Foreigners‘ Law: An entrepreneur wanted to establish a limited liability company (GmbH) in Germany for industrial flooring installation and building maintenance.

Administrative Court of Berlin, Decision of 05.03.2021, Case No.: 4 K 178.18 V

Facts and Background of the Case

The plaintiff, a 50-year-old Syrian national residing in the Kingdom of Saudi Arabia, applied for a visa to work in the field of industrial flooring and building maintenance in Germany. He had previously obtained Schengen visas in 2014, 2015, and 2017 to visit his brother in Duisburg. On November 7, 2017, he submitted an application for a work visa at the German Embassy in Riyadh. He provided an employment contract with L… GmbH in Duisburg, where he was to be hired as a „Planning + Business Development Manager.“ His tasks were to include „preparing the business plan, training the work team, and developing business opportunities“ at an hourly wage of 30 euros, with a weekly working time of 40 hours.

Interestingly, L… GmbH had only been established in August 2017. The plaintiff held 50% of the company shares, his wife 45%, and his brother’s wife, who was also the managing director, held 5%. The plaintiff further claimed to have been working since 2013 as a „Chief Executive Officer“ in a Saudi Arabian company that manufactures industrial flooring systems. In addition to internal training certificates, he submitted educational qualifications from Syria, including a master’s degree in business administration from 2009 and a bachelor’s degree in English from 2003. He also provided bank statements and property records to show that he had purchased property in Germany.

Rejection of the Visa Application

On April 18, 2018, the Federal Employment Agency refused to grant approval for the visa. The agency argued that it was unclear whether the plaintiff would work as the managing director of the GmbH. Furthermore, a business plan and evidence of professional qualifications required for self-employment were missing. For dependent employment, a work permit was necessary, but this was deemed implausible due to the plaintiff’s intent to maintain his position in Saudi Arabia. Additionally, the agency noted that the plaintiff lacked the necessary German language skills, which were expected prior to entry.

On April 19, 2018, the German Embassy in Riyadh followed the Federal Employment Agency’s recommendation and rejected the application. In May 2018, the plaintiff filed a lawsuit with the Administrative Court to obtain the visa. He argued that he intended to retain only a small consulting contract of two hours per month with his previous employer in Saudi Arabia. He had always left Germany on time, proven his qualifications, and had already begun learning German. Additionally, he owned assets in Germany, which provided him with a solid economic foundation.

Judicial Review of the Legal Situation

The Administrative Court reviewed the case from several perspectives. The plaintiff had applied for a visa to engage in self-employment under § 21 of the Residence Act (AufenthG). According to this provision, a visa can be granted to a foreign national if there is an economic interest or regional need for the self-employed activity, the activity is expected to have positive economic effects, and the financing of the business idea is secured. Furthermore, the assessment of the viability of the business idea, the plaintiff’s entrepreneurial experience, and the capital investment are important factors.

In this case, the court found that the business plan submitted by the plaintiff was insufficient. The business plan was largely vague and did not provide solid information to make a positive economic forecast. Additionally, the plaintiff was unable to convincingly prove that he had the necessary qualifications to run a company in the industrial flooring maintenance sector. While he submitted several certificates of training and degrees, there was no detailed evidence of his actual professional experience as a manager. Furthermore, there were doubts about the existence of the Saudi Arabian company he claimed to work for. These deficiencies led the court to reject the application for a visa for self-employment.

Rejection for Dependent Employment

The plaintiff was also not entitled to a visa for dependent employment under § 18 of the Residence Act. This provision requires a specific job offer and, if necessary, approval from the Federal Employment Agency. While the plaintiff had an employment contract with L… GmbH, the company had not yet started its operations. It was unclear whether the company would be able to pay the agreed-upon hourly wage of 30 euros. The court concluded that the company’s economic stability was not guaranteed. As the L… GmbH appeared to depend on the plaintiff’s entry and employment, the court concluded that the requested residence permit was an attempt to circumvent the requirements for self-employment.

The court also considered the statement from the Düsseldorf Chamber of Crafts, which indicated that there was no need for additional companies in Duisburg offering the activities the plaintiff intended to carry out. The region already had enough businesses in flooring, painting, and plumbing services. This also weighed against granting the visa, as there was no regional need for the plaintiff’s activities.

In summary, the court ruled that the plaintiff did not meet the requirements for a visa to engage in self-employment or to take up dependent employment. His pension provision, covered by an insurance policy in Syria, was also deemed insufficient. Therefore, the plaintiff had no entitlement to the requested visa, and the lawsuit was dismissed.

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