Suing for a visa when visa-free entry is possible

In legal practice, the question repeatedly arises whether a person can legally enforce a national visa even though they are permitted to enter Germany visa-free and apply for a residence permit here (privileged nationals under Section 41 of the Residence Ordinance ). This applies, for example, to US citizens , British citizens , and Canadians . For reasons of legal certainty, these nationals may have an interest in applying for a residence permit not in Germany, but already in their home country. If no decision is made on this application, an action for failure to act may be possible.

Case law on visa appeals in cases of visa-free entry

The case law is clear on this point: A lawsuit seeking a visa is inadmissible in such cases because the necessary general need for legal protection is lacking. This need exists only if the requested visa is actually necessary and attainable. Anyone who is already permitted to enter the country does not need a national visa, and a court cannot compel a foreign mission to issue something that is no longer required for entry. However, it should be noted that this does not apply if entry is for the purpose of employment (especially as a skilled worker ). In that case, the visa is required to make employment in Germany legal in the first place ( § 4a of the German Residence Act ). Therefore, in the case of work visas, there is no lack of legal protection for visa lawsuits abroad by privileged nationals.

The administrative courts, in particular the Berlin Administrative Court, have repeatedly confirmed this jurisprudence (see, for example, Berlin Administrative Court, judgment of December 14, 2023, VG 27 K 31/21 V). Their central reasoning is as follows: The national visa is an instrument that serves to prepare for and control entry . It is intended to ensure that immigration from abroad is controlled and that the Federal Republic of Germany checks, even before entry, whether the requirements for a longer-term stay are met. This purpose cannot be fulfilled at all if visa-free entry is possible.

Residence permit instead of visa for privileged nationals

This becomes particularly clear in situations where applicants have already entered Germany for the purpose of permanent residence and have established their habitual residence here. The courts clarify that in such cases, a visa can no longer serve as a prerequisite for entry and therefore can no longer be claimed. Furthermore, the German mission abroad is no longer competent within the meaning of Section 72 Paragraph 2 of the German Residence Act (AufenthG) from this point onward , so a court order is not even conceivable. Jurisdiction for residence permits now lies entirely with the local immigration authority in Germany . Therefore, a residence permit must then be applied for in Germany instead of a visa.

Furthermore, the purpose of the visa procedure is not to retroactively legitimize an existing stay (Higher Administrative Court of Berlin, decision of February 6, 2004, OVG 2 N 121.04). Courts regularly emphasize that the control and regulation of immigration from abroad can no longer take place if the person concerned is already in Germany due to visa-free entry. The visa is intended to facilitate entry; if this entry has already occurred or would demonstrably have been possible even without a visa, the entry procedure is completed before the visa is issued.

Conclusion on visa litigation in cases of visa-free entry

For those affected, this means that a visa appeal will be unsuccessful if visa-free entry is possible, unless it is a work visa . In such cases, the correct course of action is not through the German embassy or consulate, nor through the administrative court, but directly to the competent immigration authority in Germany . There, the decision regarding the granting of a residence permit is made. After entry, a new phase of residency rights begins, which is exclusively controlled by the immigration authority in Germany.