Administrative Court of Berlin (Verwaltungsgericht Berlin), 15 July 2011, case: 35 K 253.10 V
According to section 16 para. (5) of the German Residence Act (Aufenthaltsgesetz), a temporary residence permit (Aufenthaltserlaubnis) may also be granted for attending a language course that does not serve to prepare for a course of studies. A special purpose for learning the German language is not required in this context.
In practice, however, it is difficult for third-country nationals who have never been to Germany before to obtain a visa or temporary residence permit in accordance with section 16 para (5) of the German Residence Act, since the competent embassies or the foreign citizens’ authorities often assume that the language course is only a pretext for illegal entry into Germany.
In these cases, the only option left to the applicant is to remonstrate or take legal action against the negative decision. In the case discussed here, the Administrative Court of Berlin had to decide on a Cuban national’s application for a visa to attend a language course.
Important note: Since 2020 the language course visa will be granted according to section 16f para (1), but the findings of the court are still valid
Facts of the case
Cuban national applied for a visa for a language course
The plaintiff, born in 1980, was a Cuban national. After obtaining university entrance qualifications in Cuba, she had trained as a hotel and restaurant clerk. In Cuba, she worked in the restaurant business.
In 2003, she made the acquaintance of a German citizen, born on 22 August 1954, who worked in Germany as a self-employed dentist. In the period from July 2005 to October 2005 as well as from July 2006 to October 2006, the plaintiff stayed in the Federal Republic of Germany on a valid visitor’s visa. From September 2007 to August 2008 she completed a language course in Germany and was awarded the “START DEUTSCH 2” certificate achieving a grade of “Good” on 18 September 2008. Her living expenses were financed by her dentist friend during this time.
On 18 January 2010, the plaintiff again applied to the German embassy in Havana for a visa to attend a language course at a German Volkshochschule (adult education centre), which was scheduled for the period from 22 February 2010 to 30 July 2010 with 20 teaching units per week and for which the plaintiff had signed up.
In a supplementary statement of 17 January 2010, the plaintiff had told the embassy that she wanted to further improve her command of German with the language course in order to be able to find a job in tourism in the future. In a letter of 17 February 2010, the foreign citizens’ authority that was asked to participate in the proceedings, refused to approve the issuance of a visa on the grounds that the plaintiff had sufficient knowledge of German for her job as a waitress in Cuba. By a decision of 18 February 2010, the German embassy in Havana then rejected the applicant’s application without giving reasons. In a letter of 22 February 2010, the dentist informed the foreign citizens’ authority that the plaintiff intended to study in Germany. Subsequently, the applicant was questioned at the embassy on 22 March 2010 about the intended purpose of her stay. During questioning, she stated that she would like to continue learning German in order to reach the C1 level enabling her to study tourism in Germany at a later point in time. She had not yet informed herself about possible academic courses or signed up for a language course to prepare for university studies.
German embassy rejected the visa application
In an e-mail from the foreign citizens’ authority to the embassy of 29 March 2010, the embassy informed the applicant that it would not approve the issuance of a visa because it shared the concerns of the German embassy in Havana that she lacked serious intentions to study. Thereupon, the German embassy in Havana refused to issue a visa for a language course in a decision of 29 March 2010, again without stating reasons and without advice on legal remedies.
The plaintiff then filed an action with the Administrative Court of Berlin (Verwaltungsgericht Berlin) on 4 June 2010.
As reasons, she essentially argued that the negative decision of the embassy was unlawful and that it violated her rights. She had already successfully completed a language course in Germany and had returned to Cuba within due time. She claimed that she wanted to improve her language skills and study for a bachelor’s degree in health and tourism management at Nürtingen-Geislingen University. This required the recognition of her Cuban university entrance qualifications and the Small German Diploma of the Goethe Institute (level C2).
Decision of the administrative court of Berlin
Administrative court of Berlin ruled against the German embassy
The Administrative Court of Berlin essentially found in favour of the plaintiff. In the Administrative Court’s opinion, the negative decision of the German embassy in Havana was unlawful and thus violated the plaintiff’s rights.
It held that the legal basis for granting the visa was section 6 para. (4) of the German Residence Act. According to this, a visa for the federal territory (national visa) is required for longer stays, which is issued before the foreign citizen enters the territory. Its issuance its governed by the regulations applicable to the temporary residence permit, the permanent settlement permit and the EU long-term residence permit. The court stated that the issuance of a visa applied for in order to attend a language course is hence based on section 16 para. (5) of the German Residence Act and section 5 para. (1) of the Residence Act. As a result, a foreign citizen could be granted a temporary residence permit for a language course that does not serve to prepare for a course of studies. Moreover, the general requirements for granting the permit under section 5 para. (1) of the German Residence Act would have to be fulfilled.
The court ruled that these conditions were met. The plaintiff had proved that her livelihood was secured for the duration of the language course by her dentist friend’s declaration of commitment of 13 November 2009. The circumstance that the expected validity of the visa was dated 15 February 2010 in the declaration of commitment was irrelevant. Rather, it could readily be assumed that the dentist friend would also be willing and financially able to pay the plaintiff’s living expenses for a future period, as he had already done multiple times in the past. It could be assumed that the plaintiff would provide the required evidence of health insurance for the term of the planned language course, if the defendant, within the scope of its discretion, could promise that a visa would be granted.
