Foreigners Law: The Immigration Office Must Carefully Review the Entrepreneurial Plan of the Foreigner

Decision of the Düsseldorf Administrative Court, April 24, 2013, Case No.: 7 L 488/13

The decision of the Düsseldorf Administrative Court from April 24, 2013 (Case No. 7 L 488/13) deals with an urgent application by a Cameroonian national contesting the rejection of his residence permit and the threatened deportation. The core issue is whether the denial of the residence permit for engaging in self-employment or freelance activities, as well as the deportation order, were lawful. The court ruled in favor of the applicant regarding the suspensive effect of the lawsuit against the rejection of the residence permit and the deportation order, but denied the application on other points.

Order of Suspensive Effect of the Lawsuit

The administrative court decided that the suspensive effect of the lawsuit (Case No. 7 K 2999/13) against the respondent’s administrative order from December 13, 2012, which had denied the issuance of a residence permit pursuant to § 21(1) Residence Act (for self-employment) and § 21(5) Residence Act (for freelance work) and ordered the applicant’s deportation, had to be granted.

The decision was based on the finding that the respondent had failed to consult external expert bodies when making its decision on the residence permit application, which is a mandatory requirement under § 21(1) Sentence 3 Residence Act. According to this provision, in assessing the viability of the business idea and the entrepreneurial experience of the applicant, expert bodies such as trade authorities or public professional associations must be consulted. This failure rendered the rejection of the residence permit unlawful in the court’s view.

The court also saw sufficient grounds for a more detailed review of the applicant’s entrepreneurial activities. The applicant had provided evidence of his business activities as an IT consultant, including several invoices and confirmations from his tax advisor, showing that he had generated substantial revenues between 2010 and 2012. In light of these facts, the respondent should have conducted a more thorough examination of his entrepreneurial activities with the involvement of external experts.

Obvious Unlawfulness of the Residence Permit Rejection

The rejection of the residence permit under § 21(1) and § 21(5) Residence Act was deemed obviously unlawful by the court. At the time of the court’s decision, the applicant at least had a right to a renewed review of his residence permit application. The evidence presented during the proceedings, including the applicant’s professional background and an expert opinion from a business consultant, should have been considered in a proper review.

Additionally, when deciding on the application for a residence permit for freelance activities, external bodies should have been involved, as required by § 21(5) Sentence 3 Residence Act. Here, too, the respondent had failed to consult these bodies, making the decision also obviously unlawful.

Another aspect of the decision concerned the distinction between freelance and commercial activities. The court noted that the applicant’s IT services could be considered freelance work and referred to case law from the Federal Fiscal Court, which recognizes IT consultants as freelancers as long as they do not produce simple software.

Unlawfulness of the Deportation Order

The court also ordered the suspensive effect of the lawsuit against the deportation order. The deportation order, included in the administrative notice, was considered obviously unlawful. In the court’s view, the applicant was not obligated to leave the country at the time of the decision, as he had at least a right to a renewed review of his residence permit application.

The court further argued that the applicant’s private interest in preventing his deportation outweighed the public interest in the immediate enforcement of the deportation order. The applicant provides IT services in Germany and has clients whose support could be significantly affected by his deportation. Since the deportation order is an enforcement measure, it requires the existence of an obligation to leave the country. This obligation, however, did not exist due to the prospect of a renewed review of the residence permit application.

Denial of the Application on Other Points

The application for the suspensive effect concerning the rejection of the residence permit under § 19a Residence Act (EU Blue Card) was denied. The court found that the applicant did not meet the requirements for an EU Blue Card, as he did not hold a university degree. Nor was an equivalence based on at least five years of professional experience possible, as there was no relevant legal regulation recognizing such qualifications.

The permanent residence permit pursuant to § 19a(6) Residence Act was also not to be granted, as the applicant was not a holder of an EU Blue Card. Therefore, the rejection of the residence and permanent residence permits under these provisions was deemed lawful.

Conclusion:

The decision of the Düsseldorf Administrative Court underscores the necessity of a thorough and proper review of residence permit applications, including the involvement of the legally required expert bodies. The rejection of the residence permit for self-employment or freelance activities was found to be obviously unlawful due to the respondent’s failure to consult external expert bodies. This led to the order of the suspensive effect of the lawsuit and the suspension of the deportation. However, the application regarding other points, particularly concerning the EU Blue Card, was unsuccessful.

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