If a third-country national wishes to apply for a Schengen visa at the competent German embassy in their home country, the main prerequisite for the German embassy to make a favourable decision on the visa application is that the applicant must demonstrate a credible willingness to return. This means that the applicant must convince the German embassy that he will return to his home country after the visit period. This is because, in accordance with Section 5 (1) No. 3 of the Residence Act, the applicant's stay must not jeopardise or even endanger the interests of the Federal Republic of Germany for any other reason. The illegal entry of the applicant by remaining in the Federal Republic of Germany beyond the authorised visit period also constitutes such a threat. In our experience, around 80% of Schengen visa refusals are based on the reason of unwillingness to return.
Reason for rejection due to unwillingness to return leads to rejection in 90% of cases
In order to assess the willingness to return, an individual examination of the application by the German embassy is required, which takes into account the general circumstances in the applicant's country of residence and his personal circumstances, in particular his family, social and economic situation, any previous lawful or unlawful stays in a member state and his ties in the country of residence and in the member states. In accordance with Art. 21 para. 1 UK, the risk of illegal immigration must be assessed in particular. In accordance with Art. 14 para. 1 lit. d) UK, it is the responsibility of the applicant to provide suitable information and to prove its credibility by means of relevant and trustworthy documents in order to dispel any doubts about their intention to return in good time. In general, doubts about the applicant's unwillingness to return must be of such weight that the probability of the applicant's intended permanent stay in Germany must be assessed as significantly higher than the probability of his or her return to the home country, cf. e.g. judgement of the Administrative Court (VG) Berlin of 19 March 2010 (Ref. 3 K 298.09 V).
The rootedness to be checked by the embassy is divided in particular into the economic, family and social rootedness of the applicant in a home country.
Economic roots
House, flat, bank accounts, car can be accepted by the embassy as economic roots
Economic roots are, for example, a long-term employment relationship (dependent activity), a self-employed activity, larger assets (house, flat, shares, cash holdings, current accounts, savings accounts, cars, etc.), long-term contracts in the home country (tenancy agreement, fitness centre contract, savings contracts, pension insurance, telecommunications contracts, etc.).
It should be mentioned that even such evidence of economic roots alone is not always accepted by the embassy as economic roots. For example, as the owner of a property in their home country, the applicant should also provide evidence that they are the only person able to manage the property they own.
Family roots
Family roots are above all economically dependent relatives
In addition to economic roots, the applicant's family roots are also suitable for proving to the embassy that the applicant is willing to return. It should be noted that family ties in the home country generally only justify the conclusion that the applicant is willing to return if the applicant leaves behind dependants, such as spouses or life partners and/or underage children or relatives in a comparable relationship of dependency in the home country. (see OVG Berlin, decision of 12 March 2004 - Ref.: 2 N 8.04). Proof of such relatives are, for example, the marriage certificate, birth certificates of the children, school certificates, etc.).
Nevertheless, it makes sense to also submit a list of all relatives who are in the immediate vicinity of the applicant's place of residence. If the applicant is caring for a sick relative, this can also justify family roots. This must also be proven with appropriate documentation (certificates, other attestations, etc.). It must also be demonstrated to the embassy who is caring for the sick relative during the period of absence.
Social rootedness
Less important, but still worth mentioning, is social rootedness
There are many different social reasons that can be used to prove the applicant's roots. Upcoming final examinations in the home country, for example, are important indications of a willingness to return. In particular, a degree programme that has begun and is nearing completion is a significant reason for returning to the home country. However, a near end of education or a successful academic path that has not yet been completed can also be good indications for the authorities.
Further indications of a willingness to return are, for example, proper prior travel to the Schengen area
In addition to these economic, family and social roots, there are other indicators that can be used by the embassy to establish sufficient roots. For example, the existence of a return ticket, proper previous travel to the Schengen area (but also to other countries with strict entry regulations, such as the USA or Australia), etc.
However, the declaration of commitment made in accordance with Sections 66 to 68 of the Residence Act to cover the costs of living incurred during the stay is not suitable for ensuring return. Its purpose is to secure the person's livelihood in Germany and to cover any departure costs that may arise in order to minimise the risk of having to use public funds during the visit. It cannot therefore dispel doubts about the willingness to return.
Contrary to widespread opinion, an affidavit by the applicant or even the inviting person that the applicant will duly return is not suitable as proof of willingness to return.
