Administrative Court Munich - Decision of 29 November 2024 - M 24 E 24.6836
The Administrative Court of Munich ruled on 29 November 2024 that the ancillary provision „The residence permit expires four weeks after termination/termination of employment and upon receipt of benefits under SGB II or SGB XII“ in a residence permit for a foreign trainee is unlawful.
The immigration authority had granted the Moroccan applicant, who had entered the country as part of the skilled labour procedure in accordance with Section 81a AufenthG, a residence permit to train as a carer. After cancelling the school contract and the training company, she was informed that her residence permit would automatically expire four weeks after the end of her training. The court stopped this procedure: The residence permit continues to exist, the ancillary provision must be cancelled.
Background: Residence permit according to § 16a AufenthG
The applicant came to Germany in 2023 with a visa to train as a carer. After changing schools, her residence permit was extended, but on the condition that it would expire automatically four weeks after the end of her training or if she was receiving benefits under SGB II or SGB XII.
After her nursing school terminated the training relationship in September 2024, the immigration authority assumed that the residence permit would automatically expire in mid-October 2024. It asked the applicant to leave the country and threatened to report her for unauthorised residence.
However, the young woman had already submitted a new training contract starting in January 2025 and applied for interim legal protection - with success.
Benchmark: Section 123 VwGO - Emergency order to protect against unreasonable disadvantages
The court obliged the authority by way of a temporary injunction (Section 123 VwGO) to cancel the resolutory condition and issue a new residence permit without this clause.
It considered that there was both a claim for an injunction and a reason for an injunction:
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The applicant had a legitimate right to the continuation of her residence permit.
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The announced enforcement measures (order to leave the country, forwarding to the police) made immediate judicial action necessary.
As the residence permit was the basis for continuing her education, it would have been unreasonable to wait for the main proceedings.
Court: Resolutory condition contradicts the purpose of Section 16a AufenthG
The Munich Administrative Court deemed the disputed ancillary provision to be unlawful. It is true that residence permits under Section 12 (2) sentence 1 AufenthG can generally be subject to conditions - including suspensive or cancelling conditions. However, such conditions must be appropriate, proportionate and compatible with the legal system.
The automatic cancellation clause is not:
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It contradicts the purpose of Section 16a (4) AufenthG, which expressly gives trainees up to six months to look for a new training place.
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It deprives the authority of the discretionary power provided for by law to revoke, withdraw or shorten the residence permit.
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It violates the principle of case-by-case assessment.
The legislator deliberately provided for the authorities to check whether the foreign national is responsible for the discontinuation of training. The authorities can only revoke or shorten the residence permit if they are at fault - but not automatically terminate it.
Resolving condition is discretionary and indefinite
In the opinion of the court, the ancillary provision lacked any viable discretionary justification. The authority had not documented either a public interest or a case-specific reason why it considered an automatic termination regulation to be necessary for this particular applicant.
Furthermore, the clause is vague: The phrase „with receipt of benefits in accordance with SGB II or SGB XII“ leaves open when exactly the condition occurs and how the receipt of benefits must be proven. This lacks the necessary clarity that every ancillary provision under residence law must have.
The court clarified:
„A resolutory condition, upon the occurrence of which the residence permit expires, is inadmissible if it undermines legal judgements.“
Priority of the legislative assessment in Section 16a (4) AufenthG
The court particularly emphasised the legislative intention of Section 16a AufenthG, which was reformed in 2023. According to this, the granting and extension of a residence permit for educational purposes is no longer a matter of discretion, but the rule - as long as the legal requirements are met.
Section 16a (4) AufenthG also stipulates that foreign nationals are given a six-month period to find a new training place after dropping out of training for which they are not responsible.
In doing so, the legislator wanted to promote the influx of skilled workers and trainees and strengthen their legal position. A condition subsequent that causes the title to expire immediately is diametrically opposed to this objective.
Alternative instruments: Cancellation, withdrawal or time limit
The Munich Administrative Court referred to the existing instruments in the Residence Act: If the requirements no longer apply, the authorities can revoke the title (Section 52 Residence Act), withdraw it (Section 48 Administrative Procedure Act) or subsequently limit it (Section 7 para. 2 sentence 2 Residence Act).
These mechanisms enable a decision to be made on a case-by-case basis and take into account whether the foreigner is at fault for the termination of the training. By imposing a rigid condition, the authority avoids exercising the necessary discretion.
No cancellation of the residence permit - authority must clarify
Although the condition subsequent is unlawful and therefore cannot take effect, the court expressly ordered that it be cancelled. This was intended to remove the „legal appearance of effectiveness“.
The immigration authority must therefore reissue the residence permit - without the inadmissible ancillary provision.
The court emphasised that the applicant still had a valid residence permit. The alleged expiry had never occurred.
Significance for practice and skilled labour migration
The judgement has considerable significance beyond the individual case. In many skilled worker procedures under Section 81a and Section 16a AufenthG, immigration authorities issue residence permits with similar cancellation clauses.
The VG Munich now clarifies:
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The residence permit must not expire automatically.
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§ Section 16a (4) AufenthG expressly grants a search period of up to six months.
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A change of training company within this period is possible without a new visa, provided the foreigner is not at fault.
The court thus strengthens legal certainty for trainees from third countries and emphasises the responsibility of the authorities not to undermine migration policy objectives through administrative practice.
Conclusion: Legal clarity instead of automatism
With its decision of 29 November 2024 (M 24 E 24.6836), the VG Munich made an important contribution to the systematics of residence law.
The decision emphasises that ancillary provisions must not be an instrument for circumventing legal protection mechanisms. The automatic expiry of a residence permit after dropping out of training contradicts the purpose of Section 16a AufenthG and the skilled labour policy.
Core message:
The immigration authority must check in each individual case whether a revocation or a time limit is necessary. A residence permit must not simply disappear „by itself“ - especially not if the legislator expressly provides for a second chance.
