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Good morning everyone

I have a question which let me confuse because i can’t find no good information about it online so I want to ask here I am living and working in Germany from 3 years and 5 months I have European wife and 1 child and my child is 3 years old my wife don’t have German nationality and I got 5 years of resident permit based on my marriage with my European wife but my son have German nationality now my question is if I can apply for permanent resident permit as my son have German nationality and I’m with my son 3 years already or I can’t make on based of my son ? Because my application for resident permit was based on my marriage with my European wife with no Germany nationality please guide me if I can still make an application for permanent because my son is German and my son is also a family member so please help me I will appreciate it

Many regards

Zaman
asked Sep 25 in Legal advice by Musawvir
edited Sep 28 by Musawvir

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2 Answers

0 votes

Dear @Musawvir,

Welcome back to the Wefugees Community and thank you for your very interesting question! 

I went through the requirements for the permanent residence permit (Niederlassungserlaubnis) for family members of German citizens presented on this website again. Here, it is not specifically mentioned that you have to hold the residence permit according to section 28 of the German Residence Act as parent of a German child in order to “qualify”. Instead it is written “temporary” residence permit for 3 years and living together with the child as well. If you meet all the other requirements too, you might just try to apply for it?!

How do you evaluate the situation, dear @alla_fka?

All the best,

Meike 

answered Sep 30 by Meike
0 votes

Hello,

Basically it is possible to apply for an unlimited residence (Niederlassungserlaubnis), if your German child is more than 3 years old and you live with him the whole time. But the problem is that, even if you earn enough and the family has no social help, you must have paid to a pension fund for 60 moths before application, which is not possible if you have worked in Germany for less than 5 years. I only don't know if it is possible to add payments in another country, provided you paid to such a fund in another country before.

Residence Act, Section 28
Subsequent immigration of dependants to join a German national

(2) As a rule, the foreigner is to be granted a permanent settlement permit if he or she has
possessed a temporary residence permit for three years, the family unit with the German
continues to exist in the federal territory, there is no public interest in expelling the foreigner
and the foreigner has a sufficient command of the German language. Section 9 (2)
sentences 2 to 5 applies accordingly. In all other cases, the temporary residence permit is
extended as long as the family unit continues to exist.

You must have B1 German certificate.

And the following conditions from Section 9 must be fulfilled:

2. the foreigner’s subsistence is secure,
3. the foreigner has paid compulsory or voluntary contributions into the statutory
pension scheme for at least 60 months or furnishes evidence of an entitlement to
comparable benefits from an insurance or pension scheme or from an insurance
company; time off for the purposes of child care or nursing at home are to be duly taken
into account,
4. there are no reasons of public safety or order which would rule out granting
such a permit, taking into account the severity or the nature of the breach of public safety
or order or the threat posed by the foreigner, with due regard to the duration of the
foreigner’s stay to date and the existence of ties in the federal territory,
5. the foreigner is permitted to be in employment, if he or she is an employee

answered Oct 1 by Alla_fka

Dear @alla_fka

Thank you so much for your quick response and the provided information! I agree, in section 28 (2) in mentions the requirement for the 60 months pension scheme contribution. However, when I check the list of the required documents on this website of the authorities in Berlin (https://service.berlin.de/dienstleistung/327012/), they don’t ask for it though. Is it an exceptional regulation for Berlin? 

Thank you so much again and I will also try to make some further research. 

All the best, 

Meike

Dear Meike and Zaman,
I asked 2 lawyers. As I understood, the rule in the federal law is that you must pay 60 months to the pension funds, but it isn't requiered everywhere. It looks like the Ausländerbehörde has discretionary power in this question or it ca be regulated on a local level or in a federal state. Anyway, the lawyers say, you can try to make an application if you fulfil all other requirements.
In the worst case the Ausländerbehörde will warn you that they are planning to reject (in this case they will explain why). In the letters my clients showed to me the Ausländerbehörde proposed to take the application back, because the rejection will cost you money. In this case you can really take it back and wait or at least find a good councelling place and ask about your options.
Thank you for your effort and research, dear Alla! :-) Very useful information!

Best wishes,

Meike
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