Immigration Law: Duty of the Immigration Authority to Provide Guidance Regarding the Application for a Permanent Residence Permit

1. why the topic is more important today than ever before

Anyone applying for a residence permit in Germany is almost inevitably in close contact with the immigration authorities: Forms, documents, deadlines - and often the question, Which residence permit is actually the „right“ one.

It becomes particularly tricky when something fundamental changes in the middle of the current stay, such as the birth of a child. German child. In this constellation, Section 28 (1) sentence 1 no. 3 of the Residence Act (AufenthG) gives the foreign parent of an unmarried German minor a particularly strong right of residence that is close to fundamental rights.

At the same time Dates and title types extremely important: settlement permits, naturalisation, social benefits, access to the labour market. This is where the question arises:

• Does the foreigners authority have to actively advise?

• May or must a residence permit retroactively be issued?

• And how will more recent decisions by the ECJ and the Federal Administrative Court (BVerwG) affect older case constellations by 2025?

The well-known „Stuttgart case“ (VG Stuttgart, judgement of 29.03.2012 - 11 K 4541/11) is a good example to illustrate the interplay between the duty to provide advice, retroactive residence permits and settlement permits - but it must adapted to the current legal situation and case law become.

2. brief overview: What residence permits are there?

To understand the topic, it is sufficient to take a look at the most important types of title under the current Residence Act:

1. Residence permit (§ 7 AufenthG)

   • Temporary residence permit.

   • Issued for specific purposes (e.g. family, work, study, humanitarian reasons).

2. Settlement permit (§ 9 AufenthG)

   • Permanent title with very extensive right of residence.

   • As a rule, the following are required: longer legal prior residence, secure livelihood, pension contributions, language skills, no serious criminal offences.

3. EU permanent residence permit (Section 9a AufenthG)

   • Also unlimited, with additional rights under EU law (relocation to other EU states).

4. Special declaratory residence permits (Art. 20, 21 TFEU)

   • If someone has a right of residence directly under Union law (e.g. as the parent of a child of a Union citizen), this right can only be exercised by means of a national „residence permit“. certified It is not only created by the title.

5. Tolerated stay (§ 60a AufenthG)

   • No residence permit, only temporary suspension of deportation.

Important for lawyers: Since the judgement of the BVerwG of 19.03.2013 - 1 C 12.12 it has been clarified that several residence permits side by side may be issued as long as the law does not expressly stipulate otherwise.

The previously widespread idea that there could only ever be one „dominant“ title is therefore outdated. This plays a major role in our case.

3. family reunification with Germans: Residence permit according to § 28 AufenthG

3.1 Basic structure of Section 28 AufenthG (as of November 2025)

§ Section 28 AufenthG regulates the Family reunification with Germans and privileges this over reunification with foreigners. The residence permit is to be issued to

• the spouse of a German citizen,

• the unmarried minor child of a German,

• the parent of an unmarried German minor to exercise personal care.

Special features:

• For the Child and the custodial parent the residence permit in deviation from securing the livelihood (§ 5 Para. 1 No. 1 AufenthG).

• The non-custodial parent can obtain a residence permit if the family community is actually living in the federal territory (sentence 4).

This makes it clear that anyone who has a minor German child and actually exercises personal care regularly has a Claim to a residence permit in accordance with § 28 Para. 1 Sentence 1 No. 3 AufenthG, regardless of their own income.

3.2 Extension after the child reaches the age of majority

More recent legal amendment (now firmly established): The residence permit issued to a parent of a minor unmarried German for the purpose of exercising personal care can also be extended after the child has reached the age of majority, as long as

• the child lives with the parent in a family relationship and

• is in school, vocational or university education.

This regulation is an expression of the constitutional protection of the family (Art. 6 of the Basic Law) and the provisions of EU law on family life (Art. 7 of the EU Charter of Fundamental Rights, Art. 8 of the ECHR).

4. settlement permit according to § 28 para. 2 AufenthG

§ Section 28 (2) AufenthG regulates the Settlement permit for family members of Germans. According to this, the foreigner is regularly to be granted a settlement permit if:

1. he three years in possession of a residence permit is,

2. the Family cohabitation continues to exist with the German in the federal territory,

3. none Interest in expulsion exists and

4. he over Sufficient knowledge of German (in practice B1) available.

