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Formulating applications for legal action in migration law
Tips and guidance on drafting applications for legal proceedings in matters of residence and migration law.
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About this Page
the significance of a court application in visa law
which forms of judicial application exist in migration law
how to formulate a court application under visa law
how judicial application types can be combined in migration law
Table of Contents
1. Formulating the visa application
2. Formulation of applications for revocation of visa refusal
3. Claims for failure to act
4. Court applications in expedited proceedings
5. FAQ Formulating the application for a visa appeal
6. Conclusion Formulation aid for visa appeal application
1. Formulating the visa application
In administrative law , the requirements for formulating a motion are less strict than in civil law. According to Section 82, Paragraph 1, Sentence 2 of the Administrative Court Act (VwGO), the action "should" contain a specific motion—it does not necessarily "have to." This means: Even if no formal motion is filed, the action can be admissible as long as the claim is recognizable to the court . A lawsuit will therefore not be dismissed solely because the motion was imprecisely formulated or not explicitly formulated at all. This applies in particular to the filing of the action: It is entirely possible to file the action without a motion or without notice of the motion and then only make clear what one wants during the oral hearing.
Nevertheless, from a practical perspective, it is advisable to communicate clearly and as early as possible to the court what the claim is seeking. A clear formulation of the motion not only helps the court to classify the matter legally, but also increases the chances of a successful decision. Moreover, a corresponding judicial practice has simply developed. While the motion may not be legally required, from a purely practical perspective, formulating the motion when filing a lawsuit is common practice .
This article provides an overview of drafting aids for typical applications in migration and visa law – particularly in connection with visa appeals – and shows how applicants can present their concerns precisely and effectively. It should be noted, however, that there are essentially endless application options. The drafting aids for applications presented here concern only the most common and standard applications in migration law. However, there are other types of applications (e.g., the declaratory action pursuant to Section 43 of the Code of Administrative Court Procedure (VwGO ). For a complete overview, we recommend a corresponding commentary or a form manual for lawyers.
2. Formulation of applications for revocation of visa refusal
The most common type of visa appeal is the request for annulment of a rejection decision. The rejection of the decision is subject to a so-called appeal. ( Section 42 of the Administrative Court Act (VwGO )). The application for an action for annulment is as follows:
“I hereby request that the defendant’s rejection notice of [date] ([case number]) be set aside.”
If the action for annulment is successful, the rejection notice will be revoked ( Section 113 (1) sentence 1 VwGO ).
The reversal of the rejection notice, however, only means that the rejection was unlawful. This does not automatically mean that the visa will be granted. Therefore, in practice, a combined application for annulment and an application for an undertaking is usually filed. The combination of an action for annulment and an action for an undertaking in a visa action based on a claim is as follows:
“I hereby request that the defendant’s rejection notice of [date] ([file number]) be set aside and that the defendant be ordered to issue the plaintiff a visa for [the purpose of the visa].”
If the standard on which the visa is to be granted is not a right (“must” be granted, e.g., EU Blue Card pursuant to Section 18g of the Residence Act ), but a discretionary standard (“may” be granted, e.g., self-employment pursuant to Section 21 of the Residence Act ), the application for the combined action for annulment (counter-refusal) must be slightly modified. The application for the action is then as follows:
“I hereby request that the defendant’s rejection notice of [date] ([case number]) be set aside and that the defendant be obliged to re-decide on the plaintiff’s visa application, taking into account the court’s legal opinion.”
The renewed decision on a visa application taking into account the court’s legal opinion is called a “ new decision without any error of discretion ”.
3. Claims for failure to act
A very common case of court proceedings in migration law is the so-called action for failure to act ( Section 75 of the Administrative Court Code (VwGO )) as a sub-case of the action for an order pursuant to Section 42 (2) VwGO. The action for failure to act plays a role in particular in naturalizations and settlement permits , but can also be used in visa law. In the case of the action for failure to act, a distinction must be made between the pure action for a decision and the request for a substantive decision. In the case of the pure action for a decision, the court only requests that the authority be obliged to make a decision. In the case of the action for a decision including the substantive decision, the court requests that the authority decide in favor of the plaintiff .
