Historical rulings: Are lawyers entitled to access the internal administrative guidelines of the immigration authorities?

Anyone at the When an immigration office submits an application, the applicant often operates according to rules they are unaware of. Because whether a Residence permit granted, a Whether a visa application is processed quickly or rejected with a brief reference to "established administrative practice" often doesn't depend solely on the wording of the Residence Act. A dense network of internal directives, procedural guidelines, and implementing decrees plays a crucial role, precisely dictating to case workers how they are to interpret laws and exercise their discretion. Is the authority allowed to keep this set of rules secret? The Federal Administrative Court answered this question back in 1980 – a case won by a Berlin lawyer who refused to accept the secrecy.

What are administrative regulations and why are they so important?

Administrative regulations are not laws. They are not passed by parliament, but issued by higher-level authorities – such as the Federal Ministry of the Interior or the Berlin Senate Department for the Interior – and initially only bind the administration itself. Well-known examples include the General Administrative Regulation on the Residence Act from 2009, the Federal Ministry of the Interior's guidelines on new legislative amendments, and, in Berlin, the "Procedural Guidelines for Residence in Berlin" (VAB). State Office for Immigration .

Legally, their indirect external effect is decisive. Where the law grants the authority discretion (§ 40 VwVfG) or uses indeterminate legal terms, administrative regulations stipulate how this scope is exercised in practice. Through the principle of equality enshrined in Article 3 Paragraph 1 of the Basic Law, the administration binds itself to its own practice – the so-called self-restraint of the administration . If a If an immigration authority deviates from its own guidelines in a specific case without objective justification, this can render the decision unlawful. However, someone unfamiliar with the regulations cannot recognize or challenge such a deviation.

What was the subject of the Federal Administrative Court's ruling of September 16, 1980?

In the 1970s, many state authorities treated their immigration directives as strictly internal matters. Foreigners and their lawyers only learned of a particular "directive situation" from the rejection notice – they had no knowledge of its precise content. The imbalance was obvious: the authorities knew the criteria they used to make their decisions, while the other side had to guess.

Berlin lawyer Jürgen Moser refused to accept this. He demanded disclosure of the immigration regulations according to which the Berlin authorities decided on his clients' applications. When the administration refused, he took legal action. The court – and remained persistent: The file number 1 C 52.75 reveals that the case was already before the Federal Administrative Court in 1975. The decision was only reached with the judgment of September 16, 1980 (BVerwGE 61, 15) .

In essence, the Federal Administrative Court clarified that administrative regulations governing decision-making practices towards citizens are not considered confidential official information. A lawyer who regularly represents foreign clients can demand to be informed of the administrative regulations relevant to their work. The court enshrined this right in the freedom to practice one's profession under Article 12 Paragraph 1 of the Basic Law and in the rule of law: Proper legal advice and representation is only possible if the lawyer is familiar with the standards by which the authorities base their decisions. At the same time, the decision strengthened the rule-of-law principle that administrative regulations with external effect must, in principle, be published.

Who is Jürgen Moser?

Jürgen Moser is a lawyer and notary in Berlin-Kreuzberg and dedicated himself to immigration law early on – at a time when this area of law was hardly recognized as a separate specialization and administrative practices toward foreigners largely took place behind closed doors. It is remarkable that a single lawyer would pursue a multi-year case all the way to Germany's highest administrative court to gain access to the decision-making processes of the authorities, not just for one client, but for the entire legal profession. The current ease with which this The State Office for Immigration's publication of its VAB (Visitor Information Sheet) online would be virtually inconceivable without this ruling. For us as a law firm specializing in immigration law, this judgment is a foundation upon which we work daily.

What information rights exist today?

Since 1980, the legal situation has developed significantly. In addition to the right recognized by the Federal Administrative Court, freedom of information laws are now available – at the federal level, Section 1 Paragraph 1 of the Freedom of Information Act (IFG), and in Berlin, Section 3 of the Berlin Freedom of Information Act. According to these laws, everyone has a fundamental right to access official information without having to demonstrate a specific interest. Parties to ongoing proceedings can also request access to files pursuant to Section 29 of the Administrative Procedure Act (VwVfG). In court proceedings, Section 100 of the Administrative Court Procedure Act (VwGO) applies. Furthermore, pursuant to Section 39 Paragraph 1 of the Administrative Procedure Act (VwVfG), the authority must state in its reasoning the considerations on which it based its exercise of discretion; that The court will examine this according to § 114 VwGO.

In practice, however, this is far from transparent. Official guidelines often lag behind actual administrative practice. Besides the published regulations, there are internal circulars, email directives from management, and departmental guidelines that are nowhere to be accessed. Furthermore, the The immigration office in Berlin operates differently than those in Munich, Frankfurt, or Hamburg – even where the same federal law applies. Many cases hinge on this gap between published regulations and actual practice. Based on hundreds of cases we've handled, we know when a change in procedure is already in effect, even if it's not yet reflected in the official regulations, and what specific documents individual offices actually require.

What does this mean for skilled workers, employers, and families?

For a skilled worker from the USA , To people in Great Britain or Canada, German immigration law often seems like a system with hidden rules. A typical scenario is when a letter arrives requesting additional documents not found on any official checklist – or a rejection that simply refers to "administrative practice." HR departments that... skilled worker with a EU Blue Card or one Those who need a residence permit for employment at the planned start date in the company are then under considerable time pressure.

The obvious alternatives are risky. Those who wait will lose valuable weeks and, in the worst case, risk losing everything. A specialist is reassigned to another location. Those who submit additional information independently usually rely on forums, standard information materials, or legal tech services that reflect neither current internal guidelines nor regional practice. And those who simply accept a rejection forfeit the opportunity to challenge the authority's deviation from its own regulations, thus violating the principle of self-restraint under Article 3 Paragraph 1 of the German Basic Law. In such cases, we examine which administrative regulations are applicable, whether the authority has applied them correctly, and whether a right to information grants access to further internal guidelines. This also applies to applications for Family reunification , where the The family depends on a unified and comprehensible decision.

Conclusion

The ruling of the Federal Administrative Court of September 16, 1980 (Case No. 1 C 52.75) is a milestone in the transparency of immigration law. Jürgen Moser thus secured the right of lawyers to know the administrative regulations according to which immigration authorities make their decisions – a prerequisite for genuine equality of arms between citizens and the state. Today, freedom of information laws and the publication of the Administrative Regulations on Immigration (VAB) supplement this right. However, the crucial details often remain in unwritten practice. If you, as a skilled worker , employer or If your family is facing a letter of inquiry, a rejection, or a strategically important application, we will support you in understanding the rules by which decisions are actually made – and using them to your advantage.