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Aussiedler and Spätaussiedler

German immigrants

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Through Germany, Poland and Soviet Union

Until 31 December 1992, such people were officially called resettlers.

  • Who were born as German nationals in the formerly German territories east of the Oder-Neisse line and initially remained there after 1945, as well as their descendants and spouses of other ethnic origins and national identity (according to § 4 para. 3 sentence 2 BVFG) who have resettled in Germany, Abs. 3 Satz 2 BVFG), or
  • Those who, as ethnic Germans from a socialist-governed country, have resettled in the territory of the Federal Republic of Germany or the German Democratic Republic as part of an admission procedure, as well as the relatives who accompanied them during their resettlement.

The term "late repatriate" is only used for people who immigrated to Germany on or after 1 January 1993. Those who entered Germany before 1 January 1993, and were recognized as repatriates retain their repatriate status (regardless of everyday usage). For individuals who entered Germany on or after 1 January 2005, the Federal Office of Administration, not the state authorities, issues the late repatriate certificate. Recognition as a repatriate or late repatriate is governed by the Federal Expellee Law. The terms "repatriate" and "late repatriate" are primarily intended to encompass members of German minorities whose families have lived for generations in East-Central, Eastern, and Southeastern Europe, as well as in Central Asia, and who have emigrated to Germany.

The relevant law for examining the requirements for recognition as a late repatriate is the Federal Expellee Law (BVFG), which entered into force on 19 May 1953 and is now applied in a highly modified form following numerous reforms. The BVFG remains explicitly "not an instrument for controlling immigration […], but rather an instrument for dealing with the consequences of the war".

Persons who enter the Federal Republic of Germany as ethnic Germans through the admission procedure initially acquire the status of a German citizen under Article 116 Paragraph 1 of the Basic Law and, after issuance of the certificate pursuant to Section 15 Paragraph 1 of the Federal Expellees Act (BVFG), then German citizenship by operation of law within the meaning of Article 116 of the Basic Law. At the same time, they also acquire the status of a late repatriate. In addition to the late repatriate, family members of the late repatriate can also be included in their admission notice (since 14 September 2013) (Section 7 Paragraph 2 BVFG); these include:

  • the spouse of the late repatriate,
  • Descendants of the late repatriate (children, grandchildren, great-grandchildren, etc.).

These persons are issued a so-called inclusion notice pursuant to Section 27 Paragraph 2 of the Federal Expellees Act (BVFG). The Federal Expellees Act also allows other family members of the late repatriate, who do not belong to the aforementioned group of persons, to leave the country at the same time as a person who holds a receipt or inclusion notice ( Section 8 Paragraph 2 BVFG). Legally, this is made possible by a national visa valid for 90 days without the consent of the immigration authorities, which, after admission to the federal territory, is converted into a residence permit for family reunification pursuant to Section 39 No. 1 of the Residence Ordinance (AufenthV) (Resolution of the Standing Conference of Interior Ministers and Senators of the Länder of 6/7 December 2007). These other family members include, among others:

  • the spouse of a descendant of the late repatriate (son-in-law/daughter-in-law or grandson-in-law/granddaughter-in-law etc.)
  • the minor and unmarried descendant of a spouse of the late repatriate (stepson/stepdaughter or step-grandson/step-granddaughter)
  • the spouse or minor and unmarried descendant of the late repatriate who cannot be included in the late repatriate's acceptance notice for legal reasons

However, these individuals do not acquire German citizenship, but rather reside in the Federal Republic of Germany under immigration law.

Anyone wishing to be recognized in Germany as a late repatriate, spouse of a late repatriate, or descendant of a late repatriate must enter the country with a certificate of admission or inclusion. This certificate is issued upon proof of German ethnicity/National identity through a formal written application process.

A late repatriate is generally a person of German ethnicity who left the Republics of the former Soviet Union after 31 December 1992, through the admission procedure and took up permanent residence within six months in the area of application of the law […].

The following requirements can be identified from the legal definition:

German ethnicity

The definition of German ethnicity can be found in §6 BVFG. It is divided into paragraph 1 (persons born before 31 December 1923) and paragraph 2 (persons born on or after 1 January 1924).

