VG Munich, December 4, 2013, Case No.: M 23 S 13.5250
According to Section 15(1) of the Residence Act (AufenthG), a national of a state that is not a member of the European Union will be refused entry at the border if they attempt to enter unlawfully. Under Section 15(2) of the Residence Act, a foreigner may be refused entry at the border if:
There is a reason for expulsion,
There is reasonable suspicion that their stay does not serve the stated purpose,
They only possess a Schengen visa or are exempt from the visa requirement for a short stay and intend to engage in employment contrary to Section 4(3) Sentence 1, or
They do not meet the entry requirements for the territory of the contracting parties under Article 5 of the Schengen Borders Code.
The refusal of entry or rejection for these reasons is an urgent measure carried out by law enforcement officers. This means that while an appeal against such a measure is possible, it does not have a suspensive effect. Thus, the refusal of entry or rejection can be immediately enforced by law enforcement officers despite an appeal.
Therefore, if the foreigner wishes to file an appeal against the refusal of entry or rejection, they must also file an application under Section 80(5) of the Administrative Court Procedures Act (VwGO) to order the suspensive effect of their appeal against the rejection to prevent immediate deportation.
In the decision mentioned above, the Munich Administrative Court had to rule on such an application.
Entry of the Applicant and Background
The applicant, a Russian national, entered Munich in 2013 from Moscow. During the entry control, he presented a Russian passport with a Greek Schengen visa of category C. The visa was valid from November to December 2013 and allowed a single entry with a 14-day stay. During questioning by the Federal Police, the applicant stated that he was traveling on behalf of the Russian government to participate in negotiations in Germany. He was aware that the short preparation time for the trip did not allow for a German visa application, so his staff had instead applied for a Greek visa.
Entry Refusal by the Federal Police
The Federal Police refused the applicant entry under Section 15(1) and Section 14(1) No. 2 of the Residence Act in conjunction with Article 13(1) of Regulation (EC) No. 562/2006 (Schengen Borders Code). The reason given was that entry was being attempted without a valid visa or residence permit. The applicant then filed an application with the Munich Administrative Court by fax to order the suspensive effect of his appeal against the rejection. The court requested the Federal Police to refrain from enforcement measures until a decision was made, but the applicant was nonetheless returned to his country in November 2013.
Decision of the Munich Administrative Court
The Munich Administrative Court ruled that the application for an order of suspensive effect of the appeal was admissible. The application was directed against an urgent measure carried out by law enforcement officers as defined in Section 80(2) Sentence 1 No. 2 of the VwGO, for which an appeal was permissible but not suspensive. The applicant’s deportation did not make the application inadmissible, as the rejection had not yet been considered resolved.
Assessment of the Appeal’s Success Prospects
In deciding on the order of suspensive effect, the court must weigh the public interest in immediate enforcement against the applicant’s interest. This balancing process also considers the chances of success of the appeal. In this case, after a preliminary review, the court concluded that the appeal was clearly without merit. Therefore, the public interest in immediate enforcement of the rejection outweighed the applicant’s interest.
Illegality of the Obtained Schengen Visa
According to the court, the applicant’s entry had to be refused under Section 15(1) of the Residence Act in conjunction with Article 13(1) of the Schengen Borders Code, as he intended to enter unlawfully. Although the applicant held a Greek Schengen visa, it had been obtained through false statements. The applicant had no intention of traveling to Greece but had planned from the start to enter Germany. Thus, the Federal Police could assume that the visa had been fraudulently obtained and was therefore subject to annulment under Article 34 of Regulation (EC) No. 810/2009 (Visa Code) in conjunction with Article 13(6) and Annex V, Part A of the Schengen Borders Code.
Conclusion of the Court
The court emphasized that the Federal Police had to make their decision under time constraints on-site. The applicant could not claim ignorance of the false statements, as he had signed the visa application himself and had to acknowledge the instructions. Since the visa had been obtained through incorrect information, the entry was unlawful under Section 14(1) No. 2a of the Residence Act. Consequently, the applicant was mandatorily refused entry under Section 15(1) of the Residence Act, making it irrelevant whether there was an expulsion reason under Section 95(1) No. 2 and 3 in conjunction with paragraph 6 of the Residence Act.
Source: Munich Administrative Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.
Lawyers in Cologne advise and represent you in immigration law.