In all other respects , the court held that the requirements of section 16 para. (5) of the German Residence Act were met. In contrast to section 16 para. (1) of the German Residence Act, the court ruled that section 16 para. (5) of the Residence Act governs an “isolated” language course that does not serve to prepare for a course of studies. A language course that prepares for a course of studies within the meaning of section 16 para. (1) sentence 2 of the German Residence Act only covered language courses that directly precede a corresponding academic course and are required for this purpose. This was not the case for the Deutsch-Intensiv-B1 advanced language course offered by the Volkshochschule. The language course was only intended to improve the plaintiff’s command of German so that she could then complete a language course preparing her for a course of studies and concluding with a C2 level language qualification as a prerequisite for university studies. For an “isolated” language course, the court also found it irrelevant whether all of the requirements for an intended subsequent course of studies were already met at the time of the court decision. This was because an “isolated” language course lacked the necessary inner connection between language course and course of studies. In this respect the court considered it irrelevant whether an improved command of German could prospectively serve for an intended course of studies in the future.
In accordance with section 16 para. (5) of the German Residence Act the issuance of a visa for attending a language course was at the defendant’s discretion. According to section 114 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO), the court therefore only had the power to examine whether the rejection of the administrative act was unlawful because the statutory limits of discretion had been overstepped or discretion had been used in a manner not corresponding to the purpose of its empowerment.
This was the case here, because it was not apparent that the defendant had used its power of discretion at all. The decision had neither specified any reasons nor discretionary considerations. The court held that this lack of discretion was not cured by the discretionary considerations subsequently provided in the administrative court proceedings.
The power of the discretion of the court was bound by the German basic law
The defendant’s power of discretion was bound by Article 3 para. (1) of the German Basic Law (Grundgesetz – GG) and the General Administrative Regulation on the German Residence Act (Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz), which governed its discretion. According to clause 18.104.22.168 of the General Administrative Regulation on the German Residence Act, a temporary residence permit should be granted to a foreign citizen for the attendance of an intensive language course merely for the aim of acquiring German language skills if his or her livelihood is secured for the time of his or her expected stay in the federal territory. The requirements for an intensive language course (at least 18 teaching units per week) were met in the present case. The defendant’s discretion was required due to the administration’s commitment to its own acts in that a visa for a language course should generally be granted if the envisaged purpose of the stay was in conformity with the public interest of promoting the German language and the foreign citizen’s motives were comprehensible and plausible, no other purpose of stay was being sought with the intended visa and the risk of illegal immigration was low.
In the court’s view, it should be taken into account in the context of section 16 para. (5) of the German Residence Act that it is always in the public interest that foreign citizens learn German in order to help the promotion of German culture. The motivation for the envisaged language course had to be taken into account in the discretionary considerations; in particular, previous stays and language courses that had already successfully been completed. Moreover, the court held that previous vocational qualifications and the intended purpose of the envisaged language course with regard to personal development and career planning and the desired qualifications had to be included in the assessment of the individual case. In addition, the court stated that other circumstances, in particular the applicant’s personal and family ties with Germany, also had to be taken into account. In this way, aspects could also be considered that suggested that the intended language course was merely a pretext for concealing another purpose of a stay for which a corresponding visa could not be issued. Finally, the court held that the economic and family roots of the foreign citizen and risk of illegal immigration should be included in the overall assessment.
According to these criteria, the defendant would have to observe the court’s legal opinion in the context of a new discretionary decision. In the present case, there were plausible reasons for granting the applicant the requested visa. The obligation asserted by the defendant could only be justified if the defendant’s discretion were reduced to zero and a refusal were always a discretionary error. However, this was not the case. The fact that the dentist friend would finance the plaintiff’s stay, did not allow for the conclusion that the intended language course was merely a pretext for realising a longer visit. The plaintiff had successfully completed a language course during her previous stay. The risk of illegal immigration in the plaintiff’s case was also considered rather low, as the plaintiff had previously always left the country in due time. On the other hand, however, it had to be considered to the plaintiff’s detriment that she had only substantiated her intentions to study in Germany and provided a plausible motive for a further language course after the first refusal of a visa, while the plaintiff’s letter of 17 January 2010 had not yet mentioned any intentions to study in Germany.
As regarded the envisaged further language course and now specified motivation of the plaintiff, the defendant could also take into account whether the plaintiff met the necessary university entrance requirements for an intended course of studies in Germany and whether she could not study in Cuba instead. Insofar as the plaintiff, while in Cuba, did not have sufficient sources of and access to information on studying in Germany, the court held that it would be incumbent upon her to authorise and instruct someone in Germany to make the necessary inquiries and obtain the necessary recognitions. The defendant could also take into account the plaintiff’s age, her previous professional training and situation, and the duration of the intended language course.
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