A. Facts
What had happened?
The client is a Pakistani citizen. Her son lives in Germany, works here, and recently became a father. The client intended to visit her son and her newborn grandchild at short notice and applied for a Schengen visa pursuant to Section 6 of the Residence Act at the German Embassy in Islamabad. The client appeared in person at the embassy at the agreed time, submitted all required documents, and waited for an interview regarding her travel purposes and intentions to return. However, a personal interview did not take place. Her documents were accepted without comment and filed away, without the client being given the opportunity to provide additional explanations or provide further evidence of her desire to return.
Approximately two weeks after submitting her application, the client received a rejection notice. The notice was only rudimentarily filled out; the form merely checked the box "Danger to public safety and order." The reason given was a succinct, single-sentence statement stating that the embassy had doubts about the client's willingness to return, which is why the application was being rejected.
Hoping to still be able to visit her son and grandchild, the client then hired a lawyer from VISAGUARD who specializes in visa procedures.
B. Legal solution
How did the VISAGUARD lawyer resolve the case?
The VISAGUARD attorney initially filed a formal and timely appeal against the embassy's rejection. In the appeal, the attorney specifically argued that the proceedings suffered from a significant procedural defect: The client had neither been heard in person nor given the opportunity to substantiate her desire to return or to present evidence. By failing to hold a hearing, the embassy had violated its obligation to comprehensively and properly investigate the circumstances relevant to the decision ( Section 24 (1) of the Administrative Procedure Act ).
Furthermore, the lawyer argued in detail that there was indeed a desire to return. New evidence was submitted to support this argument, in particular:
an ongoing employment contract of the client in Pakistan,
a rental agreement for an apartment in Islamabad in the name of the client,
Proof of existing private pension insurance,
and an affidavit from the client stating that she intends to return to Pakistan immediately after the expiry of her visa.
Nevertheless, the embassy again rejected the remonstration, referring to its original decision and not substantiating the submitted evidence.
Due to the unsuccessful appeal, the VisaGuard attorney then filed a lawsuit with the Berlin Administrative Court ( Section 113 of the Administrative Court Code ). During the legal proceedings, it was again comprehensively demonstrated that the original visa procedure had already contained serious procedural errors and that the negative prognosis regarding the client's willingness to return had been neither comprehensible nor soundly justified. The Berlin Administrative Court essentially followed the attorney's argument: It found that the client was entitled to a proper hearing and fair treatment in the visa procedure. The failure to hold a hearing was a serious violation of procedural principles and violated the right to be heard. Furthermore, the subsequently submitted documents were suitable and sufficient to prove an existing desire to return. The embassy's doubts were neither specified nor substantiated.
Consequently, the court ordered the Federal Republic of Germany to grant the requested visa to her client. The decision became final. The visa was subsequently issued by the embassy, and the client was able to enter Germany to visit her family.
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C. Conclusion
What can we learn from this case?
This case study exemplifies how visa applications can fail due to significant procedural errors if the authorities violate their duty to investigate and their duty to ensure a fair hearing. In particular, the failure to hear the applicant and the failure to consider relevant evidence led to the unlawfulness of the rejection.
The careful and substantive analysis of the facts in the appeal process and – after an unsuccessful appeal – in the court proceedings was crucial to the success. This case underscores the importance of competent legal protection in visa proceedings and simultaneously demonstrates that an attorney-assisted appeal and legal assertion of clients' rights can be effective.
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