Re-applying the visa procedure
All information on visa requirements and visa application procedures.
Here you learn ...
what the visa requirement is and when it is fulfilled
which foreigners are exempt from the visa requirement
when it is not necessary to complete the visa procedure
when the visa procedure is unreasonable
Table of Content
1. Entry with the correct visa
2. Which foreign nationals do not need to go through the visa process?
3. Circumventing the visa procedure
4. Unreasonableness of the visa procedure
5. Claims (visa requirement)
6. Conclusion on visa requirements
1. Entry with the correct visa
A visa is not the same as a residence permit. A visa allows entry to Germany, whereas a residence permit allows a longer stay in Germany. In order to be granted a residence permit, the applicant must have entered the country with the required visa ( Section 5 (2) of the Residence Act ). This means that entry must be made with the same visa as the subsequent stay. In particular, it is not possible, for example, to enter the country with a Schengen visa and then apply to the immigration authorities for a residence permit for the purpose of employment . The legislature has therefore provided for the visa as a control instrument for migration . A visa is therefore required even if the applicant is already residing in Germany. This only applies to the initial grant of a new residence permit and not to the extension of a residence title ( Section 39 No. 1 of the Residence Ordinance ).
2. Which foreign nationals do not need to go through the visa process?
However, the visa requirement does not apply in all cases. For example, entry with the correct visa is generally not required if a residence permit can be applied for within the country ( Sections 39 et seq. of the Residence Ordinance ). Of particular practical relevance here is the possession of a Blue Card from another European country (Section 39 Nos. 7 and 7a of the Residence Ordinance) and the extension of an ICT card (Section 39 No. 8 of the Residence Ordinance).
Furthermore, nationals of certain countries are exempt from the visa process to apply for a residence permit in Germany (so-called "Best Friends" countries, Section 41 of the Residence Ordinance ). These primarily include the following nationalities: Australia, Israel, Japan, Canada, the Republic of Korea, New Zealand, the United Kingdom of Great Britain and Northern Ireland, and the United States of America (USA). Under certain conditions, this also applies to the following nationalities: Andorra, Brazil, El Salvador, Honduras, Monaco, and San Marino.
Even independent of these case groups, there are other situations in which no separate visa is required for the issuance of a residence permit:
Applying for an extension instead of an initial grant,
permanent exemption from the requirement of a residence permit (e.g. former Union citizens and diplomats ),
The eligibility requirements arise after entry (e.g. marriage to a German, birth of a German child, job offer as a skilled worker),
Holding residence permits from other Schengen states (especially Blue Card)
In these cases, you can apply for a residence permit directly in Germany without having to go through the visa process again.
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3. Circumventing the visa procedure
If the foreigner is already in Germany, the visa application process can also be waived if completing the visa application retroactively is "unreasonable" or if a so-called " eligibility case" exists. The immigration authorities can then, at their discretion, waive the visa application retroactively. This is possible in the following cases:
there is a legal right to be granted a visa ( Section 5 (2) Residence Act ),
the subsequent visa procedure is unreasonable for the applicant ( Section 5 (2) Sentence 2 of the Residence Act ),
a humanitarian residence permit is applied for ( Section 5 (3) of the Residence Act ).
Case law has comprehensively defined when it is impossible or unreasonable to complete the visa application retroactively. The most important cases of unreasonable visa application retroactively are presented below.
4. Unreasonableness of the visa procedure
It is unreasonable to re-apply for the visa procedure in particular in the following cases:
Illness, pregnancy, disability of the applicant,
no travel connections available,
Existence of deportation bans,
Presence in Germany is mandatory (e.g. childcare),
No appointments available for visa applications.
There is no unreasonableness in the following cases:
the trip causes high costs,
there is a job offer,
a new apartment must be rented,
Completion of compulsory military service (OVG Berlin-Brandenburg, decision of 06.03.2008 OVG 11 S 43.07),
temporary separation from the spouse (OVG Berlin-Brandenburg, decision of 05.03.2007, OVG 2 S 19.07).
If the immigration authorities request a delayed visa application, an application for advance visa approval should be submitted to the immigration authorities in return to expedite the visa process (see Section 31, Paragraph 3 of the Residence Ordinance ). Although immigration authorities rarely cooperate in this regard, case law obliges them to prevent excessively long visa procedures (Higher Administrative Court of Bremen, December 21, 2011, 1 B 246/11).
5. Claims (visa requirement)
The immigration authorities may also waive the visa procedure if there is a right to a residence permit ( Section 5 (2) Sentence 1 of the Residence Act ). A right to a residence permit is always given when a residence permit "is to be issued", i.e. the immigration authorities have no discretion. This is the case, for example, with all skilled immigration permits (especially the EU Blue Card ). Even in these cases, however, all other requirements must be met, without the immigration authorities having any discretion (so-called " strict legal entitlement "). According to the Federal Administrative Court, such a strict legal entitlement only exists if all mandatory and regular factual requirements are met (Federal Administrative Court, judgment of December 10, 2014, 1 C 15.14). Even a "should" provision does not change this (Federal Administrative Court, judgment of December 17, 2015, 1 C 31.14). Even minor violations of the law prevent the emergence of a claim, since in these cases the immigration authorities must examine an interest in expulsion (BVerwG, judgment of 10.12.2014, 1 C 15.14).
Summary of this Page
Anyone who wants to come to Germany and stay here for a longer period of time usually needs a visa for the correct purpose – for example, for work or study. Only with this visa can they later apply for a residence permit in the country. Entry with a tourist visa is not sufficient. Exceptions exist for certain nationals (e.g., the USA, Canada, Australia) and for people who already have a specific residence permit from another EU country (e.g., a Blue Card). The visa process can also be waived under special circumstances – such as illness, pregnancy, or a ban on deportation. If someone already has a legal right to a residence permit, the immigration authorities can waive the visa process. However, this only applies if all requirements are correctly met – even minor violations can exclude this right. Waiver of the visa process is also possible if the visa process is “unreasonable.”
