German Foreign Citizens Law: Schengen Visitors visa refused due to lacking intent to return - MTH Rechtsanwälte Köln
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Federal Administrative Court, 11 January 2011, case number: 1 C 1. 10

About the Schengen visa

In 1985 several European countries signed the treaty known as the Schengen Agreement for the gradual abolition of internal border controls at the common borders of the nation states who are signatories of the treaty.

After numerous other European states had signed the agreement, the Schengen cooperation was incorporated into the mainstream of European Union law in 1999.

In particular, this concerned the harmonisation of provisions relating to entry into and short stays in the so-called “Schengen Area“ (“Schengen visa”).

Third-country nationals who hold a Schengen visa may, for the duration of the visa’s validity, also stay and travel freely in other Schengen countries and cross the internal borders without undergoing identity checks.

The embassies of the countries of destination in the respective home countries are usually responsible for issuing a Schengen visa.

Third-country nationals wishing to obtain a Schengen visa will need to submit a number of documents and meet requirements that can vary according to their country of origin.

Necessary ducuments for a Schengen Visa

Necessary documents include, for example:

– Passport.

– National ID card.

– Passport photographs.

– Application for a Schengen visa.

– Proof of family relationship or friendship.

– Letter of invitation and declaration of commitment of the host.

– Sufficient travel health insurance coverage of the applicant with a minimum coverage of EUR30,000.

The decision on permission to enter can then be made within a few days by the respective authority.

Intent to return is critical for the examination

For issuance of a visa, the applicant’s intention to return to their home country is particularly critical.

If the applicant can prove that he or she has certain ties in his or her home country this will be viewed in a positive light. This includes, for example, family ties, a stable job or the existence of real estate in the country of origin.

Legal remedy („Remonstration“) against rejection

If a visa is nevertheless refused, the applicant or an authorised representative can file a “remonstration” against the rejection. In addition to the usual evidence of identity, this “remonstration” should, depending on country of origin,

– contain a detailed explanation of why the rejection is not justified.

– contain detailed reasons why the applicant wishes to travel to Germany and why the stay is important to him or her.

– contain further documents that support the argumentation and were not yet available when the application was filed.

In addition to remonstration, a rejected applicant can also take legal action before the administrative court. Hence, rejection letters from the embassy are always accompanied by advice on legal remedies detailing how to bring an administrative court action.

Action before the administrative court of Berlin

Since the action is directed against a federal authority (the German Federal Foreign Office), which is domiciled in Berlin, the Administrative Court of Berlin (Verwaltungsgericht Berlin) has jurisdiction in this case.

The court fees for such visa proceedings depend on the amount in dispute, which is currently set at €5,000 for such proceedings. According to the German Law on Court Fees (Gerichtskostengesetz – GKG) the court fees will hence amount to €588.

Further costs are incurred for engaging a lawyer.

As a rule, such proceedings can take up to two years.

With regard to the issuance of visitor’s visas, numerous cases of abuse have become known especially since 2005 (“visa affair”).

In 2000, the then German Foreign Office issued a decree (the so-called Volmer or Fischer decree) instructing Germany’s diplomatic missions to make the issuing process for visas less bureaucratic in future.

The decree ruled that visitor’s visas were no longer to be refused in the case of doubts as to the applicant’s willingness to repatriate, but only if there was a reasonable likelihood of lacking intent to return.

In the years that followed, this decree led to numerous cases of unlawful issuing of visas, especially in Kyiv, the capital of Ukraine.

The decree was subsequently withdrawn and visa requirements were tightened again.

As mentioned above, the question of “intent to return” is therefore particularly critical for the decision to issue a visa and it has also repeatedly been the subject of court decisions.

This was also the case in the above-mentioned decision of the Federal Administrative Court of 11 January 2011.

Circumstances of the court decision

MOROCCAN MOTHER APPLIES FOR SCHENGEN VISA TO VISIT HER CHILDREN LIVING IN GERMANY

The visa applicant was a Moroccan national whose two children had been living with her divorced husband in Germany since 2005. In early 2008, the German embassy in Rabat rejected the complainant’s application for a Schengen visa to visit her children because she had set forth no prospect of return.

INITIALLY SUCCESSFUL ACTION AGAINST REJECTION OVERTURNED ON APPEAL

Complaint proceedings against the rejection before the Administrative Court of Berlin (judgment of 10 December 2008 – VG 7 V 16.08) were initially successful. However, the Higher Administrative Court of Berlin-Brandenburg (Oberverwaltungsgericht Berlin-Brandenburg), which dealt with the appeal, held that the request for issuance of a visa was obsolete due to expiry of the travel dates stated in the visa application and that the rejection was therefore not unlawful.

Judgment of the Federal Administrative Court

The Federal Administrative Court confirmed the judgment of the Higher Administrative Court only in the outcome. The court found that, in the absence of any indications to the contrary, an application for issuance of a Schengen visa for a short visitor’s stay was to be interpreted as indicating that the applicant still desired to visit even after the intended period of stay specified in the application form had passed.

Contrary to the opinion of the appeal court, the plaintiff’s request had therefore not become obsolete.

However, the applicant was not entitled to a visitor’s visa. Under Regulation (EC) No. 810/2009 (Visa Code), which came into force in April 2010, the issuance of a uniform visitor’s visa valid for the entire Schengen Area must be refused if there are reasonable doubts as to the applicant’s intention to leave the territory of the Member States before the expiry of the visa applied for (Article 32(1) (b) of the Visa Code).

FEDERAL ADMINISTRATIVE COURT ALSO SEES PLAINTIFF’S FALSE STATEMENTS AS SIGN OF LACK OF INTENT TO RETURN

According to the findings of the appeal court, such doubts were to be assumed in the complainant’s case. This was because she had initially concealed the true reason for her stay in the visa procedure and there were concrete indications that she wished to remain in Germany permanently because of her children.

Neither was the plaintiff entitled to a visitor’s visa valid only for the territory of the Federal Republic of Germany.

Such a visa could only be issued by a Member State in the exceptional cases listed in Article 25(1) of the Visa Code. However, such an exceptional case could not be assumed here.

Based on the public interest in preventing uncontrolled immigration, even in view of the special protection of family relationships, the exceptional issuing of a visa was not necessary.

MOTHER COULD MAINTAIN CONTACT WITH CHILDREN IN OTHER WAYS

The complainant herself had brought about the geographical separation from her children by consenting to their emigration to Germany. She and her children were not compelled to rely on a visit by the complainant to Germany to maintain family ties.

Contact with the family could also be maintained in other ways, such as via the Internet, letters and telephone calls, as well as visits by the children to Morocco during holidays.

Source: Federal Administrative Court (Bundesverwaltungsgericht)

Important note: The contents of this article have been created to the best of our knowledge and belief. However, due to the complexity and volatility of the subject we are unable to accept any liability or guarantee.

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