protected claim of the affected persons to rely on the permission for entry of their spouses and children, the Federal Republic of Germany nevertheless assumed a certain degree of responsibility vis-à-vis the recruited persons, one which the requirement of a three-year marriage does not comport with.
All the same, the imposition of a waiting period beginning with marriage for entry is not absolutely ruled out. In cases involving "specious marriages," the competent organs are thus not limited to taking action with regulatory means following entry by the relevant spouses. But since the objective of entry limitation in the area of "regular marriages" is of high-ranking importance, the concerns of "battling specious marriages" are incapable of changing the fact that a three-year marriage length unreasonably interferes with the constitutionally protected interests of residency in the Federal territory by spouses seeking entry and thus their sphere of freedom protected by Art. 6(1) and (2), first sentence, of the Basic Law.
1. The denial of the right of residency sought by the Complainants also affects the protective sphere of Art. 2(1) of the Basic Law. Since Art. 2(1) is a more general provision in comparison with Art. 6 of the Basic Law, it would only come under consideration as a standard of review if it were appropriate of providing protective effects for residency in the instant context that go beyond those offered by Art. 6 of the Basic Law. This is, however, not the case. In particular, Art. 2(1) of the Basic Law does not establish in cases involving intended entries by spouses and family members a claim to entry and residency. It is nearly uncontested that Art. 2(1) of the Basic Law does not result in a basic right to entry. The Federal Constitutional Court has also thus far only applied Art. 2(1) to the "residency of persons living in the Federal Republic."   BVerfGE 35, 382, 399. Although the instant cases do not involve a permit for entry into the Federal territory, the Complainants were, following expiration of their visas, as explained equivalent to aliens seeking entry into the Federal Republic of Germany. Their requests aimed at enabling them to remain in the Federal territory; this is fundamentally different in purpose and length from their previous presence in the Federal Republic of Germany. At least in such a situation, Art. 2(1) of the Basic Law does not provide the affected persons with a basic-rights claim to residency in the Federal territory.
2. The denial of the entry requests at issue here also does not represent a constitutionally relevant interference with the residency status of the Complainants' spouses/fathers living here. Their right of residency has been provided to them as individuals; residency permits are issued ad personam. Moreover, the granting of an unlimited residency permit does not mean that marital and familial life thus far unfeasible in the Federal territory is now permitted or able to be permitted.   Cf. BVerwG, NVwZ 1986, p. 44. It is not apparent that an exception is called for with regard to the Complainants.
The temporary impairment to entry sought by the Complainants did not affect the right to residency attained by the family member living in the Federal territory. To the extent that this impairment was aimed at prompting a married couple to conduct their marital and familial life in the common native country, existing residency positions were not sought to be impaired with legal effect but rather were merely in fact impaired. Such an effect does not fall within the scope of protection afforded by Art. 2(1) of the Basic Law. Whether Art. 2(1) of the Basic Law were appropriate whatsoever for providing protective effects for residency in favor of the Complainants, which they could then assert by way of a complaint of unconstitutionality, thus need not be ruled upon.
The Complainants have not, as asserted, been placed at a disadvantage in violation of the requirement of equal treatment by the denial of their desire for residency. . . . (elaboration by the Court)
When a complaint of unconstitutionality is lodged in a permissible manner, the Federal Constitutional Court is not limited to reviewing whether the complained of interference with basic rights indeed is present. On the contrary, it may review the attacked sovereign act from any constitutional aspect coming under consideration.   BVerfGE 42, 312, 325-26; BVerfGE 53, 366, 390; BVerfGE 54, 53, 67.
1. § 2(1), second sentence, of the Aliens Act, on which the Alien Authorities based their denial of the Complainants' request for entry, is compatible with the constitutional principles of precision of law and reservation by law.
a) The Senate shares the opinion that § 2(1), second sentence, of the Aliens Act comports with the minimum requirements of statutory precision.   BVerfGE 49, 168, 181 ff. The Senate holds that the provision can be assumed to be sufficiently precise since the Federal Government's administrative guidelines provide for uniform application of § 2(1), second sentence, of the Aliens Act; nevertheless, in view of the numerous state administrative provisions on the Aliens Act deviating from the guidelines and from one another, the provision is hardly effective. However, the provision can be said to comport with the requirement of statutory precision in that the normative characteristics of the provision have been given concrete shape by court holdings on aliens law, namely, by the Federal Administrative Court, thereby assuring that both the individual and the administrative authorities a minimum of legal certainty.