Paragraph 1 is based in its basic outline on a circular issued by the Reich Ministry of the Interior on 29 March 1939 (RMBliV, p. 783) and was only shortened by the introduction of the Federal Expellees Act (BVFG) by the passage "Persons of foreign blood, especially Jews, are never considered to be of German ethnicity, even if they have previously described themselves as such." The fact that part of this definition was adopted from the wording of the National Socialist regulation of 1939, has repeatedly given rise to criticism and tensions in connection with the discussion about "Germanness", for which this legal definition is often used. Nevertheless, a sharp distinction can be drawn between this and the West German concept of ancestry (Abstammung), because today adopted children are treated equally to biological children.

Paragraph 2, which today applies to the far greater number of people (>99%) is split into three sections:

Descent from a person of German ethnicity

This refers to purely biological descent. This means that adopted children or persons who cannot prove their ancestry due to missing documents generally lack descent from a person of German ethnicity (No. 2.1 BVFG-VwV to § 6).

The person to whom one refers regarding ancestry must be of German ethnicity within the meaning of paragraph 1; according to prevailing opinion, this is certainly assumed in the case of persons who:

  • who were demonstrably subjected to expulsion measures against the German minority due to their German ethnicity in the period 1941–1956 (e.g. expulsion or members of a labor army),
  • who were at least 18 years old in June 1941 and had registered themselves as having German nationality in a civil status document (e.g., in a child's birth certificate),
  • which, based on an overall assessment, can only be attributed to German ethnicity and no other.

A commitment to German national identity

According to the legal text, the "declaration of allegiance to the German people" can:

  • through an explicit declaration of nationality or
  • family-based teaching of the German language or
  • This can be demonstrated by proving particularly good command of the German language (usually language skills at level B1 of the Common European Framework of Reference for Languages).

Whether the aforementioned options for declaring one's faith constitute a hierarchy or are to be considered equivalent is not entirely clear and is therefore the basis of intense debate between legal scholars and public administration. A clarifying ruling from the Federal Administrative Court is still pending.

Language skills

Proficiency in the German language is a part of the requirements. The applicant for resettlement as a late repatriate is invited by the responsible administrative authority to the German diplomatic mission abroad and tested there. The extent to which language tests from other organizations are also sufficient to demonstrate language proficiency is not clearly regulated. However, various language tests corresponding to level B1 of the Common European Framework of Reference for Languages are recognized, as the legislator has explicitly mentioned this language level in Section 6 Paragraph 2 of the Federal Expellees Act (BVFG).

Spouses and adult descendants of the ethnic German resettler who are to be included in their acceptance notice must also demonstrate basic knowledge of the German language. According to the administrative regulation, this corresponds to level A1 of the Common European Framework of Reference for Languages.

Cut-off date rule, residence criterion and entry via the admission procedure

A late repatriate is someone who […]

  • since 8 May 1945 or
  • following his expulsion or the expulsion of a parent since 31 March 1952 or
  • since his birth, if he was born before 1 January 1993 and is descended from a person who meets the cut-off date requirement of 8 May 1945 according to number 1 or of 31 March 1952 according to number 2, unless that parents or ancestors only moved their residence to the resettlement areas after 31 March 1952, had his residence in the resettlement areas.

Only those born before 1 January 1993, can become ethnic German resettlers. According to the Cologne Administrative Court, this seemingly arbitrary cut-off date does not constitute unconstitutional unequal treatment compared to those born from 1993 onwards. Article 3, paragraph 1 of the Basic Law does not prohibit the legislature from drawing this line.

For persons who already have their main residence in the federal territory, admission is only possible on a hardship basis for a foreseeable period (3–12 months) after entry (special conditions must be asserted, e.g. refugee of the war in Ukraine, which explain why waiting for the procedure in the country of origin was impossible for the applicant).

After this period, recognition as a late repatriate is no longer possible, as the criterion of § 4 BVFG is lacking (no entry within the framework of the admission procedure with admission or inclusion notice).

Persons who have taken up their main residence in a country that is not listed in § 4 BVFG may also lack the above-mentioned criterion.