§ Section 9 (2) sentences 2-5 AufenthG applies accordingly (crediting of periods, relief for pension contributions, etc.).

The higher courts have further clarified this regulation:

• The three-year period refers to for a family residence permitwhich is derived from the German family member, i.e. usually a residence permit in accordance with § 28 Para. 1 AufenthG. A previous residence permit for other reasons (e.g. spouse reunification with EU citizens, humanitarian titles) is sufficient for this purpose not.

• An existing settlement permit (e.g. according to § 26 Para. 3 AufenthG for refugees) does not preclude the additional acquisition of a settlement permit according to § 28 Para. 2. Several indefinite titles in parallel are permissible (confirmation of the case law on 1 C 12.12).

In practice, the Foreigners' Registration Office still regularly checks the following as part of the settlement permit process Securing your livelihood (Section 5 (1) no. 1 AufenthG). Pursuant to Section 5 (3) sentence 2 AufenthG, this standard requirement may be waived if special circumstances - in particular family ties protected by fundamental rights - make this necessary.

5. retroactive granting of residence permits - basic guidelines 2025

The „trick“ in the Stuttgart case was the idea of using the to issue family-related residence permits retroactively, so that the three-year period of § 28 para. 2 is fulfilled earlier.

The case law of the Federal Administrative Court generally permits a retroactive residence permit, but requires a Interest worthy of protection:

• A foreigner can apply for a residence permit for a period in the past if there is no reason to do so. further residence status significantly is the date from which he or she holds this title (e.g. for a settlement permit, certain gainful employment, naturalisation).

• Such an interest worthy of protection is affirmed in particular if the person concerned has submitted an application in good time and the delayed decision or incorrect issue of the title is solely the responsibility of the authority.

However, it is also important to time limitSeveral higher courts - including the Hessian Administrative Court - have made it clear that the retroactive issue of a residence permit is not permitted. generally only for periods after the application has been submitted comes into consideration. Only very limited exceptions can be considered for periods prior to this (e.g. reopening in the event of a particularly serious error by the authorities).

The Federal Administrative Court has clarified this line in more recent decisions on the retroactive granting of humanitarian residence permits (e.g. Section 25b Residence Act): In the case of a retroactive grant, the relevant grant period i.e. the material prerequisites must be met. during this period not only at the time of the court decision.

In practice, this means

• Yes, a retroactive residence permit can open the door to a settlement permit in accordance with Section 28 (2).

• No, It is not automatic, but requires a clear argumentation on the interest worthy of protection and on the conditions in the granting period.

6. duty of the foreigners authority to provide counselling - how far does it go?

The administration's general duty to provide advice can be found in Section 25 of the Administrative Procedure Act (or the parallel provisions under state law, e.g. Section 25 LVwVfG Baden-Württemberg). According to this, the authority should inform the parties involved of their rights and obligations and work towards the submission or completion of applications if it is recognisable that this is not being done due to a lack of knowledge.

Applied to the right of residence, this means simplified:

• The foreigners authority does not have to „advise“ on every conceivable residence title.

• But it must not accept with its eyes open that an obviously obvious, significantly more favourable title „stays put“ even though all the information is on the table (e.g. birth of a German child, ongoing family residence, foreseeable settlement permit).

Case law is not entirely uniform in this respect:

• Some courts emphasise that it is No general obligation to instruct every foreigner about all theoretically possible titles.

• Others - as in the Stuttgart case - derive from Section 25 VwVfG and Article 6 of the Basic Law a far-reaching Duty to inform and advise if the authority recognises that the person concerned could have obtained a significantly better status (e.g. settlement permit) if the correct information had been provided.

Realistically speaking, a certain amount of growth has been achieved by 2025. Centre position has emerged:

• No „all-round advice“ for all cases.

• But one Specific duty to inform and advise in constellations in which

  • the relevant facts are known to the authority (e.g. birth of a German child, registration data, marital status) and

  • it is clearly recognisable that a certain residence title (or its retroactive issue) is decisive for the further residence status (settlement, naturalisation, avoidance of chain tolerations, etc.).

7 The Stuttgart case - an updated look

7.1 Brief facts of the case

The plaintiff, a Bosnian-Herzegovinian national (born in 1971), had been living in Germany legally since 2006 - initially with a residence permit as a contract worker (Section 18 Residence Act, old version), and later with a residence permit to join his Croatian wife as a spouse (Section 30 Residence Act).

