Appeals and further legal remedies

An unfavourable judgment from the administrative court need not be the end of a naturalisation dispute. However, access to the next court instance is subject to particular requirements. An appeal, an application for permission to appeal, an appeal on points of law and an appeal against an order serve different purposes. We therefore review the complete court decision, possible legal objections and any deadlines already running.

After a judgment, people often speak generally of an “objection”. However, an administrative objection (Widerspruch) generally belongs to the preliminary administrative procedure against the rejection decision. For a court decision on the merits, we examine the judicial remedy provided by law. A letter to the naturalisation authority neither opens a new court instance nor preserves an appeal deadline against the judgment.

The complete decision, its notice of appeal rights and the date of service are important. If a lawyer conducted the proceedings, service on that representative is particularly relevant. The day on which the person concerned later reads a copy is therefore not necessarily the start of the deadline.

A judgment must also be distinguished from an order in interim proceedings and from a decision without an oral hearing known as a Gerichtsbescheid. § 84 VwGO provides particular options for a Gerichtsbescheid, including, under certain conditions, an application for an oral hearing. Anyone who applies the remedies for judgments to every court document without checking may therefore choose the wrong route.

An appeal on facts and law (Berufung) takes the case from the administrative court to the higher administrative court, known as the Oberverwaltungsgericht or, in some federal states, the Verwaltungsgerichtshof. It generally allows a further examination of facts and law. However, this examination is not automatically available after every unsuccessful case. Under § 124 VwGO, permission to appeal is required.

Two starting situations must be distinguished: the administrative court may already grant permission to appeal in its judgment. If it has not done so, an application for permission to appeal must first be made. The higher administrative court then decides whether a statutory ground for granting permission has been sufficiently explained and actually exists. The permission procedure is not yet a complete rehearing of the naturalisation case.

§ 124 paragraph 2 VwGO lists five categories of grounds for permission. The following distinctions are helpful when assessing them in practice:

These grounds are not interchangeable. Criticising an incorrect assessment of an employment contract does not automatically explain a legal question of fundamental importance. If you have found another decision, we examine whether the legal standards actually conflict or a different set of facts simply led to a different result.

If dismissal rests on several independently decisive grounds, we examine each decisive obstacle and the possible objections to it. For example, if the court found both that required evidence was lacking and that another independent condition for entitlement was not met, convincing criticism of only one of those points may not be enough. The other ground may continue to support the result.

§ 124a VwGO distinguishes several deadlines and places of filing. The following overview describes the usual statutory position where the notice of appeal rights and service are proper. It does not replace a calculation based on the specific service event.

The two-month period for stating the grounds for permission therefore does not begin only after the one-month application period has expired. Both periods run from the same service event. Nor must the subsequent statement of grounds of appeal after permission has been granted be overlooked. The application for permission submitted earlier does not necessarily make this further procedural step unnecessary.

If the higher administrative court refuses permission, the first-instance judgment becomes final. There is no ordinary appeal to the Federal Administrative Court against that refusal of permission. The appeal against refusal of permission for an appeal on points of law, explained below, concerns refusal to allow such an appeal against an eligible judgment, not refusal of permission for an appeal on facts and law. This follows from § 124a paragraph 5 and § 152 VwGO. Special remedies for a violation of the right to be heard or of fundamental rights remain subject to their own requirements.

The deadlines for submitting grounds of appeal under § 124a paragraphs 3 and 6 VwGO can be extended on an application made before the deadline expires. By contrast, the one-month period for applying for permission and the two-month period for setting out the grounds for permission under paragraph 4 are statutory periods that cannot be extended in the same way. We therefore first check whether an extension is legally available and on what conditions we can request it. Until an extension is confirmed, we continue to work to the existing deadline. An incorrect or missing notice of appeal rights and a deadline missed without fault raise separate questions under §§ 58 and 60 VwGO.

Before the higher administrative court and the Federal Administrative Court, parties must generally be represented by a representative authorised under § 67 paragraph 4 VwGO, particularly a lawyer. This requirement already covers the procedural acts that initiate proceedings there. An application for permission to appeal submitted personally therefore generally does not satisfy the requirements.

After service of an unfavourable judgment, you can contact us promptly to discuss a review of the next steps. For our review, we need the judgment, the authority’s decision, previous submissions, relevant evidence and, where applicable, the hearing record. An initial consultation alone does not preserve a deadline; we clarify expressly with you whether we are taking on the specific time-sensitive instruction.

An application for legal aid is exempt from mandatory representation. However, such an application is not a substitute for the appeal itself. If funds are lacking, we clarify with you in time how a complete legal aid application and any later reinstatement of the deadline interact. Financing is discussed in detail in Litigation costs, reimbursement of costs and legal aid.

Once permission has been granted, the appeal court generally examines facts and legal questions within the subject matter of the proceedings. Under § 128 VwGO, it also considers newly submitted facts and evidence unless special exclusion rules apply. An appeal can therefore be significant for factual issues that still need clarification.

We introduce available new documents into the proceedings as early as possible. Permission to appeal is far from certain, and rules against late submissions also apply. Already at first instance, we present material facts clearly, answer the court’s questions and submit available evidence.