Today, all ethnic German repatriates entering the Federal Republic of Germany are initially received at the Friedland border transit camp. They are registered there and distributed among the individual federal states according to the Königsteiner Schlüssel.

Exclusion criteria according to § 5 BVFG

According to § 5 BVFG, the legal status of a late repatriate is not acquired by anyone who:

  • in the resettlement areas of the National Socialist or other tyrannical regimes,
  • in the resettlement areas, his behaviour violated the principles of humanity or the rule of law,
  • in the resettlement areas, he has seriously abused his position for his own benefit or to the detriment of others,
  • has committed an unlawful act which would be considered a crime within the meaning of Section 12 Paragraph 1 of the Criminal Code in Germany, unless the act is time-barred under German law or a conviction for it is to be expunged under the Federal Central Register Act, or
  • based on a conclusion justified by factual evidence – unless he credibly demonstrates that he has renounced his previous actions
    • belongs or has belonged to an association that supports terrorism, or supports or has supported such an association,
    • has participated in acts of violence in pursuit of political goals, or has publicly called for or threatened the use of violence, or
    • pursued or supported, or has pursued or supported, endeavours that are directed against the free democratic basic order, the existence or security of the Federation or a state, or the idea of international understanding,
  • leave the resettlement areas due to the threat of criminal prosecution for a criminal offense or
  • in the resettlement areas, he performed a function that was usually considered important for maintaining the communist system of rule, or was important due to the circumstances of the individual case, or
  • who has lived in the same household as the holder of such a position for at least three years.

Reopening of proceedings that have been definitively concluded

The current legal situation also allows for the possibility of reopening legally concluded (and unappealable) proceedings without a time limit. This is made possible by an amendment to Section 27 Paragraph 3 of the Federal Constitutional Court Act (BVG), which overrides the normally applicable three-month period stipulated in Section 51 Paragraph 3 of the Administrative Procedure Act.

Subsequent inclusion

It is becoming increasingly common for descendants born after the departure of a late repatriate living in Germany to be considered no longer residing in their country of origin. Consequently, they can only be granted asylum in Germany under immigration law. This wording of the law often leads to inconsistencies in practice. For example, a late repatriate who entered Germany in 2004 and now wishes to retroactively include two grandchildren born in 2003 and 2005 in their asylum application. The grandchild born in 2003 receives the privileged status under Section 7 Paragraph 2 of the Federal Expellees Act (BVFG) as well as German citizenship. The child born in 2005 does not, as it is not considered to have remained in its country of origin and is therefore considered to be residing in Germany under immigration law.

Rights and obligations of ethnic German repatriates

In principle, all civil rights apply to ethnic German resettlers and late repatriates. Due to the Residence Allocation Act late repatriates were previously restricted in their freedom of movement after entering Germany if they could not support themselves through their own employment. The background to this measure was the fact that many late repatriates settled where family members already lived, which led to high proportions of resettlers in the municipalities concerned and threatened to overwhelm the capacity of these municipalities. Due to the steadily declining immigration of ethnic German resettlers over many years, the law became largely obsolete and was therefore repealed on 31 December 2009.

Some municipalities view "resettler" or "late repatriate" quotas in the allocation of building plots as a tool to limit the proportion of resettlers and late repatriates among the inhabitants of the municipality in question (for example, the municipality of Holdorf). However, such regulations can be overturned by the local government supervisory authority for violating Article 3, Paragraph 3 of the Basic Law, since unequal treatment of people born in the "wrong place" constitutes prohibited discrimination based on national origin and is unconstitutional.

With regard to the Foreign Pensions Act, it is of central importance whether someone entered Germany as a resettler or late resettler, or as a relative of a resettler or late resettler: Only persons who themselves had resettler or late resettler status upon entry have thereby acquired entitlements under the Foreign Pensions Act, i.e., a higher old-age pension (Altersrente) than mere relatives.

Young men with resettler or late resettler status were also subject to conscription and military service according to Article 12a of the Basic Law until this was suspended as part of a Bundeswehr reform on 1 July 2011.

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