The pure application for a decision for the application that the authority decides at all is:
“I hereby request that the defendant be ordered to decide immediately on the plaintiff’s application dated [date of application] by means of an appealable decision.”
If, in addition to the application for a decision, a decision on the matter (e.g. naturalisation) is requested, the application shall be:
“I hereby request that the defendant be ordered to immediately decide on the plaintiff’s application dated [date of application] by means of a legally binding decision and to naturalize the plaintiff into the German state.”
If the application is not for naturalization, but for example for a settlement permit, the application must be adapted accordingly (e.g. “[...] and to grant the applicant a settlement permit.”).
4. Court applications in expedited proceedings
The aforementioned applications for annulment and compulsory measures can also be filed in summary proceedings (Section 80 (5) of the Administrative Court Code (VwGO) and Section 123 of the Administrative Court Code (VwGO). Terminologically, this is no longer a legal action, but rather a court application for the issuance of a temporary measure. The type of summary application to be filed depends on the type of application that would be admissible in the main proceedings (i.e., an action for annulment or a compulsory measure, see above). If an action for annulment (i.e., the revocation of a decision) would be admissible in the main proceedings, then an application must be filed under Section 80 (5) of the Residence Act . Since this is a separate topic, we recommend reading our specialist article on the topic of " Ordering and Restoring Suspensive Effect ."
If an action for an order would be admissible in the main proceedings (e.g., an obligation to issue a visa), then an application for a regulatory order pursuant to Section 123 of the Administrative Court Procedure Code (VwGO) must be filed in summary proceedings. The application for a temporary injunction for a visa pursuant to Section 123 of the Administrative Court Procedure Code (VwGO) is as follows:
“I hereby request that the respondent be ordered by way of an interim injunction to issue the plaintiff a visa as soon as possible but no later than [date by which the visa is required].”
However, you should note that there must be a good reason for granting such an interim order. For further details on when an interim order is possible and when it is not, see our guide to emergencies and urgent proceedings .
5. FAQ Formulating the application for a visa appeal
Do I have to submit a formal application for visa appeal?
No, according to Section 82, Paragraph 1, Sentence 2 of the Code of Administrative Court Procedure (VwGO), the action "should" contain a specific motion. This means that a motion is not legally required. However, from a practical perspective, it is advisable to formulate a clear motion from the outset to avoid misunderstandings and facilitate the court's decision.
What is the correct wording for an application to challenge a visa refusal?
In a pure action for annulment, the application is:
“I hereby request that the defendant’s rejection notice of [date] ([case number]) be set aside.”
When should I file a combined application for annulment and an action for an order?
A combined application is useful if you not only want to have the rejection notice overturned, but also want to apply for an obligation to issue a visa.
What is the difference between an action for an order and an action for failure to act?
An action for failure to act (Section 75 of the Code of Administrative Court Procedure) is directed against the failure of an administrative authority to issue a decision within the statutory period. An action for an order, on the other hand, is directed against a substantive decision by the authority. Actions for failure to act often involve a combination of a request for a decision and a request for an order.
6. Conclusion Formulation aid for visa appeal application
The precise formulation of applications in visa law is not only a matter of legal technique, but also of strategic importance. Even though the Administrative Court Act (VwGO) allows for a certain degree of flexibility in the application process, it is advisable in practice to submit a clear and structured application to the court upon filing the action. This increases the chances of a swift and substantively sound judicial decision. Particularly when choosing between an action for annulment and an action for mandatory enforcement, as well as in urgent applications, a differentiated formulation of the application is crucial to achieving the desired result. However, for more complex case constellations or specific individual circumstances, a case-by-case examination is always required – ideally with legal advice .
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List of Sources (Paywall)
[1] Friedrich Schoch/Jens-Peter Schneider in Schoch/Schmidt-Aßmann/Pietzner, VwGO