Can previous visa refusals be used as a negative indicator for a refusal?

Introduction

In my experience, hardly any phrase in visa rejection notices from German embassies and consulates causes as much uncertainty as the subordinate clause that mentions the applicant's previous applications. It might state, for example, that "the overall circumstances of the case, in particular the previous rejection of a student visa," raise "doubts about the applicant's actual purpose"—and suddenly a client who has submitted a new, otherwise well-founded application faces the accusation that their true aim from the outset was to circumvent immigration regulations. For those affected, this feels like a prejudgment: A previous failure, often for entirely different reasons, becomes a liability for every subsequent application.

The question of whether a previous rejection of another residence permit can actually be used as evidence of an intent to circumvent regulations in a new visa application is anything but trivial from a legal perspective. It touches upon central principles of administrative procedure law—the binding effect of administrative acts, the principle of official investigation, and the free evaluation of evidence—as well as specific provisions of migration law. This article contextualizes the existing debate and resolves it from my perspective as a specialist lawyer in migration law.

I. The practical problem: Three typical scenarios

In my legal practice, I regularly encounter the argument of "prior involvement" in three categories of cases:

• Firstly, in the transition from student visa application to spousal reunification: An applicant whose student visa was rejected for formal or substantive reasons subsequently marries and applies for a spousal reunification visa. The embassy or consulate often interprets this as evidence that the marriage primarily serves to circumvent the failed student immigration application.

• Secondly, in the case of repeated Schengen visa applications: Since rejections are stored in the Visa Information System (VIS) and are automatically displayed with every new application – even at a different foreign mission – virtually every second application comes under increased scrutiny, regardless of whether the circumstances have changed since the first rejection.

• Thirdly, when the purpose of stay changes after a short-term visa, for example, from a rejected au pair or language course visa to an application with a completely different purpose. Here, too, the previous rejection is often interpreted as evidence of a hidden intention from the outset.

• All three scenarios have in common that the authority establishes a connection between two legally independent proceedings – and this is precisely where the actual dispute begins.

II. The legal framework

1. Previous administrative decisions are not binding.

The starting point for any consideration must be a fundamental principle of German administrative law: Unlike a legally binding judgment in civil proceedings, a final and binding administrative act of rejection does not have a binding effect on subsequent, legally independent administrative proceedings. Each application for a residence permit must be independently investigated and assessed in accordance with the principle of official inquiry as set forth in Section 24 of the Administrative Procedure Act (VwVfG). The authority must investigate the facts of the case ex officio and may not simply rely on a previous decision that may have been subject to entirely different conditions.

2. Free evaluation of evidence as a dogmatic point of reference

However, this does not mean that a previous rejection is entirely irrelevant in the new proceedings. Within the framework of the principle of official investigation, the principle of free evaluation of evidence applies – just as it does for judicial review under Section 108 Paragraph 1 of the German Administrative Court Procedure Act (VwGO). Accordingly, the authority or the court can and must include all available facts and sources of information in its overall assessment without being bound by rigid rules of evidence. In this sense, a previous rejection is not an independent legal basis for a new rejection, but at most a supporting fact that – together with other case-specific circumstances – may be considered in the overall assessment.

3. The European legal component: VIS and Schengen Visa Code

For Schengen visas, an additional dimension of EU law comes into play. Regulation (EC) No. 767/2008 on visas obliges German missions abroad to consult the data on previous applications and decisions stored in the visa information system when examining a new application. However, the list of grounds for refusal itself is exhaustively derived from Article 32 of the Schengen Visa Code (Regulation (EC) No. 810/2009). A previous refusal does not appear there as an independent ground for refusal – as the missions abroad expressly clarify in their own explanations of the grounds for refusal, it is relevant only indirectly within the context of the return prognosis, for example, if previous Schengen visas were not used properly or if the applicant's personal circumstances have not plausibly changed since the last issuance. In the Koushkaki case, the European Court of Justice also clarified that a Schengen visa may only be refused for the reasons expressly provided for in the Visa Code, and that the authorities have discretion regarding the assessment of the facts, but not regarding the grounds for refusal themselves. While this exhaustive list does not apply directly to national visa procedures under the Residence Act, which are not subject to the harmonized Visa Code, the underlying principle – assessment of the facts, yes; blanket additional hurdles, no – can be transferred.

4. Independent exclusion criteria as a contrasting foil

Cases in which the legislator has made the intent to circumvent the law itself an element of the offense must be strictly distinguished from mere indicative evidence. In family reunification cases, Section 27 Paragraph 1a No. 1 of the Residence Act precludes the granting of a residence permit if the marriage or civil partnership was entered into solely for the purpose of facilitating entry or residence. Similarly, the interest in deportation under Section 5 Paragraph 4 in conjunction with Section 54 Paragraph 2 No. 8 Letter a of the Residence Act is independent if the applicant demonstrably provided false or incomplete information in a previous administrative proceeding to obtain a residence permit. In both scenarios, the mere existence of a previous rejection is insufficient; rather, positive proof of deception or a sham arrangement existing from the outset is required. Conversely, these provisions demonstrate that where the legislator intended to sanction an intent to circumvent the law, they did so explicitly and with their own evidentiary requirements – and not through a simple presumption of prior involvement.

