I came to Germany on a family visit visa and want to stay

Question

Hello, i came to Germany on a family visit visa from morocco to see my 5 month old kid and girlfriend, after seeing them and finding out he is sick and how difficult it is for her to **** after him on her own, we decided that i should stay here permanently.

Is there a way for me to stay in Germany within a legal framework so i can work and live with them?The family reunion visa from my home country takes about a year to issue and that is too long for us considering the condition of our newborn, can someone offer me any advice on how to stay here, my family visit visa expires in a month and i dread going back and leaving the little one behind. Please help..

Answer 1

Hi @Mouad1307

I’m sorry to read that your son is unwell.

Your right to stay depends on the nationality of your son and his residency status if not a German citizen. The rules are different depending on whether he is a citizen of Germany, an EU country, or another country outside the EU. As a result, your right to a residency permit in Germany can vary between a full right to this to only in exceptional cases to prevent an extraordinary hardship.

Separate to the right or otherwise to a residence permit is the question of not having come to Germany with the correct visa for family reunification. In some case, it is possible to have an application processed in Germany even if the person did not come with the correct visa. This is when it would be considered unreasonable (in German this term is ‘unzumutbar’). In cases where it involved the parent of a baby or small child, then it is generally considered unreasonable to require the parent to leave to get a visa. This is because a lengthy visa process would mean a separation from the parent which a young child could not understand.

This rule is in section 5, part 2 of the immigration law (Aufenthaltsgesetz):

These requirements may be waived if the prerequisites qualifying a foreigner for the granting of a residence title are met or if special circumstances in the individual case concerned render a subsequent visa application procedure unreasonable.

 https://***.gesetze-im-internet.de/englisch_aufenthg/englisch_aufenthg.html#p0096

Here is an article (in English via online translation) about the reasonableness or not of a visa procedure in such cases:

https://***-rechtsanwaltskanzlei--oeztuerk-de.translate.goog/zumutbarkeit-der-nachholung-des-visumsverfahrens?_x_tr_sl=de&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=wapp

Best,

Éanna

Comments

Hello eanna, thank you for answering me and sharing The link, my son is indeed of german nationality.
Where do you advise me to go from here to file an application before my family visit visa expires?
Thank you very much

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Hi @Mouad1307 

You're welcome! You make an application for a residence permit in accordance with paragraph 28, section 1, number three of the immigration law, in German entitled ‘Antrag auf Erteilung einer Aufenthaltserlaubnis nach § 28, Abs. 1, S. 1 Aufenthaltsgesetz’. **** at the information provided by the local immigration office (Ausländerbehörde) where you live. They may have an option to apply online or a specific application permit for a residence permit as a parent of a German child. Otherwise you can just write an application letter yourself. 

Once you have submitted the application, your stay in Germany will continue to be legal until they reach their decision. This rule is automatic but if you need something on paper to confirm this you can request the temporary paper ‘Fiktionsbescheinigung’ from them. With your application you should provide a copy of the child’s birth certificate, the recognition of paternity (Vaterschaftsanerkennung), custody declaration (Sorgerechtserklärung) and your passport. If you are able to register yourself at your girlfriend’s address (called an ‘Anmeldung’, this is a registration of where you live required for everyone in Germany, nothing to do with your immigration status) then you should include this also. Your financial situation is not relevant for this type of residence permit. 

You can also address the visa issue directly in your application. If your son is unfortunately still unwell, then I would include information about this. Also about any assistance the mother needs and how you are able to assist them both at this time. As I outlined in my answer, the authorities can ignore the visa requirement in certain cases. You have to emphasise that it would be unreasonable to expect you to be separated from your child for an extended period at such a young age. It is the child’s needs, rather than yours or the mother’s that are most central to this argument. 

There are free advisory services throughout Germany that can assist you with your application. You can search for one near you here: 

https://bamf-navi.bamf.de/en/Themen/Migrationsberatung/ 

But you can also pose further questions here of course.