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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 in Legal advice by Salome Mkota

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 by Alla_fka
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