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Immigration and visa court proceedings
Explanation from a lawyer: This is how a court case regarding visa law works in Germany.
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what applies to administrative court proceedings
everything about oral proceedings in visa law
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Table of Contents
Step 1: Receipt of the statement of claim and payment of costs
Step 2: Assessment by the court and setting of a date
Step 3: Oral hearing
Step 4: Judgment and enforcement
FAQ Court Procedure Visa
Conclusion Court case visa
Step 1: Receipt of the statement of claim and payment of court costs
Most legal proceedings in visa law begin with the filing of a complaint with the competent administrative court (see Section 81 of the Administrative Court Code ). This must be in writing and should include the foreign mission's negative decision and the reasons for the complaint. Those wishing to file the complaint themselves shouldpay close attention to the form and deadlines , as the complaint must be filed within one month of receipt of the negative decision.
Once the visa appeal has been received by the court, the administrative court's office will first send an acknowledgment of receipt . Upon receipt of the statement of claim, the court will also request payment of the advance court fees . Legally, payment of court fees is not a prerequisite for the commencement of legal proceedings; however, we recommend paying court fees on time to avoid creating a bad impression. The amount of court fees depends on the value in dispute , but in visa disputes, they are often in the range of approximately €300 to €500. Those with limited financial means may be able to apply for legal aid ( Section 173 of the Administrative Court Code (VwGO) in conjunction with Section 114 of the Code of Civil Procedure (ZPO )).
Step 2: Assessment by the court and setting of a date
After payment of the court fees, the court first examines the admissibility of the lawsuit . This includes, among other things, clarifying whether the lawsuit was filed in due form and within the deadline. If this is the case, the court often requests the defendant's immigration or visa file (judicial inspection of the file). The court then serves the lawsuit on the defendant and requests their response. From the foreigner's perspective, it is important to ensure that the court also sets a deadline for responding . Experience has shown that without setting a deadline, the authorities respond very slowly, or sometimes not at all, to court orders.
If the defendant authority does not immediately relent and grant the visa or residence permit ("settling the case"), the actual contentious proceedings begin. The court will then alternately request each party to submit a written statement within a set time limit. Once both parties have sufficiently presented their positions in writing, the court will propose a decision by court order ( Section 84 of the Code of Administrative Court Procedure) (in simple cases) or set a date for an oral hearing and the taking of evidence (in complex cases). Depending on the court's workload, this can take several months.
Step 3: The oral hearing before the Administrative Court
The oral hearing begins with the so-called "call to the case" and the establishment of attendance. In the first instance , only the plaintiff (usually with a lawyer) and the single judge are usually present. Thedefendant authorities (immigration authorities and the Federal Foreign Office) often do not send their own representatives in the first instance, but allow the judge to decide alone. This is legally possible because there is no traditional default judgment in administrative proceedings. If necessary, an interpreter is also present.
During the oral hearing, both sides present their arguments ( discussion of the facts and law ). The court usually discusses the legal background of the case with the lawyers and questions the plaintiff (if present) about further facts. If a formal taking of evidence is necessary, relevant evidence is assessed (e.g., examination of documents or witness statements). The parties then present their motions . The hearing usually lasts only one to two hours. Afterward, the court retires to deliberate. Sometimes the judgment is announced immediately afterwards ; in other cases, it is served by mail .
Step 4: Judgment and enforcement if the action is successful
If no agreement (settlement ) is reached during the written preliminary proceedings or the oral hearing, the administrative court issues a judgment (called a "decision" in summary proceedings ). This judgment determines whether or not a visa is to be granted. If the judgment is in favor of the plaintiff, the authority must either issue a visa or reconduct the procedure, taking the court's legal opinion into account. This often leads to the issuance of the requested visa. If the plaintiff loses, there is theoretically still the possibility of an appeal or a revision , but this is only possible under certain conditions.
If the visa is granted, the visa is usually issued immediately. The defendant authority often sends an invitation to the embassy or immigration office to issue the residence permit after the oral hearing or in the days following. The entire process can then be completed within a few days following a positive judgment or settlement. After that, the court proceedings are concluded ("settled"), and communication between the parties usually revolves solely around the costs . Once the costs have been settled, the court proceedings are over.
5. FAQ: Frequently asked questions about the visa court process
How long does a visa court procedure take?
Typically, proceedings take between three and nine months, depending on the court and the complexity of the case. However, in urgent cases, courts can issue decisions much more quickly (so-called interim injunctions).
Does an oral hearing always take place in administrative proceedings?
No, an oral hearing is not mandatory in immigration law. Especially in urgent proceedings, courts attempt to reach an agreement between the parties through telephone mediation to minimize the effort involved.
Do I have to appear in person for visa appeals?
In principle, you only have to appear in court in person if the court has explicitly ordered it. This will almost never be the case in visa cases, since you are abroad and your entry into the country is currently the subject of legal proceedings. In many cases, therefore, you will simply be represented by a lawyer.
6. Conclusion on the legal procedure in visa law
Legal proceedings against a visa rejection can be lengthy and stressful – but in many cases, the process is worthwhile. Especially if the rejection is contestable in terms of form or content, the administrative court can enforce a revision. With good legal advice and adequate preparation, the chances of success increase significantly. Anyone seeking a well-founded assessment of their case should contact a law firm specializing in immigration law, such as VISAGUARD, early on.
Further Information
List of Sources (Paywall)
[1] Schoch/Schneider | Administrative Court Act (VwGO), [§ 17 GVG – § 17b GVG] | 46th Edition August 2024
[2] Michael Fehling/Berthold Kastner/Rainer Störmer in Fehling/Kastner/Störmer, Administrative Law | 5th edition 2021
[3] Visa Handbook, Initial Decision (Rejection of a Visa Application), as of May 2021