On 3 March 2022, the Administrative Court of Aachen issued a landmark ruling on the question of the conditions under which a foreign student is still entitled to a residence permit under Section 16b of the German Residence Act (AufenthG) after dropping out of a degree course and switching to a new course. The decision was made in the case of a Cameroonian applicant whose residence permit had expired and who only belatedly applied for an extension after she had previously been forced to discontinue her mechanical engineering studies due to finally failing them and started a new degree programme in industrial engineering without the approval of the immigration authorities.
The case was dismissed by the Administrative Court. In its extensive grounds for the judgement, the court stated that there was no entitlement to an extension or new residence permit, as neither the requirements for an extension in accordance with Section 16b (2) sentence 4 AufenthG nor those for a new permit in accordance with Section 16b (1) in conjunction with (4) sentence 1 AufenthG were met. In addition, the threat of deportation and the ban on entry and residence based on it were confirmed as lawful.
Background: The applicant's course of study and application situation
The applicant had travelled to Germany in 2013 with a visa for the purpose of a preparatory language course. She then began studying mechanical engineering at a German university. The originally temporary residence permit was extended several times. In 2018, the applicant was de-registered after she finally failed a central examination. At this point, she had only earned 27 of the 210 credit points required and was already in the third attempt in several subjects. She then enrolled on the industrial engineering degree programme at another university in the 2018/2019 winter semester. This change took place without the approval of the responsible immigration authority.
She only applied for an extension in May 2019, two months after her last residence permit expired. The responsible immigration authority rejected the application, as no positive study progress was recognisable and the late application had not triggered a fictitious effect. In her lawsuit, the applicant sought the cancellation of the rejection order and the obligation of the authority to grant or extend the residence permit.
No extension in case of late application and lack of fictional effect
In the opinion of the Administrative Court of Aachen, the action was already unfounded because the plaintiff had submitted her application for an extension late. According to Section 81 (4) sentence 1 AufenthG, such an application must generally be submitted before the previous residence permit expires in order for the fictitious effect to occur, i.e. the legal residence is deemed to continue during the processing period. This requirement was not met.
Pursuant to § 81 Para. 4 Sentence 3 AufenthG, the immigration authority can exceptionally order a fictitious effect retroactively if there is undue hardship. However, such hardship can only be assumed if the late application is not attributable to the applicant's fault and a claim to the residence permit applied for could be expected after a summary examination. The court found that the applicant had not provided any comprehensible or credible reasons for the delay. In particular, she had not specifically described the extent to which organisational ambiguities between the university and the foreigners authority had prevented her from submitting her application on time.
The fictitious certificate issued retrospectively could not replace such a retroactive order. This is because it only expressly referred to a period from July 2019 and therefore not to the date on which the original residence permit expired. The court also did not see any conclusive behaviour on the part of the immigration authority that would suggest an implied order of fictitious effect.
The change of degree programme as a legally relevant change of purpose
Another central aspect of the decision is the legal classification of the change of study programme by the court. According to Section 16b (4) sentence 1 AufenthG, a change of purpose during a stay for the purpose of studying is only permitted in certain exceptional cases regulated by law. These include, for example, a change to a qualified vocational training programme, taking up employment as a skilled worker or the existence of a legal entitlement. The Administrative Court of Aachen found that a change of degree programme also regularly constitutes a change of purpose of residence, at least if the change does not take place within the first 18 months after the start of studies and the previous degree programme has been definitively discontinued.
In this specific case, the mechanical engineering degree programme at a university had been replaced by a new degree programme in industrial engineering at a university of applied sciences. Although there were certain overlaps in terms of content, the new degree programme was structurally and institutionally clearly distinguishable from the previous degree programme. The fact that only a few examinations from the mechanical engineering course were recognised also argued against a mere shift in focus.
Such a change was therefore not to be regarded as a continuation of the same purpose of residence, but as its abandonment and reestablishment. As the applicant was not entitled to a residence permit for the new purpose and was also unable to present a visa for this purpose, it was out of the question to grant it. The so-called prohibition of change of purpose applies in full.
No positive prognosis for graduation within a reasonable period of time
The court also examined whether the applicant could at least be entitled to a new residence permit by analogous application of Section 16b (2) sentence 4 AufenthG. This provision allows for an extension of the residence permit if the applicant can still be expected to successfully complete their studies within a reasonable period of time. The provision is also applied by analogy by case law in cases of a change of degree programme, provided that the legislator clearly did not intend a loophole and the new situation is comparable.
However, after a comprehensive analysis, the court came to the conclusion that no positive prognosis could be made. The plaintiff had only achieved a low level of academic performance since starting her second degree and had not even enrolled in later semesters. She was not enrolled in the winter semester 2021/2022 and had not taken any examinations in the summer semester 2021. In total, she had only completed 47 out of 210 CP. Taking into account a regular study load of 30 CP per semester, a further six full semesters would have been required to graduate. In view of the very slow progress made in the past, it seemed objectively impossible to graduate in this period of time.
The court pointed out that a prognosis decision in residence law must always be based on objective criteria. The applicant's subjective assessment that she was motivated and willing to seriously continue her studies was not sufficient. A concrete increase in performance could not be proven. The study progress prognosis issued by the university of applied sciences, according to which a degree would be possible in six semesters with optimal progress, was also based on premises that were already not fulfilled.
Threat of deportation and entry ban lawful
The threat of deportation, which was also contested, was confirmed as lawful by the court. As the applicant no longer had a valid residence permit, she was obliged to leave the country in accordance with Section 50 (1) AufenthG. The wording "deportation to the home country" satisfied the requirements of Section 59 (2) AufenthG in this specific case, as it was clear from the file that Cameroon was the intended destination country.
The two-year entry and residence ban in accordance with Section 11 (1) sentence 1 of the Residence Act was also deemed proportionate. The statutory maximum period of five years was clearly undercut. In the opinion of the court, there were no special mitigating circumstances that would have made it necessary to shorten the ban period.
Conclusion: Consistent application of residence law and clear reminder of study responsibility
With its judgement, the Administrative Court of Aachen has made it clear that foreign students in Germany cannot maintain their residence permit by formal enrolment alone. Rather, the decisive factor is continuous academic performance that demonstrates realistic prospects of success towards a degree. Dropping out of studies, repeated third attempts, late applications and uncoordinated changes of study programme without the consent of the immigration authorities regularly lead to the refusal of a residence permit.
The judgement underlines the importance of submitting applications in good time, avoiding delays in studies and interpreting the legal requirements for the purpose of residence strictly. At the same time, it calls for careful study planning and emphasises that the right of residence is geared towards academic success and not mere presence.
The decision provides clear guidance for affected students, universities and counselling centres: without structured and verifiable progress in their studies, their legal residence in Germany is at risk. Anyone who is unable to complete a degree in the foreseeable future must expect the legal consequence of being required to leave the country and a possible re-entry ban.
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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