Child's Status only Connected to Mother’s Status Violates the Constitution

A Turkish couple gave birth to their child in 1999 and immediately applied for a residence permit for the child in Germany. The child’s father had been living here for some 25 years, and had permanent residency (Niederlassungserlaubnis). The baby’s mother only entered Germany in 1997, and held only a temporary residence permit. The mother’s application for permanent residency was rejected in 1998. Since then, she has only had the status of toleration (Duldung). In 2002, the parents divorced. The father has sole legal custody of the child and his son lives with him. The child was denied a residence permit because his mother had no secure legal status in Germany. After fruitless arguments with the office of foreigners’ affairs and the administrative courts, the child, legally represented by his father, filed a complaint with the BVerfG. The Court (re R 524/01 of October 25, 2005) reversed the judgments of the administrative courts because the complaint was successful.

The constitutional judges considered it as unequal treatment that the residency of a child depends solely on the mother’s residence permit, and not also the father’s. This was held to violate the mandate of equal treatment according to Art. 3 cl. 1 GG .This regulation in foreigners law is thus illegal since violating the constitution.

The legal situation so far privileged Germany born children of mothers having a residence permit in comparison with those whose father only had secure residency status in Germany. This privilege is illegal because the differentiation has no just reason. The section of the law is no special regulation to protect the mother-child relationship. The legal rule in question wants to address the situation when a child of foreigners is born in Germany. Since this situation connects to both parents alike there is no reason why not the status of the newborn may not also be connected to the father’s. Equal treatment of both parents is therefore possible.

The legislator is obliged to fix this illegality until December 31, 2006. Until then the regulations granting residency through the mother may be continued to be applied. Applications connecting the father’s status are to be suspended.

Published on the old CMS: 2006/8/2
Read on the old CMS till November 2008: 453 reads