German Immigration Law: The plaintiff applied for a visa for the position of managing director of an eye center GmbH.

VG Berlin, 23.02.2018, Case No.: 3 K 769.16 V

Background of the case: Armenian plaintiff and family connections to Germany

The plaintiff, an Armenian national, was born in 1976 and was a member of the Armenian police until the end of 2014. He is married to an Armenian national, and the couple has two children, born in 2002 and 2009. A special connection to the Federal Republic of Germany exists through the plaintiff’s brother, who has been living in Germany since 1996 and has since obtained German citizenship. The brother is a practicing specialist in ophthalmology and has been running an eye center since 2007, which now operates in multiple locations and employs numerous staff members.

The plaintiff had previously been repeatedly granted Schengen visas by the German embassy in Yerevan. However, in 2014, the embassy rejected his application for a Schengen visa, citing doubts about his intent to return to Armenia. In 2015, the plaintiff’s wife applied for a national visa to work as a doctor in the eye center run by the plaintiff’s brother. This application, along with subsequent applications from the plaintiff and his children, was rejected due to the wife’s lack of the required professional qualifications.

The visa application and the managing director contract

In May 2016, the plaintiff’s brother established a new company, MVZ Augenzentrum GmbH, in which he was the sole shareholder. In the same month, an indefinite managing director contract was signed between the company and the plaintiff, appointing him as the second managing director alongside his brother. In July 2016, the plaintiff applied to the German embassy for a national visa to pursue self-employment as a managing director in his brother’s company. To support this application, he submitted documents including a diploma as a dental technician, a certificate of internship in ophthalmology, and proof of his language proficiency at level A1.

Despite these documents, the German embassy rejected the application, arguing that the managing director contract had likely been made as a favor and that the plaintiff did not have the necessary qualifications to successfully perform the role of a managing director. In particular, there was a lack of evidence of relevant professional experience, and the plaintiff’s language skills were deemed insufficient.

Lawsuit by the Armenian national against the visa rejection

In November 2016, the plaintiff filed a lawsuit with the administrative court against this decision. In his complaint, the plaintiff argued that the role of managing director was of significant economic interest and would have a positive impact on the German economy. The eye center run by his brother had grown rapidly in a short period of time, and there was a need for a structured administrative apparatus. The plaintiff claimed that his family relationship with his brother and the trust involved was an advantage for the management of the business.

He also argued that commercial and entrepreneurial skills were not a legal requirement for appointment as a managing director of a limited liability company (GmbH). He emphasized that he had medical knowledge that would assist him in working at the eye center. Moreover, the plaintiff pointed out that he had entrepreneurial experience in Armenia, where he had mediated medical personnel. The plaintiff requested that the court overturn the embassy’s decision and grant him the requested visa.

Defendant’s argument and court examination

The defendant, the Federal Republic of Germany, argued that the plaintiff did not meet the requirements for a national visa. It was suggested that the managing director contract was likely a formal arrangement intended solely to provide the plaintiff with a residence permit. In the defendant’s view, the plaintiff’s actual qualifications and language skills were insufficient to carry out the demanding role of managing director. The plaintiff’s career history and previous visa applications indicated that another purpose for residence was being pursued.

The court conducted extensive investigations and interviewed the plaintiff’s brother. Among other things, the visa processes of the Foreign Office and entries in the company’s commercial register were examined. The court ultimately concluded that the plaintiff had neither a right to the requested visa nor a right to have his application reconsidered.

Judgment of the administrative court: No entitlement to the requested visa

The administrative court dismissed the Armenian national’s lawsuit. According to the court, the plaintiff did not meet the requirements of § 21(1) of the Residence Act, which stipulates that an economic interest or regional need must exist to grant a visa for self-employment. The court found that the plaintiff had made no personal investment in the company and that his role as managing director was not expected to have any significant positive impact on the German economy.

Additionally, the plaintiff’s A1 level language skills and his previous professional experience were deemed insufficient to carry out the demanding role of managing director in a specialized medical facility. The court emphasized the lack of a viable business concept or significant capital investment, which are required under the Residence Act for the issuance of a visa.

In summary, the court determined that the plaintiff had not demonstrated that his role as managing director would contribute meaningfully to the German economy. The lawsuit was therefore dismissed, and the plaintiff was not granted a visa to take up the requested position.