To summarise, it can be said that the assessment of whether the applicant for a Schengen visa will return to their home country is extremely complex and depends on many issues. It should also be noted that the authorities have a great deal of room for judgement, which can only be reviewed by the courts to a limited extent. Nevertheless, the refusal of a Schengen visa can be challenged by means of a remonstration and an appeal to the Berlin Administrative Court. In the following, we would like to present an interesting court case from the Berlin Administrative Court from 7 July 2016 (Ref.: 10 L 212.16 V):
Facts of the Case:
The applicant in this case wanted to attend the funeral of her husband, who had been in Germany with a residence permit and died in a car accident caused by a third party on 6 April 2016. Before his death, he worked at a burger grill and supported his wife and children financially.
Applicant applied for a Schengen visa for the funeral of her husband
On 28 April 2016, the applicant applied to the Embassy of the Federal Republic of Germany in Colombo for a Schengen visa, stating the following purpose: "to attend the funeral". In the email correspondence between the applicant and the parish of Sankt Leon Rot that preceded the application, the applicant wrote: "As we are Roman Catholic, the corpse of my late husband should be buried after christian funeral rites. ...We were fully dependents for all my husband's earnings."
German embassy in Colombo rejects application due to unwillingness to return
The embassy in Colombo rejected this application in a formal decision dated 29 April 2016 on the grounds that the applicant's intention to leave the territory of the member states before the visa expired could not be established (unwillingness to return). The applicant appealed against this rejection and at the same time lodged an urgent appeal against the rejection with the Berlin Administrative Court.
Applicant remonstrates and submits urgent application to the Berlin Administrative Court
In her urgent application dated 3 June 2016, the applicant essentially claimed that she was of the Roman Catholic faith and wanted to attend her spouse's funeral. It could not be assumed that she would leave her two children, aged eight and five, behind in order to remain in Germany illegally. Transferring the body to Sri Lanka was beyond her financial means. The costs for travelling and accommodation had been applied for through the German Caritas Association in Freiburg. A Catholic priest, representative of the diocese of Aachen for the pastoral care of Tamil Catholics, will hold the service followed by a farewell.
The respondent (embassy or FRG) again justified its refusal by stating that the applicant had not provided sufficient credible facts from which a right to entry could be established. In the present case, there were reasonable doubts about the stated purpose of the journey and her willingness to return. It had not been possible to prove that the unemployed applicant, who had no regular income, was professionally and economically established. If she had been financially supported by her deceased husband, she would no longer receive this income. The account held by the applicant did not show high savings. In addition, a significant proportion of the savings balance was only received on the day the account statement submitted was issued. Furthermore, the applicant's family roots in Sri Lanka were not able to dispel the doubts about her intention to return. The applicant was widowed and her deceased husband had not lived with the family since 2012. Although the applicant had two minor children, in the experience of the embassy, family ties alone were not sufficient to make a return to Sri Lanka credible. It was also originally intended that the children would be travelling with her. The fact that the applicant had three siblings in Sri Lanka was also not sufficient to establish a corresponding rootedness. In addition, the situation had to be seen against the background of high migration pressure from Sri Lanka. Many Sri Lankans misuse a visit visa to enter the country illegally due to a lack of professional and economic prospects.
Finally, the grounds for an order had not been substantiated. Circumstances requiring the immediate presence of the applicant in Germany were not apparent. The applicant could reasonably be expected to await a decision on the merits of the case.
The Berlin Administrative Court took a different view:
There are no justified doubts about the applicant's intention to return. The respondent - also taking into account the broad scope for judgement to which it is entitled with regard to the conditions for the application of Art. 32 (1) and Art. 35 (6) UK and the assessment of the facts that are decisive for the determination - has not demonstrated any such serious doubts about the applicant's intention to return. The respondent's scope for judgement and discretion in this regard is reduced to "zero" in the present case. This follows from the following:
Applicant had asserted the purpose of the journey in a plausible and plausible manner
With her - humanly understandable - wish to attend the funeral of her deceased husband, the applicant has presented a plausible and plausible reason for travelling to Germany and has also made it sufficiently credible. In support of this request, the applicant can invoke both the continuing protection of marital rights under Article 6(1) of the Basic Law for the purpose of caring for the dead and the right to care for the dead to which she is entitled as the spouse and relative of the deceased, derived from Article 2(1) of the Basic Law. The burial of close relatives and the associated necessary preparatory acts are an expression of the right to care for the dead to which the next of kin are entitled and which includes the right and, where applicable, the duty to carry out the funeral (see Bavarian Supreme Administrative Court, decision of 2 September 2008 - 10 ZB 08.1794 - para. 10; OVG North Rhine-Westphalia, decision of 2 May 2013 - 19 E 313/12 - para. 4; VG Gelsenkirchen, judgement of 22 August 2014 - 14 K 744/12 - para. 58 ff.; BGH, decision of 26. 11.2015 - III ZB 62/14 - para. 12; OVG Schleswig Holstein, judgement of 14.04.2016 - 2 LB 25/15 - para. 59; each cited in juris). The applicant, who is of Roman Catholic faith, has made it credible, in particular by means of the declaration of the Catholic priest Koolen dated 7 June 2016, that she would like to say goodbye to her deceased husband in person and is endeavouring to cover the costs of travel and accommodation with the help of the Catholic-Tamil pastoral care office. Father Koolen confirmed this statement to the court again by telephone on 7 July 2016.
