The Federal Ministry of the Interior (BMI) publishes application guidelines for Articles 20 and 21 TFEU.

The application of Articles 20 and 21 TFEU (so-called return cases) has often been a black box in immigration law. A recent circular from the Federal Ministry of the Interior (BMI) dated June 12, 2026, marks a groundbreaking change in administrative practice. Taking into account the latest landmark rulings of the European Court of Justice (ECJ), the BMI clarifies unequivocally how the residence rights of third-country national parents of EU citizens' children are to be protected. As a law firm specializing in visa law, we see daily that immigration authorities prematurely reject affected individuals or refer them to unlawful repatriation procedures abroad. We will show you why this circular is a powerful tool and how you can enforce your residence rights with legal certainty.

Why does the right of residence under EU law, as enshrined in Article 20 TFEU, lead out of the trap of tolerated stay?

In the past, immigration authorities reflexively resorted to granting a temporary suspension of deportation (Duldung) under Section 60a of the German Residence Act (AufenthG ) when faced with obstacles to residency – for example, if the passport requirement under Section 5 Paragraph 1 No. 4 of the Residence Act could not be fulfilled promptly or if grounds for refusal existed . However, for qualified expats and HR departments, a temporary suspension of deportation is a disaster: it only temporarily suspends the obligation to leave the country, does not establish a legal right of residence, and significantly restricts access to the labor market.

The Federal Ministry of the Interior (BMI) explicitly clarifies in its new application guidelines that this practice violates European law regarding the right of residence. Article 20 of the Treaty on the Functioning of the European Union (TFEU) gives rise to an independent, sui generis right of residence in specific circumstances . This right arises whenever the refusal of a residence permit would effectively force a minor German or European child to leave the territory of the European Union to follow their third-country national parent to a non-European country. The right of residence under Article 20 TFEU arises directly by virtue of EU law upon fulfillment of the conditions and is not dependent on the goodwill of the authorities. The immigration office merely issues the residence permit as a declaratory act.

When does a special relationship of dependency exist between parent and child?

The granting of this right of residence under EU law requires that a special legal, economic, or emotional relationship of dependency exists between the third-country national parent and the child . The Federal Ministry of the Interior emphasizes that the best interests of the child ( Article 24(2) of the Charter of Fundamental Rights of the European Union ) and the right to respect for family life ( Article 7 of the Charter of Fundamental Rights of the European Union ) must always be the decisive factors.

Such a relationship of dependency is assumed in official practice particularly when the third-country national actually exercises parental care on a daily basis – for example, when living together in a shared household. However, even in cases of separated parents or when custody is not formally held by the foreign parent, a strong emotional bond or significant financial or educational support can suffice. If the loss of this care would force the child to leave the EU , residence must not be denied under any circumstances. Of particular importance to those affected: The Federal Ministry of the Interior (BMI) unequivocally clarifies that applicants may not be required to complete a visa application process from their country of origin to have this right recognized ( § 5 para. 2 of the German Residence Act ). Requiring a visa from abroad is contrary to EU law and disproportionate if the substantive requirements are met.

Can security concerns or missing passports still prevent the exercise of the right under Article 20 TFEU?

Many people fear that bureaucratic oversights or criminal records will permanently destroy their right of residence. The Federal Ministry of the Interior (BMI) sets very strict limits here, in accordance with the case law of the European Court of Justice (ECJ). Exclusion of the right of residence is only considered if the individual's personal conduct poses a real, present, and significant threat to public order or security. Criminal convictions, previously unauthorized employment, or delays in obtaining a passport are by no means sufficient grounds for denying residence. Even if there are difficulties in establishing identity, the authorities must always adhere to the principle of proportionality. Long-past offenses or minor formal violations must never lead to a child being separated from their parent or expelled from the EU .

What special rules apply to EU children and migrant workers under Article 21 TFEU and Regulation 492/2011?

Particular complexity arises when the child does not hold German citizenship but that of another EU member state (e.g., a French child living in Germany with their parents). Article 21 TFEU applies here : If the third-country national parent were denied residence, the European parent would have to leave Germany with the child . This would unduly infringe upon the EU citizen's right to freedom of movement .

Furthermore, Article 10 of Regulation (EU) No 492/2011, in conjunction with Section 2(1) of the Freedom of Movement Act/EU, protects children of (former) EU migrant workers. If the child is attending school in Germany, the custodial parent from a third country derives an independent right of residence from this in order to ensure the child's school attendance. In addition, the Federal Ministry of the Interior (BMI) refers to the ECJ ruling (C-397/23), according to which, under certain conditions, there may even be a direct entitlement to a residence permit pursuant to Section 28(1), sentence 1, no. 3 of the Residence Act by analogy, in order to avoid discrimination .

What specific legal consequences arise for work permits and social benefits?

Once the right of residence under Article 20 or 21 TFEU has been established, far-reaching legal protections ensue:

• Full employment: According to Section 4a Paragraph 3 of the Residence Act, the pursuit of gainful employment is permitted by law. A restriction by the immigration authorities is inadmissible, as the parent must be able to secure the family 's livelihood.

• Validity of the residence permit : The card is generally issued for up to three years. Even after the document expires, the right to reside in the country does not automatically lapse, as the certificate is purely declaratory; an obligation to leave the country under Section 50 of the Residence Act does not arise solely from the expiration of the plastic card.

• Schengen travel: The residence permit entitles the holder to travel within the Schengen Area.

• Access to benefits: Holders are not subject to the typical exclusions from benefits under social law ( § 7 para. 1 sentence 2 SGB II , § 23 para. 3 SGB XII ).

Conclusion: Enforce your right of residence under EU law with expert assistance.

The BMI's application guidelines of June 12, 2026, mark a breakthrough for foreign skilled workers , expats, and employers. They make it clear that the welfare of the child and the protection of EU citizenship take precedence over bureaucratic hurdles such as visa requirements or delayed passport issuance. However, in practice, we continue to see case workers fail to apply the complex case law of the European Court of Justice correctly and wrongly reject or delay applications.

As a law firm specializing in visa law, we examine your individual circumstances, prevent unlawful deportation orders, and swiftly enforce your residence permit under Articles 20 and 21 TFEU or Section 28 of the German Residence Act. Contact us early to ensure legal certainty for your family and your professional future in Germany.