As mother of a German child, why was I issued a residence permit according to 25 (5) instead of section 28?

Question

Hallo Family,
I have question and problem:
* I have a child who has German passport but I was issued a residence permit of 25 abs 5 without any explanation. I got application by post and I fill the form and my reason for the permit was family reason but was given different one. I didn't enter Germany as a refugee but an illegal and before and after the child birth I have not been to any camp before. After my the birth I was living in a homeless home and later transfer to Mother and Child home. The Ausländerbehörde collected my Passport before issuing me a Duldung, using the Duldung for 11 months and even after my residence permit they didn't give it to me. Am going to Deutsche School now. I WANT TO KWON WHY THEY GAVE ME RESIDENCE PERMIT 25abs5 and WHY THEY DIDN'T GIVE ME BACK MY PASSPORT
*Am now pregnant with my new boyfriend and I want to kwon if He can get resident permit through the child.

Best regards.

Answer 1

Dear Rita manu,

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

I can only make an assumption, why the immigration office did not issue a residence permit according to 28 of the German Residence Act. Since you came to Germany "illegally", you may not fulfill the conditions of section 5 - "the general prerequisites for granting residence titles". This in turn, as also described on page 4 here, may lead to the issung of "only" a humanitarian residence acc. to 25 (5) instead of 28. 

However, it is hardly possible to give a profound individual advice in your situation. I would highly recommend you to contact a migration counselling office for support. Please let us know if you need help in finding a respective office in your area.

Regarding your second question: Your non-German child may receive a residence permit according to section 33 of the German Residence Act as in Germany born child with parents (a parent) holding a residence permit. His/her father may apply for a residence permit "Zur Ausübung der Personensorge". Please see, for instance, this thread or this discussion for more information. Please note that the issuing of a respective residence permit is at the discretion of the immigration office (Ausländerbehörde).

Would you agree on my explanations dear @alla_fka and/or is there anything you would like to add?

I hope this helps and don't hesitate to get back to us with any further questions.

All the best,

Meike

Answer 2

Hello Rita manu,

I think Meike is right in supposing that the reason for giving you a weaker residence permit after §25.5 (impossibility of deportation), instead of §28.1.1.3 (German child), can be coming to Germany illegally. More exactly you can only know if you ask your Ausländerbehörde for an explanation.

In such cases the Ausländerbehörde can make a claim that you go to your country and apply for a proper visa (for family reunion to your German child). Sometimes it can be really a good way to solve the problem - if you can afford it. The whole preparation process of applying for such a visa can be made from Germany, so that you just travel for an appointment with the German embassy and get your visa in a short time. For that you need a confirmation from the Ausländerbehörde in advance that they agree to issuing this visa for you (so called Vorabzustimmung).

I know that in most cases this way is unfortunately difficult or impossible. And some Ausländerbehörden are very strict and don't agree to give you better than §25.5. For the question if it is worth making a legal process you must consult a good lawyer.

The father of your future child must make an acknowledgement of fathership and a custody of a child, if he hopes to stay because of the child. The problem is that if both parents have custody but only one parent has a residence permit, it is in discretionary power of Ausländerbehörde to give the child a residence permit after §33. They can also give the residence after §25.5 or even first only Duldung, especially if the living costs are not covered from the own income of the parents.

If the child gets a residence permit, it would be possible to try it for the father, but it can be difficult and it probably will be impossible if the father doesn't earn enough for all costs, doesn't have a passport, has criminal penalties etc. As the child won't be German, the father isn't fully safe, especially if he doesn't live together with the child.

I don't think it is possible to get more exact information online. It is important to know how such cases are handled in your place. Therefore you should ask for help from your local councelling or a lawyer.

If your new

Comments

Thank you so much dear @Alla_fka - the information you give here are so useful and detailed! I am sure they will help many readers! I also didn't know that it can get complicated with the issuing of the §33 if only one parent holds a residence permit. In Berlin, for instance, I fortunately made only positive experiences in similar situations. So let's hope that the immigration office will be cooperative in this case as well. All the best, Meike