Higher Administrative Court of Berlin-Brandenburg, Ref.: 3 S 139/24, decision of 28 May 2025
1 Legal context and problem definition
The decision of the Higher Administrative Court (OVG) of Berlin-Brandenburg from 28 May 2025 deals with a fundamental question of residence law: Can a foreign national who is married to a extended Schengen visa is staying in Germany pursuant to Section 6 (2) sentence 2 AufenthG, in the federal territory one Residence permit although he does not have a national visa has entered the country?
The decision clarifies the distinction between a extended short-stay visa (category C) and one National visa for long-term stays (Category D) within the meaning of Section 6 (3) of the Residence Act (AufenthG). The key question here is whether the requirements for Visa exemption according to § 39 sentence 1 no. 1 AufenthV are available.
2. facts of the case
The applicant, an Ethiopian national, travelled to Germany in November 2023 with a Schengen visa for business purposes to the Federal Republic of Germany. This visa was issued by the competent immigration authority in accordance with Section 6 (2) sentence 2 of the Residence Act (AufenthG). 180 days extended. Before the visa expired, the applicant applied for various residence permits:
-
to participate in a language course (§ 16f AufenthG),
-
to take up vocational training (§ 16a AufenthG),
-
for employment as a film maker (§ 19c AufenthG in conjunction with § 25 No. 1 BeschV).
The authorities rejected all applications and ordered a return together with two-year entry ban to. The application for interim legal protection before the Berlin Administrative Court was unsuccessful.
3rd decision of the OVG Berlin-Brandenburg
In its decision, the OVG rejects the appeal. It confirms the opinion of the lower court that the applicant has not entered the country with the legally required national visa and therefore cannot apply for a residence permit in Germany (Section 5 (2) sentence 1 no. 1 AufenthG in conjunction with Section 39 sentence 1 no. 1 AufenthV).
a. No national residence permit due to extended Schengen visa
A Schengen visa extended in accordance with Section 6 (2) sentence 2 AufenthG fulfils the following conditions not the requirements of a national visa within the meaning of Section 6 (3) AufenthG. The exemption provision of Section 39 sentence 1 no. 1 AufenthV only applies if the residence title before entry abroad for a permanent or long-term stay issued was issued. An extended Schengen visa - even with a maximum validity of 180 days - remains a short-stay visa in character.
b. History of origin and systematic interpretation
The legislative history of Section 39 AufenthV also shows that the standard only covers classic national visas within the meaning of Section 6 (3) AufenthG. A Legal extension on extended Schengen visas has never taken place, although Section 6 (2) sentence 2 of the Residence Act later expressly refers to such an extension as a "national visa". However, this designation has No constitutive effect within the meaning of the Residence Ordinance.
c. No application of Section 39 sentence 1 no. 3 AufenthV
A possible exception under Section 39 sentence 1 no. 3 of the Residence Ordinance did not apply here either. This regulation requires that a strict legal entitlement after entry for the issue of a residence permit. Such a legal entitlement did not exist in the applicant's case, as the stated purposes of residence were Target regulations which grant the authorities discretionary powers (Sections 16a, 16f, 19c AufenthG).
d. Objections under Union law and administrative practice are irrelevant
The court expressly clarifies that EU law regulations - in particular the Visa Code (EC Regulation 810/2009) and the Schengen Implementation Convention (CISA) - must also be applied. do not justify a claim for visa exemptionif national regulations clearly regulate the visa requirement.
Even the entry of the extended visa in the Category D (national visa) in the visa database or information in internal administrative regulations of the immigration authorities No position of trust. These internal regulations are not binding for the courts and are not able to influence the legal interpretation.
4. significance for practice
The decision of the OVG Berlin-Brandenburg confirms the restrictive case law on the Conversion of Schengen visas in residence permits under national law. A stay on the basis of a Schengen visa - even if it is extended to 180 days - opens up the following possibilities No option for a residence permit in Germany. Anyone planning a longer-term stay in Germany (e.g. for training, employment or family reunification) must have the relevant national visa before entering the country at the competent German diplomatic mission abroad.
5 Legal conclusions
The decision has the following implications for legal advice and official practice:
-
Extended Schengen visas (Section 6 (2) AufenthG) are not considered to be fully-fledged national visas within the meaning of Section 6 (3) AufenthG.
-
One Visa exemption according to § 39 sentence 1 no. 1 AufenthV always requires entry with such a national visa.
-
Target regulations such as § 16a or § 16f Residence Act no strict requirement for the issue of a residence permit that could lead to the application of § 39 sentence 1 no. 3 AufenthV.
-
Administrative regulationseven if they offer further interpretation aids, are not legally binding for judicial interpretation.
6. process information
-
Previous instance: Administrative Court of Berlin, decision of 23 October 2024 - VG 30 L 725/24
-
Type of procedure: Appeal for interim legal protection pursuant to Section 80 (5) VwGO
-
Value in dispute: 2,500 EUR
-
Decision on costs: § Section 154 (2) VwGO
-
Incontestability: § Section 152 (1) VwGO
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, please feel free to call us at 0221 - 80187670 or send us an email at or send an email to info@mth-partner.de info@mth-partner.de
Lawyers in Cologne advise and represent clients nationwide in immigration law.