In 2008, the Stuttgart child born together, who was granted German citizenship under the provisions of Section 4 StAG at the time. The Immigration Office was informed of this, but only granted the plaintiff a residence permit in accordance with § 28 Para. 1 Sentence 1 No. 3 AufenthG (parent of a minor German) in May 2009.

In 2010, the plaintiff applied for a Settlement permit. The authorities rejected the application on the grounds that the three-year period under Section 28 (2) had not yet been fulfilled and that the applicant had not provided sufficient proof of his or her means of subsistence.

In the subsequent proceedings, the plaintiff applied, inter alia, for the retroactive issue of the residence permit in accordance with Section 28 (1) from an earlier date and the Settlement permit.

7.2 Key statements of the VG Stuttgart (2012)

The Stuttgart Administrative Court saw:

• After becoming aware of the birth of the German child, the foreigners authority should have pointed out the possibility of a residence permit in accordance with Section 28 (1) No. 3 and, if necessary, issued one. retroactive issue have to check.

• There was an interest worthy of protection in the retroactive issue because the possibility of obtaining a settlement permit in accordance with Section 28 (2) depended on it.

• The authority was obligated to terminate the concluded proceedings by way of the Resumption in the broader sense (Section 51 (5) VwVfG in conjunction with Sections 48, 49 VwVfG).

• On the basis of the subsequently submitted documents, the court ultimately also saw the Livelihood and obliged the authorities to grant the settlement permit.

At the time, the passage stating that the authorities had to prevent the foreigner from being „caught between the stools“ of different residence permits was particularly significant.

7.3 What is still viable about this decision in 2025 - and what is not?

Despite its age, the judgement is still relevant in several respects:

1. Resumption in the broader sense
   The construction used by the Stuttgart Administrative Court - reopening in accordance with Section 51 (5) VwVfG in conjunction with Sections 48, 49 VwVfG. §§ Sections 48, 49 VwVfG - has been confirmed and further developed by the subsequent case law of the BVerwG.

2. Interest worthy of protection in the retroactive effect
   The argument that there is an interest worthy of protection if this is the only way to obtain a settlement permit fits in seamlessly with current BVerwG case law on the retroactive granting of residence permits.

3. Duty to provide advice
   The duty of the foreigners authority to provide counselling assumed by the court is today in conflict with decisions that are rather reluctant to see a general duty to provide counselling. However, in constellations such as this - birth of a German child, clearly foreseeable stabilisation of residence - a general duty to provide advice is still often assumed today. Duty to inform affirmed.

In particular, the following is outdated or needs to be corrected:

• The assumption that there may not be „two residence permits for the same period“. Since BVerwG 1 C 12.12 (19.03.2013) at the latest, it has been clear that several residence permits side by side are possible and even necessary in certain constellations (e.g. additional settlement permit despite existing EU permanent residence).

• Recent supreme courts have emphasised that a Retroactive effect before application can only be considered in exceptional cases (e.g. in the event of serious errors by the authorities and reopening). From today's perspective, the VG Stuttgart was rather generous with retroactive effect; the line of the higher courts is now more restrictive.

For counselling practice, however, the central idea remains: If the authority „overlooks“ an obviously more favourable family residence permit, this can be corrected later by reappraisal and retroactive granting - with the result that a settlement permit is issued in accordance with Section 28 (2).

8. current case law 2024/2025: ECJ & BVerwG sharpen the rights of parents of German children

8.1 ECJ, judgment of 8 May 2025 - C-130/24

A case brought before the VG Düsseldorf concerned a third-country national mother of a German child, which refer to Art. 20 TFEU appealed. The following questions, among others, were central: Does the derived right of residence arise from Art. 20 TFEU? automatically or only with the national decision?

• When does this right exist - from the date of application or from the date of birth / establishment of the dependent relationship?

• Can the recognition of the right be made conditional on the person concerned leaving the territory of the EU in order to subsequently apply for a visa?

The ECJ has clarified this:

1. The right of residence of the third-country national parent arises from directly from Art. 20 TFEU; the national residence permit is declaratory only.

2. The right arises not only with the application, but from the point in time at which the dependency relationship with the EU citizen child arises - in practice often from the child's birth.

3. A national provision that makes the recognition of this right dependent on the parent leaving the territory of the Union to apply for a visa is incompatible with Art. 20 TFEU. not compatible, if this would effectively force the child to follow the mother abroad.

