The father is granted suspension of deportation after his asylum application has been rejected
In this case, the father has no right of residence and is obliged to leave Germany, so that no residence title of any kind can be conferred to the child.
Such a case often depends on the reasons why the father is not leaving, although he is obliged to, and possibly also on the reasons why he cannot be deported.
There are a number of reasons why the father cannot be forced to leave or why he cannot be deported. This is, for example, because
- there is no airport in his country of origin or
- despite strenuous efforts, his country of origin refuses to issue a passport or
- his country of origin experiences civil war, so that Germany desists from deportation.
If an end of this situation is not foreseeable, it is possible that both the father and the child and, as a consequence, also the mother will be granted residence pursuant to section 25, subsection 5 of the Residence Act. This becomes an option when the deportation of a person has been suspended for 18 months and for reasons which are beyond the person’s control. In such cases, however, foreigners’ offices decide at their own discretion, adopting a very restrictive interpretation of this legal regulation. Moreover, these cases are generally rather rare.
If the father is (partly) also responsible for creating an obstacle to deportation – for example, when he does not cooperate in obtaining a passport –, then he himself brings about his residence status, as it were, and therefore shall not benefit from it. Such a situation often entails sanctions, such as an employment ban or the imposition of a residence obligation. Since the father will not be granted a residence permit, the child can also only expect a temporary suspension of deportation.
The parents of a child who is born in Germany frequently come from different countries. Moreover, if the parents cannot provide adequate documents, then it is often difficult, if not impossible, to receive birth certificates for children born in Germany and to clarify their nationality. For lack of necessary documents and due to issues of family protection, these families cannot be deported to their countries of origin. Although authorities urge the persons concerned to take care of how they and their partner and children can gain entry to their county of origin, this request is often near impossible to satisfy. This is why it happens, time and again, that binational families remain in Germany, although neither parents nor children are granted a right of residence. Sometimes they continue to be tolerated for years, even if this situation involves many legal restrictions for them.