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Action for annulment in migration law
All information on challenges in migration law.
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About this Page
what an action for annulment is
what requirements apply to the challenge (visa law)
Admissibility and merits of challenge to migration
how the action for annulment is brought
Table of Contents
1. What is an action for annulment?
2. Admissibility of the action for annulment (migration law)
3. Justification of the action for annulment (migration law)
4. Interim legal protection action for annulment (Section 80 V VwGO)
5. FAQ
6. Conclusion
1. What is an action for annulment?
An action for annulment is a type of action in administrative proceedings that allows applicants to defend themselves against burdensome administrative acts (see Section 42 of the Administrative Court Act (VwGO ). In visa law, this specifically means filing an action with the administrative court against a visa rejection notice issued by a foreign mission. The aim of the action is to have the rejection notice overturned (see Section 113 of the VwGO ).
In immigration law, an action for annulment serves primarily to review the legality of administrative rejections. This involves examining not only whether the decision was formally correct, but also whether it was made correctly in substance based on applicable law. For those affected, an action for annulment is a key avenue for taking action against unjustified decisions .
2. Admissibility of the action for annulment (migration law)
An action for annulment under visa law is admissible if the plaintiff objects to an onerous administrative act – such as the rejection of a visa application . The subject matter of the action is usually the original rejection notice (if applicable, in the version of the objection notice ( Section 79 (1) No. 1 of the Administrative Court Code (VwGO ))). In addition, further admissibility requirements must be met. Pursuant to Section 42 (2) of the Administrative Court Code (VwGO), the plaintiff must be able to assert that his or her subjective rights have been violated. This is regularly the case with onerous administrative acts, for example, if a visa application is rejected, thereby interfering with the general freedom of action .
The lawsuit must be filed within the one-month period specified in Section 74 of the Administrative Court Code (VwGO) , provided that proper instructions on legal remedies were provided. According to the legal entity principle,the defendant is the legal entity of the authority that issued the rejection notice, e.g., the Federal Republic of Germany in the case of decisions by a foreign mission. The Berlin Administrative Court, as the central visa court , has jurisdiction if a rejection notice has been issued in the visa procedure. For appeals against decisions by the immigration authorities, the relevant administrative court at the location of the immigration authority has jurisdiction.
3. Justification of the action for annulment (migration law)
An action for annulment is justified if the challenged administrative act is unlawful and violates the plaintiff's rights (Section 113 of the Administrative Court Code). In visa law, the court examines, in particular, whether the conditions for the visa refusal were actually met and whether the authority exercised its discretion correctly (if discretionary power exists). This may involve, for example, insufficient reasoning, incorrect findings of fact, or the assumption of irrelevant considerations.
In addition, formal errors – such as a lack of a hearing, incomplete file management, or procedural violations – are also taken into account. However, the plaintiff must also have standing to sue. They must be able to assert that a subjective right may have been violated by the rejection. Simply "disapproving" of the decision is therefore not sufficient. Rather, there must be a possibility that the rejection violates statutory provisions or fundamental rights.
4. Interim legal protection action for annulment (Section 80 (5) VwGO)
According to Section 80 (5) of the Administrative Court Act (VwGO), an action for annulment can also be brought by way of interim legal protection, i.e. in urgent cases. This is particularly necessary if the person concerned is threatened with significant disadvantages as a result of the immediate enforcement of the rejection , such as the loss of a job in Germany or the separation of a family due to forced departure. This particularly applies to cases in which the foreign national is already in Germany and has applied for a residence permit or an extension of that residence permit . If the rejection of a residence permit then leads to an obligation to leave the country, interim legal protection must be brought against the threat of deportation that follows the obligation to leave the country in accordance with Section 80 of the Administrative Court Act (VwGO) . In visa proceedings, however, interim legal protection will generally be governed by Section 123 of the Administrative Court Act (VwGO) (interim order) , since the issuance of the visa is required and not just the revocation of the rejection notice.
The application pursuant to Section 80 (5) of the Administrative Court Procedure Code (VwGO) is also submitted to the competent administrative court. The court then examines the balance of interests: on the one hand, there is the public interest in enforcing the decision, and on the other, the applicant's interest in temporary protection. If the application is granted, the authority may not enforce the rejected visa decision until the decision on the merits is made. The applicant may then remain in Germany (and possibly continue to work) until the administrative court has decided on the merits.
5. FAQ on appeal against visa law
When should a visa challenge be filed?
Once a visa application has been rejected and there are doubts about its legitimacy, it's important to consider whether an appeal is possible and appropriate. However, an appeal can generally be filed against almost any decision made by the authorities.
Which decisions cannot be the subject of an action for annulment?
An action for annulment is only possible against administrative acts pursuant to Section 35 of the Administrative Procedure Act (VwVfG). Some decisions by authorities (e.g., in internal approval procedures) are not administrative acts and therefore cannot be (directly) challenged with an action for annulment.
When does the deadline for filing an action for annulment begin?
The one-month period begins upon delivery of the rejection.
6. Conclusion of the action for annulment
Filing an appeal is an important legal tool for challenging unlawful visa rejections . It requires sound legal arguments and compliance with strict deadlines. Anyone wishing to challenge a visa rejection should seek legal assistance early on. VISAGUARD supports you in determining whether filing an appeal is appropriate in your case and connects you with experienced immigration law specialists . Rely on professional support throughout the process – from filing the lawsuit to the final judgment.
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Further Information
List of Sources (Paywall)
[1] Helge Sodan/Jan Ziekow in Sodan/Ziekow, Administrative Court Act | 5th edition 2018, § 42
[2] Visa Handbook, Decision and File Management, as of May 2021
[3] Visa Handbook, Administrative Dispute Procedure, as of: 03/2023
[4] Visa Handbook, Initial Decision (Rejection of a Visa Application), as of May 2021