Right to be heard under section 45(3) AVG in NAG proceedings: how to read the evidence result, structure a targeted response and stay within the duty to promote the proceedings.
The right to be heard under section 45(3) AVG is the central procedural step before the residence authority issues a decision in NAG proceedings. The statutory wording is brief: the parties are to be given an opportunity to take note of the result of the taking of evidence and to comment on it. Within this window it becomes clear whether an already formed administrative view is still open to movement.
In everyday NAG practice the right to be heard appears as a letter that outlines an evidentiary result and invites a response within a deadline set by the authority. The letter often refers to witness statements, expert opinions, information from other authorities or the state of the file. Parties who let the window pass or who reply in general terms lose an argumentative space that cannot be reconstructed in the same form later before the administrative court.
A response to the right to be heard is not an appeal. It belongs to the ongoing administrative proceedings and takes effect before the decision. Only once the decision is issued and turns out to be unfavourable does the path lead to the appeal to the administrative court. Both levels feed into each other but use different tools.
This article sets out section 45(3) AVG as the legal basis, describes typical NAG situations, walks through the structure of a substance-focused response and distinguishes the duty to promote the proceedings under section 39(2a) AVG from an absolute preclusion. For preparation, file inspection under section 17 AVG is the most reliable basis.
The check sorts the procedural phase, the nature of the evidentiary result and the state of preparation. At the end you can send an enquiry with the chosen context.
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As long as the authority is still investigating and no formal right to be heard has issued, the duty to promote the proceedings under section 39(2a) AVG works both ways. You can already submit documents in a structured way, clear up misunderstandings and identify evidence. This reduces the chance that a later notice builds on an incomplete record. For document handling, the article on the document package is useful.
Where the evidentiary result relies on an expert opinion, the response only lands if it engages with the opinion itself. Review the terms of reference, the underlying facts relied on, the method and the conclusion. Contradictions between the assumed facts and the actual situation, unclear data or an overly narrow scope of inquiry are typical starting points. Where possible, a counter-piece of evidence (such as a recent certificate, a confirmation from the language institute or a private expert opinion) helps on the specific question.
Where the notice relies on party statements or on the state of the file, the point usually concerns contradictions between forms, attachments and the current account of the facts. Explain the differences factually (for example the passage of time, changed personal circumstances, imprecise wording in an older form) and submit current evidence. The duty to cooperate calls for clarification, not for retreat into general points.
Where you know the file, the response should stick strictly to the evidentiary result. Quote the specific statements or passages, name your own counter-evidence and note the legal significance briefly. Topics outside the evidentiary result distract and increase the risk that side points slip into the authority's file knowledge. A short, sorted response is usually stronger in practice than a broad text.
Without file inspection the response often remains speculative. Section 17 AVG grants a party access to the parts of the file that concern their own case. In practice it pays to request access formally and to secure the relevant parts. Once the state of the evidence is known, the response can be drafted precisely. Details are in the article on file inspection in NAG proceedings.
Where the deadline set by the authority is already tight, the response should be filed on time even if not all evidence is yet available. Recap of the evidentiary result, a clear denial where necessary and a short announcement of documents to follow put the file in order. A request for extension is possible in individual cases; it does not replace a substantive response. On service and further deadlines, see the article on service of the NAG decision.
Where the authority has closed the investigation by a procedural order under section 39(3) AVG, there is scope for further submissions only under the rules on supplementing the record. Check whether the order was validly issued, whether new facts or evidence have emerged and how the timing relates to the duty to promote the proceedings. After the decision the path to the appeal to the administrative court remains open.
Section 45(3) AVG provides that the parties are to be given an opportunity to take note of the result of the taking of evidence and to comment on it. The provision grants the party a right to learn the authority's evidentiary result and to express a view before the authority decides. It does not prescribe a form or a fixed deadline; both are shaped by the authority in the individual case.
The result of the taking of evidence is not the same as the legal assessment. What the right to be heard covers are factual bases the authority has drawn from witness statements, expert opinions, information from other bodies or from the file. Legal appraisal follows later in the decision. Arguments against abstract legal views at this stage often miss the evidentiary question.
Section 45(1) AVG clarifies that facts of common knowledge and statutory presumptions require no evidence. Free evaluation of evidence under section 45(2) AVG allows the authority to decide, after careful consideration of the results of the investigation, according to its free conviction whether a fact is to be taken as proven. The right to be heard in paragraph 3 fits into this interplay: it is meant to prevent evidentiary results from feeding into the free evaluation without any objection.
In NAG proceedings the right to be heard often issues where the authority is considering a refusal and wishes to lay out the underlying evidentiary results openly. Typical situations include doubts about secured means of support, questions on locally customary accommodation, information from the registration authority, entries from the central register of residents, statements by landlords or information from the labour market service.
For family members further questions arise on the actual family life where the authority has explored indications of an unlived marriage. For study or research related permits the focus lies on regular activity or on the hosting agreement. In renewal cases the evidentiary result often turns on prior convictions, outstanding social benefits or registration inconsistencies.
Not every authority letter inviting a response is a right to be heard under section 45(3) AVG. A request for improvement, for instance, targets the correction of formal defects, not engagement with an evidentiary result. This distinction shapes the structure of the answer.
The first task is a careful reading of the notice. Authorities often combine several evidentiary results in one letter and formulate interim conclusions. For the response a short list helps: which concrete factual assumption is on the table, what does the authority rely on for that assumption and what legal consequence is threatened.
