Aliens law: Legal remedies against a negative decision by the embassy, remonstration and legal action

If you have received a negative decision from the German Embassy with regard to a residence permit (e.g. visa, residence permit), there are basically two ways to challenge this negative decision:

A.) Remonstration

First of all, you can lodge a remonstration with the respective embassy against the negative decision.

A remonstration is a counter-appeal, i.e. an informal legal remedy by which the person affected by the negative decision makes representations to the authority.

The first essential content of this legal remedy is proof of the identity of the person concerned:

- Surname, first name, date of birth, place of birth and passport number;

- Date of the negative decision;

- Address suitable for delivery (street, house, flat, postcode, country, etc.); fax number and e-mail address if available,

- Personal signature (in the case of remonstration by third parties: their personal signature and submission of a written, signed authorisation)

In addition to these proofs of identity, this "remonstration" should, depending on the country of origin

- contain a detailed explanation as to why the rejection is not justified.

- contain a detailed explanation of the purpose for which the person entering Germany wishes to travel to Germany and the reasons why the stay is important for them.

- contain further documents that support the argumentation and were not yet available when the application was submitted.

When drafting the remonstration, it is important to note that the arguments put forward should be such as to undermine the reasons given by the embassy to justify the rejection.

As soon as the remonstration has been received by the embassy or foreign representation in due time and form, the visa application will be comprehensively reviewed again. In the remonstration procedure, all subsequently submitted documents and the comments contained in the remonstration letter will be taken into account.

If the embassy or diplomatic mission comes to the decision that it is possible to issue the requested visa after the remonstration procedure has been completed, a new appointment must necessarily be made for an interview for the purpose of issuing a visa.

If the embassy does not consider the remonstration to be justified, it will issue a so-called remonstration notice in which the reasons for the rejection are explained in detail.

B.) Action before the Berlin Administrative Court

It is also possible to file a complaint with the Berlin Administrative Court, Kirchstraße 7, 10557 Berlin.

The embassy's rejection notices are therefore always accompanied by instructions on how to appeal to the administrative court.

The Administrative Court has subject matter jurisdiction, as immigration law is an area of special administrative law. The Berlin Administrative Court has local jurisdiction because the embassies are under the jurisdiction of the Federal Foreign Office and the Federal Foreign Office is based in Berlin.

The length of such legal proceedings is difficult to determine; in our experience, a decision can be reached within a few months, but sometimes it can take longer.

If an urgent decision is necessary for certain reasons, an application for interim legal protection can also be made, in which case a (provisional) decision may be available after just a few days.

Prospects of success of the action

Whether an action has a chance of success must be examined separately for each individual case and cannot be answered in general terms.

In court proceedings, it is checked in particular whether,

• the embassy/foreign representation has correctly established the facts of the case,
• the embassy/foreign representation has committed procedural errors relevant to the decision,
• the embassy/foreign representation has misjudged the applicable law when deciding on the application by violating generally applicable assessment standards in its application or by basing its decision on irrelevant considerations (OVG Berlin Brandenburg (Senate), decision of 19 March 2015 - OVG 11 N 107.14).

The European Court of Justice ruled on 19 December 2013 (case reference: C-84/12) that the issue of a Schengen visa may only be refused on the grounds expressly provided for in the Visa Code of the European Union. However, the national authorities have a wide margin of discretion when assessing whether one of these grounds for refusal applies.

If the risk of illegal immigration is proven, the authorities must refuse the Schengen visa due to justified doubts about the applicant's intention to return (see reason for refusal in Art. 32 it. b of the Visa Code).

Furthermore, there does not have to be absolute certainty of unwillingness to return, but reasonable doubt about the intention to return to the home country is sufficient.

The competent authorities must also carry out an individual examination of the application and

• the general circumstances in the applicant's country of residence,
• his personal circumstances, in particular his family, social and economic situation,
• any previous lawful or unlawful stays in a Member State and
• take into account his or her ties in the country of residence and in the Member States.

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