Hello,I came to Austria November of 2019 with a 30 days visa,the extension was rejected so I came to Germany in January of 2020,I am now 8 1/2 months pregnant with a German boyfriend who is taking the responsibility of the child,I went to the Ausländer Behörde to register and I was given the letter to leave Germany within 2 weeks,I consulted a lawyer and during the 2 day process I ended up in hospital,I was insured a letter that I can’t travel anywhere more than 30 min away and with that my lawyer issued the Ausländer Behörde ,3 days later I wa given a letter for police investigations,that I should show up personally for questioning,In the letter they figured out my stay in Austria and that for 2 years per 2018 I had attended to apply for a visa in Germany from my home country which was Rejected and that’s why I applied to go to Austria later in 2019,my due date is in 3 weeks,what should I do or what am I facing?I sent my lawyer to represent to me and he told me they need to see me in person,am freaking out please help
asked Jul 3, 2021 in Legal advice by Gerber Peggy

Dear Salome Mkota, 

Welcome to the Wefugees Community and thank you for reaching out to us. 

First of all, I am really sorry to hear about your difficult situation. It is very good that you hired a lawyer as your circumstances sound indeed quite complicated. I will link our dear @alla_fka here, as she is the best if it comes to analyzing complex issues. 

However, there are also limits in giving tailored advice on this public platform and I am sure your lawyer has the clearest picture of the whole situation. 

In any case, I hope you can focus on the most important aspect - the birth - in the meantime. 

All the best for you and the baby and enjoy your new family despite your current struggles. 

Meike

Thank you,I wish just to know if I have a chance to staying here and if am facing deportation after the birth or what is the unknown Am looking forward to hearing from @alla_fka

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Hello Salome Mkota

I'm very sorry for answering late, I have really much work now and I've overseen the request.

First of all, at least 8 weeks after the birth nobody can deport you anywhere, even if you and the baby are absolutely healthy. It is so called mother protection.

To the question of Austria: In case of asylum seekers the responsibility of the state, which issued a visa, to take the person back is finished 6 months after expiring the visa. After that the state, where the person actually stays, will be responsible for proceeding the asylum application.

As far as I understand, you made no asylum application but just stayed illegally. Such cases will be regulated not on the basis of Dublin Rule but on the basis of agreements between two countries.

I suppose that perhaps Austria isn't responsible anymore. Then Germany can only try to force you to go back to your country of origin. But you have naturally a strong argument against it, if your child has German citizenship. (Certainly having a child whose father lives in Germany also prevents a deportation to Austria.) As a mother of a German child you have a right to stay here as long as you excersise your child custody.

As soon as you have documents about the German citizenship of the child, you can apply with the Ausländerbehörde for a residence permit after §28.1.1.3 Aliens Law (Aufenthaltsgesetz). If it takes time, the Ausländerbehörde must first at least give you Duldung (Toleration) but they also can give you a Fiktionsbescheinigung (a document that you applied for a residence permit and your application is under consideration).

Sometimes the Ausländerbehörde treat people like you in a bad way and insist on going back to your country and make up for a visa (as family reunion to your German child). The basis of this claim is a special paragraph in the law: normally a foreigner must come to Germany with a proper visum to get a residence permit. But in your case (giving birth to a German child) an exclusion is possible and the well-being of a German child who needs a mother and can't be separated from her (in this age even for a short time) is a very strong argument, with more weight than a missing visa procedure.

It is good that you have a lawyer. It normally makes things easier for you.

Good luck!

answered Jul 15, 2021 by Alla_fka
Good evening,
here is my situation at the moment,
I had a lawyer meeting today, and he basically told me I have no chance, and thus he is siding with the ausländerhörde that I should go home,i don't understand why he doesn't come up with any idea apart from keep saying I am here illegally, and as illegal am not entitled to Aufenthaltsgesetz.
He told me he will not consult  the landrsamt with the information about me being the mother and my right,or that of my child.
I applied for my daughter’s  birth certificate today because it took while to access my original  birth certificate .

I am left with no lawyer,my lawyer told me to look for another one. so am asking of anybody has information about lawyer that can assist me,am in Dillingen an der Donau,Bayern.

Am still scared of deportation because  the landresamt gave me a letter to leave until end of September ,and they have still with held my pp.

Am obviously  freaking out,my baby is 4 weeks this Thursday ,what are my chances?
Hello,
Im sorry to hear about your difficult situation. It surprises me that they want you to go before your child is 8 weeks. But I don't know how they handle such things in Bavaria. Perhaps they make such claims earlier than 8 weeks but can only make practical measures after this period.
Do they mean that you must go with the child or that you must leave the child with the father?
If the child hat German citizenship, it can't be easy to deport it. And for the father it is mostly not possible to care for the child if you leave even for a few weeks.
But I know that sometimes the Ausländerbehörde can be very hard and would insist on your leaving and making a visum procedure in any case. You can only agree to that if they give you the confirmation in advance that they would agree to issuing a visa if you make an application in the embassy (so called "Vorabzustimmung"). With this document you can make an appointment in the embassy from Germany, prepare all documents, travel to your country for a short time, go to the appointment, collect your visa and come back.
If this procedure is not possible, you can only make a Widerspruch (Objection) to the negative decision about your application for a residence permit and to appeal in the admin. court including the urgent appeal. You must bring all reasons why it is not possible for you to go with or without the child. It can be a very difficult battle.
You can make contact to Flüchtlingsrat Bayern (Refugee Council Bavaria), I hope they can help you to find a councelling place or another lawyer. I have no information about the lawyers for migration law in Bavaria.
https://www.fluechtlingsrat-bayern.de/beratung/
Hello Salome,
I think I have the exact same issue as you do and my lawyer also sided with Ausländer, I am also in dillingen. Can you please send me an email, at @marrisochuba@gmail.com. thanks
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