Mcgregor

A German attorney, who did his internship in Jamaica, recently represented a pregnant Jamaican woman and the German father of her unborn child before the Administration Court of Berlin, regarding a visa application by the Jamaican woman.

This case is a virtual fairy tale. It began when a chance meeting between the German tourist and the woman, during his Christmas vacation in the island, developed into a transatlantic love affair. The young woman was already the mother of an eight year-old child and eventually became pregnant with a child by her German beau.

After the couple decided to relocate to Germany, the father-to-be rearranged his affairs there to accommodate his new family and applied for a visa for his belle and her daughter. The visa applications were refused, and an urgent court action had to be filed. The matter was urgent because the couple intended for the new baby to the family to be born in Germany.

The matter was argued before the Administration Court of Berlin, which was required to consider aspects of the German Immigration Law, the German Civil Code and the German Federal Constitution. As the German Constitution guarantees the right to form a family, provides protection against state action and enshrines the right to legal representation against the state, it was argued that:

1. The fact that the German father-to-be had acknowledged paternity of the child meant that the child would automatically become a German national upon birth. As a future German national, the child had the right to be born in Germany.

2. The foreign mother of a German child has the right to stay in Germany to perform the right of custody over her child.

3. The mother would not be able to travel to Germany during the last two months of her pregnancy, so an interim order was necessary to ensure that the mother would be able to travel in time to give birth to the child.

4. Any decision which refused the mother-to-be a visa would infringe the German's right to form a family. (At the time of the refusal of the applications, the mother-to-be was already five months pregnant).

The court ordered the immediate grant of the visa to the mother-to-be, but refused the application on behalf of her eight-year-old daughter. However, with some further urging, the German Ministry of Foreign Affairs exercised its discretion to allow the little girl to travel with her mother to Germany.

The decision was delivered in August, 2007, and mother and daughter travelled to Germany just in time to avoid airline restrictions which would have prevented her from travelling. On October 3, 2007 - the German Day of Reunification - the happy couple welcomed their bouncing baby boy; and the couple were subsequently married.

The only ending to this fairy tale is "And they lived happily ever after . . ."