VG Schleswig-Holstein, decision of 15 February 2022 - Ref. 11 B 99/21
At the centre of these urgent administrative court proceedings was a Thai national who had applied for a residence permit to continue practising her profession after completing a one-year training course to become a geriatric care assistant. The Schleswig-Holstein Administrative Court had to decide on the legality of the immigration authority's rejection.
Skilled labour shortage vs. right of residence
Despite the obvious shortage of skilled workers in the care sector, the court emphasised that the formal legal requirements for the granting of a residence permit must still be met. In particular, the decisive factor is whether the person concerned is considered a skilled worker within the meaning of the Residence Act.
What is considered "qualified vocational training"?
The applicant had only completed a one-year training programme to become a geriatric care assistant. According to Section 2 (12a) of the Residence Act (AufenthG), vocational training is only considered "qualified" if it lasts at least two years. This requirement was not met in this case. The consequence: No entitlement to a residence permit in accordance with § 18a AufenthG.
No change of purpose and no exception according to § 19c AufenthG
The applicant was also unable to point to a lawful change of purpose of residence. She had originally entered the country for educational purposes in accordance with Section 17 AufenthG (old version). A subsequent change to an employment permit in accordance with § 18a or § 19c AufenthG was not implemented. An exception pursuant to Section 19c (3) AufenthG ("public interest") was also not applied, as this is a discretionary provision that does not establish a legal entitlement.
Lack of justification for the departure deadline
The urgent application was nevertheless partially successful: the court criticised the deadline for departure set in the decision because it had been set without individual justification. The authorities had failed to fulfil the legal requirements of Section 59 Residence Act and Section 39 Administrative Procedure Act (or state law). The court therefore ordered the suspensive effect of the objection with regard to the departure deadline until the decision in the main proceedings.
Importance for nursing staff from abroad
For third-country nationals who wish to work in the care sector, the decision makes it clear that the legal requirements for a residence permit to practise a profession are formally strictly regulated. A one-year training programme is not sufficient to be considered a skilled worker within the meaning of the Residence Act. Employers and those concerned should therefore check whether a subsequent residence permit can be applied for on a secure legal basis before starting training or concluding a contract.
Conclusion: No residence permit without two years of training
The case is an example of how integration policy arguments or labour market needs do not automatically lead to a right of residence. Compliance with the formal criteria of the right of residence remains decisive - in particular the definition of qualified vocational training. The attempt to secure a permanent residence permit by working as a geriatric care assistant is usually doomed to failure if the two-year training period cannot be proven.
FAQ - Residence permit for carers from abroad
1. is a one-year training programme as a geriatric care assistant sufficient for a residence permit in Germany?
No. According to the Residence Act (Sec. 2 (12a) AufenthG), vocational training must last at least two years to be considered "qualified".
2 Can I stay in Germany after training as a care assistant?
Only if the training programme meets the requirements of qualified vocational training and a corresponding residence permit has been applied for and approved. This is generally not the case for one-year training programmes.
3. are there exceptions for carers due to the shortage of skilled workers?
Section 19c (3) AufenthG provides for a discretionary provision in the event of public interest. However, this does not automatically result in a right to residence.
4 What happens if my application to extend my residence permit is rejected?
A deadline for departure may be set and deportation threatened. An appeal can be lodged against the decision and, if necessary, legal action can be taken. In certain cases, an urgent application can be made to the administrative court.
5 What are the requirements for a residence permit as a skilled worker (Sec. 18a AufenthG)?
What is required is at least two years of recognised vocational training or an equivalent qualification as well as a concrete job offer in a corresponding occupational field.
6 What needs to be considered when changing purpose (e.g. from training to employment)?
Changing the purpose of residence during an ongoing training programme is only permitted under certain conditions. After dropping out of training, there is usually no legal entitlement to a different residence title.
Source: Administrative Court of Schleswig Holstein
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