Each state makes its own choice
The issuance of visas is at the discretion of the diplomatic mission. This practice conforms to international standards and enjoys broad political support worldwide. Each state wants to choose for itself the persons it permits to stay temporarily on its territory. The German mission bears great responsibility toward its EU partners, since with a visa from one of the Schengen Agreement member states, a foreigner can move freely within the intra-European space.
The embassy must not arbitrarily use its authority and discriminate against individual groups of applicants. For example, no one may be rejected because of a “wrong” religious affiliation or a “wrong” skin color. Of course, the embassy must, to the extent of its ability, identify various extremists and deny them the right to enter Germany. However, one cannot place all Muslims under general suspicion of terrorism and for that reason close off entry to Germany for them.
Reasons for refusal
An entry visa is not issued to persons from whom unlawful acts may be expected on the territory of the Federal Republic of Germany; persons with respect to whom the embassy has reasonable doubts as to the veracity of the reasons for the visa request or as to the applicant's ability to finance the trip. For example, a Ukrainian citizen had previously been detained in Germany for prostitution and deported to her homeland. Understandably, her renewed request to “see the sights of Germany” will not meet with understanding from embassy staff. Likewise, a guest visa application from an unemployed person with neither relatives nor friends in Germany will also be met with distrust.
Willingness to return
In practice, the main criterion for granting an applicant the requested visa is the so-called “willingness to return.” Doubts on the part of diplomatic officials as to the sincerity of the applicant's intentions or his readiness to return home before the visa expires are considered sufficient grounds for refusal. In my practice, the following typical problem cases have crystallized.
The mother of the wife of a late resettler would like to visit her daughter's family living in Germany. The embassy invites the applicant for an interview and asks tricky questions. For example, wouldn't she like to live with her daughter and grandchildren for a longer period if she could obtain a residence permit in the Federal Republic? The unsuspecting elderly woman, who has lived her entire life in a village, answers affirmatively to this, as it seems to her, ordinary everyday question concerning relations between close relatives. The diplomatic official then inquires about the circumstances of her life. What circumstances can there be in a village? - a house, livestock, a vegetable garden, a well, firewood, a stove, frost. The mother of the daughter living in Germany eagerly tells her interlocutor about this, pleased that a “good person is interested in the life of a simple woman.” As she warms up, she also tells the interviewer that she intends to look after her two young grandchildren so that her daughter can go to work. In conclusion, she decides to confide to the attentive young man her sorrows about her low pension, the difficulties of age, and life in a village without help from children. All her statements are carefully recorded, after which the interviewer shakes her hand, and she leaves, confident of success. A few weeks later, instead of the requested visa, the applicant receives a refusal.
Based on the interview, the embassy concluded that the applicant had an insufficient willingness to return because she lacked security in her own country, where she has to struggle every day with insurmountable difficulties (loneliness, chopping wood, fetching water, a small pension, and a lack of reliable medical care). For this reason, the foreign woman might marry in Germany, apply for political asylum, or go underground - such is the thinking of embassy staff. The diplomats also fear that upon arriving in Germany she might cite her ailments and therefore refuse to return home for medical reasons. In my practice, there have indeed been cases where doctors did not recommend transporting a patient back home, and the foreigners authority, grinding its teeth, issued my client a residence permit.
Finally, the grandmother's intention to babysit her grandchildren and relieve her daughter of household chores so that she could go to work was regarded by the embassy as the foreign woman's desire to engage in illegal employment in the Federal Republic. As you understand, such “suspicious” grandmothers are not entitled to a visa.
My advice to elderly persons intending to visit Germany on a guest visit: pay attention to every word you say and consider the situation I have described. During the interview, no misunderstandings that could lead to a refusal should arise. You should emphasize the purely visiting nature of the trip. Do not forget to state facts indicating your strong ties to your homeland or country of origin (property, relatives, religion, language).
Indicators of intent
The following problem case: a citizen of Russian ethnicity applies for a guest visa to visit Germany. Citing his lack of roots in the country of origin and the supposedly widespread tendency toward migration among the European population, the embassy refuses to issue him an entry visa without much discussion. It suspects the applicant of intending to remain in Germany forever. This case is especially difficult to work through. For preventive purposes, one should present to the embassy official all the facts indicating the guest's intention to return to his homeland and prove reliable ties with the country of origin.
