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Bias of judges in migration law
All information on bias and applications for bias in visa law.
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About this Page
what bias is
which bias rules apply in visa law
everything about motions for recusal
Possibilities against biased judges (VwGO)
Table of Contents
1. Bias in migration law
2. Motion for disqualification Court Visa
3. Complaints procedure in case of bias
4. Officials and bias
5. FAQ Motion for Disqualification Migration Law
6. Conclusion Motion for disqualification in migration law
1. Bias in migration law
In immigration law, it is not uncommon for those affected to have the impression that a judge is biased. Legally, such cases are referred to as "bias." This occurs when there is an objective appearance that the person making the decision is not making a neutral judgment. The benchmark is not the party's subjective perception, but rather whether, from the perspective of a reasonable participant, doubts about impartiality could arise. In court proceedings, this is generally always to be assumed if a judge participated in the preceding administrative procedure ( Section 54 (2) of the Administrative Court Procedure Code (VwGO )) or if the judge is affiliated in any way with the defendant authority ( Section 54 (3) of the VwGO ).
Especially in highly charged visa and residence proceedings, for example, in cases of political or religious persecution, the personal attitudes of judges sometimes play a role . An apparently xenophobic administrative judge in Gera, for example, caused a particular stir . However, even statements revealing a certain attitude are not always sufficient. The decisive factor is whether a situation exists that justifies distrust in the judge's impartiality—for example, in cases of offensive comments, unequal treatment during the trial, or preconceived notions regarding origin or religion.
2. Motion for disqualification in visa proceedings
If a party believes that a judge in a visa procedure is biased, they can file a so-called motion for disqualification . The legal basis for this is Section 54 of the Administrative Court Act (VwGO). The motion must be substantiated and based on specific circumstances from which the concern of bias arises. The judge's unfavorable procedural conduct alone is not sufficient. Rather, there must be a reason that is capable of justifying distrust of the judge's impartiality ( Section 54 (1) VwGO in conjunction with Section 42 ZPO ).
Such a motion must be filed urgently, in due form and within the deadline – immediately after the reason for the challenge has become known. If it is filed too late or without sufficient justification, it will be rejected as inadmissible (so-called preclusion, Section 54 (1) of the Administrative Court Act (VwGO) in conjunction with Section 43 of the Code of Civil Procedure (ZPO). The judge whose challenge is being requested will first make his own statement on the matter (so-called official statement). The court , in a different composition, will then decide on the motion for bias (Section 54 (1) of the Administrative Court Act (VwGO) in conjunction with Section 46 of the Code of Civil Procedure).
3. Complaints in case of bias
If the motion for recusal is granted, there is no legal recourse against the granting decision. If the motion for recusal is rejected , the parties may file an immediate appeal (Section 54 (1) of the Administrative Court Code (VwGO) in conjunction with Section 46 of the Code of Civil Procedure (ZPO). In certain cases, a rejection of the motion for recusal may also constitute procedural violations for an appeal or revision . In extreme cases, fundamental rights ( the right to a judge appointed by law ) may even be affected, meaning a constitutional complaint can be filed. However, these cases are extremely rare.
If new evidence of bias emerges, a new application can be filed. A complaint to the court administration is also possible if the issue concerns the judge's conduct outside of the proceedings—for example, inappropriate communication or unprofessional behavior. In serious cases, a disciplinary complaint can even be filed. However, you should consult a lawyer beforehand, as filing disciplinary complaints without review can quickly derail the proceedings.
4. Bias among officials (immigration authorities and embassies)
It's not only judges who can be biased – the neutrality of staff at immigration authorities and embassies is also of great importance. If there is a reason that might justify mistrust of the impartial exercise of office, or if a participant in a procedure claims that such a reason exists, anyone who is to act on behalf of an authority in an administrative procedure must inform the head of the authority or the person designated by that authority and, if instructed by that person , refrain from participating ( Section 21 of the Administrative Procedure Act ).
If the concern of bias concerns the head of the authority , this order is made by the supervisory authority unless the head of the authority himself refrains from participating. Arbitrary or hostile treatment can be an indication of bias. If you wish to take action against an authority or its head due to concerns of bias, you should keep relevant evidence safely . Documentation of statements, emails, or behavior is essential in order to credibly demonstrate that a fair administrative process has been compromised.
5. FAQ Motion for disqualification in migration law
When is a judge biased in immigration law?
If there are objective reasons that give rise to doubts about the impartiality of the judge in the mind of a reasonable person – for example, due to irrelevant statements, recognizable prejudices or partisan behavior in the proceedings.
How do I file a motion for recusal?
The application must be submitted to the court promptly and in writing, and must include specific reasons. General dissatisfaction with the course of the proceedings is not sufficient.
What happens after the application?
First, the challenged judge makes a statement, then the court, with a different composition, decides on the motion for disqualification.
Can a clerk also be biased?
Yes. The principle of neutrality also applies to public authorities (see Section 21 of the Administrative Procedure Act).
6. Conclusion: Motion for disqualification in migration law
A motion for recusal is an important tool for protecting trust in judicial impartiality. Especially in the sensitive area of immigration law, where much depends on personal impressions, courts and authorities must meet the highest standards of fairness. However, recognizing and correctly challenging bias requires legal precision and experience. VISAGUARD supports you with specialized attorneys. We assess whether a motion for recusal is appropriate and promising, guide you through the legal proceedings, and advocate for a fair trial on equal terms.
Further Information
List of Sources (Paywall)
[2] Schoch/Schneider/Porsch, 45th edition January 2024, VwGO § 42
[3] Bergmann / Dienelt, Aliens Law, 15th edition 2025,