If your application for a German residence title like the Visa has been rejected, there are two possibilities to challenge the decision:
First of all, you can file a remonstration against the refusal of the respective embassy.
The remonstration is an appeal, i.e. an informal legal remedy by means of which the person affected by the refusal presents himself to the authority.
This legal remedy must firstly always include evidence of the person’s identity:
- Surname, first name, date of birth, place of birth and passport number;
- Date of the rejection notice;
- Address for service (street, house, flat, post code, country, etc.); if available, fax number and e-mail address,
- Personal signature (in case of remonstration by third parties: their personal signature as well as submission of a written and signed power of attorney)
Apart from this 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.
- contain further documents that support the argumentation and were not yet available when the application was filed.
When drafting the remonstration, you must make certain that the arguments presented invalidate the reasons given by the embassy in justification of its rejection.
Once the remonstration has been received in due time and form by the embassy or diplomatic mission, the visa application will be reviewed in depth again. In the remonstration procedure, all new documents that are subsequently submitted and the contents of the remonstration letter are taken into account.
If the embassy or mission decides that it can grant the requested visa after completion of the remonstration procedure, you will need to make another appointment where you must appear for issuance of the visa.
If the embassy does not consider the remonstration to be justified, it will issue a so-called remonstration notice, presenting the reasons for refusal in detail.
B.) Action before the Administrative Court of Berlin
In addition, it is possible to lodge an action with the Administrative Court of Berlin (Verwaltungsgericht Berlin), Kirchstraße 7, 10557 Berlin.
Hence, rejection notices from the embassy are always accompanied by advice on legal remedies detailing how to bring an administrative court action.
The Administrative Court has subject-matter jurisdiction, as foreign citizens’ law is a field of special administrative law. The Administrative Court of Berlin also has territorial jurisdiction since the embassies are under the authority of the German Foreign Office and the German Foreign Office is headquartered in Berlin.
The length of such legal proceedings is difficult to predict; in our experience, a decision may be reached within a few months but it can sometimes take longer.
If an accelerated decision is necessary for certain reasons, you can also apply for interim relief, in which case a (preliminary) decision may be available after only a few days.
C.) Prospects of success
Whether an action will be successful or not depends on the facts of the individual case – so there is no universal answer to this question.
In judicial proceedings it is examined in particular whether,
- the embassy/diplomatic mission determined the facts correctly,
- the embassy/diplomatic mission committed procedural errors relevant to the decision,
- the embassy/diplomatic mission failed to observe the applicable law in its decision on the application, by violating generally applicable assessment standards or basing its decision on extraneous considerations (Higher Administrative Court of Berlin-Brandenburg (OVG Berlin Brandenburg) (Senate), decision of 19.03.2015 – OVG 11 N 107.14).
The European Court of Justice ruled on 19 December 2013 (case C-84/12) that a Schengen visa may be refused only on the grounds expressly provided for in the European Union Visa Code. However, national authorities have a great degree of freedom in determining whether one of these grounds for refusal applies.
If a risk of unlawful immigration is proven, the authorities must refuse the Schengen visa if there are reasonable doubts as to the applicant’s intention to return (cf. ground for refusal in Art. 32 lit. b of the Visa Code).
Neither does there have to be absolute certainty about the applicant’s unwillingness to return, but reasonable doubts about his intentions to return to his home country suffice.
The competent authorities must also conduct an individual examination of the application and
- the general situation in the applicant’s country of residence,
- his personal circumstances, in particular his family, social and economic situation,
- any previous lawful or unlawful stays in a Member State, and
- take into account his ties in the country of residence and in the Member States.