Defrauded Residence Permit via Citizenship of one’s Baby

Can it be that an alien receives a residence permit when fraud occurred to obtain German citizenship for one’s baby in order to receive a residence permit for family reunion? Well, the OLG Rhineland-Palatinate clarified this circumstance with its decision of March 6, 2008 (re 7 A 11276/07.OVG).

After vainly applying for asylum, Amaka applied for a residence permit based on “family” because she is the mother of a German minor living in Germany (§28 I 1 no. 2 AufenthG). Her son was born in Germany and she claimed that the father was Jürgen. Since the foreigners office suspected that Jürgen was not the biological father, they reported this to the police. In the end, Jürgen was prosecuted. §95 II AufenthG states that persons helping other persons or oneself with false or incomplete data can be punished.

The Higher Administrative Court Rhineland-Palatinate held that the requirements of §28 I 1 no. 3 AufenthG have been met. Following the section, a foreign parent of a German minor is to be granted a residence permit that he or she can take care of the child, when the child is residing in Germany. Amaka is legally responsible for the child, who has only lived in Germany after its birth. Therefore, there was no discretion to claim abuse of rights – as the lower court assumed.

Pursuant to §4 I 1 + 2 StAG, a child obtains German citizenship, when the parents are German. When the parents are not married and only the father is German, then paternity will be established, when the father formally acknowledges his paternity (§1592 BGB. At the time of the child’s birth, he acknowledged his paternity with the Anaka’s consent at the office for youth (Jugendamt). His paternity was formally correctly acknowledged (§§1594 ff. BGB). Since paternity was never contested and the office, at least at the time of acknowledgment, had no right to contest it in cases of alleged misuse of rights, this acknowledgment is valid beyond doubt.

But the court held that Anaka was still not entitled to a residence permit and only to a toleration. §27 Ia no. 1 AufenthG prohibits abusing paternities so-called “sham paternities (Scheinvaterschaften)”. Abuse exists when paternity is acknowledged with the only aim to enable the establishment of residence in Germany. When the aim is not to respect the biological paternity or a father-child relationship, but only to obtain the residence permit, this is considered as a misuse. This decision does not contradict the status of the child’s citizenship because residency law does not test citizenship law. In the scenario, Anaka could only obtain a toleration which will never lead to a Niederlassungserlaubnis.