III. The scientific debate

Based on this, two main positions can be distinguished in literature and administrative practice.

The view favored by the authorities emphasizes the obligation to consider all circumstances of the individual case and concludes that a previous rejection—especially one closely related in time to the new application and with a change in the purpose of stay—is a significant indication, based on administrative experience, of an evasive strategy from the outset. Anyone who submits a structurally similar but legally differently labeled application shortly after the rejection of a previous application must expect an increased burden of proof and cooperation. This perspective clearly dominates the practice of many German missions abroad and is reflected in corresponding passages of the Federal Foreign Office's visa handbook, which urges missions to conduct a "particularly thorough examination" in cases of multiple applications with changing purposes.

The opposing view, based on fundamental rights, argues that different residence permits have different substantive requirements, each of which must be examined independently. Failure to meet the requirements of one permit does not, in itself, allow for a valid conclusion regarding the failure to meet the structurally different requirements of another permit. A general rule of thumb, "previously rejected, therefore now circumvention," contradicts the principle of individual case review and ultimately amounts to an impermissible reversal of the burden of official investigation to the detriment of the applicant, who can hardly defend themselves against a blanket suspicion if the authorities are not required to provide concrete evidence beyond the initial rejection.

IV. Statement

In my opinion, the core of the dispute should be decided in favor of the second, restrictive position – however, with an important dogmatic clarification that is often neglected in the discussion.

From a legal perspective, I consistently locate the question within Section 24 of the Administrative Procedure Act (VwVfG) and the principle of free evaluation of evidence, not within an independent legal basis. This means that a previous rejection is neither per se irrelevant nor automatically a valid argument for rejection. It is one fact among many that must be considered in the overall assessment – nothing more, but also nothing less. Anyone who interprets this as a rule of presumption or even an automatic process fails to recognize that the principle of free evaluation of evidence does not permit a schematic connection, but rather requires an individual, case-specific assessment of the facts.

From this, I derive a clear red line for practical application: The authority has a duty to substantiate its decision. A mere reference in the rejection notice to a previous rejection – without citing concrete, additional indications related to the current proceedings, such as contradictions in the information provided, a conspicuous temporal proximity without a plausible explanation, or a discernible inconsistency between the claimed and actual purpose of stay – does not meet the requirements of official investigation. It is precisely at this point that the three scenarios I have observed most frequently in practice – studies/family reunification, repeated Schengen applications via VIS entries, and a change of purpose after au pair or language course visas – are particularly susceptible to an unlawful shortening of the official review: Administrative practice tends to make the previous rejection itself the decisive reason, instead of merely treating it as one of several factors to be considered.

This presents two avenues for legal defense. Firstly, the presentation of changed circumstances: Clients should document as specifically as possible what has actually changed since the initial rejection – for example, a new, demonstrably developed relationship, a change in career goals, or new evidence that was not available in the initial proceedings. Secondly, if the authority adheres to its formulaic argumentation, a judicial challenge regarding discretion and burden of proof can be raised: Before the administrative court, it can be argued that the authority has failed to fulfill its duty to investigate ex officio if it relies primarily on the previous rejection without conducting its own case-specific investigations in the current proceedings. This is not a license for applicants with genuinely questionable intentions – cases of proven deception remain sanctionable under Section 5 Paragraph 4 in conjunction with Section 54 Paragraph 2 No. 8 Letter a of the Residence Act or, in cases of family reunification, under Section 27 Paragraph 1a No. 1 of the Residence Act. However, it is an effective instrument against the tendency, widespread in practice, to prematurely construct a general suspicion from a failed initial application.

V. Practical recommendations for action

For those affected, the following conclusion can be drawn: Anyone submitting a new application after a previous rejection should actively document from the outset what has changed since the first application and make these changes transparent in the application itself, rather than only adding them after the rejection. If the new application is nevertheless rejected with a blanket reference to the previous rejection, it is worth carefully examining whether the decision mentions any specific, case-related additional facts – if these are missing, there are good chances of success in the objection or legal proceedings.

