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Action for an order in migration law
All information on mandatory actions in migration law.
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About this Page
what an action for an order is
what requirements an action for an order has
Admissibility and merits of an action for an order
how the action for an order is brought
Table of Contents
1. What is an action for an injunction?
2. Admissibility of the action for compulsory enforcement (migration law)
3. Justification of the action for an order (migration law)
4. Interim legal protection action for an order (Section 123 VwGO)
5. FAQ Visa Action
6. Fazi action for an order to obtain a visa
1. What is an action for an injunction?
An action for an administrative order is a legal remedy for forcing an authority to issue a requested administrative act (see Section 42 of the Administrative Court Code ). In immigration law, this often concerns visa applications or residence permits that have not been processed or have been rejected. It is used when the authority remains inactive (so-called action for failure to act ) or has wrongfully rejected an application (so-called counter-action for refusal ).
The action for an administrative order (Verpflichtsklage) is regulated in Section 42, Paragraph 1, Alternative 2 of the Code of Administrative Court Procedure (VwGO) and always concerns a specific administrative action with external legal effect . In visa law, this could be, for example, the obligation to issue a national visa for family reunification or employment . This is contrasted with the general action for performance: While the action for an administrative order (Verpflichtsklage) concerns the issuance of an administrative act, the general action for performance concerns actual action by the authority (e.g., the release of a document or passport).
2. Admissibility of the action for an order (migration law)
An action for an order is only admissible if certain requirements are met. First, the administrative courts must be open, which in immigration law is usually the case through mandatory special assignments. Furthermore, the plaintiff must assert that their own rights have been violated by the authority's refusal or failure to act (so-called standing).
Furthermore, admissibility requires a prior application to the immigration authority or visa office. Furthermore, the action may only be filed if the application has not been decided within a reasonable period of time ( action for failure to act ) or if a rejection notice has been issued. Finally, the action must be filed within the statutory deadlines .
3. Justification of the action for an order (migration law)
An action for an administrative order is justified if the plaintiff is entitled to the requested administrative act (usually a visa or residence permit). In this case, the administrative court examines whether the legal requirements – for example, those under the Residence Act or the Freedom of Movement Act – are met. In the case of a visa application, for example, it checks whether the specific conditions for issuing a visa (e.g., an employment contract for a work visa ) and the general conditions for issuing a visa under Section 5 of the Residence Act are met.
The court will conduct a full legal review of the rejection notice or the failure to make a decision. The court will also comprehensively assess the facts of the case. If the court finds that a claim exists, the authority will be required to issue the requested visa or residence permit.
4. Interim legal protection in the case of an action for an order (Section 123 of the Administrative Court Act)
The interim legal protection for an action for an order is a preliminary injunction pursuant to Section 123 of the Administrative Court Code (VwGO). Since court proceedings in immigration matters can sometimes take months, it may be necessary to additionally file an application for interim legal protection . This is regulated in Section 123 of the Administrative Court Code (VwGO) and allows for provisional protection against serious disadvantages while the main proceedings are still ongoing.
In immigration law, interim legal protection is often crucial when an impending disadvantage—such as job loss or family separation—can no longer be reversed. The prerequisite is that a credible reason for the order and a claim for the order can be established. Further information on such urgent cases is available from our lawyers or in our guide to issuing interim injunctions in visa law .
5. FAQ Visa Action
When can an action for an order be brought under visa law?
An action for an order can always be brought if an application for an administrative act has not been decided.
What is the difference between an action for failure to act and an action for an order?
There is no difference between an action for failure to act and an action for failure to act. An action for failure to act is a form of an action for failure to act.
How long does a procedure take?
Depending on the court, this can take several months. In particularly urgent cases, it makes sense to apply for interim relief to obtain a preliminary ruling quickly.
What is the difference between an action for an obligation and a general action for performance?
While an action for an order seeks the issuance of an administrative act, a general action for performance aims at actual administrative action.
Where is the general claim for performance regulated in the law?
The general action for performance is not regulated by law, but is mentioned, for example, in Section 43 (2) of the Administrative Court Code (VwGO). Many of the rules governing actions for performance apply analogously to the general action for performance.
6. Conclusion of the action for an order to obtain a visa
An action for an administrative order is a key tool in immigration law for enforcing legal claims to residency or a visa. It offers applicants an opportunity to take action against administrative inaction or unlawful rejections. With the support of a specialized lawyer, the chances of success increase significantly. Anyone who is stuck in the visa process should have an action for an administrative order examined to determine whether an action for an administrative order has a chance of success. VISAGUARD provides competent and reliable support.
List of Sources (Paywall)
[1] Helge Sodan/Jan Ziekow in Sodan/Ziekow, Administrative Court Act | 5th edition 2018, § 42
[2] Visa Handbook, Initial Decision (Rejection of a Visa Application), as of May 2021