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Suspensive effect in migration law
Suspensive effect: This legal situation applies.
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Table of Contents
1. What does suspensive effect (VwGO) mean?
2. Suspensive effect and objection in migration law
3. Order and restoration of suspensive effect
4. Apply under Section 80 (5) VwGO
5. FAQ suspensive effect
6. Conclusion suspensive effect
1. What does suspensive effect mean in migration law?
Suspensive effect is a central concept in administrative procedural law. It means that an administrative act by an authority may not be executed as long as an appeal (such as an objection or a lawsuit ) has been filed (see Section 80 (1) of the Administrative Court Act (VwGO ). The authority's action is thus "postponed" until a decision has been made on the objection. This applies at least if the authority has not ordered immediate execution in the decision (see Section 80 (2) Sentence 1 No. 4 of the VwGO).
In immigration law, the suspensive effect protects affected persons from being deported, for example, even though their appeal has not yet been decided. It allows those affected to remain in the country until their appeal has been resolved or rejected. Whether a suspensive effect occurs, however, depends on the specific case and the specific legal basis.
2. Suspensive effect and objection in migration law
In principle, objections and legal action have a suspensive effect according to Section 80 (1) of the Administrative Court Act (VwGO). However, Section 84 of the Residence Act contains numerous exceptions. Particularly in decisions made by the immigration authorities, such as the rejection of a residence permit or expulsion, the suspensive effect is often excluded by law. This significantly reduces the importance and effectiveness of objections in immigration law.
This means that in these cases, the objection or lawsuit does not automatically have a blocking effect. Those affected must then also file a court application to order or restore the suspensive effect (see Section 80 (5) of the Administrative Court Code ). Without such an application, enforcement, for example, in the form of deportation, is threatened even before the court has reviewed the decision, which is particularly relevant in humanitarian residence law and asylum law.
3. Order and restoration of suspensive effect
If the suspensive effect is excluded, it can be ordered or restored by the administrative court in accordance with Section 80 (5) of the Administrative Court Act (VwGO). This is particularly relevant in immigration law, as many burdensome administrative acts are immediately enforceable here (see above). The (initial) order of the suspensive effect must be applied for if the suspensive effect of an objection or legal action is excluded by law (as is the case, for example, with Section 84 of the Residence Act). However, the reinstatement of the suspensive effect must be applied for if the objection or legal action had a suspensive effect, but this suspensive effect was removed by an order for immediate enforcement by the authority (Section 80 (2) Sentence 1 No. 4 VwGO).
In expedited proceedings, the court examines the prospects of success in the main proceedings and the applicant's interest in remaining in the country. If the court orders a stay of execution, the administrative act may not be implemented for the time being. This gives those affected time to conduct their proceedings in peace without being immediately affected by administrative measures.
4. Application for suspensive effect according to Section 80 para. 5 VwGO
Anyone wishing to contest an immediately enforceable decision must file an application with the competent administrative court pursuant to Section 80 (5) of the Administrative Court Procedure Code (VwGO) . The grounds should explain why the contested decision is unlawful and what personal consequences its enforcement would have. In particular, the specific damages or disadvantages that would be threatened if the authority's decision were to be enforced immediately (i.e., without waiting for the main court proceedings) should be addressed.
In migration law, this applies not only to deportations, but also to cases such as a change of employer with an EU Blue Card . Here, too, a suspension notice pursuant to Section 18g Paragraph 4 of the Residence Act can be immediately enforceable. In such cases, an application for a stay of residence is an important tool for legally securing the change and gaining time for a judicial resolution.
5. FAQ on suspensive effect in visa law
What is a “suspensive effect”?
The suspensive effect of objections and legal action prevents the authority's decision from being implemented.
Does the suspensive effect also apply to visa law?
In visa law, objections and appeals generally do not have a suspensive effect (Section 84 of the Residence Act). However, this only applies to the cases regulated by Section 84 of the Residence Act.
What can I do to obtain the suspensive effect if the suspensive effect is excluded by law?
If the suspensive effect is excluded by law (e.g. by Section 84 of the Residence Act), an application for an order of suspensive effect must be made to the court (Section 80 (5) of the Administrative Court Act).
6. Conclusion on the suspensive effect in visa law
In immigration law, the suspensive effect is an essential protective instrument. It protects those affected from having burdensome decisions immediately enforced before the courts have decided on an appeal or a lawsuit. However, in visa law, the suspensive effect usually has to be applied for separately with the court, as it is generally excluded by law in immigration law (Section 84 of the Residence Act). Anyone involved in proceedings requiring immediate enforcement should definitely seek legal assistance and, if necessary, file an application under Section 80 (5) of the Administrative Court Procedure Code (VwGO). VISAGUARD helps you find suitable immigration law specialists .
List of Sources (Paywall)
[1] Helge Sodan/Jan Ziekow in Sodan/Ziekow, Administrative Court Act | 5th edition 2018, § 80
[2] Visa Handbook, Remonstration Procedure, as of March 2023
[3] BeckOK Migration and Integration Law, Ed. Bader/Decker/Kothe