The report “Recht gegen Rechts” collects cases of racism in the judiciary. Take Bremen as an example: the registry office accuses women of trying to obtain German citizenship for their children by trickery. A text excerpt. By Fatou Sillah.
This mistreatment, this violation of children’s rights only affects Black German children whose parents are African migrants, Black. And I assure you, the origin of this whole saga is skin color because we are black. That’s it.” With this, a person affected refers to the procedure through which the Bremen registry office has become notorious in recent months. The practice records cases in which women who are not German citizens have had a child with German men.
Almost exclusively women from Ghana and Nigeria are affected. The Bremen registry office assumes that the man who acknowledged the paternity of their child is not the biological father, at least not the legal father. It is important to make a distinction here, because under German law the biological father is not automatically the legal father of a child. Legally, the father of a child is always primarily assumed to be the mother’s husband, and as long as there is a husband, there can initially be no other father.
The OVG Bremen decides: The general suspicion is unlawful
The registry office claims that the German man acknowledged paternity only so that the child would receive German citizenship and the mother would receive a right of residence derived from it. However, the mother’s husband, and thus the legal father, presumably lives in the country of origin or in another EU country. With this justification, the registry office has been refusing in some cases for more than a year to issue the birth certificates of the children concerned. There is no evidence for this assumption.
Since September 2020, Black mothers have been protesting this practice. In its decision of February 10, 2021, the Bremen Higher Administrative Court ruled that this general suspicion is unlawful. If a child is born in Germany, this does not necessarily mean that the child also acquires German citizenship, because the so-called principle of descent applies primarily: According to the Citizenship Act, children generally become German citizens if one parent has German citizenship. If a German man acknowledges paternity, i.e. if he is the legal father, his German citizenship is transferred to the child. If another man is considered the legal father, the child does not receive German citizenship and, in the worst case, is obliged to leave the country. This is what makes the question of the certification of parentage so central.
Women from Ghana and Nigeria are affected
The authorities are obviously out to determine in as many such cases as possible that the child is not entitled to German citizenship. There are a number of ways they can do this. One of them is Section 1597a of the Civil Code. Since its introduction in 2017, the norm has banned “abusive acknowledgments of paternity” and prohibits the acknowledgment of paternity if this is only intended to enable the lawful residence of the father, mother or child. According to the law, an acknowledgment of paternity is suspicious if the impression is given that the parents do not know each other. But also if one of the persons involved has a “Duldung” or is a member of a so-called safe country of origin and has applied for asylum.
The suspicion of abuse does not only arise from a certain behavior. Many people are under suspicion solely because of factors over which they have no control. For example, people with Ghanaian nationality, who already have great difficulty in obtaining a residence permit because Ghana is on the list of safe countries of origin, are placed under general suspicion as a result of this regulation. Even a tolerated person cannot easily have a child with a German national without arousing the suspicion of attempting an “abusive acknowledgment of paternity”.
The book
The annual report on right-wing extremist tendencies in law: In the report “Recht gegen Rechts” 2022, more than 30 prominent authors describe the most important cases from the past year. The editors are journalists and lawyers who are guided by one basic insight: right-wing extremists understand the law as the arena of their political struggles and try to exploit it for their own purposes. If as many of these attempts as possible are documented and evaluated, an important step has been taken in order to be able to defend oneself better.
The Right Against Right Report is edited by Nele Austermann, Andreas Fischer-Lescano, Heike Kleffner, Kati Lang, Maximilian Pichl, Ronen Steinke and Tore Vetter. With a foreword by Sabine Leutheusser-Schnarrenberger. Verlag S. Fischer, Frankfurt am Main, 288 pages, 18 euros, available in bookstores from January 26th. FR
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In the end, the Bremen registry office used a different perfidious method. It primarily affects mothers who come from Ghana and Nigeria. The registrars assume that every mother who falls into the grid is already married to a man other than the one who acknowledged paternity. This would mean that the German father’s acknowledgment of paternity, which had already been certified by the youth welfare office, would be invalid. Even if the acknowledging German citizen is the biological father of the child, according to a decision of the Bremen Higher Administrative Court of February 3, 2021, this would mean that he could not be entered as the legal father in the birth certificate.
