Immigration Law: German residence permit for companies in the import-export trade with the Middle East.

Administrative Court of Hannover, Order dated 09.03.2022, Case No.: 5 B 1766/21

Background of the Case and Previous Stay in Germany

The applicant, an Israeli national, was born in 1982 in Tira, Israel. In 2001, he entered Germany to begin his studies. Over the years, he repeatedly applied for extensions of his residence permit, which had initially been granted under § 16 para. 1 of the German Residence Act (AufenthG) for students. In 2013, his application for an extension was denied because he could not complete his studies within a reasonable time. He filed a lawsuit against this decision, but it was unsuccessful, as was the parallel attempt for interim relief.

In the meantime, he remained in Germany due to an ongoing hardship procedure. During this time, he married a woman who works as a nurse and provides financial support for the couple. The hardship procedure concluded in late 2016 without an official decision being made. The applicant returned to Israel in 2017 but came back to Germany in November 2018. After his return, he sought a new residence permit, this time with the goal of engaging in self-employment.

Application for a Residence Permit for Self-Employment

In February 2019, the applicant applied for a residence permit to pursue self-employment under § 21 para. 1 AufenthG. He submitted a business plan proposing the establishment of a company in the field of import and export trade, particularly with the Middle East. The competent immigration authority sought an opinion from the Chamber of Industry and Commerce (IHK) to determine whether the requirements for the residence permit were met.

However, the IHK concluded that the applicant did not meet the necessary requirements. While he had some commercial experience from working in his father’s business and assisting in bookkeeping, he lacked the necessary qualifications. Moreover, his business plan was not convincing, lacking a detailed projection of revenues and profits. The financing of the company was also not adequately secured, and there was neither an economic interest nor a regional need for the planned activity. Therefore, the IHK recommended rejecting the application.

Based on this assessment, the immigration authority denied the application for a residence permit in a decision dated September 24, 2020. The applicant was given 30 days to leave the country, failing which he would face deportation to Israel. Since neither the requirements of § 21 AufenthG were met, nor had he provided evidence of securing his livelihood, no residence permit could be issued.

Deficient Business Plan Leads to Rejection of the Residence Permit Application

After his application for self-employment was denied, the applicant applied for a residence permit in November 2020 to take up salaried employment. Initially, he presented a job offer as a warehouse helper at a company. The immigration authority forwarded the case to the Federal Employment Agency for approval, but the agency denied approval under § 40 para. 1 no. 2 AufenthG (temporary workers).

In the further course of the proceedings, the applicant submitted another application, this time for a job as a construction helper at another company. Again, the Federal Employment Agency refused approval, stating that there were sufficient priority candidates available on the local labor market. A priority review showed that there were enough eligible workers, such as German citizens or EU nationals, for the position. In this case, the agency found that 133 unemployed candidates for helper positions in the construction industry were registered, while only 26 vacancies were available.

The applicant argued that his potential employer had been unsuccessfully trying to find suitable workers for years. The employer clarified that they had hired the applicant due to his good preparation, despite not having posted job openings with the employment agency. However, this was insufficient to change the Federal Employment Agency’s decision.

Court Decision and Summary

The applicant filed a request with the court to suspend the effect of the decision from September 24, 2020, allowing him to stay in Germany during the ongoing proceedings. However, this request was rejected by the Administrative Court.

The court ruled that the application was admissible but unfounded. There was no entitlement to a residence permit for self-employment under § 21 AufenthG, as the cumulative requirements were not met. Neither was there an economic interest in the planned activity, nor could positive effects on the economy be expected. Furthermore, the applicant failed to demonstrate that his business was financially secured.

The application for a residence permit for salaried employment was also deemed unfounded. Approval from the Federal Employment Agency is mandatory, and it had been denied in both cases, for the warehouse and construction helper positions. The court found no reason to challenge the Federal Employment Agency’s decision, as there were enough priority candidates available in the labor market.

In conclusion, the court determined that there was no entitlement to a residence permit or to interim legal protection. Therefore, the applicant remained obligated to leave the country, and the deportation order remained in place. No grounds for a deportation ban were presented, and the legal requirements for deportation were fulfilled.

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