In a naturalisation case, employment, family circumstances, residence status and the available evidence may change during the litigation. New statutory rules may also become relevant. An appeal does not automatically preserve the law as it stood when the application was made. The current general rule in § 10 StAG requires five years of lawful habitual residence; the former special three-year rule in that section has been abolished. The narrowly limited transitional provision in § 40a StAG, by contrast, concerns securing subsistence for certain older applications.

An appeal on points of law (Revision) against an appeal judgment may be brought before the Federal Administrative Court if permission is granted. Its function differs from an appeal on facts and law: the focus is on the correct application of law subject to review at that level, particularly federal law. Under § 137 VwGO, the Federal Administrative Court is generally bound by the lower court's findings of fact unless admissible and well-founded grounds of appeal are raised against them.

An appeal on points of law is therefore generally not the place to present a complete personal life history for the first time or to introduce new income documents into a comprehensive examination of the facts. Instead, it may concern, for example, whether the appeal court applied the correct legal standard when examining a statutory condition for entitlement.

The grounds for permission are narrower than for an appeal on facts and law. § 132 VwGO lists fundamental importance, certain departures from case law and significant procedural defects. Serious doubts as to correctness are not an independent ground for permission here. Not every potentially incorrect individual decision therefore opens the way to an appeal on points of law.

If the higher administrative court does not grant permission for an appeal on points of law, an appeal against that refusal under § 133 VwGO may be considered. It must be filed within one month after service of the complete judgment with the court whose judgment is being challenged. Its grounds must also be submitted there, within two months of the same service event. This destination differs from that for a separate statement of grounds supporting an application for permission to appeal on facts and law.

The appeal against refusal must specifically set out a ground for permission to appeal on points of law. Mere criticism of the assessment of the facts cannot be turned into a procedural defect by giving it that heading. An allegation of insufficient investigation requires, in particular, identification of the missing inquiries and the expected result relevant to the decision.

If permission for an appeal on points of law has already been granted, the filing period is generally one month and the period for submitting grounds two months after service of the complete judgment. The appeal is generally filed with the court whose judgment is challenged; under § 139 paragraph 1, timely receipt by the Federal Administrative Court also preserves the filing deadline. The grounds of the appeal, by contrast, must be submitted to the Federal Administrative Court. After a successful challenge to refusal of permission, the proceedings continue without the appeal on points of law having to be filed again; the period for submitting its grounds is then generally one month after service of the decision granting permission. § 139 VwGO governs the details.

A successful appeal on points of law does not necessarily lead directly to naturalisation. Depending on whether the case is ready for a final decision, the Federal Administrative Court may decide the matter itself or refer it back for further proceedings. Permission to appeal, success in the appeal and ultimate success in the naturalisation claim are therefore three different questions.

If an application for an interim order has been rejected, an appeal against the order to the higher administrative court should generally be considered. Under § 147 VwGO, it must normally be filed within two weeks after notification.

It is generally filed with the administrative court whose order is challenged; timely receipt by the appeal court also preserves the deadline. Mandatory representation must still be observed. Under § 146 paragraph 4 VwGO, the period for submitting grounds in interim relief proceedings is one month after notification; a separate statement of grounds is filed with the higher administrative court.

The statement of grounds must contain a specific request and address the reasons for the challenged decision. The higher administrative court generally examines the grounds presented. If, for example, the administrative court found that particular urgency was lacking, simply repeating the naturalisation requirements is not enough. The assessment of urgency itself must then be challenged.

The appeal does not turn interim proceedings into a full examination of the main case. The particular limits on naturalisation sought as interim relief remain. These include, in particular, the problem that a grant of citizenship cannot simply be reversed on a provisional basis. Further details are explained in Actions seeking an order to grant naturalisation, review of discretion and interim judicial relief.

If no other remedy is available and the court has violated the right to be heard in a way relevant to the decision, § 152a VwGO may allow a complaint for that violation (Anhörungsrüge). The deadline is two weeks from learning of the violation; there is also a statutory maximum period of one year from notification of the decision. The fact that the court did not accept an argument does not in itself establish a violation of the right to be heard.

A constitutional complaint is not another appeal on facts and law. It serves to examine a possible violation of fundamental rights or rights equivalent to them. The available remedies before the ordinary competent courts must generally be exhausted first. For court decisions, the one-month period under § 93 BVerfGG, including submission of the grounds, must normally be observed. An additional submission that is manifestly not an available remedy does not reliably keep this deadline open.

After an unfavourable judgment, we examine three questions separately: Is a further remedy admissible? Can its particular requirements for stating grounds be met? And can the error challenged through that remedy actually change the outcome? Our review of the available remedy connects these questions with the evidence needed to support it.

We also factor the expected costs into your decision. Each further court instance may trigger additional fees; an unsuccessful appeal generally incurs costs for the person who brought it. Conversely, the authority may also challenge a judgment favourable to the person seeking naturalisation. The next step therefore always depends on the complete text of the decision, the running deadlines and the legal outcome that can be achieved.