Higher Administrative Court of North Rhine-Westphalia, August 23, 2012, Case No.: 18 A 537/11
On July 1, 1998, the new Child Law Reform Act was introduced, establishing that joint parental custody and close contact with both parents are essential for a child’s healthy development. This significantly altered the legal situation for binational couples with children in Germany.
The Residence Act clearly distinguishes between the right of a foreign parent with custody of a German child to family reunification (§ 28 Abs. 1 S. 1 Nr. 3 AufenthG) and the right of a foreign parent without custody to family reunification (§ 28 Abs. 1 S. 4 AufenthG).
While the foreign parent with custody has a right to enter and reside in Germany under § 28 Abs. 1 S. 1 Nr. 3 AufenthG, the non-custodial parent only has a discretionary right under § 28 Abs. 1 S. 4 AufenthG, provided that the family unit is already living together in Germany. The concept of family unity is identical to that of a family living together.
Therefore, holding custody of the child provides a significant immigration advantage.
In the case reviewed by the Higher Administrative Court of North Rhine-Westphalia (OVG NRW), the court had to determine whether the foreign mother of a German child was entitled to a residence permit under § 28 Abs. 1 S. 1 Nr. 3 AufenthG, even though the paternity was acknowledged by the German father solely to secure the mother’s residence rights.
Background and Entry of the Sierra Leonean Plaintiff
The plaintiff, a Sierra Leonean national, entered Germany in 1999 without valid identification documents. After a failed asylum application and subsequent detention, she was granted temporary tolerated status (Duldung) due to the lack of valid documents.
Birth of the Child and Paternity Acknowledgment by a German Citizen
On August 8, 2002, the plaintiff presented a pregnancy certificate to the immigration authorities. On October 14, 2002, a German citizen, Mr. Q., formally acknowledged paternity for the plaintiff’s unborn child. The plaintiff agreed to the paternity acknowledgment, and on the same day, both signed a declaration of joint parental custody. The child was born a few months later.
Application for a Residence Permit and Investigation by the Immigration Authorities
In August 2003, the plaintiff applied for a residence permit, presenting a passport issued by Sierra Leone in March 2003. However, in November 2003, the immigration authorities filed a criminal complaint against Mr. Q. and the plaintiff, suspecting that the paternity acknowledgment was fraudulent and motivated by a desire to secure the plaintiff’s residence rights. Mr. Q. had a criminal history, and it was suspected that he was paid to acknowledge paternity.
At the same time, the immigration authority wrote to the applicant asking her to comment on the doubts about the authenticity of the paternity acknowledgement. The authority pointed out that it would reject the application for a residence permit if the applicant did not have a paternity test carried out.
Expert opinion by the State Criminal Police Office and criminal conviction
In the course of the investigation proceedings initiated against the plaintiff and Mr Q., an expert opinion was obtained from the State Office of Criminal Investigation, which came to the conclusion on 1 September 2004 that Mr Q. was not the biological father of the child. As a result, the plaintiff and Mr Q. were prosecuted. The Local Court of N. sentenced the plaintiff to a fine of 60 daily rates of 10 euros each for an offence against the Aliens Act. Mr Q. was sentenced to a total term of imprisonment of ten months for two offences against the Aliens Act. Despite these convictions, the applicant continued to be granted toleration of her stay.
Further applications and rejection by the foreigners authority
In January 2009, the applicant again applied for a residence permit. She based this on her role as mother to a German child. In December 2009, she also applied for the residence permit to be issued retroactively from 22 January 2003, i.e. from the date on which the child was born. After another hearing with the applicant, the immigration authority finally rejected the application on 15 June 2010. The authority recognised that the factual requirements of § 28 para. 1 sentence 1 no. 3 AufenthG were met and that the child had German citizenship due to the effective acknowledgement of paternity. However, it argued that the exclusion clause of § 27 Para. 1a No. 1 AufenthG applied. The authorities argued that the relationship between Mr Q. and the child had been established solely for the purpose of enabling the applicant to stay in Germany. This would therefore constitute an abusive acknowledgement of paternity.
The Immigration Office went on to explain that it was not possible to issue the residence permit retroactively, as this could only be done if the application was submitted in good time. Even under the old legal situation in accordance with § 17 Para. 5 AuslG 1990, there was no entitlement to the issue of a residence permit.
Judgment of the Higher Administrative Court of North Rhine-Westphalia
The Higher Administrative Court ruled in favor of the plaintiff, stating that she was entitled to a residence permit under § 28 Abs. 1 Satz 1 Nr. 3 AufenthG. The court found that the child had acquired German citizenship through the valid acknowledgment of paternity and that the plaintiff, as the custodial parent, was entitled to a residence permit.
The court further ruled that the exclusionary provision of § 27 Abs. 1a Nr. 1 AufenthG did not apply in this case. Although the text could be interpreted to include fraudulent paternity acknowledgments, the court held that such issues should be resolved through civil law, not immigration law. The authorities should have pursued a legal challenge to the paternity acknowledgment rather than denying the residence permit.
The court concluded that all other requirements for granting the permit under § 28 Abs. 1 Satz 1 Nr. 3 AufenthG were met, including the exemption from the general requirement to secure one’s livelihood due to the plaintiff’s role as the custodial parent of a minor German child.
Source: Higher Administrative Court of North Rhine-Westphalia
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