b) The constitutional principle of general reservation by law does not give rise in the present context to a requirements going beyond those under the precept of legal precision. The general reservation by law obligates the legislature itself to make all essential decisions affecting basic rights in fundamental normative areas. Whether and to what extent legislative action is required here is to be measured against the effects that might arise in the relevant area for the affected person's basic rights; at the same time, such action depends on the area's special qualities, in particular, on whether and to what extent such area can be regulated whatsoever by the state and can be made subject to legislation in an appropriate fashion.   Cf. BVerfGE 49, 89, 126-27.If the area at issue here is reviewed under these aspects, then the result is: state decisions on the admission of aliens into the Federal territory have varying effects on the basic-rights area of affected persons; in cases of spousal and familial entry, they may place a heavy burden on objects protected by Art. 6(1) of the Basic Law. On the other hand, the admission of aliens is capable -- regardless of for what purpose -- of affecting a number of interests of the general public. It influences -- in a manner and to an extent often difficult to predict -- the Federal Republic of Germany's economic and social structure, placing on governmental authorities in numerous areas (provision, education, work force, public security, etc.) a variety of duties unable to be described in advance. Moreover, often inevitable changes in the economic or foreign-policy situation or needed changes in objectives and forms of foreign policy require quick, flexible action on the part of Alien Authorities. On the other hand, aliens seeking residency often possess unique individual qualities that are unable to be covered with the aid of general regulations and that can only be appropriately taken into account by way of individual, case-by-case decisions. These reasons justify leaving the executive with considerable discretion in the area of admission of aliens.   Cf. BVerfGE 49, 168, 181-82. As measured against this, § 2(1), second sentence, of the Aliens Act withstands the requirements of the general reservation by law, even if it may seem desirable that a more extensive legal regulation be undertaken for the area at issue than that accomplished with § 2(1), second sentence, of the Aliens Act.
2. The decisions by the Alien Authorities, to which the attacked judicial decisions make reference, are also not incompatible with objective constitutional law simply because the administrative provisions underlying them violate Art. 84(1) and (2) of the Basic Law. … (elaboration by the Court)
3. a) The manner in which the Alien Authorities exercised the discretion provided to them by § 2(1), second sentence, of the Aliens Act in the cases 2 BvR 1226/83 and 2 BvR 313/84 does not violate the principle of federal allegiance. . . . (elaboration by the Court)
b) The requirement of a three-year marriage also does not lead to discrepancies in the application of the Aliens Act among the states of such a variety that the duty to enforce Federal laws uniformly   BVerfGE 11, 6, 18. would have to be considered as violated. . . . (elaboration by the Court)
Neither general international law nor treaty law binding on the Federal Republic of Germany, to which the Federal Constitutional Court is empowered to extend its review,   Cf. BVerfGE 58, 1, 34-35; BVerfGE 59, 63, 89. contain rules that direct a contrary ruling.
1. Notwithstanding opposing provisions of treaty law, states are normally able to decide on the admission or deportation of aliens under their own discretion. Accordingly, the European Court of Human Rights determined in its judgment of 28 May 1985, which dealt with the application by alien husbands for entry into Great Britain to join their wives living there, that under an established principle of general international law, a state is empowered, subject to its treaty commitments, to control the entry of aliens into its sovereign territory.   Abdulaziz, et al. Publications de la Cour Européenne des Droits de l'Homme, Série A, Arrets et décisions, vol. 94, p. 34, no. 67; reproduced in EuGRZ 1985, pp. 567 ff.; NJW 1986, pp. 3007 ff. Although in the practice of states, a certain tendency can be noted toward a self-limitation of this power with respect to spouse and family members of aliens already admitted, an international obligation to permit the entry of alien spouses and family members within certain periods and without any additional conditions does not, however, follow from this. A corresponding conclusion is also prohibited on account of the fact that numerous states only permit familial entry under specified conditions pursuant to their fundamental decisions on alien policy. For instance, in immigration countries like the United States of America, spouses and family members of immigrants are only accepted, although with preference, within the scope of quotas. . . .
