A gang of smugglers in grand style used newspaper advertisements (including in the Russian-language press) to find people who, for a small reward, were willing to sign a guest invitation for citizens from CIS countries completely unknown to them. Often these invitations were issued on behalf of indigent welfare recipients among ethnic Germans or late resettlers.
During an interview at the German embassy in Kiev, the invitees indicated their desire to see Bavaria's sights, visit an old friend, buy a plot of land or look at real estate, and establish business contacts with German firms. Another way of creating a basis for obtaining a Schengen visa was to present certificates of booking group trips through Germany. Due to the complexity, German foreign missions in the CIS countries could not fully verify the authenticity of invitations and issued entry visas, as they say, at random.
The true purpose of the trip to the 'golden' West was illegal employment - on construction sites, as cleaners, etc. A number of illegal migrants went on to other parts of Europe; some foreigners came to Germany with the intention of committing offenses.
As the saying goes, the wand may twist and turn, but there is an end. So it was in this story: the truth came to light, and police intervention put an end to organized human smuggling in the EU. The defendants were found guilty of illegally bringing hundreds of citizens from various CIS countries, especially Ukraine, into Germany. The main defendant, a Ukrainian national, was sentenced to five years in prison; his accomplices also received various prison terms.
Was the German Foreign Ministry an accomplice to the offenses?
In the reasoning of his verdict, the presiding judge pointed to major shortcomings in the German Foreign Ministry that facilitated the criminals' dark deeds. The stumbling block for the court was the ministry's basic decree on the rules for issuing entry visas to foreigners. In the judge's opinion, it violated existing legislation on the legal status of foreigners. The judge placed part of the blame for these offenses on its authors (Federal Minister of the Interior Otto Schily, Foreign Minister Joschka Fischer, and former Minister of State at the German Foreign Office Ludger Volmer). After this verdict, public debate has not ceased about the allegedly criminal negligence reigning in German foreign missions in the CIS. The parliamentary opposition even demanded that this topic be discussed in the context of a 'current affairs hour' devoted to the most pressing issues of the country's current life.
Based on my experience as a specialist in the field of the legal status of foreigners, I consider the vehemence and tone of press reports unjustified. The criticized and meanwhile already repealed basic decree of the Foreign Ministry instructed German embassies and consulates to issue visas without hindrance to honest applicants. Visa applications were to be rejected only in the case of genuinely justified suspicion of abuse of the right to enter the EU.
Legal basis for foreigners obtaining an entry visa
At this point I would like to briefly outline the legal basis for the entry of foreigners into Germany for a short-term visit. In principle, foreigners have no legal claim to a visa. They can only apply for one, stating the reasons for their wish to visit Germany. Every state has absolute and inexorable sovereignty and decides for itself whom to allow into its territory and whom not.
It is true that a foreigner can demand a carefully reasoned decision on their visa application. The embassy or consulate is not entitled to reject an application with an unintelligible justification, saying, 'It's not allowed, and that's that.' The German foreign mission must take into account the applicant's legitimate interests and their justified desire to visit Germany. Such justified interests include, first and foremost, of course, contacts with relatives living in Germany. Other valid reasons include group or individual tourism, studying in Germany as a foreign student, and business trips.
A refusal to issue an entry visa is usually justified by the so-called 'lack of intention to return.' Indeed, upon arriving in Germany, a number of 'tourists' marry in Germany, go into illegal status, or apply for political asylum. If the embassy has concrete suspicions of this very lack of intention to return, then, of course, the foreign mission is obliged to protect the state from the penetration of an undesirable foreigner and is fully entitled to reject their visa application. The main contentious point is the criteria for assessing a visa case - whether minor suspicions of lack of intention to return are sufficient to reject an application, or whether there must be genuinely serious grounds for refusal.
Better to strengthen the embassy than close the door to the country
The controversial Foreign Ministry decree instructed diplomatic officials to take a positive attitude toward applicants. A visa application could be rejected only if there were serious grounds. The prescribed practice indeed led to a significant number of positive decisions on visa applications. The refusal quota was apparently around 10%. In my opinion, this by no means indicates unlawful or frivolous actions by German foreign missions.
