Aliens law: Bakery/pastry shop can also be a speciality restaurant within the meaning of residence law

Berlin Administrative Court, 19.04.2024, Ref.: 24 K 143/22 V

In its ruling of 19 April 2024, the Berlin Administrative Court set an important precedent in the area of visas for speciality chefs. The case concerns the rejection of a visa application from a Turkish national who wanted to work in Germany as a master chef for the production of Turkish desserts. The court overturned the rejection and obliged the authorities to re-examine the application in light of the court's legal opinion. This decision sheds light on key issues regarding the recognition of foreign skilled workers and the requirements for the German labour market.

Background 1: The case of the Turkish speciality chef

The applicant, a Turkish citizen from Gaziantep, applied for a visa to take up employment in Berlin in 2022. The applicant is a master craftsman in the production of Turkish desserts such as baklava and kadayif. The employment contract provided for full-time employment with a gross monthly salary of 4,200 euros. The planned workplace was in a restaurant specialising in the production and sale of traditional Turkish desserts. Despite submitting extensive proof of his qualifications and professional experience, the Consulate General of the Federal Republic of Germany in Izmir rejected the application.

The rejection was based on the assessment of the Federal Employment Agency, which refused approval. It argued that the claimant was not to be considered a speciality chef and that the business did not fulfil the requirements of a speciality restaurant.

2. central points of contention and positions of the parties

• Position of the plaintiff:
  • The plaintiff emphasised his many years of professional experience and his master craftsman's certificate as proof of his qualifications.
  • He argued that the business he wanted to work in met the criteria of a speciality restaurant, as it focused exclusively on typical Turkish desserts.
  • In addition, he submitted company-specific documents, photos of the facility and updated employment contracts to substantiate the quality and authenticity of the company.
• Position of the defendant (Consulate General):
  • The authorities argued that the business did not have the character of a speciality restaurant. It was more of a bakery or patisserie.
  • It also referred to the lack of recognition of the applicant's vocational training in accordance with German standards.
• Position of the defendant (Federal Employment Agency):
  • The Federal Employment Agency questioned whether the plaintiff's job should be classified as a speciality chef and the business as a speciality restaurant.
  • She emphasised that the term "speciality restaurant" presupposes a high level of gastronomy, which was not the case here.

3. decision of the court: clarity about the terms

The court ruled that the rejection of the visa application was unlawful and that the plaintiff was entitled to a new decision without any errors of judgement. It clarified that both the company and the plaintiff's activity fulfil the criteria of the relevant regulations.

• Speciality restaurantAccording to the court, it is a restaurant whose offer consists of at least 90 % of typical Turkish specialities. The establishment in Berlin fulfils this requirement as it exclusively offers Turkish desserts such as baklava and kadayif.
• Speciality chefThe applicant is recognised as a speciality chef as he has more than ten years of professional experience and a master craftsman's certificate. These qualifications are sufficient to demonstrate the knowledge and skills required for the production of baklava.

4 Legal basis: Criteria for issuing visas

The court analysed the relevant regulations comprehensively:

1. § Section 19c (1) AufenthG in conjunction with. § Section 11 para. 2 BeschV:
   • Speciality chefs can obtain a visa if they work in a speciality restaurant and the Federal Employment Agency agrees.
   • In this case, the approval of the Federal Agency was replaced, as the requirements for the activity were met.
2. Section 18a AufenthG::
   • The regulation for skilled workers with vocational training was not applied here, as the claimant was unable to present any German recognition of his vocational training.
3. Priority check (Section 39 (3) AufenthG):
   • The Federal Agency was unable to prove that preferential employees were available for the position. The priority check was therefore in favour of the plaintiff.
4. Discretionary scope:
   • The court emphasised that the authorities are obliged to examine the application carefully and without errors of judgement if all requirements are met.

5. significance for practice

The judgement is of great importance for the catering industry and foreign skilled workers:

• For catering establishments:
  • The ruling clarifies that specialised establishments that only offer a small selection of the country's cuisine can also be recognised as speciality restaurants.
  • Businesses should carefully document their concepts, menus and qualifications of potential specialists in order to fulfil the official requirements.
• For foreign specialists:
  • The ruling shows that many years of professional experience and typical national qualifications, such as a master craftsman's certificate, can be sufficient to be recognised as a speciality chef.
  • It also makes it clear that there is a chance of obtaining a visa even without German professional recognition.
• For authorities:
  • The ruling underlines the importance of a precise interpretation of undefined legal terms such as "speciality chef" and "speciality restaurant".
  • It calls for a balanced exercise of discretion and criticises an overly restrictive approach.

6. effects on the recognition of skilled workers

The judgement strengthens the rights of skilled workers and employers. The decision is particularly groundbreaking in the context of the shortage of skilled labour in the catering industry. It shows that the courts are prepared to correct strict and impractical interpretations by the authorities. This could lead to more companies being able to successfully hire foreign skilled workers in the future.

Source: Administrative Court of Berlin

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