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Bavarian Administrative Court, 26.09.2016, Case No.: 10 B 13.1318
The right of the father or mother to maintain contact with their child must also be considered in immigration law.
Article 6 Abs. 2 and 3 GG (German Basic Law) guarantees the primacy, independence, and self-responsibility of parents in the care and upbringing of their children while also designating the state as the guardian. The right of access for one parent, like parental custody, is therefore protected under Art. 6 Abs. 2 S. 1 GG. Both legal positions stem from the natural parental right and the associated responsibility of the parents and must be respected by both parents in relation to one another.
The German state may intervene in parental access rights only for the benefit of the child.
This means that the state may only limit parental access rights in the child’s best interest. This consideration must be applied in youth welfare matters and in residence regulations. Therefore, the Federal Office for Migration and Refugees (BAMF) must examine in its decisions regarding residence permits whether parental custody or access rights exist and whether these indicate an actual parent-child relationship.
In many cases, the right to stay through a child plays a central role. When a parent of a German child applies for a residence permit, the authorities check carefully whether there is an actual parent-child relationship. Only if a close bond and regular contact can be proven can a residence permit be granted by German child. The decisive factor here is that the father or mother actively participates in the child's life and assumes responsibility.
At the same time, Article 8 of the European Convention on Human Rights (ECHR) must be considered, as it also grants parental access rights and provides special protection for the family.
In the following case, the plaintiff challenged the denial of his application for a residence permit to exercise his access rights with his son.
Background: Asylum under a False Identity and Re-entry
The plaintiff, born on October 1, 1964, first entered Germany in May 1997 and applied for asylum, falsely claiming to be a Sudanese national. He also falsely stated that he had left his home country in 1955, which was clearly incorrect given his birth date. After verifying his information, it was revealed that he was not from Sudan, leading to the rejection of his asylum application. He subsequently went into hiding and left Germany.
In March 2004, the plaintiff re-entered Germany, this time as a Nigerian national with a Spanish residence permit. On March 29, 2004, he applied for a residence permit based on his marriage to a German citizen, which had taken place in Denmark. The German authorities then issued him a residence permit under § 23 Abs. 1 AuslG, initially valid until May 17, 2005. This was later extended until May 17, 2007, under § 28 Abs. 1 AufenthG.
Birth of Son and Application for Permanent Residence Permit
On January 6, 2007, the plaintiff’s son was born. Due to this event, the plaintiff applied for a permanent residence permit on May 18, 2007. However, since the conditions for such a permit were not met, he withdrew his application on September 27, 2007. Instead, he was granted a temporary residence permit under § 28 Abs. 1 S. 1 Nr. 1 AufenthG, valid until February 11, 2009.
Shortly thereafter, in October 2007, the plaintiff separated from his wife and reported this to the authorities on December 6, 2007. Despite the separation, he applied for an extension of his residence permit on February 11, 2009, under § 31 Abs. 1 AufenthG to continue exercising his access rights with his son. The authorities granted him a residence permit under § 28 Abs. 1 S. 1 Nr. 3 AufenthG, valid until June 24, 2010.
The application for a permanent residence permit by child requires that the family relationship not only formally exists, but is actually lived. In the event of separation, the settlement permit can only be granted in accordance with Section 28 (2) Residence Act if contact with the child takes place regularly and the child's welfare is promoted as a result. Mere biological parenthood is not sufficient for the right of residence.
Difficulties with Access Rights and Divorce
The plaintiff’s marriage was dissolved on September 21, 2009. After the divorce, his ex-wife reported that the plaintiff was not adhering to the agreed visitation schedule and was also not paying child support. The child’s stepfather increasingly took on the role of the father. In April 2010, the plaintiff applied for a residence permit for a language course but withdrew the application because he was receiving social benefits, making approval unlikely. In the following years, he received several temporary certificates until he was granted a residence permit under § 28 Abs. 1 S. 1 Nr. 3 AufenthG in July 2011, valid until June 17, 2012.
