The father holds a temporary residence permit
The child will NOT acquire German citizenship by birth, but will instead have its parents’ nationality if
- the father “only” holds a temporary residence permit or
- holds a settlement permit, but has not been lawfully residing in Germany for eight years.
In such cases the decision on granting a residence permit is at the discretion of the foreigners’ office. A child born in Germany can, for the time being, be granted a residence permit pursuant to section 33 of the Residence Act.
Generally, however, in any family constellation in which one of the parents is not a citizen of Germany or an EU member state, the decision on issuing a residence permit to mother and child depends on whether their subsistence is secure. If the family relies on public services, even if only partially, the parents will be told that they could as well lead a family life in their country of origin.
Some constellations are known as so-called patchwork families, for example, if a father looks after a child from another relationship or a child who has German citizenship.
Due to this relationship, the father will then be granted the right to stay and receive a residence permit. However, as the father-child-relationship with the second child is also protected by the constitution, the child and the mother will in certain constellations be granted a residence permit as well. But judicial practices have sometimes become more restrictive in this regard. The Higher Administrative Court of Berlin-Brandenburg (OVG), for example, has already decided that, where necessary, a child with German citizenship can also be expected to relocate to its country of origin if family reunification cannot be arranged otherwise.
Special case: Only the father is entitled to custody
A child who is born in Germany and who does not have German citizenship may be granted a residence permit ex officio (pursuant to section 33, subsection 2 of the Residence Act) only if
- for certain reasons, the father has the sole right of care and custody and
- holds a residence permit, a settlement permit, or an EU long-term residence permit.
The mother of the child will be granted a temporary suspension of deportation and in some cases also a residence permit (pursuant to section 25, subsection 5 of the Residence Act), namely if
- the parents have different nationalities so that the order to return to the country of origin together as a family is not feasible in practice or
- in case of other exceptional circumstances.
The protection of marriage and the family by article 6 of the German Constitution and by article 8 of the European Convention on Human Rights (ECHR) does not in itself involve a domestic prohibition of deportation and an obstacle to departure, but only in cases when the existing family unit can be reasonably expected to continue only in Germany and not in the shared country of origin or in one of the parents’ country of origin and when no higher public interests still require departure or deportation.
The fact alone that one family member holds a residence or settlement permit does not represent an obstacle to (joint) departure and also does not constitute a prohibition of deportation (Federal Administrative Court, judgment delivered on April 30, 2009 – BVerwG 1 C 3.08). However, individual cases require examination as to the status of integration of those family members (especially underage persons) who would be affected by a possible separation and as to whether it is reasonable to expect the affected family members to (jointly) leave the federal territory. In such cases, equal consideration must be given to the concerned persons’ rootedness in Germany and their uprooting from the country of origin.
If non-German family members have different nationalities, they must state that their joint entry to one of the countries of origin is not possible. Where necessary, the persons concerned have to consult with the responsible consulates on whether and under which conditions and at which time it is possible for them to continue to live as a family unit in one of their home countries (Administrative Court Berlin, order issued on April 17, 2008 – VG 24 A 80.08).
If one of the home countries has signed the European Convention on Human Rights (ECHR), it can be safely assumed that the country in question complies with article 8 of the ECHR and that family reunification will be in possible in this country.
It is therefore generally possible to demand that a non-German relative joins a non-German citizen who is obliged to leave the country, so that both have to leave together for one of their countries of origin or a shared country of origin in order to start or continue to live as a family unit in this country.
When it comes to assessing whether this decision is reasonable or not, the objective circumstances matter and not the relative’s personal attitude, which, by its very nature, cannot be verified (Higher Administrative Court Berlin-Brandenburg, order issued on July 7, 2008 – OVG 3 S 44.08; see also Higher Administrative Court Berlin-Brandenburg, order issued on May 20, 2011 – OVG 3 S 37.11, on a case regarding parents who live together and where the parent who holds a residence permit announces to remain in Germany even after the departure of the parent who is obliged to leave).