Common constellations include refusals due to previously filed applications for resettlement to Germany. For example, a Ukrainian citizen applied for the status of a late resettler, but his application was rejected. Now he would like to visit his cousin living in Germany on a guest visit. In principle, there is nothing illegal about this. Anyone who believes they have a right to repatriation or emigration to Germany may file an application with the competent authority. Rejection of an application is also considered a normal procedure and should not adversely affect the applicant's other life relationships.
For the German embassy, this unsuccessful attempt may serve as an indicator of the intention to obtain a residence permit in Germany by hook or by crook, for example through marriage. For this reason, I recommend carefully considering the advisability of filing a resettlement application. Without a solid legal basis, this application will be rejected with one hundred percent certainty, but by doing so you may close your road to Europe until the visa regime between our countries is lifted.
Formal refusal procedure
As a rule, the German diplomatic mission informs the applicant in a brief written notice of the rejection of his application for a guest visa. With reference to §66 (Auslandergesetz, AuslG), the embassy refuses to state the reasons for rejecting the application. This refusal can be appealed within one year to the Berlin Administrative Court (Verwaltungsgericht Berlin). A number of refusals contain a section called 'Legal remedy instruction' (Rechtsbehelfsbelehrung), where the applicant is given one month to express his disagreement. Compliance with this deadline is an absolute necessity if the rejected applicant intends to continue seeking a visa.
Remonstration
A meaningful way to obtain an entry visa is a remonstration at the embassy. It is possible if the refusal does not contain a 'Legal remedy instruction' section specifying other legal ways to challenge the refusal. A remonstration is a reasoned repeat request to issue an entry visa. In a remonstration letter, the applicant also tries to debunk the embassy's supposed arguments that hinder the issuance of an entry visa. Your argumentation should be built on evidence of willingness to return. In justified cases, a remonstration can succeed, the applicant receives the desired visa, and the matter ends there.
A remonstration refusal to a repeated application contains the justification and argumentation of the diplomatic mission. It can be appealed to the Berlin Administrative Court (Verwaltungsgericht Berlin). A lawsuit in German must be filed within the legally prescribed time limit, which is usually one month from the date of receiving the remonstration refusal.
Judicial review of the case
The Berlin Administrative Court reviews the embassy's argumentation, its logic of thinking, and its own discretion in decision-making. In the event of judicial success, the court obliges the embassy to reconsider the application in compliance with all legal norms and administrative regulations. Note: the court cannot oblige the embassy to issue a visa; it can only oblige the diplomatic mission to be guided by certain criteria in the decision-making process. Going to court is an appropriate means of challenging a refusal. For the German Foreign Office, litigation is no less burdensome than for the plaintiff. Therefore, in justified cases, the ministry agrees to a compromise in response to the withdrawal of the complaint from court.
The Residence Act (Aufenthaltsgesetz, AufenthG) in §83 newly regulates the process of judicial appeal against actions of German foreign missions. It appears that the new law closes the path of judicial appeal against actions of German diplomatic missions for foreigners. I will be able to give a real assessment of the legal situation under this law a little later.
Practical tips
Embassy staff and German border guards often ask foreigners to present a return ticket. A mismatch between the validity period of the visa and the return ticket raises various suspicions in these organizations. Sometimes travelers are turned back at Frankfurt airport immediately after arrival.
Another practical tip: a guest visa can be extended already on the territory of Germany for a total period of up to six months. The competent authority is the local foreigners authority (Auslanderbehorde), which decides at its discretion on the extension of the visa. I do not recommend foreigners to extend their stay in Germany on their own.
Of course, there is nothing illegal in such an extension. German foreign missions see this situation differently. They attribute to foreigners an alleged deception of the embassy. A foreigner was issued a visa for a certain period of time, but he actually stayed in Germany longer than allowed. In response to the next application for a guest visa, the embassy may justify its refusal by this, in its opinion, inadmissible extension. So, if you had to extend your visa for your stay in Germany on the spot for objective reasons, stock up on reliable certificates about the reasons for this necessity. This will help you in further communication with the embassy.
• Various office equipment is used for processing documents for traveling abroad. To maintain it, you can hire professionals who, if necessary, will not only timely refill a copier cartridge, but also provide prompt printer repair Kyiv and other office equipment.
Thomas Pue,
German lawyer.