Submission of the German Embassy/Foreign Office irrelevant
The respondent's submission offers no reason to assume that the applicant is unwilling to return. If the respondent states that, according to the experience of the embassy, family ties alone are not sufficient to make a return to Sri Lanka credible, this argument is already unsubstantiated. It has not been explained on which concrete facts these merely generalised experiences should be based, nor have any verifiable figures been provided. A stronger family bond than that with the applicant's own underage children, who are supposed to stay behind in Sri Lanka while she is travelling to Germany, is hardly conceivable. It must also be taken into account that the children have just lost their father and, at the ages of 5 and 8, are still so young that they are dependent on their mother's care - especially after the trauma of their father's death.
If the respondent also argues that the unemployed applicant is now widowed and has neither savings nor a regular income, as she had previously been financially supported by her deceased husband and now no longer receives this income, such a submission seems disrespectful and irreverent towards a woman who has lost her husband in an accident and wishes to attend his funeral. Furthermore, in response to the respondent's objection that an amount of approximately €1,500 had been paid into the savings account three days before the visa application was submitted, the origin of which appeared questionable due to the fact that the financial support from her husband had ceased in the meantime, the applicant plausibly stated that she was currently being supported by her father and had merely arranged for the payment to be made as the embassy had requested proof of her financial means.
High migration pressure not decisive in individual cases
Finally, if the respondent refers to a "high migration pressure", it is not demonstrated why the visa application in this specific individual case should allow the verdict "migration pressure". If the respondent explains at this point that many Sri Lankans misuse a visit visa to enter the country illegally due to a lack of professional and economic prospects, this does not mean that the respondent should refuse to issue the visa for this reason alone without assessing the individual case. It is not the case that no visas are issued to Sri Lankan nationals due to "migration pressure". On the contrary, the German Embassy in Colombo approved 5,006 of 6,392 visa applications in 2013 and only refused to issue visas in 21.67% of the cases (source: BT-Drs. 18/1212 p. 28).
Contrary to the opinion of the respondent, there is also a reason for an order. On the one hand, the petitioner has explained that a transfer of the body and a burial in Sri Lanka is beyond her financial means. This is also not questioned by the respondent. On the other hand, the municipality of Sankt Leon Rot has stated that it intends to arrange the burial of the deceased husband after 20 July 2016 in accordance with Section 31 (2) of the Baden-Württemberg Burial Act. If the applicant were unable to attend the funeral of her deceased husband, this would represent an irreparable disadvantage for her, as the burial of a deceased relative is generally a one-off event that cannot be repeated. Moreover, if the respondent's view were to be accepted, the applicant would then have no opportunity whatsoever to visit her husband's grave in Germany.
The German Embassy/Foreign Office's claim that the wife should wait for the years-long court proceedings is ignorant
The defendant's argument that it was reasonable to expect the applicant to wait for the outcome of the main proceedings suggests that the defendant did not have the purpose of the intended trip to the funeral in mind when making her decision.
Even if the respondent's doubts about the applicant's willingness to return could not be completely dismissed out of hand, the applicant would be entitled to the issue of a visa with limited territorial validity to the Federal Republic of Germany in accordance with Art. 25 para. 1 UK. Accordingly, a visa with limited territorial validity is issued in the following exceptional cases, among others: if the Member State concerned deems it necessary for humanitarian reasons, reasons of national interest or international obligations to derogate from the principle that the entry conditions laid down in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code must be fulfilled (Article 25(1)(a) of the UK). In the opinion of the Chamber, the intended participation in the funeral of one's own husband fulfils the requirement for the existence of a humanitarian reason. In order to avoid repetition, reference is made to the above statements on the constitutionally protected right to care for the dead. If there is a humanitarian reason, any existing doubts about the willingness to return recede.
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.
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