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When is it unreasonable to expect the visa procedure to be carried out retroactively in accordance with Section 5 Paragraph 2 of the Residence Act?
The visa procedure as a fundamental principle of residence law
German immigration law generally follows the principle that the requirements for a longer-term stay should be checked before entry .
Section 5 paragraph 2 sentence 1 of the Residence Act therefore generally requires that a foreigner enters with the required visa and provides the information relevant for the subsequent issuance of the residence permit in the visa application.
For years, the Federal Administrative Court has described the visa procedure as an essential instrument for controlling immigration.
However, this does not mean that a visa application process abroad can be required under all circumstances.
Section 5 paragraph 2 sentence 2 of the Residence Act therefore contains exceptions.
One of these is particularly important in practice: The visa procedure should be waived if, due to special circumstances of the individual case, it is unreasonable to expect the procedure to be carried out later.
The crucial legal question is therefore not whether a visa procedure is fundamentally sensible. The legislator has already answered that in the affirmative.
The crucial question is rather:
When do the specific disadvantages of leaving the country outweigh the advantages so clearly that the state can no longer require the visa procedure to be completed?
The exception in Section 5 Paragraph 2 Sentence 2 of the Residence Act
Section 5 paragraph 2 sentence 2 of the Residence Act contains two different categories of cases.
Firstly, the visa requirement can be waived if the conditions for entitlement to a residence permit are met.
The Federal Administrative Court understands this to mean, in principle, a strict legal entitlement. All mandatory and standard requirements must be met.
In addition, there is the alternative of unreasonableness.
It applies when special circumstances of the individual case make it unreasonable to expect the visa procedure to be completed retroactively.
This second alternative should not be treated as an exotic hardship clause. Rather, it is an expression of the general principle of proportionality within visa law.
Why the change in the law since 2024 is important
For the dogmatic classification, a change in the law is particularly important.
Older rulings often still state that the authority must exercise discretion if the conditions of Section 5 Paragraph 2 Sentence 2 of the Residence Act are met.
However, the current version clearly differs.
If a claim already exists, the requirements of sentence 1 may be waived.
However, if completing the visa procedure is unreasonable due to special circumstances of the individual case, the requirements may be waived.
This means that the legal consequences are binding in the event of established unreasonableness.
This significantly changes the structure of the exam.
The decisive debate today takes place at the level of the facts. As soon as the court concludes that completing the visa application process is unreasonable, the authority generally no longer has any discretion regarding this requirement.
Therefore, the unreasonableness must be precisely and specifically justified.
What burdens are sufficient to render a situation unreasonable?
Not every inconvenience is enough.
The costs for flight tickets, organizational effort and a certain waiting time are generally among the burdens that the visa process inevitably entails.
If every journey or every temporary separation were sufficient, Section 5 Paragraph 2 Sentence 1 of the Residence Act would hardly have any practical application.
However, the situation must be assessed differently if the departure poses a concrete and significant risk of harm .
From our point of view, this should be the main focus of the examination.
Potential relevant disadvantages might include:
the concrete loss of a job,
a significant and not merely short-term separation of spouses or children,
the loss of a university place,
significant economic damage,
the endangerment of an existing professional or personal livelihood,
or other serious infringements of protected legal positions.
What matters is not the abstract category, but the intensity of the threatened harm.
Fundamental rights as a central benchmark
In family cases , Article 6 of the Basic Law and Article 8 of the European Convention on Human Rights are regularly central.
The Federal Administrative Court has repeatedly emphasized that the specific effects of departure on marriage and family must be taken into account.
Article 7 of the Charter of Fundamental Rights can also become relevant in situations shaped by EU law.
The examination must not be carried out schematically.
A separation of two weeks should be assessed differently than a separation of nine months. A temporary physical separation of a married couple without any further special circumstances should be weighed differently than the separation of a parent from a young child.
The constitutional review therefore necessitates an assessment of each individual case.
From our perspective, this damage-oriented approach also applies outside of classic family cases.
The more severely a legally protected position is impaired and the less the resulting damage can be reversed later, the stronger the argument for the unreasonableness of repeating the visa procedure.
The actual duration of the visa process
One of the most important variables is the actual duration of the visa application process that needs to be completed.
In its judgment of July 30, 2013 – 1 C 15.12, the Federal Administrative Court made it clear that a reliable prognosis is required.
It is neither sufficient to simply claim a long duration nor to assume that the process will be completed quickly.
Rather, the following must be examined:
Which German diplomatic mission abroad is responsible?
How long does it currently take to get an appointment there?
How long does the processing take?
Does an immigration authority need to be involved?
Is approval from the Federal Employment Agency required?
What documents might still be missing?
Can preliminary legal protection shorten the duration of proceedings?
The actual duration is therefore not a minor matter, but an essential component of the proportionality test.
A forced departure for four weeks may be acceptable, whereas a realistically expected absence of nine or twelve months makes the same procedure appear qualitatively completely different.
However, the ruling of the Federal Administrative Court of December 10, 2014 – 1 C 15.14 – also shows that even very considerable waiting times do not automatically lead to success.
A comprehensive assessment is still required.
What is the significance of a refused prior consent?
In employment cases, it may also be relevant, in our view, what options the German authorities themselves have for accelerating procedures.
