Immigration Law: A foreigner wants to establish themselves in Germany as a self-employed life science consultant.

Administrative Court of Würzburg, Decision from December 1, 2022, Case No.: W 7 S 22.1368

Case Background: Rejection of Residence Permit

This case involves a citizen of Bangladesh who entered Germany in September 2016 with a student visa. The applicant, born in July 1987, initially received a residence permit under Section 16 (1) of the Residence Act (AufenthG) for the purpose of studying. He began a master’s degree in life sciences at the University of Würzburg in the summer semester of 2017 and successfully completed it on July 28, 2020. He then received a residence permit for job search purposes, which was valid until July 27, 2021.

On April 7, 2021, the applicant applied for a residence permit under Section 21 of the Residence Act to pursue self-employment as a life science consultant. He submitted a business plan that included a capital requirements and financing plan, a marketing strategy, and an earnings forecast. However, the responsible immigration authority expressed doubts about the viability of the project. The business plan lacked details regarding the legal structure and financing of the proposed business. Additionally, the authority saw no compelling need for the applicant to remain in Germany permanently, as many of the planned business activities could be conducted digitally or through short-term stays with a Schengen visa.

The authority denied the application for a residence permit and instructed the applicant to leave Germany within one month. If he refused, deportation to Bangladesh or another country where he could legally enter was threatened. The applicant filed a lawsuit against this decision and requested a suspension of the deportation order in an expedited procedure to prevent his departure until a final ruling was made.

Applicant’s Argument: Livelihood Through Self-Employment

In his expedited application, the applicant argued that he could support himself through his planned self-employment as the managing director of a life science consulting business. He submitted financial projections for the years 2022 to 2024, showing salaries and income from his consulting work. His managing director’s salary for the first year (September 2022 to August 2023) was to be €1,800 per month, rising to €3,000 per month in subsequent years.

Additionally, the applicant argued that his consulting business, which would advise companies in the life science sector in areas such as pharmaceuticals, biotechnology, and medical devices, required specific knowledge he had acquired during his studies in Germany. Personal contact with clients in Germany was essential, and the business could not be conducted through digital communication or short-term visa stays.

He also presented an email from a potential business partner in Germany, indicating a possible future collaboration. Furthermore, he noted that he had already begun his business operations and had generated initial revenue.

Authority’s Position: Doubts About the Business Plan’s Viability

The immigration authority maintained its position that the requirements for a residence permit under Section 21 of the Residence Act were not met. The assessment of the competent authority, in this case, the Chamber of Commerce and Industry, did not identify an economic interest as required by Section 21 (1) of the Residence Act. The business plan presented by the applicant contained vague formulations and lacked substance, according to the authority. The applicant’s financial resources, including a balance confirmation of approximately €13,000 and additional funds in Bangladesh, were also deemed insufficient to ensure the business’s long-term viability.

Moreover, the authority argued that the applicant did not need to reside in Germany permanently to pursue his business idea. The authority emphasized that the consulting services could be offered digitally or through occasional short stays with a Schengen visa. The applicant had himself stated that he would travel to Bangladesh to meet potential business partners.

Due to these concerns, the authority not only rejected the extension of the residence permit but also refused to grant a new one and set a deadline for the applicant to leave voluntarily.

Court’s Decision: Partial Success for the Applicant

The court ruled in the expedited procedure in favor of the applicant regarding the deportation order. It granted the suspension of the deportation order, meaning the applicant cannot be deported until a final decision on his residence status is made. The court argued that the outcome of the lawsuit was uncertain, as the applicant at least had a claim for a new, unbiased assessment of his application for a residence permit under Section 21 (2a) of the Residence Act. According to this provision, a foreigner who has successfully completed a degree in Germany may be granted a residence permit for self-employment if the business activity is related to the degree.

The court noted that the applicant had successfully completed his studies in a relevant field (life sciences), and the proposed life science consulting activity was related to his studies. However, the prognosis of whether the applicant could support himself through self-employment remained unclear. The financial evidence provided might not be sufficient to ensure long-term financial stability. Nevertheless, the authority must reassess this aspect and make a discretionary decision.

The deportation order was suspended until the final decision in the main proceedings. However, the court rejected the application for the suspension of the departure deadline, explaining that the deadline would not begin until the court’s final decision, leaving the applicant enough time to prepare.

Overall, the applicant achieved partial success with his expedited application, as his obligation to leave was temporarily suspended, and the authority must re-evaluate his application.

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