Decision of 25 August 2022 - Ref. 5 K 1902/22 (legally binding)
Court: Administrative Court Cologne - 5th Chamber
Field of law: Aliens law / immigration of skilled labour
Standards: Section 18b (1) AufenthG, Section 39 (2) AufenthG, Section 25 VwVfG, Section 155 (4) VwGO, Section 153 (3) VwGO
Facts
The plaintiff, an Indian national with a German university degree (MA in International Sports and Event Management), applied for a residence permit to pursue qualified employment in accordance with Section 18b (1) of the Residence Act. However, the application was rejected several times due to a lack of approval from the Federal Employment Agency (BA).
Although the plaintiff submitted several corrected employment contracts with his employer - most recently with standard market conditions and a clear professional assignment to the qualification - the BA's approval was repeatedly refused. This was done with varying and sometimes insufficiently substantiated arguments, such as a missing company number, allegedly irrelevant training or contradictory job descriptions.
In addition, the plaintiff repeatedly received legally incorrect information from the responsible immigration authority, for example that the decisions of the Federal Agency were "not contestable" and that he "simply had to accept" them. This led to months of uncertainty while the claimant remained in Germany without a valid residence permit.
Reasons for the Court’s Decision
The Cologne Administrative Court discontinued the proceedings in a ruling dated 25 August 2022 after the parties involved had agreed that the matter was closed. This happened after approval for employment was granted after all in July 2022 - on the basis of a newly formulated employment contract and a clear activity as a "sports business consultant".
Legal assessment and categorisation
1. applicability of Section 18b (1) AufenthG
The provision allows academic specialists who have obtained their university degree in Germany to be granted a residence permit for qualified employment. One of the requirements is the approval of the Federal Employment Agency in accordance with Section 39 (2) AufenthG.
The court clarified that the legal requirements were basically fulfilled in the specific case. The BA's negative decisions were legally possible, but not comprehensible in terms of content, as there was no concrete evidence of professional unsuitability and the job description had not been sufficiently assessed.
2. consent according to § 39 AufenthG - binding on fact-finding
According to Section 39 (2) AufenthG, the BA must check whether
-
the employment is carried out under appropriate working conditions (§ 39 para. 2 no. 1),
-
the activity corresponds to the qualification (§ 39 Para. 2 No. 2),
-
a concrete, domestic employment relationship exists (§ 39 para. 2 no. 3).
The court criticised the fact that the BA had not carried out a substantiated examination, but had instead made a blanket reference to the alleged "lack of qualifications". No evidence was provided as to how the job did not correspond to a university degree, nor was it explained why the title of "IT employee" or "sports consultant" did not match the study profile.
In addition, according to the BMI's application notes on the Skilled Labour Immigration Act, it is not necessary for the activity to correspond exactly to the field of study - a certain proximity to the qualification is sufficient.
3. breach of consultation obligations (Section 25 VwVfG)
In the opinion of the court, the foreigners authority violated its duty to advise resulting from the Administrative Procedure Act. The plaintiff was given incorrect or misleading information, for example that BA decisions could not be influenced or legally reviewed. This is legally incorrect and breaches the duty to explain the legal framework to applicants in a factually correct manner.
In addition, the company failed to point out specific errors in the documents submitted - such as the contradictory information on qualifications ("no degree" despite having master's certificates).
4. procedural errors and protection of legitimate expectations
The case demonstrates how inadequate communication between authorities and applicants can lead to serious uncertainties - such as the loss of a residence status or the threat of deportation. The court expressly pointed out that the procedures did not fulfil the constitutional ideal of fair, comprehensible and transparent administrative action.
It is particularly critical that the applicant was served with a negative decision with a threat of deportation without a hearing, although essential documents were still outstanding or were not even available internally.
Significance for practice
This judgement is an example of the structural weaknesses in the skilled worker immigration process:
-
The decision-making practice of the Federal Employment Agency appears to be inconsistent and insufficiently documented.
-
The immigration authorities are obliged to provide applicants with complete and accurate advice - especially in the context of highly complex procedures such as Section 18b AufenthG.
-
The employer's assessment of the professional suitability of a foreign skilled worker must be taken into account - as expressly required by the BMI's application instructions.
Conclusion
The case VG Köln - 5 K 1902/22 demonstrates the urgency of improved immigration of skilled workers based on the rule of law. Authorities must organise their communication with foreign applicants clearly, completely and correctly. Failure to do so will not only result in undue hardship for those affected, but also avoidable legal disputes.
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.
