OLG Lüneburg ruled on December 22, 2006 (re 11 ME 393/06) on the question if standing case law of the BVerfG can provide grounds for residence during a temporary injunction to protect the parent-child relationship when the foreigner has been expelled or deported and the remaining second parent has no residence on a continuing basis.

[PPD_PAYTOREADMORE]

Applicants are a Turkish mother and her two minor children. The mother has been religiously married to the father of their joint children since 1996. The mother was deported with her children to Turkey in 2000. The reason for expulsion was that the mother used incorrect personal data concerning her identity and origin. In addition, the mother was also dependent on welfare.

The father's citizenship (if Turkish or Lebanese) is not clear at the moment. He has no certain residential status in Germany. At the time of the ruling, the father's case in court on his residency status is open.

With application of September 11, 2006, the mother applied by means of a temporary injunction to permit her and her children reentry into Germany at least for the time in which her husband's case is being tried. Pursuant to §11 II AufenthG, she was to be granted permission for re-entry and covering the costs for re-entry.

The court rejected the application because there were no grounds for her application. Art. 6 GG does not grant a legal basis for family members to be reunited in Germany. Expelled or deported foreigners generally are forbidden to re-enter Germany (§11 Abs. 1 cl. 1 AufenthG). This prohibition of re-entry is also to be obeyed in the case the foreigner has been expelled or deported. This constitutional rule obligates the Foreigners Office to consider family ties of foreigners legally residing in Germany. The mother well knew that her husband did not have residency status and was only tolerated. The father's pending case clearly shows his temporary status.

The applicant does not have a claim to enter Germany according to non-constitutional law. Generally, there is a legal possibility to enter Germany for a short period for compelling reasons - pursuant to §11 AufenthG. In the reported case, there are no compelling reasons recognizable. A typical compelling reason would be to be able to participate in a court hearing or for serious family reasons (e.g. funeral of parent, important celebrations among relatives). The applicants' obvious reason to re-enter Germany is to remain in Germany - permanent residence.
The mother further argued that their children were practically integrated in Germany as they only spoke German and not Turkish, as they had been successfully attending a German school. This argumentation is directed at Art. 8 European Convention on Human Rights. The girls could never have obtained the grounds "being practically integrated" because they were not leading a life aiming at integration. Besides this, it seems questionable if one can speak here of a factual integration of minor children. The argumentation with the European Convention on Human Rights doesn't grant any right for the mother and her children to remain and especially not to re-enter Germany.

Published on the old CMS: 2007/6/14

Read on the old CMS till November 2008: 207 reads