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Principle of investigation and law of evidence (migration law)
All information on the principle of investigation and the law of evidence in migration law.
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About this Page
what the principle of investigation is
Importance of the principle of investigation
Principle of investigation and official investigation
Evidence law and migration cases (principle of official investigation)
Table of Contents
1. Migration Investigation Principle (Authorities)
2. Obligations to cooperate and reasonableness limits
3. Principle of investigation into migration (courts)
4. Right to request evidence (principle of official investigation)
5. FAQ Visa Examination Principle
6. Conclusion Visa Investigation Principle
1. Principle of investigation in administrative proceedings
German immigration law is part of administrative law , or public law. Therefore, the so-called investigation principle ( Section 24 of the Administrative Procedure Act ) applies to German immigration law. This means that the immigration authorities and embassies must officially investigate the facts of the case completely and accurately . The authorities cannot therefore rely on all information on the case coming solely from the applicant (this would be the " principle of provision " applicable under civil law).
Under immigration law, the authority is therefore obligated to independently examine the factual requirements for the requested residence permit or visa and to collect evidence. This principle plays a central role, particularly in the residence permit and visa process . The foreign mission must verify whether the legal and factual requirements for issuing a visa (or, in the case of the immigration authorities, for the residence permit) are met. This can be an advantage for foreigners in complex factual matters, for example, when it comes to the political situation in certain countries.
2. Obligations to cooperate and reasonableness limits
However, the principle of investigation does not mean that those affected can remain completely passive in the migration process. According to the Residence Act, foreign nationals are obligated to cooperate , particularly when submitting documents, evidence, or answering questions about personal data. This obligation arises, among other things, from Section 82 of the Residence Act and complements the authority's duty to investigate.
However, the obligation of foreign nationals to cooperate also has a limit of reasonableness . In particular, immigration authorities and diplomatic missions abroad may not simply "shift" their duty to investigate the facts onto the foreign national. Foreign nationals are only obligated to cooperate in circumstances within their own sphere, and even then, only as long as their cooperation is reasonable. For example, the obligation to obtain a passport has a limit of reasonableness in countries where no functioning passport and documentation systems exist (e.g., Afghanistan and Somalia).
3. Principle of investigation before the court (principle of official investigation)
The principle of investigation also applies before administrative courts in immigration law (known in court as the “principle of official investigation,” see Section 86 of the Administrative Court Code (VwGO ). This means that the administrative court is not bound by the statements of the parties involved, but must investigate the facts independently. This distinguishes judicial immigration law in a special way from other areas of law, such as civil and labor law, where the principle of submission applies. While in labor law , for example, only the statements and evidence that were also submitted orally or in writing by the parties involved are the subject of a court hearing, the burden of presentation and explanation is considerably lower in administrative law.
In practice, this means that even if an applicant cannot provide certain evidence, the court must conduct further investigations ex officio if it has doubts about the administrative decision. When it comes to the situation in the countries of origin, the courts use specific "lists of evidence" for this purpose. These lists of evidence are usually collections of expert opinions prepared, for example, by the Federal Foreign Office or NGOs, on the political and social situation in the countries of origin. The list of evidence is usually made available to lawyers to prepare for oral hearings in immigration law.
4. Motions for evidence and principle of official investigation
The principle of investigation or official investigation means that applicants have numerous strategic options in court proceedings. Despite the principle of investigation, applicants can still file motions for evidence in court proceedings. This option is particularly important if the authority or court has not sufficiently clarified key aspects of the case. A proper motion for evidence may, for example, aim to obtain an expert opinion or examine a witness.
Based on the principle of official investigation, the court is obligated to conduct appropriate investigations in favor of the applicant if it does not reject the motion for evidence . It should be noted that the court may only reject a motion for evidence if the evidence is manifestly unsuitable or if the motion was filed late. Therefore, correct timing in court is particularly important in residence law and visa appeals . Those who seek legal advice early on can submit evidence in a targeted manner and thus contribute to clarifying the facts of the case.
5. FAQ Investigation principle and official investigation visa
What does the principle of investigation mean in the visa procedure?
The principle of investigation means that the visa office and the immigration authorities must investigate the facts of the case on their own initiative (Section 24 of the Administrative Procedure Act).
Does the principle of investigation also apply in court?
Yes, the principle of investigation also applies in court. However, there it is called the "principle of official investigation" (Section 86 of the Administrative Court Code), which is essentially the same thing.
Are there exceptions to the principle of investigation and official investigation?
Yes, the principle of investigation and official investigation ends where the foreigner's duty to cooperate begins. This applies in particular to personal information and documents, and to humanitarian residence law (asylum law).
6. Conclusion Investigation principle and official investigation visa
The principle of investigation is a central element of immigration procedural law. It obliges authorities and courts to conduct a complete and objective investigation on their own initiative. For those affected, this means that even if they are required to cooperate fully, it remains the state's responsibility to clarify the facts relevant to the decision. Expert legal advice can help effectively enforce this right.