Can a temporary suspension of deportation be issued under Articles 20/21 TFEU?

As an international family who, after years abroad, has decided to relocate to Germany, one looks forward to a new chapter with great anticipation. However, the bureaucratic reality of German immigration authorities often resembles a nightmare that shakes the very foundations of one's existence. This is particularly painful for families of German citizens who previously lived in other EU countries and are now returning to Germany together ( return cases under Articles 20/21 TFEU ). Instead of being welcomed with open arms, third-country national family members – be they spouses or parents – suddenly find themselves confronted with a practice that threatens their very existence: the issuance of a temporary suspension of deportation under Section 60a of the German Residence Act (AufenthG ). In German law, a temporary suspension of deportation merely means the "temporary suspension of deportation." One is still considered to be residing illegally, loses all planning security, and suffers immense psychological distress. The Schleswig-Holstein Higher Administrative Court (OVG) has now issued a landmark, legally binding ruling against this unlawful practice, finally restoring the security that affected families deserve ( OVG Schleswig-Holstein, decision of 07.05.2026, file no. 6 MB 4/26 (11 B 133/25) ).

The current ruling of the Higher Administrative Court of Schleswig-Holstein

In a recent ruling, the 6th Senate of the Higher Administrative Court of Schleswig-Holstein unequivocally set limits for an immigration authority. In the case at hand, a third-country national mother, living in the same household as her German daughter and her father, was issued only a restrictive temporary residence permit by the authorities – including residency requirements and a ban on employment. The Higher Administrative Court overturned the lower court's decision and ordered the respondent to issue the mother a certificate confirming that her stay is legal under EU law . This decision is of fundamental importance for all affected expat families, as it clarifies that anyone with a right of residence under EU law cannot be treated by the authorities as if they were subject to deportation and given only a temporary residence permit.

Why tolerance is destroying the lives of international families

A tolerated stay is not a legal residence permit, but rather an official admission that deportation is only being temporarily postponed . For a family that wants to integrate into Germany, work, and build a life there, this status is unacceptable. The Higher Administrative Court of Schleswig-Holstein stated in its reasoning that a right of residence derived from Article 20 TFEU is an immediate right sui generis . It arises automatically by operation of law – in this specific case, with the birth of the child and the existence of an emotional, familial dependency. If the authorities force the third-country national family member into a tolerated stay, they directly violate the core rights of the German child. The residency requirements and spatial restrictions associated with a tolerated stay effectively block and circumvent the freedom of movement of the entire family under EU law, as guaranteed by Article 21 TFEU.

The right to a residence permit under EU law

The court emphasized the principle of effectiveness ( effet utile ) under EU law: National laws must not render practically impossible or more difficult the rights to which we citizens are directly entitled under EU law. Until a final decision is reached on the application for a residence permit, family members are entitled to written confirmation of their legal residence. The court drew a parallel to the legal fiction of residence under Section 81 of the German Residence Act (AufenthG) and explained that, in accordance with EU law, legal residence must always be assumed as soon as the residence of the person concerned is necessary to avoid restricting the fundamental rights of EU citizens. For families, this means: We must not and cannot allow ourselves to be relegated to the precarious status of tolerated stay while the authorities process our application for months.

The end of the unreasonable visa procedure abroad

A common and deeply family-unfriendly tactic used by immigration authorities is to invoke Section 5 Paragraph 2 Sentence 1 Number 1 of the German Residence Act (AufenthG): The third-country national family member is supposed to return to their home country and complete the official visa application process for permanent residence there . For a family, this means a traumatic separation for an indefinite period. The Higher Administrative Court of Schleswig-Holstein, citing the case law of the European Court of Justice (ECJ), has clarified that Article 20 TFEU strictly prohibits such national practice. The obligation to retroactively complete a visa application abroad is legally unreasonable when a right of residence under EU law already exists. Even a short separation of less than a month is incompatible with the child's welfare, as young children experience physical separation from their mother or father as a permanent loss, which has a lasting negative impact on their emotional development.

Conclusion: Your legal rights as a binational family

This ruling by the Higher Administrative Court of Schleswig-Holstein is a historic victory for the rights of expat families in Germany. It puts a clear end to the bureaucratic harassment that forces legitimate family members to live in constant fear of deportation through the loophole of a temporary suspension of deportation. If your life and your family are protected under Article 20 TFEU, granting a temporary suspension of deportation is illegal. As your law firm, we stand firmly by your side. We will help you defend yourself against unlawful decisions by the authorities, demand complete documentation of your legal residence, and secure a safe and legal foundation for your family's future in Germany.