The law on foreigners does not prescribe a specific quota of refusals. German citizens also need an entry visa to visit Ukraine. The Ukrainian embassy in Germany, however, approves almost all visa applications, and no one criticizes it for that. German citizens, admittedly, do not engage in illegal activities in Ukraine. I, on the contrary, positively received the ministerial decree on changing the rules for issuing entry visas. It significantly facilitated family meetings on the territory of Germany. The leakage of undesirable elements into EU countries via the German visa speaks, rather, of the need to strengthen the personal and technical equipment of German foreign missions. It is also necessary to improve cooperation with the administrative bodies of the host state. A request to the Ukrainian Ministry of Internal Affairs could reveal the applicant's previous convictions, etc.
My experience as a lawyer also does not indicate that practically every applicant gets the desired visa from the German embassy without any problems. In recent years, I have handled a large number of refusal cases. Almost always it was about family members from the CIS who wanted to visit their close relatives living in Germany. Often these refusals severely traumatized the affected persons. Relatives in Germany are by no means always able to visit CIS countries themselves. It should not be that a 75-year-old frail mother cannot, for health reasons, see her only son living in Uzbekistan. The son, in turn, cannot visit Germany due to the suspicion nourished by embassy staff of an alleged “lack of willingness to return.” This position is incompatible with the protection of the family guaranteed by the constitution.
In general, one should fear that the “hardheads” at the Foreign Ministry will use the scandal to sharply tighten the rules for issuing entry visas, which will inevitably lead to an increase in the number of human tragedies of separated families.
The problem I have described is very acute and affects the essential interests of Germany, not only foreigners. Most guests of the country are honest tourists: they visit relatives, see sights, buy cars, study at various educational institutions. All this brings Germany great income and creates jobs. In general, by erecting high barriers to entry, along with the dirty water (fraudsters), one can easily throw out the baby (honest tourists) as well.
Working with the embassy
I would like to give interested persons some advice on the modalities of communication with the German foreign mission. Submitting a visa application is usually accompanied by a short interview at the embassy. The topics are the applicant’s intentions, his possible desire to stay in Germany for a long time or even move permanently, marriage, and other personal relationships.
It is known that the general standard of living and the degree of public safety in Germany are significantly higher than in the CIS countries. Therefore, many interviewees honestly get confused when answering questions with a double bottom. They absolutely do not mean that upon arrival in Germany they will apply for asylum or go into hiding. Diplomatic officials, however, often interpret innocent answers of applicants in a biased manner. During the interview, the applicant must unambiguously indicate to the embassy employee his willingness to return to the country of origin in a timely manner. It is also advisable to indicate the categorical absence of intentions to move to Germany.
The situation looks different for guests whose application for resettlement is being processed at the Federal Administrative Office, but that is a separate topic. Here, of course, applicants are obliged to answer truthfully all questions asked of them at the embassy.
Procedure for appealing refusal decisions
The embassy’s refusal decision does not contain a justification for the refusal. This procedure complies with the applicable rules. This refusal can be appealed by various means depending on the instructions contained in the refusal decision itself. If the embassy’s refusal contains no other instructions, it can be appealed within one year to the administrative court of the city of Berlin.
After receiving the refusal, I first recommend submitting a remonstration petition to the embassy. A remonstration is a politely and substantively written petition for a re-examination of the case. In it, one must once again emphasize and support with solid arguments (family, work, etc.) one’s willingness to return. One should also ask the embassy to justify in detail the reasons for the refusal and competently refute all doubts of the embassy staff.
In response to the remonstration request, the embassy issues a remonstration decision. If the embassy again refuses to issue the requested visa, there is no other choice but to seek help from the administrative court of Berlin. The complaint to the court must be filed within one month after receiving the remonstration refusal. Compliance with this deadline is a very important point in the entire legal proceedings.
Litigation is a laborious and lengthy procedure, but still, in justified cases, I advise going through with it. A visa refusal is entered into the computer and can serve as a reason for subsequent refusals even without a re-examination of the circumstances of the case. This can forever, at least until the fall of the visa regime between the country of origin and Germany, close the road to visits to European Union countries.
I must say that in a number of cases - it is clear that everything depends on the specific situation - I managed to obtain from the embassy the visa desired by my clients during court proceedings. A summons to court and a laborious examination of the case are equally undesirable for both the German Foreign Ministry and the plaintiff himself. Therefore, in exchange for discontinuing the court case, diplomats are often willing to make concessions and satisfy the plaintiff’s visa application.
Thomas PUE, German lawyer
Specially for "Zagranitsa".