What can I do?my lawyer says that I go back to my country for a visa,and at the moment I have a fiktionbescinigung
asked Nov 24 in Legal advice by Mikoti

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Dear @MIkoti,

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

I am afraid that it is quite difficult to give you an advice without knowing your situation in detail. Unfortunately, it is often the case that the immigration office (Ausländerbehörde) is asking applicants for a family dependant residence permit to re-enter Germany with the "right" visa. We discussed this problematic topic a few times on this platform as well - in this thread, for istance.

In short, you will have to convince the immigration office that the visa procedure is absolutely unreasonable for you. Your lawyer should support you in this and possibly also taking the case to court. I guess the chances highly depend on your individual circumstances. I hope your lawyer is specialized on migration law? If you are insecure about the lawyers knowledge and performance, you may also consult a refugee or migration counselling office to get support and a second (free of charge) opinion. Let us know if you need help in finding a counselling organization close-by.

In case the visa procedure is unavoidable and at the end the best option for you, make sure to have a so-called "Vorabzustimmung" (pre-approval statement) by the Ausländerbehörde before leaving the country. We shared some information on it here.

I hope these information are helpful to you and please don't hesitate to get back to us with any further questions.

All the best,

Meike

answered Nov 27 by Meike
Hallo @Meike Thank you for the answer.Okay in details is that I came to Germany through Austria and got pregnant when I was illegal then I gave birth to my German daughter and the Ausländer Behörde said i have to go back home to my country for a visa to come back to Germany.Then since then I have a fikstionbeschigung and then the lawyer said that I have to got back and apply for the visa but first i should get the pre approval document from the Behörde.My fear is that because i came through Austria to Germany and I had earlier applied for a visa at German embassy and it got rejected,that it can bring me problems when I go back home to apply for my visa to comeback because now I’m a mother to a German child and I share custody with her dad.We have done Vaterschaft and everything but the Ausländer Behörde still insist that I go and apply for the visa even though i have a Fiktionbesichingung.It’s very strange because the guy who has my case at the Ausländer Behörde when I went to Renew my fiktsionbeschigung he told me that it could be that I don’t have to go back and apply for the visa but I don’t know until now what his decision is,the main thing is that I should go back and apply for the visa and until now I still have fiktionbeschingung.I’m just scared that they will deny me the visa to comeback.

Hi @Mikoti,

As my colleague @Meike outlined above, the Ausländerbehörde has to consider whether it is 'reasonable' to request someone to leave Germany and go through the visa process abroad. I am assuming your child is under 3 years old. As your child is a German citizen, they cannot be expected to leave Germany. As a result, you cannot be expected to leave as it would result in the seperation of a parent from a small child.

Here is a decision from the German Federal (i.e. highest) Constitutuional Court about this kind of situation:

https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2008/12/rk20081201_2bvr183008.html

Here is an article in English (via online translation) about the situation:

https://www-advogarant-de.translate.goog/rechtsanwalt/gebiete/rechtsanwalt-fuer-internationales-recht/nachholung-visumsverfahren?_x_tr_sl=de&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=wapp

Based on the information you have provided, I really cannot see why your situation has been made complicated. I advise you to consult with your lawyer with the information you have received here. If you are unhappy with them, then I advise to seek other legal advise or at least support with this from a migration couselling service.

Let us know if you have any other questions.

Best,

Éanna

hallo @mbeon -Éanna
and thank you for your reply.
I need more help because my lawyer is just suggesting that I go back to my country and apply for the visa to come back and reunite with my child(but if I would go to my country,I would take my baby with me) is that a good thing to do because as a mother I just can’t leave my child behind.
Can I get any help from this form of immigration counselling?
I have paid so much for the immigration lawyer that I have at the moment,she is best known in The region for Ausländer recht.
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