A mother to a German child with a Fiktionbescigung,

Question

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

Answer 1

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

Comments

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.

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

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

https://***-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

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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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You’re welcome. Again, I am not a lawyer and do not know the complete details of your case. However, on my understanding it should be quite clear that you should be issued with a permit here in Germany. If your child is still young, the authorities cannot expect them to be separated from either you or the father for an extended period of time. A young child cannot understand the absence of a parent due to having to get a visa and therefore you can be issued with a permit here. If you did not have a child or the child was a teenager, for example, then you would probably have to leave and get a visa

The authorities have to **** at whether forcing you to leave to get a visa is ‘zumutbar’, a term which means if it’s reasonable to expect you to do it. Is your lawyer aware of the idea of ‘zumutbar’ and the legal case and example I provided above? What has your lawyer been doing for you if they are also saying you have to get a visa?

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Hi dear Mikoti , i don’t know if you’ve got solutions for your situation or you go back to your country as your lawyer advice, I’ve hear so many people in your situation, they have change lawyer and change city, they got succes, is possible to live with your baby’s father? If positive he has to come in the case, take another lawyer and pay the amount he requested, because some lawyers are social lawyers and they are not ready to help, if you go back your chance to come is low. May the God help you. Thanks

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Hallo thanks for your response.The father of my child we live together and he um also included in the situation,he is German,we cannot change the city because the father of my child has a permanent employment and my lawyer is an Ausländer lawyer known in the Bayern Region in Augsburg,she is 20years + in the Ausländer recht .You mean as a mother to a German child I can be denied to come back?and what about my child and she is 100% German?How is that possible?kindly let me know.thanks

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Digitalmodernbranding@gmail.***
You can email me there

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Hi @Mikoti,

As this is a public forum, I advise you not to post personal information such as an email address here. For this reason I have flagged your comment.

If you wish to contact me further about this matter, you can do so by using the mbeon app. As I have written previously, I do not believe you have to leave Germany. As the parent of a small child, it is not reasonable to expect you to do this. This needs to be communicated to your lawyer and the Ausländerbehörde. You can use the legal case I previously mentioned to support your argument.