Legal Impossibilty to Expel Parents of German Minors

When you, as a minor, are subject to expulsion, have a German child, and live together with wife and child, can you really be expelled - in spite of all this? OVG Lower Saxony solved this problem with its judgment of May 20, 2009 (re 11 ME 110/09).


The complainants are Roma (Gypsies) and are origin from the Kosovo. They have been living here since entering Germany in 1993. Here where all their six children were born. All failed in their attempt at asylum and are now obligated to leave Germany. This is a legally enforceable decision. In October 2009, the foreigners authority wanted to end the toleration of residency for the parents and their children (§60a V 4 AufenthG). They therefore applied for a temporary injunction not to be deported. They argued that their 16-year-old son, having 70% disability after suffering from meningitis, has just become father of a new born child. Pursuant to §4 II StAG, this child has German citizenship. The applicant's grandson is being raised by its parents. Therefore, the applicant's son had a right to remain in Germany because it is not reasonable to raise this child in Kosovo. And therefore, since the applicant's son has a right to remain so do the applicants because they are living together with their minor who has a right to remain and it would be unreasonable for them to leave the country. The applicant's son needed the care and personal to help him. Were parents to leave, they would leave behind a minor and father of a German baby.

Since the foreigners office first noticed that the applicant's son fulfilled the requirements of §28 I 4 AufenthG (family reunion to a German), they granted the son a residence permit. However this may be, the applicants could not derivate any rights from their son's status. Besides, the youth office withdrew the parents and applicants the right to care for all of their children. Anyhow, the applicants were not needed in Germany because their son, now head of his own family, was in the position to independently take care of his family. Any eventually needed parental support for the son could also be given by the parents of their grandchild's mother. The applicants were not having any parental influence on their son anymore. The son is acting like an adult himself.

The court held that the applicants have a right to remain with the status of toleration (§60a II 1 AufenthG) because the expulsion is legally not enforceable. Art. 6 I and II GG legally prohibits a forced departure from Germany because it cannot be demanded from the applicants that live somewhere else. This is true as long as their son has not become of age.

Art. 6 GG protects the freedom of marrying and having families as well as the right to live together as a family. Relevant are the actual bonds among the family members, i.e. if they are really living together as of a family and if the parents live out a parent-child-relationship.

Since the reported proceedings issued only a temporary injunction, the merits were only summarily tested. The applicants presented an affidavit that they do support their son in raising their grandchild. For the constitutional right of having one's family, it is irrelevant if such parental care is necessary or can be given by third persons. Relevant is exclusively that they live together as a family. The son is momentarily 16-years-old. Even when the method and aims of raising their son change, the son as a minor is therefore ex lege in need of his parent's support. Civil law (§1626 I BGB) assumes that the parents are to have parental custody to take care for their child until it becomes of age.

The foreigners office's argument was of no avail that youth office took away the applicants# r5ght to raise their son. The court held that it is not uncommon that adolescents can be somewhat problematic in their relationship to adults. Such phenomenon does not automatically counter a family relationship - especially when the father-son relationship is further troubled in that the son is also a father. The constitutional protection does not end when members of the family have their own "family".

Since the applicants have a family here in Germany, the constitutional protection kicks in. However, the administrative intervention must be reasonable. The court did not see any grounds why a German child, the applicant's grandson was to be raised abroad.


In a more global context, this decision says: When it cannot be reasonably demanded of a direct relative of a German minor to leave the country for a short period for an immigration proceedings, then this person has to be tolerated.


Additional information