Immigration Law: No Schengen Visa for Visiting Purposes in Case of Lack of Return Readiness

Federal Administrative Court, January 11, 2011, Ref. No.: 1 C 1.10

General Information on Schengen Visas

In 1985, several European states agreed on the Schengen Agreement for the gradual removal of border controls at internal borders between the contracting states.

Following the accession of numerous other European countries, Schengen cooperation was incorporated into the jurisdiction of the European Community in 1999.

This mainly involved harmonizing the rules for entry and short stays of foreigners in the so-called „Schengen Area“ („Schengen Visa“).

Third-country nationals holding a Schengen visa are permitted to stay in other Schengen states within the validity and purpose of the visa and are not subject to controls when crossing internal borders.

The embassies of the destination country in the respective home countries are generally responsible for issuing the Schengen visa.

To obtain a Schengen visa, third-country nationals must provide various documents and meet requirements that may vary depending on the country of origin.

Required Documents for a Schengen Visa

Required documents include, for example:

• • • Passport
    • National ID card
    • Passport photos
    • Application for a Schengen visa
    • Proof of relationship or acquaintance
    • Invitation and declaration of commitment from the host
    • Sufficient travel health insurance coverage for the entrant with a minimum coverage of 30,000 euros

The decision on entry permission can be made by the relevant authority within a few days.

Return Readiness is a Critical Aspect of the Examination

When issuing the visa, the willingness of the entrant to return is a particularly critical factor.

This is often viewed positively if the entrant can demonstrate a certain level of attachment to their home country. This includes, for example, family ties, a stable job, or property ownership in the home country.

Legal Remedy („Remonstration“) Against a Denial

If the visa is denied, the entrant or an authorized representative can file a „remonstration“ against the denial decision. In addition to the usual identity documents, this „remonstration“ should, depending on the country of origin:

• • • Contain a detailed explanation of why the denial is unjustified,
    • Include a detailed account of the purpose of the entrant’s visit to Germany and why the stay is important,
    • Provide additional documents that support the argument and were not available at the time of application.

In addition to the remonstration, there is generally also the option of filing a lawsuit with the administrative court. The denial notices from the embassy are therefore always accompanied by instructions on the possibility of legal action at the administrative court.

Lawsuit before the Administrative Court of BerlinLawsuit at the Berlin Administrative Court

Since the lawsuit is directed against a federal authority (Federal Foreign Office) based in Berlin, the Berlin Administrative Court is generally competent.

The court costs for such a visa procedure depend on the value of the dispute, which is currently set at 5,000 euros for such procedures. According to the Court Fees Act (GKG), this amounts to 588 euros for the court.

Additional costs arise from hiring a lawyer.

The duration of such a procedure can generally extend up to two years.

Regarding the issuance of visitor visas, numerous cases of abuse were reported, particularly in 2005 („Visa Affair“).

In 2000, the then Federal Foreign Office instructed the foreign missions in the so-called Volmer or Fischer decree to process visa applications more unbureaucratically.

This meant that not every doubt about return readiness would justify a visa refusal, but rather only a sufficient probability of a lack of return readiness.

In the following years, due to this decree, there were numerous cases of abuse in visa issuance, especially in Kyiv, the capital of Ukraine.

The decree was subsequently revoked, and the conditions for issuance were tightened again.

As mentioned, the issue of „return readiness“ is therefore critically assessed in visa evaluations and remains a subject of judicial decisions.

This was also the case in the above-mentioned decision of the Federal Administrative Court on January 11, 2011.

Case Facts of the Court Decision

Moroccan Mother Applies for Schengen Visa to Visit Her Children Living in Germany

The applicant was a Moroccan national whose two children had been living in Germany with her ex-husband since 2005. The German Embassy in Rabat rejected the applicant’s request for a Schengen visa to visit her children in early 2008 due to a lack of return readiness.

Initially Successful Lawsuit Against Rejection Overturned on Appeal

The lawsuit filed with the Berlin Administrative Court (judgment of December 10, 2008 – VG 7 V 16.08) was initially successful. However, the subsequent appeal court, the Higher Administrative Court Berlin-Brandenburg, believed that the request for a visa was resolved upon the expiration of the travel dates specified in the visa application, and thus the rejection was not unlawful.

Judgment of the Federal Administrative Court

The Federal Administrative Court confirmed the Higher Administrative Court’s judgment only in result. According to the court, an application for a Schengen visa for a short-term visit should be interpreted as the applicant maintaining their visit intention even after the expiration of the planned travel dates indicated in the application form.

Contrary to the appeal court’s opinion, the applicant’s request had not become obsolete.

However, the applicant was not entitled to a visitor visa. According to the Regulation (EC) No. 810/2009 (Visa Code – VK) applicable since April 2010, an application for a uniform visa valid for the entire Schengen Area must be denied if there are justified doubts about the applicant’s intention to leave the territory of the member states before the visa expires (Art. 32 (1) (b) VK).

The Federal Administrative Court also sees a lack of return readiness due to false statements by the applicant

According to the findings of the appeal court, there were doubts about the applicant’s return readiness. This was because she initially made false statements about the real purpose of her stay and there were concrete indications that she intended to stay in Germany permanently due to her children.

The applicant also had no claim to a visitor visa valid only for Germany.

Such a visa is issued by a member state only in the exceptional cases listed in Art. 25 (1) VK. An exceptional case was not present here.

Given the public interest in preventing uncontrolled immigration, and considering the special protection of family ties, issuing a visa was not deemed necessary.

Family contact between children and mother can be maintained in other ways

The applicant herself had caused the existing geographical separation from her children by agreeing to their relocation to Germany. She and her children are not necessarily dependent on a visit to Germany for maintaining family contacts.

These could be continued in other ways, such as via the internet, letters, and phone calls, as well as visits from the children during vacations in Morocco.

Quelle: Source: Federal Administrative CourtSource: Federal Administrative Court

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