What was the case about?
The case involved a Bosnian national who first entered Germany in July 2019. She gave birth to two daughters in 2019 and 2021. Both children were born in Germany and were granted German citizenship.
To clarify: A child of foreign parents may obtain German citizenship if at least one parent is German, or if the child was born in Germany and at least one parent has been legally residing in Germany for five yearsand holds a permanent right of residence.
As the mother of two German children, the woman was granted a residence permit under Section 28 of the Residence Act. Shortly before the permit expired, however, she moved to another city without her children. From then on, the two daughters lived with their paternal grandparents. In March 2024, a court appointed the grandmother as the girls’ guardian. The mother thus lost custody of her children.
At her new place of residence, the woman applied for an extension of her residence permit. The relevant Foreigners' office , however, rejected the application and threatened to deport her to Bosnia and Herzegovina. The authority justified its decision on the grounds that the woman was not entitled to a residence permit under § 28 of the Residence Act because she lived apart from her children and no longer exercised custody.
The woman objected to the decision. She argued that she wanted to visit her children, but that the grandparents had prevented her from doing so. She also stated that she was afraid of the children’s paternal family. However, she said she would seek to enforce her visitation rights in court if necessary.
What is Section 28 of the Residence Act—and who is Residence permit a Residence permit ?
Section 28 of the Residence Act governs family reunification with German citizens. Like other temporary Residence permit, this Residence permit is alsotied to a specific purpose: it is intended to enable families to live together and to ensure that parents without German citizenship can care for their German children.
For example, a Residence permit Section 28 of the Residence Act may be granted to
- foreign spouses of German citizens
- foreign minor children of German nationals
- foreign parents of a minor German child
receive it if they meet the requirements.
The specific case concerned Section 28(1), sentence 1, item 3 of the Residence Act, i.e., a Residence permit foreign parents of a German child.
However, foreign nationals Residence permit not automatically entitled to a Residence permit simply because they have a child who is a German citizen. The law stipulates two requirements, both of which must be met simultaneously in order Residence permit a Residence permit :
- First, the foreign parent must have custody of the German child. This means that custody must not have been revoked or transferred to another person.
- Second, custody must actually be exercised. This means that the parent must actively participate in the child’s life, taking responsibility for the child’s upbringing, care, supervision, and decision-making regarding important matters in the child’s life. Regular visitation, child support payments, or other concrete contributions to the child’s upbringing can also demonstrate that the parent is actually taking responsibility.
Simply having custody of a German child is therefore not sufficient to obtain a Residence permit § 28 of the Residence Act. It is also crucial that the parent actually exercises parental responsibility.
What was the court's decision, and why?
The Administrative Court of Baden-Württemberg upheld the decision of Foreigners' office dismissed the woman's appeal. The court found that the applicant no longer met the requirements for a Residence permit Section 28(1), first sentence, of the Residence Act) – specifically, on both decisive points.
For one thing, the woman had not had custody of her daughters since March 2024. For another, she stated that she had no personal contact with the children and was not paying child support.
During the proceedings, the woman argued that the grandparents had prevented her from having contact with the children. She also stated that she would seek a court order to enforce her visitation rights if necessary.
However, the court did not accept this argument. It found that this was merely a statement of intent. There was no evidence that the woman had actually attempted to seek help from the family court or the child welfare agency.
Conclusion: When does a person qualify for § 28 of the Residence Act—and when not?
The decision makes it clear that anyone wishing to apply for or renew a residence permit on the basis of having a child who is a German citizen must be able to prove that a family relationship with the child actually exists. It is generally not sufficient to simply point to the child’s German citizenship.
The two most important requirements for a Residence permit are that the foreign parent has custody and actually assumes responsibility for the German child in daily life. Applicants should therefore be able to demonstrate that they have regular contact with the German child, exercise visitation rights, care for the child, participate in decision-making, and provide child support.
If contact with the child is hindered or prevented by other individuals, this should also be documented as specifically as possible. General references to family conflicts are often insufficient.
For applicants, this decision means that eligibility for a Residence permit Section 28 of the Residence Act depends heavily on the actual family situation. The authorities examine not only whether there is a child of German nationality and whether the foreign parent has custody, but also whether the parent plays an active role in the child’s life. Only then is the purpose of the residence permit fulfilled.
