Ruling: Deportation by an incompetent immigration authority is unlawful

The world of global mobility often resembles a highly complex game of chess, where every move must be carefully considered. For highly qualified professionals and companies that move talent across borders, legal certainty regarding residency status is paramount. But what happens when the administration itself disregards the rules of the game? A recent ruling by the Higher Administrative Court of Lower Saxony (OVG) on April 1, 2026 ( Case No. 13 ME 47/26 ) is currently causing a stir in the legal community and offers an important safeguard against arbitrary actions by authorities. The case concerns the "incurable procedural error" of a deportation order issued by an authority lacking local jurisdiction. At a time when the shortage of skilled workers is slowing economic growth and the digitalization of migration administration is often lagging behind, this ruling serves as a stark reminder that government action is strictly bound by law and jurisdiction.

The competence of associations as a red line of the rule of law

At the heart of the case was a foreign national who had moved his habitual residence from Lower Saxony to North Rhine-Westphalia. Despite this move, the original Lower Saxon authority issued a ruling. The immigration office continues to issue decisions – including deportation orders and rejections of applications – Residence permit . The Higher Administrative Court of Lower Saxony unequivocally ruled that the authority lacked the necessary jurisdiction . According to Section 3 of the Administrative Procedure Act (VwVfG), local jurisdiction is primarily determined by the place of habitual residence.

In our experience, we often see that when someone moves within Germany – for example, a young professional changing employers – the paperwork between authorities gets bogged down. A court has clarified that an error in jurisdiction—that is, when an authority in one federal state makes a decision for a citizen already residing in another federal state—is irreparable . Such a decision is formally unlawful. This is crucial information for HR departments and expats: An authority's mere assertion of remaining competent as long as the file hasn't been sent will not withstand judicial review.

Why Section 46 of the Administrative Procedure Act offers no salvation for the authority here

Authorities often attempt to rectify formal errors under Section 46 of the Administrative Procedure Act (VwVfG) by arguing that the error did not affect the substantive decision. The Higher Administrative Court (OVG) has clearly rejected this practice in matters of local jurisdiction where the authority lacks the necessary competence . We expressly welcome this strict stance. It cannot be at the discretion of an authority lacking jurisdiction. It is the responsibility of immigration authorities to decide on the life plans of academics or wealthy investors, simply because they "still feel responsible".

The judges were particularly critical of the authority's argument for continuing the proceedings under Section 3 Paragraph 3 of the Administrative Procedure Act (VwVfG). This provision allows a previously competent authority to conclude proceedings if the newly competent authority agrees and this serves the purpose of expediency. However, this A court ruled that a mere email, in which the new authority (in this case, the city of Minden) failed to recognize its own jurisdiction, does not constitute valid consent. Jurisdiction is not a matter of administrative discretion , but a legal guarantee for the citizen.

Practical implications: Protection through preliminary legal protection

The ruling demonstrates the effectiveness of preliminary legal protection under Section 80 Paragraph 5 of the German Administrative Court Procedure Act (VwGO) . By ordering the suspension of the deportation order, its immediate enforcement was halted. For those affected, this means they may remain in Germany for the time being, the legal fiction of their residence permit under Section 81 Paragraph 4 of the German Residence Act (AufenthG) remains in effect, and the threatened deportation is averted. Our law firm regularly criticizes the sluggish processing times at immigration authorities. In this particular case, four years passed between the initial hearing and the final decision. That an authority then exceeds its powers after such inaction is a clear indication of structural deficiencies in migration policy . This is especially true for highly qualified individuals. For skilled workers and companies that depend on planning security, such official behavior is poison for Germany as a business location.

Conclusion

The ruling by the Higher Administrative Court of Lower Saxony is a victory for the rule of law in corporate immigration . It strengthens the position of foreigners vis-à-vis an often overburdened administration and emphasizes that formal rules of jurisdiction are not mere bureaucratic hurdles, but rather guarantee the protection of individuals from state arbitrariness. Moving house means not only changing one's address, but also one's legally responsible contact person. If an authority violates this principle, the decision can be challenged – and successfully so. Legal proceedings .

How Visaguard supports you

As a specialized law firm for We guide you through the complexities of German immigration law, including visa and global mobility. We review the legality of decisions for companies and professionals, intervene in jurisdictional disputes between authorities, and enforce your rights through preliminary injunctions before administrative courts. Trust in our expertise to ensure your international career doesn't derail due to administrative errors.