In the summer of 2012, he submitted a visa application to the German Embassy in Kyiv to visit Germany for personal purposes. The embassy refused to issue the visa. Vladimir was upset, but not very much; after all, a summer vacation can be well spent in Spain as well. To his great surprise, the Spanish Embassy in Kyiv also refused him a tourist visa, citing personal encumbrances at the German Embassy. The closure of the road to Europe is nowadays a sensitive and often unjustified punishment.
The Ukrainian citizen could not come to terms with such an unpleasant and groundless ban and instructed a German lawyer to look into the matter. After all, divorce is, unfortunately, a common affair, containing no criminality and providing no grounds for a re-entry ban into the country. A study of the documents showed that in 2006 Vladimir did not simply return home, but was formally deported by the German authorities from Germany. In 2006, these administrative nuances escaped the attention of the divorcing spouse; indeed, he was not particularly interested in them. Now he recalled that he had been summoned to the foreigner's office to receive an ultimatum to leave the country under signature. Vladimir had no intention of staying in Germany, but wanted to leave later. For this reason, he personally did not perceive the authorities' demand as an administrative deportation under signature.
The law closes the road back to Germany for a foreigner after deportation, removal, or expulsion from the country. Deportation is usually applied to foreigners residing in Germany with criminal tendencies. Removal means prohibiting a foreigner from crossing the German border or forcibly returning foreigners with a visitor visa or visa-free foreigners to their country of arrival. Expulsion is the forced removal of a foreigner from the country under police escort. Vladimir Brezhnev's departure from Germany falls into the deportation category. Deportation automatically entails a re-entry ban into the country for a period of two to ten years.
European countries have created a common database of undesirable or delinquent foreigners, which is used to check visa and other applications. Penalty entries from one country can lead to visa problems for the applicant at the embassy of another European country. Therefore, Vladimir needs to somehow obtain the removal of the penalty entry from the common database. Otherwise, the road to Europe is closed for him until the fall of visa borders. This will happen in the medium term, but not in the coming years. So what exactly can be advised to him?
The Ukrainian citizen should file an application with the competent German authorities to limit the duration of the ban. Upon application, the authority will review the substance of the case and make a decision within its competence. Back in 2006, the authority regarded Vladimir's behavior as unwillingness to leave the country, whereas he simply intended to peacefully conclude his affairs in Germany. Here, the deportation occurred due to a misunderstanding, so the prospects of lifting the re-entry ban are quite real. Especially since Vladimir Brezhnev has not lived in Germany for six years, a term quite sufficient, so he can demand the immediate removal of the re-entry ban.
In my practice, there was a case where a Ukrainian citizen got a re-entry ban because he crossed the German border 30 minutes after his visa expired. And it wasn't even his fault. The bus he was taking back to Ukraine was delayed, so he crossed the border late. Here we managed to clarify the misunderstanding, but my client had enough trouble.
The more serious the foreigner's offense, the lower the chances of a successful application. Drug traffickers, rapists, bandits – perhaps justifiably, will not receive permission to re-enter Germany. Only an obvious, long-term, and proven entry onto the path of virtue, as well as serious interests in Germany, can prompt the authorities to change their minds.
For example, a foreign spouse of a German citizen, one V. Kononov, was convicted of drug trafficking and deported to his homeland in Kazakhstan. In Almaty, he underwent treatment for drug addiction, got a job, formed a new family, and leads an impeccable lifestyle. V. Kononov would like to visit his child from his first marriage living in Germany. Here, his application to limit the ban has chances of success.
A refusal by the authority to lift or limit the re-entry ban can be appealed in administrative court. The court examines the matter on its own, has its own competence, is independent of departmental instructions, and makes independent decisions on the specific case. Court decisions often deviate from departmental negativity. When considering an application, the competent authorities must take into account the foreigner's legitimate interests – for example, marriage to a German citizen, visiting close relatives, business interests.
On the other hand, Vladimir Brezhnev was deported for committing a medium-severity offense. In Russia, he married a German citizen and wanted to move to the country. Here, the foreigner's office will weigh the constitutional protection of the family against the interest of society in protecting itself from a foreigner with a criminal past. Still, the family has constitutional status, which allows arguing in favor of the marriage. This constitutional status elevates the family above ordinary justice and forces authorities to consider such applications favorably.
A positive decision on the application to lift the restriction on entry into Germany, or a reduction of this period, does not automatically mean a positive outcome for the visa application. After the ban is lifted or restricted, the German diplomatic mission will unbiasedly re-examine the visa application and make an appropriate decision. A significant role in this review is played by the applicant's personal qualities and visa biography. Repeated attempts to establish a residence base in Germany, marry German residents, or unfounded asylum applications portray the applicant in a negative light.
With the help of a specialized lawyer’s toolkit, it is often possible to dispel the authority's doubts about the applicant's personality. In some cases, I have managed to reduce the ban period to 6–12 months. Special rules apply to citizens of the Baltic states.
Thomas PUE,
German lawyer.