On March 1, 2012, the plaintiff again applied for a permanent residence permit, this time citing international, humanitarian, and political reasons and claiming to have found employment. However, the authorities rejected this application on November 29, 2012, stating that the plaintiff did not meet the requirements of § 28 Abs. 2 S. 1 AufenthG. Specifically, there was no longer a familial relationship with his son, as confirmed by statements from his ex-wife and further investigations.
It is particularly common for fathers to apply for a residence permit for the father of a German child after a separation. This form of residence permit depends on whether the father actively participates in raising the child and maintains an emotional relationship with the child. Without demonstrable regular contact or financial support, the residence permit may be refused by the German child.
Legal Action and Grounds for Denial
The plaintiff filed a lawsuit against the authorities‘ decision, but the Bavarian Administrative Court Augsburg dismissed the claim on March 5, 2013. The court ruled that the plaintiff had no right to a residence permit under § 28 Abs. 1 S. 1 Nr. 3 and § 28 Abs. 1 S. 4 AufenthG because he did not exercise custody of his son and did not live in a familial relationship with him. Since his separation from his wife in October 2007, when the son was only nine months old, there had never been a lasting household community. The sole custody had been awarded to the child’s mother by a court decision on October 30, 2008. Furthermore, the plaintiff was unable to support himself, which is another requirement for the issuance of a permanent residence permit under § 9 AufenthG.
The court also found that the plaintiff was neither regularly nor seriously involved in his son's life. The judgement makes it clear that the right of residence by child only applies if the parent credibly and permanently assumes responsibility. A permanent residence permit through a child requires stable family circumstances and active involvement in caring for the child. Anyone who does not fulfil these requirements loses the right to a settlement permit 28 para. 2 Separation, even if biological parenthood exists. There had only been infrequent visits and, with a few exceptions, the applicant had not paid any maintenance. Therefore, there was no entitlement to a residence permit under Section 28 (1) sentence 1 no. 3 AufenthG.
Appeal: Confirmation of First Instance
The plaintiff appealed the ruling, arguing that the Administrative Court Augsburg had misjudged the access rights. He claimed that he was indeed interested in his child’s life and made efforts to maintain contact. A court-appointed contact supervisor was also involved in promoting contact between him and his son. The plaintiff referred to his constitutionally protected access rights under Art. 6 Abs. 1 GG, which should not be conditional on additional factors such as child support payments. He also argued that the child’s mother was obstructing the contact and actively working against the access rights.
Despite these arguments, the Bavarian Administrative Court Munich ruled against the plaintiff. The court confirmed the first-instance judgment and dismissed the appeal. It concluded that there was no entitlement to a residence permit because there was no familial relationship with the son. The contact was limited to occasional letters, and there was no ongoing emotional bond.
No Residence Permit on Humanitarian Grounds
An application for a residence permit on humanitarian grounds under § 25 Abs. 5 AufenthG was also rejected. The court found that the plaintiff’s departure was not legally impossible and that it did not constitute a disproportionate interference with his family or private life. There was no protectable relationship with his son that would justify a stay in Germany. Even an appeal to the European Convention on Human Rights (ECHR) did not help the plaintiff, as his access rights did not serve the child’s welfare and were therefore not protected.
German residence law places high demands on parents who invoke their right of residence through a child. A residence permit for the father of a German child or a permanent residence permit through a child is only granted if there is a genuine family relationship. Authorities and courts check in detail whether regular contact, joint activities and financial responsibility can be proven. Without these characteristics, the application is usually unsuccessful.
Conclusion – For a Residence Permit, the Plaintiff Must Have Regular Contact with the Child
This case underscores that obtaining a residence permit based on a German child requires more than formalities. A parent must not only have a legal relationship but also maintain regular, meaningful contact with the child to demonstrate a familial relationship. Occasional meetings or sporadic contacts are insufficient to establish a right to stay. The court affirmed that the child’s welfare and the actual exercise of parental rights are crucial. Therefore, the plaintiff was rightly denied the residence permit.
Source: Bavarian Administrative Court
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