For thousands of families, this means more social security and a reliable residence status.
What was the case about?
A father from Poland lives with his family in Germany. His son was born here, is also a Polish citizen and therefore entitled to freedom of movement.
Because the claimant was only registered as a jobseeker in Germany and did not have a Residence permit , the Jobcenter refused to pay the citizen's allowance.
The Foreigners' office again rejected his application for a Residence permit under § 28 AufenthG. The reason given: The child is not a German citizen - therefore the regulation does not apply.
Classification: According to § 28 Para. 1 Sentence 1 No. 3 AufenthG, foreign parents are entitled to a permanent residence permit if they are caring for a minor, unmarried German child who is habitually resident in Germany. In such cases, the Foreigners' office must issue the residence permit - it has no discretionary powers.
How did the ECJ rule?
The European Court of Justice (ECJ ) has now declared this practice to be unlawful. Its decision:It is against EU law to exclude parents of underage EU children from the right of residence (Section 28) and citizens' benefits simply because the child does not have a German passport.
According to the court, the German regulation puts parents from other EU countries at a disadvantage simply because their children do not have German citizenship - this is inadmissible discrimination.
It is crucial that the child can really make use of their permanent right of residence in Germany - and for this they need the support of their family.
Citizen's allowance also for parents with an EU child
The court also stated: The exclusion from the citizen's allowance according to Section 7 SGB II is not permitted if a minor child from the EU lives in the family. Section 23 SGB XII (social assistance) must alsobe interpreted in such a way that affected families receive benefits.
The previous practice of refusing benefits across the board with reference to a "jobseeker's residence permit" (Section 20 AufenthG) is therefore no longer tenable.
What that means in concrete terms:
- The unlimited Residence permit pursuant to Section 28 (1) No. 3 AufenthG no longer only applies to parents of German children, but also to parents of minor EU children living in Germany.
- The Jobcenter may not refuse social benefits or citizens' allowance with the Residence permit in accordance with § 28 Para. 1 No. 3.
- Existing decisions can be reviewed and ongoing proceedings now have a good chance of success.
- Administrations must adapt their guidelines so that parents of EU children with a Section 28 residenceResidence permit can also receive social benefits in future.
Our recommendation
Residence permit according to § 28 AufenthG. You are entitled to a residence permit in accordance with § 28 Para. 1 No. 3 AufenthG if the following requirements are met:
- The applicant is a national of an EU Member State,
- Shelives in Germany with her underage child,
- she exercises personal care for the child (e.g. by living together, looking after or caring for the child ),
- and the child has a right of residence in Germany - even without German citizenship.
In these cases, the residence permit must be issued in accordance with § 28 - just as for parents of German children.
Have citizen's allowance and social assistance checked. If you have a residence permit in accordance with § 28 AufenthG, the Jobcenter may no longer reject an application for citizen's allowance across the board. You may also be entitled to social assistance in accordance with § 23 SGB XII.
Applications for residence or citizens' allowance that have already been rejected can now be reviewed and, if necessary, contested as part of an objection or review procedure.
Conclusion: Consequences for administration and politics
The decision has an immediate effect - even without a change in the law. Job centers and immigration authorities must adapt their practices immediately. Experts are already calling for a comprehensive reform of Section 7 SGB II and Section 28 AufenthG in order to create legally secure and non-discriminatory rules.
Until then, the following applies: EU law breaks national law. Job centers may not rely on outdated versions of the law.
