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Rejection notice: When does a visa appeal have a chance of success
Everything about the chances of success of a visa appeal.
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when a rejection notice can be challenged
when a rejection notice is unlawful
when action against rejections has a chance of success
in which cases a visa refusal should be challenged
1. When does a visa appeal have a chance of success?
2. Formal and substantive legality
3. Chances of success of visa appeal and formal legality
4. Chances of success of visa appeal and substantive legality
5. FAQ Opportunities Visa Lawsuit Opportunities Germany
6. Conclusion Chances Visa Lawsuit Germany
1. When does a visa appeal have a chance of success?
A lawsuit against a rejected visa application can be successful if the rejection notice is either formally or substantively unlawful (see Section 113, Paragraph 1, Sentence 1 of the Administrative Court Act (VwGO ). Formal errors occur, for example, if the decision is not sufficiently reasoned ( Section 39 of the Administrative Procedure Act (VwVfG ). A lawsuit may also be worthwhile if the foreign mission misused its discretion in the proceedings ( Section 40 of the VwVfG ).
The chances of success depend largely on the individual case . Generally, there are good chances if the legal requirements for the visa are objectively met, but the rejection was made for unclear or contradictory reasons. This particularly often applies to study, family, or work visas, where authorities make factually incorrect assumptions about the applicant's financial situation , willingness to return, or authenticity of the documents.
2. Formal and substantive legality
Generally, when assessing the chances of a visa appeal, the applicant must examine both the formal legality and the substantive legality of the rejection decision. While formal legality concerns whether the authority formally complied with all procedural requirements in its rejection, substantive legality examines whether the applicant is entitled to a visa.
If the rejection notice is "only" formally unlawful , an application can be made to have it overturned (see Section 113 of the Administrative Court Code). However, the overturning of the rejection notice only means that the authority must issue a new notice, not that the visa will actually be granted. The authority may then simply issue a new rejection notice if there is no entitlement to a visa. In these cases, however, the applicant is at least entitled to reimbursement of costs. Therefore, formal unlawfulness is usually not sufficient to obtain a visa. The notice must be substantively unlawful, or the applicant must have a substantive entitlement to the visa .
3. Chances of success of visa appeal and formal legality
In many cases, however, it is worthwhile to take action against decisions that are "merely" formally unlawful for strategic reasons. A visa decision is formally unlawful if it violates regulations governing administrative procedures. Such formal deficiencies alone can lead to revocation , even if there are no errors in the substance. Therefore, every rejection decision should be carefully reviewed for such procedural errors.
A formal illegality of rejection notices exists in the following cases:
the refusal was not made in writing (legal consequence: illegality according to Section 77 Paragraph 1 Sentence 2 of the Residence Act )
the rejection is not properly justified (legal consequence: illegality according to Section 39 VwVfG )
the applicant was not properly heard (legal consequence: illegality according to Section 28 VwVfG )
the discretion was not exercised properly (legal consequence: illegality according to Section 40 VwVfG )
a locally incompetent authority has acted or the authority is not identifiable (legal consequence: nullity according to Section 44 VwVfG )
the rejection notice was not properly announced or served (legal consequence: invalidity according to Section 43 VwVfG )
there is no instruction on legal remedies in the rejection notice (legal consequence: the period for filing an action is extended from one month to one year ( Section 58 (2) VwGO ))
It should be noted, however, that the formal grounds for illegality mentioned only apply to a limited extent to visa applications from outside Germany (see Section 77 (2) of the Residence Act ) and that the specific provisions of European law apply to the rejection of Schengen visas (see Article 32 (2) of the Visa Code/Regulation (EC) No. 810/2009 ).
4. Chances of success of visa appeal and substantive legality
However, in order for the rejection notice not only to be revoked, but also for the visa If the visa is also granted at the same time (so-called action for contesting the visa or counterclaim for refusal ), the rejection notice must also be materially unlawful . The rejection of the visa application is materially unlawful if you are entitled to the visa. This is the case if all the requirements for issuing the visa are met. These include the respective "special" visa requirements (e.g., an employment contract for a work visa or an existing marriage for a spouse's visa ) and the "general" visa requirements of Section 5 of the Residence Act (in particular, compliance with the passport requirement and secure livelihood ).
An exception applies, however, if the authority has a so-called discretionary power This is the case, for example, with the visa for self-employed persons or the freelancer visa . In these cases, fulfilling the requirements does not automatically lead to a right to the granting of the visa, but only to a right to a decision by the authority that is free from errors of discretion . Therefore, if the authority exercises its discretion correctly and rejects the visa application, the rejection is substantively lawful, even though all requirements are met. In this case, a lawsuit can only be filed if errors of discretion exist or if a so-called "reduction of discretion to zero" occurs.
5. FAQ Opportunities Visa Lawsuit Germany
When is a visa refusal decision unlawful?
A rejection notice is unlawful if it contains formal procedural errors (jurisdiction, procedure, form of rejection).
When is a rejection notice materially unlawful?
A refusal decision is materially unlawful if the applicant is entitled to be granted a visa and therefore meets all the requirements.
What is an action for annulment/counter-rejection?
The action for annulment or counter-action against refusal combines the challenge to the refusal (i.e. the annulment of the refusal decision) and the obligation regarding the visa (i.e. the actual issuance of the visa).
How often are visa appeals successful?
The success rate depends heavily on the type of case. In cases with a clear legal situation (e.g., spouse reunification), the success rate is relatively high, especially if legal counsel is involved in the process. The chances of success of visa appeals against Schengen visa rejections depend heavily on the individual case.
6. Conclusion Chances Visa Lawsuit Germany
Filing a lawsuit against a visa rejection can be worthwhile if the decision contains formal or substantive errors. However, the decision to file a lawsuit should always be based on a legal assessment, ideally by a specialized attorney. Those challenging a visa rejection have the best chance of success if they act in a structured, timely manner and with well-founded arguments. VISAGUARD helps those affected find suitable lawyers and approach the process professionally. Our attorneys assess the chances of success for your visa case.
List of Sources (Paywall)
[1] Michael Fehling/Berthold Kastner/Rainer Störmer in Fehling/Kastner/Störmer, Administrative Law | 5th edition 2021
[2] Visa Handbook, Administrative Dispute Procedure, as of: 03/2023
[3] Hofmann (ed.), Aliens Law, 3rd edition 2023