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Correct defendant migration and visa
Explanations from a lawyer: Who do I need to sue under visa law? Information on the right person to sue.
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in which cases the Federal Foreign Office (FRG) must be sued
when you have to sue the immigration authorities
who the defendant is in the consent procedure
what a consignment is
Table of Contents
1. Federal Foreign Office and Federal Republic of Germany as defendants
2. Immigration authorities as defendants
3. Defendant in consent cases
4. Subpoena and representation by authorities
5. FAQ Defendant Visa
6. Conclusion Defendant Visa
1. Federal Foreign Office and Federal Republic of Germany as defendants
In administrative procedural law, the correct authority must always be sued (see Section 78 of the Code of Administrative Court Procedure (VwGO ), although due to the principle of official investigation, misnaming an authority is generally not a problem. Nevertheless, due to Germany's federal structure and the so-called legal entity principle , it is often difficult for laypersons to identify exactly who must be sued and who represents the respective authority (so-called procedural and party capacity , Sections 61-63 of the Code of Administrative Court Procedure ).
In principle, the authority that issued the respective rejection notice or would be responsible for issuing the notice must always be sued. In visa proceedings, the Federal Republic of Germany, represented by the Federal Foreign Office , is therefore usually the correct defendant. This applies in particular if a visa application was rejected by a German diplomatic mission abroad, i.e., an embassy or consulate, since embassies are offices of the Federal Foreign Office (see Section 2 of the Federal Foreign Office Act ). In these cases, the decision is made in the name of the Federal Foreign Office, meaning that the lawsuit must be directed against the Federal Republic of Germany.
2. Immigration authorities as defendants
If the issue is not the issuance of a national visa abroad, but a residence permit decision within Germany , the relevant immigration authority is the appropriate respondent. This particularly applies to cases in which an application for a residence permit, extension, or change of status within Germany was rejected. The same applies if the decision was taken not by the municipal immigration authority, but by a statewide central immigration authority (ZABH).
In these situations, the (central) immigration authority is the body that issues the decision. According to the legal entity principle, the defendant is then the entity to which the immigration authority belongs. In most cases, this is the respective city , district , or state . However, it is important to note that special jurisdiction exists for some official acts. This applies particularly if the immigration authority, for example, acted not by the immigration authority but by the police.
3. Defendant in consent proceedings
In certain cases, the diplomatic mission abroad must obtain approval from a German authority before deciding on the visa application – for example, the immigration authority (see the immigration authority approval procedure for spouse visas) or the Federal Employment Agency (see the Federal Employment Agency approval procedure for work visas). In some cases, these authorities will then approach the applicant with their own letterhead and with their own caseworkers, requesting documents or information, for example.
The approval procedure does not mean, however, that these authorities are automatically also defendants . Even if approval is refused, the authority that is actually conducting the proceedings remains formally the defendant. The dispute with the authority that refuses approval is therefore, in a sense, carried out "on the back" of the authority conducting the proceedings. For example, if the Federal Employment Agency refuses approval to take up employment in Germany, the defendant is the embassy where the work visa was applied for. In this case, no action can be taken against the Federal Employment Agency, as approval is only an internal act of cooperation within the agency and not an (independently challengeable) administrative act pursuant to Section 35 of the Administrative Procedure Act (VwVfG) .
4. Subpoena and representation by authorities
In purely practical terms, however, even in these approval procedures, the authority only involved internally is (at least indirectly) included in the legal dispute. In administrative proceedings, there is the possibility of joining the court proceedings under Section 65 of the Administrative Court Procedure Code (VwGO) . This means that another authority is formally included in the legal proceedings because its legal interests are affected. This is regularly the case with approval decisions by immigration authorities or the Federal Employment Agency in visa procedures.
The court then requests statements and documents as part of the summons, allowing these authorities to participate in the proceedings – but without being sued themselves. The effect of a summons can even go so far as to impose the costs of the court proceedings on the authority summoned, even though it was not the defendant.
5. FAQ: Who is the defendant in the visa procedure?
Who is the defendant in the event of a rejection by the embassy?
Always the Federal Republic of Germany, represented by the Federal Foreign Office. The Federal Foreign Office, in turn, is the employer of the embassies (Section 2 of the German Federal Foreign Office Act).
And what if the immigration authorities in Germany reject your application?
Then, according to the legal entity principle, the respective local authority is the defendant – e.g. the “State of Berlin” as the legal entity of the State Office for Immigration (LEA).
What happens in cases of consent?
The approving authority is merely summoned. The defendant remains the authority conducting the actual administrative proceedings.
When is the Federal Office for Migration and Refugees (BAMF) the defendant?
The Federal Office is responsible for cases involving humanitarian protection (in particular asylum under the Asylum Act ).
When is the police the right defendant?
The police must always be sued if the respective official act is carried out by police officers (e.g. refusal of entry).
When is the Federal Office of Administration the defendant?
The Federal Office of Administration (BVA) must be sued if the subject of the dispute is a decision of the Federal Office of Administration (e.g. in the case of renunciation of citizenship or naturalization abroad).
How do I know who the defendant is?
The correct defendant is often named in the instructions on legal remedies (last part of the rejection notice).
Will the defendant send a representative to the administrative court?
That depends. In most cases, however, the authorities do not send a representative to the oral hearing. This is certainly true in the first instance.
6. Conclusion: Address the complaint correctly – that’s what the law says
In immigration law, choosing the right defendant is crucial. Those suing the wrong authority risk an inadmissible lawsuit, or at the very least, an unprofessional impression and significant delays. The so-called legal entity is always decisive. Whether it's the Federal Foreign Office or the immigration authority, anyone planning to file a lawsuit should know exactly who was responsible and who is considered the decision-maker. If in doubt, legal advice can help ensure the lawsuit is filed legally and effectively—especially in complex consent or federal procedures.
List of Sources (Paywall)
[1] Friedrich Schoch/Jens-Peter Schneider in Schoch/Schmidt-Aßmann/Pietzner, VwGO