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Case study: Prenatal visa

Practical tip from a lawyer: How can you obtain a visa for prenatal stay as quickly as possible?

What is the problem with the prenatal visa?

  • In practice, it is a common problem that German mothers give birth to a child of a foreigner who is still abroad.

  • Since the birth is often intended to take place in Germany (better medical care), a visa is then applied for on behalf of the expectant father.

  • However, embassies often do not process these visas or reject the application, as the visa for fathers can only be issued after the birth (established case law).

  • In these cases, there is often time pressure due to the imminent birth.

Here's how lawyers solve the problem:

  • The embassy's argument that a parental visa cannot be granted because the child has not yet been born must be countered by the fact that there is a separate visa category for prenatal stays (§ 7 AufenthG).

  • To obtain a visa for prenatal stay, it is essential that the livelihood is secured (the mother must therefore earn money or have money) and that it can be proven that the expectant parents were together at the time of conception (e.g. flight tickets or hotel reservations).

  • If the embassy refuses to issue the visa despite the existence of the required documentation, an action for failure to act (§ 75 VwGO) must be brought and an application for an interim injunction (§ 123 VwGO) must be filed.

  • It is highly advisable to hire a lawyer for these procedures, as the visa category "prenatal stay" is not known to most embassy staff and many courts.

A. Facts
What had happened?

The clients are a married couple with South African citizenship. The wife has been residing 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 German Residence Act (AufenthG ). The husband, a trained automotive mechatronics technician, remains in South Africa and seeks family reunification ( spouse visa ). Approximately one year ago, the husband applied to the German Embassy in Pretoria for a spousal reunification visa pursuant to Section 30 Paragraph 1 of the German Residence Act (AufenthG). Despite repeated inquiries and intensive efforts, he has not been assigned an appointment for a personal interview at the embassy, despite a long waiting period.

During a holiday in South Africa, the wife became pregnant. After returning to Germany, the pregnancy progressed without complications until the 32nd week. At that time, the husband was still 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 without the father present.

Given these circumstances, the wife commissioned a VISAGUARD lawyer specializing in immigration law to represent her and facilitate a short-term visa application to allow the father to be present 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 healthcare, 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 secure a priority appointment by contacting the German Embassy in Pretoria directly. However, the embassy simply referred him to the existing waiting list, on which the husband was number 2050. Due to staff shortages and capacity issues, no priority appointment could be granted. The fact that the father would consequently miss the birth of his child was something he had to accept.

In the next step, the lawyer applied for a short-term Schengen visa pursuant to Section 6 of the German Residence Act (AufenthG) for a temporary family visit. This application was rejected by the embassy, citing the applicant's alleged lack of intent to return. The embassy argued that the application for a D visa would prove that the expectant father intended to reside permanently in Germany.

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Since out-of-court efforts proved unsuccessful, the lawyer filed an application for preliminary legal protection with the competent administrative court pursuant to Section 123 of the Code of Administrative Court Procedure. The application specifically referred to the state's constitutionally guaranteed duty to protect marriage and family under Article 6 Paragraph 1 of the Basic Law, as well as to the particular significance of the birth of a child as a central family event. The mother's legitimate interest in receiving support after the birth was also argued.

The Administrative Court recognized the particular urgency and the weight of the fundamental right to family reunification. This was especially true since VISAGUARD's lawyer had cited relevant case law from other German courts. The Administrative Court subsequently ordered the German Embassy in Pretoria to grant the applicant an appointment without delay and to issue the requested spousal reunification visa as soon as possible. Within one week of the ruling being served, the national visa was issued to the husband, enabling him to enter Germany in time for the birth of his child.

C. Conclusion
What can be learned from this case?

This case study exemplifies the central importance of the fundamental right to the protection of marriage and family (Article 6 of the German Basic Law) in immigration law and its direct enforceability against state authorities. Even in cases of general organizational bottlenecks, such as long waiting lists at foreign missions, special personal hardship cases, particularly those involving imminent family events like the birth of a child, require priority processing on a case-by-case basis.

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 proceedings, the clients' fundamental family rights were successfully enforced, and the right to experience the birth of their child together was guaranteed.

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