2. The Federal Republic of Germany is not subject to any international commitments that would require an appraisal of the eight-year residency regulation and the requirement of a three-year marriage in a manner more favorable to the Complainants.
a) In particular, Art. 8(1) of the European Human Rights Convention does not compel such an appraisal. The European Commission on Human Rights has consistently maintained the opinion that the Convention -- i.e., Art. 8(1) as well -- does not guarantee an alien the right to enter the territory of a member state and to reside in it; the Commission stated that the control of spousal and familial entry of aliens must nevertheless take place in harmony with the obligations established by the Convention; the exclusion of a person from entry into the territory of a member state in which members of his family live touches upon the scope of application of Art. 8 of the Convention, said the Commission.   Cf. Frowein/Peukert, EMRK-Kommentar, 1985, Art. 8, Randnummer 23-25. In its decision of 28 May 1985 in Abdulaziz, et al., the European Court of Human Rights determined that the basic objective of Art. 8 of the Convention is the protection of the individual against arbitrary interference by public authorities with private and family life. Although Art. 8 could in addition also give rise to positive obligations that are components of effective respect for family life, member states nevertheless have been provided with wide regulatory discretion. This also applies in cases involving entry to join an immigrant. In such instances, the reach of the positive obligation of the member states depends on the affected person's situation. The Court held that Art. 8 basically does not give rise to a duty on the part of the member state to respect the married couple's choice of residency and to facilitate residency for alien spouses. The Court therefore found no objection under Art. 8 "in and of itself" to the British regulation under review, which precluded entry of alien husbands to join their wives living in Great Britain with unlimited residency permits or as naturalized citizens.
b) Art. 12 of the Agreement on the establishment of an association between the European Economic Community and Turkey of 12 September 1963   Entered into force 1 December 1964, O.J. Eur. Comm. (No. L ) 3685, 3702 (1964). determines that the contracting parties to allow free movement of workers, in accordance with Arts. 48 et seq. of the EEC Treaty. Art. 36 of the Additional Protocol to this Agreement,   O.J. Eur. Comm. (No. L ) 293 (1972). concluded on 23 November 1970, provides that the free movement of workers is to be completed by the end of the 22 d year following entry into force of the Agreement on the basis of regulations by the Association Council, set up under Art. 6 of the Agreement. The Association Council has not adopted any resolutions that pertain to residency law in a narrower sense. There was no duty under the Agreement and the Additional Protocol on the Alien Authorities and the Administrative Courts that took action in the proceedings 2 BvR 101/84 and 2 BvR 313/84 to fulfill the residency requests by the Complainants.   Cf. European Court of Justice, Judgment of 30 September 1987, Case 12/86. This duty also did not arise simply because the treaty parties undertook pursuant to Art. 7 of the Agreement to adopt all measures to fulfill their obligations under the Agreement and to forego every measure that might endanger the realization of the objectives of the Agreement. This provision does not give rise to the situation where, with entry into force of the Agreement, the member states are prohibited from changing the state of the law in the area of residency law, even absent corresponding resolutions by the Association Council, to the detriment of workers and their spouses and family members. Such a prohibition also does not follow from other provisions of the Agreement or the Additional Protocol. In particular, the treaty does not contain any provisions comparable to Arts. 44 et seq. of the Act on the Conditions for the Accession of the Republic of Greece to the European Economic Community, to the European Atomic Community, and to the European Coal and Steel Community that would allow one to draw such a prohibition vis-à-vis residency law.   Cf. European Court of Justice, Judgment of 23 March 1983, Case 77/82. The Association Agreement and the Additional Protocol only prevent a change in valid residency law to the extent that the required establishment of freedom of movement is later precluded or placed in question. This is not the case with regard to the change in regulations on familial entry with regard to the resolutions by the Federal Government on 2 December 1981.
d) The residency agreement between the German Reich and the Turkish Republic of 12 January 1927   RGBl. 1927 II, p. 76; BGBl. 1952 II, p. 608. makes entry and residency by members of the treaty parties subject to national immigration law. This reservation rules out commitments by the Federal Republic of Germany that would have required a different ruling on the Complainants' requests in the proceedings 2 BvR 101/84 and 2 BvR 313/84 by the Alien Authorities and the Administrative Courts.
Judges: Zeidler, Dr. Dr. h.c. Niebler, Steinberger, Träger, Mahrenholz, Böckenförde, Klein, Graßhof
 ) In Baden-Württemberg, the Aliens Decree of 20 October 1981 was replaced by the Decree of 30 March 1982.   GABl., p. 383. In the version of 1 August 1984,   GABl., p. 725. it provides for the following regulation:
This page last updated Thursday, 01-Dec-2005 11:04:42 CST. Copyright 2007. All rights reserved.