This means for the interaction with Section 28 AufenthG:

• Even if a residence permit pursuant to Section 28 has not (yet) been issued, a right of residence under EU law can be by virtue of Art. 20 TFEU and Art. 21 TFEU exist.

• This right is recognised by the authorities only to certify, not to „lend“.

In practice, this case law can be used, for example, if the foreigners authority hesitates to issue a residence permit after the birth of a German child or insists on a visa procedure „abroad“.

8.2 BVerwG, judgement of 25 September 2025 - 1 C 17.24 (retroactive residence permit)

In a procedure for the retroactive granting of a residence permit in accordance with Section 25b Residence Act (sustainable integration), the Federal Administrative Court (BVerwG) 2025 has established central principles for retroactive residence permits emphasised:

• When deciding on a retroactive issue is on the Grant period not on the date of the court decision.

• The material requirements (e.g. sustainable integration, livelihood, impunity) must be met. for the retroactively recognised period have been present.

Even if the decision concerns a humanitarian title, the statements can be generalised and are relevant for cases in which the retroactive granting of a title Prerequisite for a settlement permit is - as with § 28 para. 2.

9. practical tips 2025 - what those affected should look out for

9.1 When a German child is born

• The birth of a German child should immediately be reported to the Foreigners' Registration Office (preferably in writing, verifiable, with birth certificate).

• It should be explicitly Issue of a residence permit in accordance with Section 28 (1) sentence 1 no. 3 AufenthG can be applied for.

• If another title already exists (e.g. § 30, § 18), the current legal position is that nothing against it, that both titles exist side by side - on the contrary: this can be advantageous later for a settlement permit or naturalisation.

9.2 If the authority has issued „the wrong title“

• If, for example, a residence permit in accordance with § 30 AufenthG (spouse reunification) is initially continued although there is already a German child, the following should be considered promptly a correction can be requested.

• If the situation is complicated (for a long time only „false“ title, now application for a settlement permit), a check can be made:

  • Resuming of the procedure for initial or subsequent granting,

  • retroactive issue a residence permit according to § 28 para. 1,

  • Assertion of a Interest worthy of protection (settlement permit, naturalisation deadlines, social security law).

Here it is regularly worth legal examination, because the argumentation has to be finely balanced.

9.3 Utilising the authority's duty to advise - but not relying on it

• The foreigners authority has Duty to inform and advise, if it recognises that a certain title is considerably more favourable for the persons concerned.

• Nevertheless, if you only „ask what is possible“ without making specific applications yourself, you run the risk of courts later saying that the authority did not have to proactively list every option.

• It is safer, concrete applications („I am applying for a residence permit in accordance with Section 28 (1) sentence 1 no. 3 AufenthG from ... and subsequently a settlement permit in accordance with Section 28 (2) AufenthG.“).

9.4 Interaction with Union law

• In borderline cases in which a residence permit is (still) refused under Section 28, it should always be checked whether Art. 20 or Art. 21 TFEU convey an independent right of residence.

• National authorities and courts are bound by the case law of the ECJ; there is a right of residence under EU law if by law and cannot be made dependent on a prior visa or a formal certificate.

10. conclusion

• The birth of a German child is a turning point from the point of view of residence law: it regularly opens up a Entitlement to a privileged residence permit in accordance with Section 28 (1) sentence 1 no. 3 AufenthG - and thus in perspective to a Settlement permit according to § 28 para. 2 AufenthG.

• If this privileged legal position is not recognised by the Recognised too late or incorrectly, under strict conditions, a retroactive issue of the correct title, especially if this is the only way to obtain a settlement permit or another long-term status.

• The case law up to 2025 (VG Stuttgart, BVerwG, ECJ) shows:

  • The immigration authorities are not powerless, but can reopen completed proceedings in favour of those affected.

  • Those affected have a judicially enforceable claim to a decision free of discretionary errors.

  • Rights of residence under EU law (Art. 20, 21 TFEU) exist regardless of whether the authority reacts in good time - they only need to be certified.

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty.
The content of this article has been compiled to the best of our knowledge on the basis of the Legal situation and case law until November 2025 created. The subject matter is complex and subject to ongoing changes. No liability can therefore be accepted for the correctness or completeness of the content; this is no substitute for individual legal advice.

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