Every evidentiary result has a source. For witness statements the statement itself is the anchor, not the summary in the notice. For expert opinions the terms of reference, the underlying facts relied on and the methodology matter. For information from other authorities the wording and the reference period are decisive. Without knowledge of the file these anchors are hard to check, which is why file inspection under section 17 AVG normally comes before the response.
It pays to sort each factual assumption into categories: undisputed, partly correct, incorrect or unclear. Only the latter three call for active counter-submissions. The rest is acknowledged briefly. This keeps the focus on the disputed points and the response readable.
A good response follows a clear order. It opens with a short reference to the notice (date, file number, core of the evidentiary result). Point by point a factual engagement follows: what the authority claims, the party's position and which evidence supports that position. Legal arguments remain concise and relate to the disputed point.
Counter-evidence should be identified and attached in a structured way. Documents require complete copies with translation where necessary. Witnesses should be listed with a contactable address and the subject of proof. Expert questions should be formulated concretely; a general request without a subject of proof is rarely accepted as a supplementary commission. The article on documents and translations helps with preparation.
Self-incrimination should be avoided. If the authority has not raised a certain question, it is rarely wise to introduce it in the response. The same applies to older matters that are not the subject of the notice. The response addresses what is actually being put forward.
Section 39(2a) AVG sets out that the parties are to cooperate in the proceedings and are to make their submissions as early and as fully as possible. This duty is the authority's classic lever to appraise late responses critically. It does not act as an absolute preclusion, though: new facts and evidence remain to be considered in principle; their late arrival can, however, feed into the free evaluation of evidence.
In practice the timely and substantive response is the stronger position. Parties who hold back documents and produce them only in the appeal before the administrative court give the authority arguments to weigh the late submission less strongly. Conversely a sorted chronology helps where circumstances have simply arisen later in time.
Section 39(2) AVG reminds authorities that they are to act of their own motion, having regard to expediency, speed, simplicity and cost efficiency. The duty of official investigation does not release the party from the duty to promote the proceedings, but it protects the party from evidentiary results being assumed against them without any real inquiry.
The response to the right to be heard is a procedural step within the ongoing administrative proceedings. It takes effect before the decision and shapes its factual basis. It is neither a remedy nor a substitute for an appeal. Where an unfavourable decision follows, the appeal to the administrative court is the proper remedy, following the deadlines and requirements of the VwGVG.
The two levels build on each other. A well prepared response narrows the arena of dispute before the administrative court, because evidentiary results have been contested in an orderly way and backed up with counter-evidence. Where the response is missing or generic, the administrative court can pick up on the same evidentiary results and hold the appellant to the fact that no substantive engagement with the point has taken place.
Where the authority is inactive, a delay complaint may come into play. That path aims at the decision as such, not at engagement with a concrete evidentiary result, and is to be kept clearly separate from the response.
Section 17 AVG grants the party the right to inspect the parts of the file concerning their own case. Before a substantive response, file inspection is the most reliable basis. It allows for a check of the exact wording of witness statements, the terms of reference and underlying facts of expert opinions or the reference period of information from other authorities.
In practice a written request identifying the relevant parts of the file works best. The authority can restrict access to certain parts where a statute or overriding interests of others so require. Details on the process and its combination with the response are set out in the article on file inspection in NAG proceedings and in our refusal and appeal checklist.
In parallel with file inspection the deadline set by the authority for the response should be kept in view. Where time is tight, a short interim submission with an announcement of a supplementary response after file inspection can be useful. The article on service and deadlines under the NAG explains the formal framework.
In wording, sobriety works better than emphasis. The response is not a plea but an ordered answer to concrete evidentiary results. Formulations such as the submission is expressly contested or the statement does not match the state of the investigation carry more weight where they are backed by evidence.
At the end a concise request stands: that the authority should refrain from a refusal, that it should take supplementary evidence or that it should treat a certain fact as proven. An announcement can be added that further evidence will follow within a certain time, where that is on the horizon anyway. Where a parallel request for legal aid is being prepared, it should be kept clearly separate from the response.
Formally, filing with proof of delivery is advisable (for example registered post, qualified electronic signature or fax with transmission confirmation). The deadline is not a statutory blanket period but an appropriate period set by the authority in the individual case. Where a refusal follows, the topic pages on refusal and appeal in NAG and on documents and deadlines and the glossary entries appeal and administrative court provide orientation.
Section 45(3) AVG itself does not state a fixed deadline. The authority sets an appropriate deadline in the individual case. In practice the range runs from a few days for simple questions to several weeks for extensive evidentiary results. Where the time is not enough, a written request for extension with sound reasoning can be made.
No. Undisputed facts can be acknowledged or left uncontested. Active contest is called for where the evidentiary result is incorrect, incomplete or unclear. A denial without own submissions or counter-evidence rarely weighs heavily in the free evaluation of evidence.
The authority puts the response on file and weighs it within the free evaluation of evidence under section 45(2) AVG. The decision then follows. Where the outcome is unfavourable, the appeal to the administrative court under the VwGVG is open; the actual remedy is therefore not the response itself.
The response is a procedural step before the decision and shapes its factual basis. An appeal is a remedy against an already issued decision and is filed with the administrative court. The two build on each other in substance but follow different deadlines and formal requirements.
How to prepare the response with knowledge of the file.
The remedy after an unfavourable decision.
Delimitation from the right to be heard and the proper response.
Overview on decision, appeal and deadlines.