Judgment of the Administrative Court of Berlin, 16 April 2024, Ref.: 41 K 169/24 V
I have often reported on the process of granting Schengen visas and national visas. By far, the most common reason for the rejection of Schengen visas (visitor or tourist visas) is the lack of willingness to return. To counter this accusation from the embassy, one must demonstrate social, economic, and familial ties to the embassy. This issue was also the subject of the court proceedings.
Facts of the Case:
The plaintiff sought a Schengen visa for visiting purposes.
The plaintiff, born in 1983, was an Iranian national residing in Turkey. She was not employed. In October, the plaintiff applied for a Schengen visa for herself and her son to visit her sick sister living in Germany. Simultaneously, her Iranian husband also applied for a Schengen visa for visiting purposes. Both applications were rejected by the embassy due to a lack of willingness to return.
Plaintiff Filed a Lawsuit Without Signing the Complaint
The plaintiff, through her sister, filed a lawsuit against the rejections at the Administrative Court of Berlin with an unsigned complaint, arguing that she wanted to visit and support her sister, who was suffering from cancer and undergoing treatment in Germany. Although her husband no longer wanted to travel after his visa application was denied, she still wanted to travel to Germany with her son. Since she was also ill, she required monthly medical treatment and medication administration in Turkey, which was covered by the Turkish insurance system.
Decision of the Administrative Court of Berlin:
The Administrative Court of Berlin ruled that the lawsuit was inadmissible and unfounded.
The Berlin Administrative Court ruled that the lawsuit was both inadmissible and unfounded. A remonstration procedure did not need to be conducted beforehand, as the remonstration procedure is a voluntary legal remedy through which the applicant could have the facts and the rejecting decision reviewed by the defendant free of charge.
The Rejection of the Visa Application Was Lawful
The court held that the rejection of the plaintiff’s visa application was lawful, as the plaintiff neither had a right to the requested Schengen visa nor to a national visa or a new decision.
Furthermore, the complaint is also unfounded.
The rejection of the applicant's visa application was lawful; the applicant was not entitled to the issuance of the requested Schengen visa, nor to the issuance of a national visa or to a new decision
The Visa Was Rightly Rejected Due to Lack of Willingness to Return
According to Art. 23 para. 4 in conjunction with Art. 21 and Art. 32 of the Visa Code, the issuance of a Schengen visa requires that the applicant meets the entry requirements in material terms and that there is no reason for refusal. When examining the application, it must be determined whether the applicant meets the entry requirements. Among other things, a third-country national must prove the purpose and circumstances of the intended stay and must not pose a threat to public order. The embassy must therefore assess whether there is a risk of illegal immigration by the applicant, whether they pose a threat to the Member States, and whether they intend to leave the territory before the validity of the requested visa expires.
The Plaintiff Failed to Prove Her Family, Social, and Economic Ties
This provision does not require the competent authorities to be certain that the applicant intends to leave the territory of the Member States before the visa expires. Rather, they must determine whether there are reasonable doubts about this intention. For this purpose, they must carry out an individual examination of the application, taking into account both the general circumstances in the applicant’s country of residence and her personal circumstances, particularly her family, social, and economic situation, any previous lawful or unlawful stays in a Member State, as well as her ties in the country of residence and in the Member States.
Measured against these standards, the decision of the defendant to deny the requested visa due to doubts about the plaintiff’s intention to return was not objectionable. The assessments made by the defendant proved to be free from errors of judgment. In particular, they were based on correct facts and adhered to universally valid assessment criteria.
Lack of Economic Ties Due to Unemployment in Turkey
It was not objectionable that the defendant assumed that the plaintiff, who was not currently employed and had no income in Turkey, was not sufficiently economically tied to the country.
No Familial Ties in Turkey Either
Regarding familial ties, the defendant also assessed without error that special family ties in the plaintiff’s home country had not been presented. Although the plaintiff’s husband lived in Turkey, this fact did not establish familial ties in Turkey that would justify a positive prognosis for her return. The defendant reasonably doubted the husband’s ties and his primary residence in Turkey. On the one hand, he was the managing director of a GmbH based in Germany and, according to his own statements, was not employed in Turkey. Furthermore, his residence permit for Turkey had expired in the meantime. Whether a new residence permit had been granted at his request was unknown. On the other hand, the plaintiff intended to travel to Germany with her minor son to visit her sister. It was not stated that other relatives of the plaintiff or her husband lived in Turkey. Therefore, the husband’s abandoned travel intention could not counteract the plaintiff’s negative return prognosis, as the duration of the husband’s stay in Turkey was already questionable.
In the end, the fact that the defendant did not consider the plaintiff’s claim that she was suffering from a disease requiring monthly treatment and medication administration in Turkey did not lead to a different decision. It was neither stated nor apparent that the plaintiff could not receive the necessary medical care in the same way in Germany. The submitted documents did not show that it was a treatment method or medication that was only approved in Turkey or only available to her there.
No other errors in judgment arise from the plaintiff’s submission, nor are any apparent otherwise. The defendant neither disregarded universally valid assessment criteria, considered irrelevant factors, nor misapplied the applicable law (here: the Visa Code).
Source: Administrative Court of Berlin
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