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Hello,

Firstly, Thank you for creating this community.

I am an Indian citizen with a valid multi entry schengen visa. Me and my girlfriend are in a relationship for the last 6 years and now she is pregnant while i am currently living in Germany. I am still legal for 4 weeks on my visa and i would not want to return as it is a very happy and emotional moment for us since we have been trying for a baby for a few years now and finally we are pregnant and i want to support her and my child everyday. My girlfriend is ready to provide me with any documents needed. We contacted a lawyer but he was not of much help as he kept pushing us towards a blue card and getting a job with a limited time frame of 4 weeks is impossible as i have to officially leave on the 29th February 2024. We do not want to get into a legal trouble and want to stay within the law as we are law abiding citizens. However we also do not want to be separated during this difficult emotional time. Kindly advise us if we have any chance of me not going back and just staying here. We have been time and again looking up at horror stories about family reunification from my home country and also the difficulties the bureaucracy creates for me to come back 3-6 weeks prior to the delivery and i do not want my girlfriend to stress out about documents during a crucial time of our pregnancy.

We request for some urgent help in this matter.

Thanks and much regards.
asked Jan 30 in Legal advice by np_0911 | 713 views

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1 Answer

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Hi @np_0911

If you wish to try and stay on in Germany, you can apply for a residence permit as the expectant father. If you apply for the permit before the validity of your visa ends, you will continue to be legally here until the decision of the immigration office (Ausländerbehörde). They can issue you with a temporary paper called a Fiktionsbescheinigung to confirm this.

I cannot say how likely it is that such an application will be successful. There is not a clear legal right to a visa/residence permit as an expectant father. Only after the birth of the child does such a right (assuming all the requirements are fulfilled) exist. However, it has been recognised by some courts that a father should be able to come to Germany already prior to birth, in order to help the mother and to bond with the unborn child.

This is also recognised by the German embassies, which offer the possibility to get a visa to come already during the pregnancy. Here you can find information from the German embassy in Peru about it if you scroll down:

https://lima-diplo-de.translate.goog/pe-de/konsularservice/visa/-/2103686?_x_tr_sl=de&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=wapp

As a minimum, you would have to have a recognition of paternity (Vaterschaftsanerkennung) and ideally also shared custody (gemeinsames Sorgerecht). You would also have to show you have enough money to live on and adequate health insurance.

The issue in your situation is that you did not enter German with the correct visa for family reunification. As a result, the authorities would likely reject your application. They would say that while it is possible to have a visa during the pregnancy, then this must be applied for at a German embassy first. The only way  I think you could argue against this is if it was close to the expected delivery date or if the mother was having health complications related to the pregnancy and needed your care.

Here you can read an article about such cases:

https://tarneden-de.translate.goog/aufenthaltserlaubnis-bei-schwangerschaft-fuer-werdende-mutter-oder-vater/?_x_tr_sl=de&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=wapp#anc2

If your application took a long time or was paused until the birth of the child, then your right to a permit would be even clearer but the visa issue would remain the same. However, once the child is born, the negative aspects of separation are more profound and the authorities have more discretion to disregard the visa requirement. Here is a case decided by the Federal Constitutional Court about whether requiring the father of young children to leave and go through a lengthy visa process can be considered reasonable:

 https://***-migazin-de.translate.goog/2023/12/04/bundesverfassungsgericht-auslaenderbehoerde-darf-visumpflicht-fuer-familiennachzug-nicht-ueberspannen/?_x_tr_sl=de&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=wapp

Please note the links are in English via online translation. As you can probably tell, questions around visa procedures and residence permits before and after the birth of a child are complex. If you wish to try this, then it is important you get some assistance with it.

Best,

Éanna

answered Feb 27 by mbeon-Éanna
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