Aachen Administrative Court rules on retroactive residence permits under the Skilled Labour Immigration Act - No lane change possible for qualified tolerated persons
On 29 July 2021, the Administrative Court of Aachen made an important decision in proceedings with the case number 8 K 2528/20 on the classification of qualified tolerated persons under residence law within the framework of the Skilled Immigration Act. The focus was on the question of whether a tolerated foreigner can retroactively claim a residence permit in accordance with the provision of Section 18 of the Residence Act in the old version and, from 1 March 2020, in accordance with Section 18b (1) of the Residence Act in the new version. The aim of this retroactive change was to gain access to the simplified requirements for a settlement permit. However, the court rejected this application and confirmed the legal separation between humanitarian residence permits for tolerated persons and residence permits for regular skilled workers.
Facts: From study to toleration to employment
The plaintiff, a Tunisian national, travelled to Germany in 2008 to study mechanical engineering. After initially residing in Germany legally, he had problems extending his residence permit due to delays in his studies. As a result, he was only granted tolerated stay until he successfully completed his studies in January 2018. After completing his studies, he was granted a residence permit for the first time in April 2018 in accordance with Section 18a(1)(1a) of the Residence Act in the version valid until 29 February 2020. This regulation was specifically aimed at qualified tolerated persons and enabled him to work as a materials tester in a company in North Rhine-Westphalia. According to the Aachen Chamber of Crafts, the job was appropriate for his university degree.
The residence permit was extended again in August 2019 by the responsible immigration authority on the basis of the plaintiff's application. At this time, he only applied for an extension of his previous residence permit. It was not until May 2020, and therefore after the Skilled Immigration Act came into force, that the applicant formally applied for a residence permit to be issued to him retroactively in accordance with the old version of Section 18 of the Residence Act and, from 1 March 2020, in accordance with the new version of Section 18b of the Residence Act. The aim was to obtain a residence permit under the regular skilled labour immigration regime and thus gain earlier access to a permanent settlement permit.
The decision: No entitlement to a retroactive residence permit without a clear application
The Administrative Court clarified that the retroactive granting of a residence permit generally requires a formal application. In this specific case, this was only received on 22 May 2020. The earlier contacts with the immigration authority, in particular emails and the application form from August 2019, expressly referred to the extension of the previous residence permit for tolerated persons in accordance with Section 18a of the Residence Act. The court found that, from the authority's perspective, these applications were not to be interpreted as a more extensive application in accordance with Section 18 of the Residence Act. There was also no obligation to provide clarification or counselling in the sense of a reinterpretation of the application. The immigration authority was not obliged to inform the plaintiff of the possible advantages of another residence permit, in particular not of a change in the law that only came into force months later.
The appropriateness and systematics of the Skilled Labour Immigration Act speak against a lane change
A central aspect of the court's reasoning was the deliberate legislative separation between labour migration via the Skilled Immigration Act and the residence permit for formerly tolerated persons. The court explained that the Skilled Immigration Act had created a two-track system with effect from 1 March 2020. On the one hand, there are residence permits for foreign skilled workers who enter Germany regularly with a visa for gainful employment or who are already living in Germany legally. On the other hand, there is a separate set of rules for tolerated foreigners who can be granted a residence permit under certain conditions in accordance with Section 19d of the Residence Act.
The court made it clear that a so-called lane change, i.e. the transition from the regime of toleration to skilled labour immigration, is not provided for. Rather, Section 19d of the Residence Act represents an independent, conclusive special regulation. A subsequent reinterpretation or correction of the residence permit would undermine the legislative system. Furthermore, in the opinion of the court, the plaintiff was also not entitled to enter the scope of application of Section 18b of the Residence Act, as this is expressly not tailored to persons who have a residence permit in accordance with Section 19d of the Residence Act.
No simplified settlement permit for holders of a residence permit in accordance with Section 19d AufenthG
One of the plaintiff's main motives was the desire to obtain a residence permit that would give him easier access to a settlement permit. The new regulation in Section 18c of the Residence Act stipulates that skilled workers who have a residence permit in accordance with Section 18a or Section 18b can apply for a settlement permit after just two or four years. However, holders of a residence permit in accordance with Section 19d are deliberately excluded from this privilege. The court referred to the legislative materials, according to which this differentiation expressly serves the goal of controlling labour migration in a targeted manner and not enabling it via detours from the tolerated status.
No discretionary powers of the authority - no new decision possible
As the formal requirements for granting the residence permit had already not been met, the court was not obliged to return the case to the authorities for a new decision. A claim for a new decision taking into account the court's legal opinion was also rejected. As a result, the action as a whole was not successful.
Significance of the judgement for German residence law
This judgement has far-reaching implications for residence law and the practice of immigration authorities. It confirms that the legislator deliberately created two separate residence law pathways: one for regular skilled workers with a visa or residence title and one for formerly tolerated persons. The decision also emphasises that switching between these systems is not permitted without an explicit legal basis. Anyone seeking a better legal position under residence law must apply for this clearly and in good time. Late or unclear applications cannot be subsequently reinterpreted as a more favourable title.
Conclusion: Immigration of skilled labour only via the intended legal route
In summary, the decision makes it clear that the German Residence Act provides for a structured, clear-cut system that differentiates between different groups of foreigners. Even after successful integration and qualified employment, a tolerated foreigner cannot automatically switch to the regime for skilled workers. The residence permit for qualified tolerated persons remains a separate title with its own requirements and legal limits. Anyone wishing to benefit from the advantages of the Skilled Immigration Act must apply for this via the legally prescribed route and in compliance with the procedural rules. The judgement therefore strengthens legal clarity and the steering function of German migration policy.
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.
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