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Law of evidence and presentation of evidence in visa law
Everything you need to know about the rules of evidence in visa disputes.
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Why the motion to admit evidence is a powerful tool in administrative court proceedings.
What formal requirements must an application meet in order not to be rejected as a mere suggestion?
How we can increase the pressure on the court and prepare for the appeal through targeted evidence.
How to formulate a request for evidence in visa law (sample).
1. Significance of judicial evidence in visa law
2. When is a request for evidence considered to have been submitted?
3. How is a request for evidence submitted?
4. When is a request for evidence rejected?
5. FAQ Evidence Law Visa
6. Conclusion on the Law of Evidence and Visas
1. Significance of judicial evidence in visa law
In visa law, the presentation of evidence in court often forms the basis for the success of a lawsuit. Although the principle of official investigation applies in administrative court proceedings pursuant to Section 86 Paragraph 1 of the German Code of Administrative Procedure (VwGO) , and the court must investigate the facts of the case ex officio, plaintiffs may not remain passive. The formation of a judicial conviction requires a comprehensive investigation of the facts, which often remains incomplete without active participation. We therefore understand the motion for the taking of evidence as an instrument for enforcing effective legal protection under Article 19 Paragraph 4 of the German Basic Law (GG) , in order to ensure that no facts relevant to the decision are overlooked.
A strategically placed motion for the admission of evidence serves to compel the court to make a preliminary assessment during oral proceedings. We thereby force the court to decide whether it considers a fact already proven or sees a need for further clarification. This is particularly important with regard to subsequent appeal proceedings . If a formal motion for the admission of evidence is erroneously rejected, this constitutes a procedural error that can pave the way for an appeal to the next instance.
2. When is a request for evidence considered to have been submitted?
Not every statement made during legal proceedings constitutes a genuine motion for the taking of evidence. In practice, administrative courts closely adhere to the criteria outlined in Section 244 Paragraph 3 Sentence 1 of the German Code of Criminal Procedure (StPO ) when making this distinction. A qualified motion for the taking of evidence is characterized by its precise description of the facts to be proven. A classic example of such a motion reads: " In the administrative dispute against the Federal Republic of Germany concerning the issuance of a visa, the examination of witness XY is requested as proof of the fact that [...] ."
Precise wording is crucial because the court is only obligated to issue a reasoned ruling on a formal application . Mere suggestions for evidence, on the other hand, can be disregarded informally, which significantly weakens the plaintiff's legal position. By strictly adhering to the formal requirements, we ensure that the authority or court does not interpret the facts unilaterally to the detriment of our clients.
3. How is a request for evidence submitted?
The formal requirements for a motion to admit evidence are strict; in particular, it may not be made haphazardly or without any basis in fact. A valid motion requires the specification of a concrete issue to be proven, i.e., a precisely defined fact, as well as an admissible means of evidence within the meaning of the strict rules of evidence (expert witness, on-site inspection, party testimony, document, or witness). Furthermore, the so-called " connection" must be maintained: the motion must clearly explain why the chosen means of evidence is actually suitable for confirming the alleged fact.
In practice, we always bring prepared text blocks to oral hearings to be able to react immediately to the dynamics of the proceedings. We distinguish between unconditional and conditional motions for the taking of evidence. A conditional motion for the taking of evidence is only made if the court does not grant the claim on other grounds. However, caution is advised: A conditional motion for the taking of evidence often cannot be used for a subsequent objection based on a violation of the right to be heard, as it is only addressed in the grounds for the judgment and can then no longer be challenged. We therefore usually advise an unconditional motion to fully safeguard the right to be heard.
4. When is a request for evidence rejected?
The rejection of a motion to admit evidence must not be arbitrary, but must be based on the statutory criteria, which are applied analogously to Section 244 Paragraph 3 Sentence 2 of the German Code of Criminal Procedure (StPO) . Grounds for rejection include, for example, the obviousness of a fact, its irrelevance to the decision, or if the evidence is completely unsuitable or unobtainable. The so-called presumption of truth, in which the court treats the fact as true, can also lead to the rejection of the motion. Another critical point is the obstruction of proceedings pursuant to Section 244 Paragraph 6 of the StPO, which we can avoid by submitting timely and substantiated motions.
Should the court reject an application, immediate action is required. According to the jurisprudence of the Federal Administrative Court (see decision of September 30, 1988 - 9 CB 47/88 ), a duty to object must be observed to prevent the loss of rights in the appeal process. In such cases, we always record a brief objection . This ensures that the procedural error is documented and can later be successfully challenged in the context of an appeal against the denial of leave to appeal.
5. FAQ Evidence Law Visa
What is the difference between a suggestion for evidence and a request for evidence?
A suggestion is a non-binding indication to the court, while a motion for the admission of evidence triggers a formal obligation to make a decision. Only a motion protects against the neglect of evidence.
Can I also submit evidence in written proceedings?
Yes, requests for evidence can and should already be included in the statement of claim, but often need to be repeated in the oral hearing in order to have their full procedural effect.
Do I have to pay the costs for the taking of evidence myself?
Generally, the losing party bears the costs of the proceedings, including expenses for witnesses or experts. In some cases, an advance payment may be required.
6. Conclusion on the Law of Evidence and Visas
The rules of evidence in visa proceedings are highly complex and unforgiving of formal errors. A well-founded motion for the admission of evidence is far more than a mere request for clarification of the facts; it is a strategic instrument to compel the court to engage in a thorough examination of the individual reasons for seeking asylum or a visit. As a law firm, we place the utmost importance on formulating the issues of evidence precisely and setting the course in the first instance to ensure that your rights are protected. When motions for the admission of evidence are submitted consistently and with legal certainty, the chances of success in the often protracted struggle with German diplomatic missions abroad increase considerably.
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List of Sources (Paywall)
[1] Kopp, FO / Schenke, W.-R. (2024): Administrative Court Procedure: VwGO with ancillary laws, 30th edition, Munich: CH Beck.
[2] Meyer-Goßner, L. / Schmitt, B. (2023): Code of Criminal Procedure: StPO with GVG and ancillary laws, 66th edition, Munich: CH Beck.
[3] BVerwG (1988): Decision of 30.09.1988 - 9 CB 47/88, Buchholz 310 § 86 para. 2 VwGO No. 37.
[4] Sodan, H. / Ziekow, J. (2021): Administrative Court Procedure: Comprehensive Commentary, 5th edition, Baden-Baden: Nomos.
[5] Jarass, HD / Pieroth, B. (2024): Basic Law for the Federal Republic of Germany: Commentary, 18th edition, Munich: CH Beck.