If the mothers present unmarried and divorce certificates to prove that they are not married, these will not be accepted. Namely on the grounds that the Ghanaian and Nigerian document system is not sufficiently reliable. The German document system, on the other hand, is too valuable to risk that false documents might be issued. So the child does not even get a birth certificate until it is proven that the mother is in fact not married. However, since the corresponding documents from Ghana and Nigeria are not recognized, this proof is usually impossible. Those affected are thus caught in a vicious circle of racial prejudice.
How should women prove they are not married?
The Bremen Higher Administrative Court criticized another point in its decision of February 10, 2021. It is unreasonable to impose the obligation on mothers “out of the blue” to prove that they are not married. Proof of the mother’s singleness is only required if there are concrete indications of the existence of a marriage, for example if the woman stated that she was married when she applied for the visa. Otherwise the mothers cannot be required to refute this suspicion.
The court also clearly rejected the general suspicion of mothers from Ghana: “The respondent’s indication that there were a number of other proceedings [ … ], in which Ghanaian mothers have submitted acknowledgments of paternity from German nationals, pointed out that the mothers are married in Ghana[e] no ‘specific clue’ [ … ] The racist prejudices of the registrars are not enough for the court to justify the assumption that the mother is already married. Nevertheless, according to the birth register, the children affected by this practice are still fatherless. The birth certificate is not issued to them either – and in some cases this has been the case for a year or longer.
The Bremen Refugee Council estimates that more than 200 families are affected
Regulations on the acknowledgment of paternity have always been controversial. The so-called challenge by authorities, for example, in which certain authorities were allowed to revoke certified acknowledgments of paternity retrospectively if they were made for purposes of residence law, was declared unconstitutional by the Federal Constitutional Court in 2013. As a result, the currently valid ban on “abusive acknowledgments of paternity” was introduced with the “Act on Better Enforcement of the Obligation to Leave the Country”, which was also discussed controversially.
The current practice of the Bremen registry office shows the drastic effects such a regulation has on families. With the action against abusive recognitions, a general suspicion against countless families is established, which has no factual basis and is difficult to refute. The extent is frightening: every mother who falls into the register office’s grid described above now receives a ready-made letter informing her that the birth certificate has been postponed because marriage to another man is suspected. The Bremen Refugee Council estimates that there are currently over 200 families in this process.
The Basic Law also protects families living together
In contrast, in Bremen since the introduction of the ban in 2017 up to and including 2020, only 16 acknowledgments of paternity have been classified as abusive. The procedure against abusive acknowledgments of paternity is therefore primarily of a symbolic nature. On the other hand, the disadvantages that arise for the affected families are real.
Regulations in the Residence Act, which provide a residence permit for the “foreign” mother of a child with German citizenship, for example, are there precisely to enable families to live together. They are a consequence of the protection that families are entitled to under the Basic Law. This protection is intended to prevent families from being separated from one another because one family member has a right of residence or German citizenship while the others have to leave the country. But the practice of the registry office is aimed precisely at tearing families apart. Instead of being protected by the legal system, these vulnerable families are being targeted by migration policy.
The well-being of the child is neglected here, although according to the UN Convention on the Rights of the Child, it should actually be prioritized in all measures affecting children. Tough action and consistent enforcement of the obligation to leave the country are clearly above fundamental and children’s rights. Even after repeated talks between those affected and those responsible on the part of the Senator for the Interior, little has changed in this situation, and so the mothers’ protest continues. They demand not only the birth certificates of their children, but also respectful treatment, an end to the discriminatory practice of the authorities and a procedure free of racism. Your children should finally be granted German citizenship, because they are entitled to it.
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