How to disclose a BFA official’s personal connection under section 7 AVG and assess a possible procedural error in an appeal.
Mag. Mirela Saric
Attorney at law · German and BCS
Mirela Saric assists clients in immigration matters with a clear structure: review the decision, secure deadlines, define the strategy and act quickly. She advises in German and Bosnian/Croatian/Serbian.
If a BFA official has a personal connection to a party or has already worked on the same case in another role, the facts should be documented openly and at an early stage. Section 7 AVG requires administrative officials to abstain and arrange representation in defined situations.
In an entry ban case, the concern needs a factual explanation. The relevant points are verifiable facts about the relationship, earlier work and the procedural step involved. An appeal should keep the alleged procedural error separate from the substantive dispute about the return decision, entry ban and threat assessment.
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Classify the concrete fact and secure the documents connected with it.
Record who is connected to whom, what supports the information and how the connection could relate to the handling of the case. Ask that the submission be placed in the file and assessed.
Check whether the official participated in the challenged decision, acted as a party’s representative or has another form of prior involvement covered by the provision. Keep those facts separate in the procedural account.
First separate your own observations, documents and reliable information. Keep assumptions identifiable as assumptions. Only then can it be assessed whether an important reason casts doubt on full impartiality.
Section 7 para 1 AVG lists several situations. An administrative official must abstain when the official, a relative or a protected person represented by the official is involved. The same applies where the official was or still is appointed as a party’s representative.
The provision also covers other important reasons that are capable of casting doubt on full impartiality. Earlier participation in the challenged decision is expressly included for appeal proceedings. The submission should identify the applicable category precisely.
A mere assumption about a friendship or acquaintance rarely establishes the concern. Relevant facts may include joint representation, a family connection, documented contact with the other side or earlier work for a person involved in the case.
Describe the roles and dates. Provide documents, powers of attorney, emails, summonses or other reliable records in an organised form. The material should show which connection is alleged and why it may matter for handling this entry ban.
Personal connection must be distinguished from an unfavourable legal assessment. An adverse decision does not by itself prove bias. The concern needs a concrete fact beyond the outcome of the decision.
Inform the authority about the possible ground and formulate it so the responsible office can assign it to the file. Record the date, recipient, content and attached evidence. A clear chronology makes later review easier.
If the connection is ignored or the official continues to participate, include the matter in the appeal. Identify the official, the procedural step and the fact from which the concern about impartiality arises.
The issue does not replace the substantive challenge to the decision. Grounds concerning personal connection, evidence, the threat assessment and proportionality should be developed separately.
Section 7 AVG provides for abstention by the administrative official and for arranging representation. It does not give a party an independent rejection procedure identical to a civil judge challenge. The facts must be brought into the administrative proceedings and, where appropriate, the appeal.
In cases of imminent danger, a biased official may carry out acts that cannot be postponed if another official cannot immediately take over. This exception concerns the urgency of the particular act. It does not remove the ground for the remaining procedural steps.
Whether a procedural error affects the decision depends on the file, the step concerned and the content of the appeal. Secure the decision, proof of service, correspondence and all records concerning the personal connection together. The later effect of a SIS alert across Schengen is a separate issue to assess.
Practical point: Personal connection belongs in the file as a verifiable fact. Describe the relationship, role, date and procedural step separately from the substantive arguments against the entry ban.
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A feeling alone is generally not enough. The concern needs concrete facts capable of establishing an important reason within the meaning of section 7 AVG.
Section 7 AVG requires the administrative official to abstain and arrange representation. It does not create an identical independent rejection procedure for the party as in a civil judge challenge. The facts should be submitted in the administrative proceedings and the specific procedural error should be raised in the appeal.
In an urgent situation, the biased official may carry out acts that cannot be postponed if another official cannot take over immediately. Whether this exception applies depends on the act and its urgency.
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