Bizarre: BAMF wanted to deport a baby alone without parents

A three-month-old girl was to be deported to Turkey. Her parents are allowed to remain in Germany while their asylum applications are pending, meaning the baby was to leave without them. The Wiesbaden Administrative Court prevented this: The deportation order against the baby has been temporarily suspended. The preliminary injunction of September 25, 2026 (Case No. 7 L 2405/26.WI.A) is final. The case illustrates the potential consequences for families of the new European asylum rules that came into effect in June. It also demonstrates the importance of keeping track of the decisions of each individual family member.

What happened?

The parents are of Kurdish origin and come from Turkey. The Federal Office for Migration and Refugees (BAMF) rejected their asylum applications back in 2025. The parents have appealed this decision, and a final ruling on their appeals is still pending. The family lives in the district of the Wiesbaden Administrative Court.

The daughter was born in Germany in 2026. Asylum was not applied for on her behalf until after June 12, 2026. From this date onward, the following applies to new applications: The EU Asylum Procedures Regulation, a key element of the reform of the Common European Asylum System (CEAS), was applied. The Federal Office for Migration and Refugees (BAMF) examined the baby's application in an accelerated procedure and rejected it. At the same time, it threatened deportation to Turkey.

Why should only the child be deported?

The reason lies in a procedural detail with significant consequences: the suspensive effect of a lawsuit. The parents' lawsuits have a suspensive effect. As long as their Since legal proceedings are ongoing, they cannot be deported. This did not apply to the child . According to Article 68, paragraph 3, letter a, point i of the Asylum Procedure Regulation, the suspensive effect is waived if an application is rejected in the accelerated procedure. Therefore, a lawsuit alone would not have protected the baby.

One and the same family can thus end up in two completely different legal processes. The parents are protected for the time being, while the child would be subject to deportation. In this case, only an emergency court application helped. Section 80 Paragraph 5 of the Administrative Court Procedure Act (VwGO ). This allows for the suspensive effect to be imposed by the Order court .

What is the administrative court's reasoning behind its decision?

The court bases its decision on Section 34, paragraph 1, sentence 1, number 4 of the Asylum Act states that the Federal Office for Migration and Refugees (BAMF) may only issue a deportation order if, among other things, the child's welfare and family ties are not compromised. This was precisely the case here. The court stated that it was obvious that an infant must not be separated from its parents.

The administrative court refers to the constitutional protection of marriage and Family from Article 6 of the Basic Law (GG ) requires that each case be considered individually. The situation of a very small family is particularly serious. A child cannot understand that a physical separation might only be temporary and quickly experiences it as a permanent loss.

The second part of the justification is noteworthy. Family protection also applies even if the parents do not have permanent residency. Those in asylum proceedings have a temporary residence permit according to [relevant legal provision]. Section 55 of the Asylum Act . His stay is therefore lawful, although initially limited to the duration of the proceedings. Such a stay does not preclude consideration of family ties in the event of a deportation order. The court cites, among other things, the Higher Administrative Court of Berlin-Brandenburg (decision of January 23, 2025, file number OVG 12 N 23/24) and other similar rulings. The chamber criticizes, in unusually strong terms, the Federal Office for Migration and Refugees (BAMF) for not recognizing this now established case law.

Why does the BAMF stick to its current practice?

The Federal Office sees the legal situation differently. From its perspective, family interests can only preclude a deportation order if the family members hold a residence permit within the meaning of [relevant legal provision] at the time of the decision. § 4 Residence Act , i.e., possessing a A residence permit is required. A mere temporary suspension of deportation is not sufficient. The Federal Office for Migration and Refugees (BAMF) does not dispute the legality of the permitted stay.

The Federal Office cites decisions by the Higher Administrative Court of Mecklenburg-Western Pomerania and the administrative courts of Düsseldorf, Leipzig, and Osnabrück to support its position. Therefore, there is no established case law. The legal question thus remains controversial. From our perspective, however, there is much to suggest that the family-friendly approach will prevail. It is already being advocated in the district of the Higher Administrative Court of Berlin-Brandenburg, and thus also in Berlin.

What does this decision mean for affected families?

The emergency order only provides temporary protection for the baby. A decision regarding permanent residency is still pending. Nothing is decided for the family , and the parents' legal challenges continue. However, the case highlights what families have needed to be aware of since the CEAS reform came into effect.

Each notice applies only to the person to whom it is addressed. If a notice was issued for a If a child has their own asylum procedure, it can have a different outcome and, above all, different legal consequences than the parents' procedure. The deadlines for filing a lawsuit and an application for preliminary injunction are very short in asylum law, sometimes only a few days. Family ties and the interests of the child are also taken into consideration. Therefore, children should be informed early and specifically, not only in Legal proceedings .

Even outside the context of asylum law, the status of newborn children is an often underestimated issue. A child born in Germany A child of foreign parents can go to Section 33 of the Residence Act (AufenthG) provides for a separate A residence permit is granted if the parents hold a residence permit. This also applies to skilled workers and expats with a residence permit. Parents should submit the application to the relevant authority promptly after the birth. Apply to the immigration office .

Conclusion

The Wiesbaden Administrative Court has confirmed a self-evident truth: an infant belongs with its parents, even if they are only in Germany during the asylum process. However, the ruling also demonstrates that the new European procedural rules can legally tear families apart if individual members end up in different asylum procedures. As long as the Federal Office for Migration and Refugees (BAMF) adheres to its position, protection in such cases will often only be granted through a It is essential to be able to reach the court quickly. At VISAGUARD.Berlin , we monitor further legal developments and support families in clarifying their residency status together and in a legally sound manner.