Reunification with a Minor Child: What to Do When the Father Exists Only on Paper?

Germany, under its Basic Law, holds the family sacred and protects it. Nevertheless, former citizens of the USSR often run into legal problems obtaining a residence permit for the purpose of family reunification, even where minor children are involved. After all, even in an age of globalization, unlimited internet access and advanced technology, all of us — and children especially — need the personal presence and active involvement of close family members in our lives. Life situations vary. It sometimes happens that bureaucratic nuances can become an obstacle to a child obtaining a residence permit to live with their sole parent in another country. The attorney's main task in such a case is to examine the situation thoroughly and impartially and find legally sound arguments for the officials so that a favorable decision is reliably issued. This article discusses one such case from our practice.

As we have already written extensively in our articles, on September 13, 2013, certain amendments to the Act governing the fundamental requirements for the residence, employment and integration of foreign nationals in Germany (Aufenthaltsgesetz) entered into force. As a result of these amendments, the procedure for reuniting foreign parents holding a residence permit in Germany with their minor children — foreign nationals residing outside Germany — was simplified. The legal basis for reunification with minor children is § 32 of the Aufenthaltsgesetz. Since, under § 2 of the Civil Code (Bürgerliches Gesetzbuch, BGB), the age of majority in Germany is 18, this concerns children who have not yet reached that age. Above all, successfully resolving the matter requires meeting four general prerequisites set out in the Aufenthaltsgesetz.

So, in principle, reunification is possible:

1) for the purpose of restoring family ties or marital union (consequently, if relatives intend to live separately, say in different cities, there is no legal basis for reunification. The legislature considers that, in that case, the persons involved might just as well live in different countries);

2) where the family member already residing in Germany with whom reunification is sought holds one of the following statuses:

· German citizenship

· status as a German under Article 116(1) of the Basic Law

· a residence permit of the Aufenthaltsberechtigung type

· a residence permit of the Aufenthaltserlaubnis type

· status as a recognized political refugee (Asylberechtigter)

3) where housing space sufficient for the whole family is available (sufficient meaning space that, in size and quality, meets the standards for social housing for Germans);

4) where the family is able to support itself without state assistance.

It should also be borne in mind that the question of reunification depends heavily on the child's age. Different conditions and statutory criteria apply to

- children under 16, and

- children between 16 and 18.

In the first case, an absolute right to reunification with the child arises if both parents hold a residence permit of the Aufenthaltsberechtigung or Aufenthaltserlaubnis type, or are recognized political refugees (Asylberechtigte). This rule does not apply if the spouses are divorced or one of them has died. Where a foreign national has a child from a previous marriage, or a child born out of wedlock, and does not hold sole custody, the other parent's consent is also required for the child to move to Germany. This rule follows both from German law and from the laws of most republics of the former USSR.

A Ukrainian citizen — let's call her Tatyana — once came to us with her problem. Tatyana's personal life had gone quite well over the previous few years. She met and soon married a German citizen, obtained a three-year residence permit in Germany (Aufenthaltserlaubnis), and later gave birth to a child. Nothing would have clouded the woman's newfound family happiness, were it not for the problem of her elder son, born in Ukraine out of wedlock, whom she naturally wanted to bring with her to Germany. It would seem that there could be no legal obstacles at all — she had raised her son alone her whole life and made every decision concerning his life by herself. As so often happens, the problem arose quite unexpectedly, when the woman filed the set of documents to obtain a residence permit for reunification with her minor child. As it later emerged, the child's birth certificate listed, "de jure," a certain "father" who was by no means one "de facto." The reason was that, under Article 135 of the Family Code of Ukraine, the "father" field on a child's birth record lists whoever the mother names as the child's father. In some cases, this can even be a fictitious person — as turned out to be the case for our client's child. Needless to say, it was impossible to obtain and provide the consent of the child's second, non-existent parent, and Tatyana found herself in a desperate situation. The immigration authority told her that, in such a case, obtaining a residence permit for her elder son was impossible — threatening to wreck all the plans and hopes of the newly formed family. What was the woman to do if her ten-year-old son were sent back to his home country, where there was no one to look after him?

Many people give up after receiving a negative response from the embassy or the immigration authority. There is no need to despair! A way out can always be found. After Tatyana brought her problem to us, we carried out thorough preparatory work:

· we requested an extract from the birth register in Ukraine, which showed that our client's son was born out of wedlock and that the child's biological father had not legally acknowledged paternity

· we prepared detailed explanations of Ukrainian law, which states that a person may be listed in the "father" field of a child's birth certificate solely on the mother's word — meaning that this can even be a fictitious person

· we prepared evidence that Tatyana had always raised her elder child on her own and that there were no other relatives in Ukraine able to care for him if he were to return there

· we submitted evidence that all other statutory requirements for obtaining a residence permit for family reunification had been fully met.

All the supporting documents were translated into German and attached to a reasoned petition, which we then submitted to the immigration authority.

To the great joy of our client's entire family, the officials at the immigration authority accepted our arguments and, after reviewing the reasoned petition and all the supporting documents, granted Tatyana's application. As a result, the boy was issued a residence permit in Germany for the purpose of family reunification under § 32 of the Aufenthaltsgesetz.

As the great Russian writer Leo Tolstoy wrote: "All happy families are alike; each unhappy family is unhappy in its own way." We sincerely wish Tatyana's new family happiness and prosperity in their new home. Tatyana's family, in turn, is grateful to us for taking a highly professional, individualized approach and preparing sound arguments, which helped us convince the officials and achieve a favorable outcome.

Immigration & Residence Law

All rights reserved. Copying or republishing this article requires a link to the original source.