December 11, 2023

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What to do when your Schengen visa is wrongfully denied

TRT World speaks to experts and lawyers on how you can appeal a Schengen visa rejection against the member state that has taken the decision on your application.

The rejection rates for Schengen visa applications have climbed worldwide. As a last-ditch effort, applicants who believe they were erroneously declined have a right to appeal the decision and even take legal action.

“The Schengen Visa code grants rejected visa applicants the right to file an appeal, in case they believe they have been wrongfully rejected,” Schengen Visa Info’s Editor-in-Chief Shkurta Januzi told TRT World

“Those who have a strong basis for their case, which can be proved, are recommended to appeal their visa rejection,” she added.

An appeal letter must be written that provides strong reasons for why your application was incorrectly rejected. 

It should contain personal details about yourself such as your passport number and contact details, as well as details of your case – for instance, when your application was submitted and when you received the rejection.

The most important element of your appeal letter is the reason why your visa was refused, as stated in the rejection letter you received, and why you believe this is incorrect. Your letter must list all reasons, if more than one, why the application must be overturned. 

Aykut Elseven, managing partner at Schlun & Elseven Rechtsanwalte, a law firm that helps people apply for work and investor/entrepreneur visas in the Schengen region, says it is advisable to also contact an immigration lawyer for the appeal process in each state.

Appealing your case is called the “Remonstration Procedure,” Elseven tells TRT World. “But each appeal letter is unique as there could be a lot of different reasons for a rejection.”

“We are dealing on a daily basis with clients, who are consulting us for rejected visa decisions of the embassy. In most of the cases we are successfully going through the remonstration process and helping them to obtain the visa,” he said.

READ MORE:
Why are so many Turks facing Schengen visa rejections?

Supporting documents

Simply writing that the country was wrong for rejecting your visa is not an appeal. Januzi warns that a common mistake candidates make is not providing enough evidence to justify that their application was mistakenly rejected.

Your letter should contain supplemental material that counters the member state’s decision but which supporting documents you include depends on the reason why your application was rejected.

“If a person is rejected for not having enough money to support their visit in the Schengen area for the intended period, the person should be able to provide documents such as bank statements showing the person has enough money to do that,” said Januzi. 

This financial justification can also be supported by documents that prove “the traveller will stay somewhere for free, or that his/her expenses will be covered by a third party,” explains Januzi.

One of the most frequent reasons why visas get denied is a suspicion the applicant may not return to their home country. 

In these cases, helpful documents can be your employment contract or a letter from your employer that says you are obliged to return to work upon the end of your planned trip.

If you do not have a job, other helpful documents could be your student enrolment, proof of property of a business or house and/or evidence you have family members in your home country (marriage certificate, birth certificate of children etc.)

Schengen Visa Info advises your letter stay below two pages and even provides a paragraph-to-paragraph template for candidates. 

The structure and samples on their website can help you craft a solid and convincing appeal but the final decision lies with the embassy and if it deems the grounds of your application strong enough to reconsider its decision. 

Which department makes a decision on your letter depends on the country. For example, the Administrative Regional Tribunal is responsible for visa decisions in Italy but the Directorate of Immigration calls the shots in Norway.

Higher-ranked officers in each body will decide if your rejection should be reversed or not, and some will notify you of their decisions, but the wait time is unpredictable and there is no data on how successful appeals are.

So what happens if your appeal letter was also rejected?

WATCH MORE:
More than 16 percent of Turkish applicants denied Schengen visa in 2021

Taking legal action

Visa applicants who say their visas were wrongfully rejected and whose decision was not overturned upon filing an appeal can take legal action against the member state they applied to.

Turkish Attorney at Law and Founder of firm Cebeci & Bayram, Mert Can Bayram, tells TRT World “to file a lawsuit in the administrative court of the member state…you need to issue a power of attorney to a lawyer in the relevant country.”

“But it should not be delayed, because the freedom to seek justice is limited in every country,” Bayram added.

However, issuing a visa or residence permit is left to the discretion of the Schengen state, Bayram warns, and even without a reason provided it may not give a visa “on the grounds of public order.” 

“And even if a state does give you a visa, it has the right not to allow you to enter the country from the airport,” Bayram added.

Elseven also tells TRT World that besides the Remonstration Procedure and in case the process is not successful, “it is possible to file a lawsuit at the administrative court in (each country)” in most cases.

But he too says legal action may not be advisable if “there is a certain deadline to obtain the visa because the court process can take several months.”

Because the Remonstration Procedure is independent of a lawsuit, a person could theoretically pursue both options at the same time, explains Elseven but typically their firm advises candidates to first appeal the rejection and then consider legal routes.

“If you decide to remonstrate first and the embassy sticks to the rejection decision, you will receive a detailed reasoned remonstration decision, against which you can also again file a lawsuit,” Elseven says.

Involvement of European Union 

Individuals cannot take their case to the European Union directly “since ultimately, this decision is about the independence of countries in their domestic and foreign affairs,” Bayram explains.

However, member states may choose to consult with the Court of Justice of the European Union (CJEU).

“You yourself can request the national court to refer a specific legal question to the (CJEU). In some cases, the national court is obliged to initiate a reference procedure,” said Elseven.

This obligation occurs if the decision can no longer be challenged by means of remedies under national law or if the national court does not wish to apply a Community act because it considers it to be invalid,” Elseven explains.

The CJEU does not pronounce a final judgement in the dispute as this remains a matter for the nation’s court but it does determine in a preliminary ruling how provisions of Community law are to be interpreted or whether they are valid.

An example of this occurred in 2020, when an Egyptian and a Syrian were both rejected for a Schengen visa by the Netherlands after it deemed them “a threat to public order, internal security, public health or the international relations of one of the Member States.”

The decision was the result of objections raised by member states Germany and Hungary but they were not identified in the rejection letter nor were the reasons they had been considered to be such a threat.

They lodged complaints with the District Court, The Hague, arguing that they were deprived of effective judicial protection. The court asked the CJEU which determined that member states must identify the other member states and the specific ground for refusal.

Soaring rejection rates 

The global rejection rate shot up from 5.1 percent in 2014 to 13.4 percent in 2021, according to  Schengen Visa statistics. 

The top five countries with the highest rejection rates for 2021 were Syria at 50.7 percent,  Ghana at 46.3 percent, Nigeria at 46.1 percent, Bolivia at 45.2 percent and Guinea at 42.3 percent. 

The Schengen visa-related problems of Turkish citizens are even on Tuesday’s agenda of the General Assembly of the Parliamentary Assembly of the Council of Europe.

If a Schengen visa rejection will impact the future chances of the same candidate being granted a visa really depends on why the person had their previous application rejected.

“The majority of the EU countries will consult with the Schengen Area systems to check whether an applicant has been rejected by another Schengen country previously,” said Januzi.

“In cases when the applicant has had his/her application rejected by another country due to security risks, suspicion of not intending to return to their home country, or for submitting fake documents, in a good share of cases chances are high that the same will be rejected again,” she said.

“However, if the applicant had their application rejected for reasons such as “reason of travel is not convincing” or “incorrect travel insurance”, then it is very unlikely that a second application will be rejected based on the previous decision,” she added.

So, before even applying for a Schengen visa, make sure you carefully prepare your application, consider your odds and familiarise yourself with the legal process of the member state you apply to.

Source: TRT World

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