If an employee is required to leave Germany despite already having a concrete employment relationship, but a possible preliminary review or prior approval is not used, this can be taken into account in the assessment of reasonableness.
The state can, in principle, invoke the steering function of the visa procedure.
However, in a proportionality assessment, he must also be prepared to face the question of how this procedure is actually organized in the specific situation.
An authority cannot simply argue for a "short visa procedure" if the actual procedural practice suggests a considerably longer absence.
For legal arguments, it is therefore advisable to document as specifically as possible the available dates, the duration of the proceedings and the communication with the authorities involved.
Intentional circumvention of the visa procedure
On the other hand, the applicant's behavior must be taken into account.
In our view, a deliberate circumvention of the visa procedure must be weighed relatively strongly against the applicant.
This applies in particular if it can be proven that the person concerned knew before entering the country that a national visa was required, but nevertheless knowingly entered with a Schengen visa or visa-free and misled the authorities about the actual purpose of their stay.
The jurisprudence of the Federal Administrative Court attaches considerable importance to the deliberate circumvention of the visa procedure.
However, the current version of the law must be taken into account.
If the subsequent completion of the training is objectively unreasonable, current law stipulates that the visa requirement can be waived .
Intentional misconduct cannot therefore simply be used at a subsequent discretionary level, which no longer exists in this form.
However, it can already be relevant for assessing the special circumstances, especially if the claimed emergency situation was deliberately brought about by oneself.
Furthermore, deliberately providing false information can have independent consequences under immigration law and, if applicable, criminal law.
Our rating
In our opinion, the assessment of unreasonableness should be understood more as a concrete forecast of damages.
The central question is:
What specific damage occurs if this applicant in particular has to leave Germany and complete the visa application process from abroad?
In particular, the intensity of fundamental rights infringements, the actual duration of the proceedings, economic damage, the family situation and the possibility of accelerating the proceedings must be taken into account.
Significant waiting times can therefore very well contribute to an unreasonable situation.
However, they do not do this in isolation.
The longer the procedure takes and the more serious the concrete consequences of leaving the country are, the stronger the balancing of interests favors the applicant.
Conversely, proven deliberate circumvention of the visa procedure must clearly speak against the applicant.
The visa procedure is a legitimate instrument for controlling immigration.
But it is not an end in itself.
Consequences for legal practice
Anyone who invokes Section 5 Paragraph 2 Sentence 2 of the Residence Act before an immigration authority or an administrative court should therefore not limit their argumentation to abstract formulations such as "long waiting time" or "family burden".
A description that is as concrete as possible is required.
How long does the process actually take?
Which foreign mission is responsible?
Which dates are available?
Which authority needs to be involved?
What are the economic consequences?
Is job loss imminent?
How long would a family be separated?
What role does a minor child play?
What options for advance approval or other acceleration were examined?
And finally: Did the applicant possibly deliberately create the situation?
The more precisely these questions are answered, the stronger a general claim of hardship becomes a sound legal argument according to § 5 para. 2 sentence 2 of the Residence Act.
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).
List of sources
[1] Section 5 paragraph 2 of the Residence Act (AufenthG), Laws on the Internet.
[2] Section 6 paragraph 3 of the Residence Act (AufenthG), national visa.
[3] Article 6 of the Basic Law (GG), Protection of marriage and family.
[4] Article 8 of the European Convention on Human Rights (ECHR), Right to respect for private and family life.
[5] Article 7 of the Charter of Fundamental Rights of the European Union (CFR).
[6] Federal Administrative Court, Judgment of 11 January 2011 – 1 C 23.09.
[7] BVerwG, Judgment of 30 July 2013 – 1 C 15.12, BVerwGE 147, 278.
[8] Federal Administrative Court, Judgment of 10 December 2014 – 1 C 15.14, ECLI:DE:BVerwG:2014:101214U1C15.14.0.
[9] Federal Administrative Court, Judgment of 25 June 2019 – 1 C 40.18.
[10] ECJ, Judgment of 7 August 2018 – C-123/17, Yön.
[11] Federal Administrative Court, judgment of 18 April 2013 – 10 C 9.12, on the inclusion of effective interim legal protection in the prognosis.
[12] General Administrative Regulation on the Residence Act of 26 October 2009 – AufenthG-VwV, Notes on Section 5 of the Residence Act.
[13] Berlin State Office for Immigration, Procedural Guidelines for Residence in Berlin – VAB, current version.
[14] Federal Foreign Office, Visa Handbook, general information on the national visa procedure.
[15] BT-Drs. 15/420, Explanatory Memorandum on the Residence Act and the Steering Function of the Visa Procedure.
[16] Bergmann/Dienelt, Ausländerrecht, 15th ed. 2025, Commentary on § 5 AufenthG.
[17] Hailbronner, Ausländerrecht, Loose-leaf commentary, § 5 AufenthG.
[18] Kluth/Heusch, BeckOK Ausländerrecht, § 5 AufenthG.
[19] Hofmann, Ausländerrecht, 3rd ed. 2023, § 5 AufenthG.
[20] Fritz/Vormeier, Joint Commentary on the Residence Act – GK-AufenthG, § 5 AufenthG.
