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Migration of Minor with one Parent in Germany

The BVerwG in Leipzig had to decide on April 7, 2009 in three parallel cases on the question when minors with only parent in Germany have the enforceable right of entry according to Directive 2003/86/EC (on the Right to Family Reunification) as it has come into force (re 1 C 17.08, 1 C 28.08 and 1 C 29.08).


Three children under 16 wanted to relocate to their fathers. These fathers had married German wives and went alone to Germany and now have a settlement permit. The children are from Kosovo resp. Macedonia, where their mothers still live. While the embassies abroad refused as well as the lower courts, the Higher Administrative Court of Berlin-Brandenburg dismissed these decisions and considered that the children are entitled to come to live with their fathers in Germany on the grounds of family reunion (§32 III AufenthG). However, the Federal Administrative Court dismissed this last decision.

OVG Berlin-Brandenburg wrongly considered that it suffices, when the parent in Germany has just as much custody rights for the child as with the law in where the child lives. BVerwG struck that decision. A right for family reunion for a child only exists when its parents do not live together when the parent in Germany has exclusive custody (§32 III AufenthG in conjunction with art. 4 I 1 lit. c Directive on the Right to Family Reunification). On the contrary, an enforceable right fails to exist when one of the parents still has substantial custody rights and duties, like having a say for sojourn, school and professional education, or medical treatment for the child.