A. Facts
What had happened?
The clients are a married couple with South African citizenship. The wife has lived in Germany for several years and works in Berlin as a qualified IT specialist. She holds an EU Blue Card pursuant to Section 18b Paragraph 2 of the Residence Act . The husband, a trained automotive mechatronics engineer, remains in South Africa and is seeking family reunification ( spouse reunification ). About a year ago, the husband applied to the German embassy in Pretoria for a visa for spouse reunification pursuant to Section 30 Paragraph 1 of the Residence Act. Despite repeated inquiries and intensive efforts, he was not given an appointment to appear in person at the embassy, despite the long wait.
While the wife was on vacation in South Africa, she became pregnant. After returning to Germany, the pregnancy continued without complications until the 32nd week. At this point, the husband was still registered on a waiting list for an appointment at the embassy, and there was a serious risk that the birth of their child would take place in Germany in the absence of the father.
Given these circumstances, the wife commissioned a VISAGUARD lawyer specializing in residence law to represent her and facilitate a short-term visa application to enable the father's presence at the birth. Not only was it of immense importance to the family that the father be present in Germany for the child's birth, but the wife also needed support with health care, dealing with authorities, and other organizational tasks after the birth.
B. Legal solution
How did the VISAGUARD lawyer resolve the case?
Initially, the appointed lawyer attempted to obtain a preferential appointment by contacting the German Embassy in Pretoria directly. However, the embassy simply referred the husband to the existing waiting list, on which he was placed 2050th. Due to staffing and capacity constraints, a preferential appointment could not be granted. The fact that the father would miss the birth of the child as a result was unacceptable.
In the next step, the lawyer applied for a short-term Schengen visa pursuant to Section 6 of the Residence Act for a temporary family visit. This application was rejected by the embassy, citing the applicant's alleged lack of desire to return. The embassy argued that the application for a D visa would prove that the expectant father intended to stay in Germany permanently.
Since out-of-court efforts were unsuccessful, the lawyer filed a motion for interim relief with the competent administrative court pursuant to Section 123 of the Administrative Court Procedure Code (VwGO) . The motion specifically emphasized the state's constitutionally guaranteed duty to protect marriage and family under Article 6, Paragraph 1 of the Basic Law (GG), as well as the special significance of the birth of a child as a central family event. The mother's legitimate interests regarding postnatal support were also argued.
The Administrative Court recognized the particular urgency and the importance of the fundamental right to family life. This was especially true since VISAGUARD's lawyer had referred to corresponding case law from other German courts. The Administrative Court subsequently ordered the German Embassy in Pretoria to immediately grant the applicant an appointment and to promptly issue the requested visa for the spouse's reunification. Within one week of service of the decision, the national visa was issued to the husband, allowing him to enter Germany in time for the birth of his child.
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C. Conclusion
What can we learn from this case?
This case study exemplifies the central importance of the fundamental right to protection of marriage and family (Article 6 of the Basic Law) in residence law and its direct enforcement against state authorities. Even in cases of general organizational constraints, such as long waiting lists at foreign missions, individual, priority processing is necessary in cases of particular personal hardship, especially in cases of impending family events such as the birth of a child.
The case further demonstrates that, in cases of administrative inaction or disproportionate delay, seeking interim relief before administrative courts is an effective means of safeguarding fundamental rights. Through consistent and legally sound action, the clients' fundamental family rights were successfully enforced and the right to a shared experience of the birth of the child was guaranteed.
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