Conclusion

A previous refusal of a residence permit may be considered in a new visa application – but only as one factor among several within the framework of the required overall assessment, not as an independent ground for refusal, and certainly not as a schematic presumption. The principle of official investigation requires the authorities to examine each application independently and with regard to its specific requirements. Where the legislator actually intended to sanction an intent to circumvent the law, this has been expressly regulated – as in the case of marriages of convenience or proven deception – and linked to specific evidentiary requirements. Everything else remains what it is in legal terms: a weak indication that does not replace the authority's own duty to investigate and provide reasons. For those affected and their legal representatives, this results in a clear mandate: to scrutinize whether a refusal is actually based on an independent examination – or merely on the convenient but legally insufficient reference to the past.

List of sources

Laws, guidelines and regulations

[1] Section 5 of the Residence Act – General requirements for granting a residence permit. Available at: dejure.org/gesetze/AufenthG/5.html

[2] Section 27 of the Residence Act – Principle of family reunification. Available at: dejure.org/gesetze/AufenthG/27.html

[3] Section 54 of the Residence Act – Interest in expulsion. Available at: dejure.org/gesetze/AufenthG/54.html

[4] Section 24 of the Administrative Procedure Act – Principle of investigation. Available at: dejure.org/gesetze/BVwVfG/24.html

[5] Section 108 of the Administrative Court Procedure Act – Free evaluation of evidence. Available at: dejure.org/gesetze/VwGO/108.html

[6] Regulation (EC) No 767/2008 of the European Parliament and of the Council on the Visa Information System (VIS) and the exchange of data between Member States relating to short-stay visas (VIS Regulation). Available at: eur-lex.europa.eu/legal-content/DE/TXT/?uri=CELEX:32008R0767

[7] Regulation (EC) No 810/2009 establishing a Community Code on Visas (Schengen Visa Code). Available at: eur-lex.europa.eu/legal-content/de/TXT/?uri=CELEX%3A32009R0810

Judgments

[8] ECJ, Judgment of 19 December 2013 – C-84/12 (Koushkaki), on the final grounds for refusal of Schengen visas under the Visa Code. Available at: dejure.org/dienste/vernetzung/rechtsprechung?Gericht=EuGH&Datum=19.12.2013&Aktenzeichen=C-84/12

Administrative guidelines and instructions

[9] Federal Administrative Court, Press release no. 73/2015 on the classification under EU law of grounds for visa refusal. Available at: bverwg.de/pm/2015/73

[10] Federal Foreign Office, Visa Handbook, as of 21 August 2026. Available at: auswaertiges-amt.de/resource/blob/207816/5f5be4158ee61f51115a2a32e2885c67/visumhandbuch-data.pdf

[11] German diplomatic missions abroad, Explanations of the grounds for refusal (Schengen visa). Available at: germania.diplo.de/resource/blob/1601384/e254840ef620d59a9e1f35dd0ae6a7bc/ablehnungsgruende-data.pdf

Online resources

[12] migrationsrecht.net , Online commentary on § 5 of the Residence Act. Available at: migrationsrecht.net/kommentar-aufenthaltsgesetz-aufenthg-gesetz-aufenthalt-erwerbstaetigkeit-aufenthaltserlaubnis-niederlassungserlaubnis-aufenthg/kommentierung-%C2%A7-5-abs.-1-satz-1-nr.-2-aufenthg.html

[13] migrationsrecht.net , Commentary "Uniform Visa". Available at: migrationsrecht.net/kommentar-aufenthaltsgesetz-aufenthg-gesetz-aufenthalt-erwerbstaetigkeit-aufenthaltserlaubnis-niederlassungserlaubnis-aufenthg/kommentierung-einheitliches-visum.html

[14] VISAGUARD.Berlin , Residence permit despite deportation interest. Available at: visaguard.berlin/requirements-residence-permit/interest-in-expulsion-residence-permit

Other sources (essays and journal articles)

[15] migrationsrecht.net , News: "ECJ: Schengen visa may only be refused for reasons expressly provided for in the EU Visa Code". Available at: migrationsrecht.net/News/eugh-schengen-visum-darf-nur-aus-ausdruecklich-im-eu-visakodex-vorgesehenen-gruenden-verweigert-werden.html

[16] Information Network Asylum & Migration ( asyl.net ), Intervention options & legal remedies in visa procedures. Available at: familie.asyl.net/ausserhalb-europas/interventionsmoeglichkeiten-rechtsmittel

About the author

Mirko Vorreuter, LL.B., Dipl.-Jur., is a lawyer and specialist in immigration law, as well as the founder and owner of VISAGUARD.Berlin . During his studies, he specialized in German residence and immigration law and has since handled and managed more than 1,000 visa and residence permit applications.

In addition to his legal practice, Mirko Vorreuter works as a specialist author and content creator in the field of German immigration law. Besides his legal training, he holds the academic degrees of Bachelor of Laws (LL.B.) and Diplom-Jurist (Dipl.-Jur.).

He is a member of Corporate Immigration Lawyers Germany (CILG), the Working Group on Migration Law in the German Bar Association (DAV) and the Republican Lawyers' Association (RAV).