Administrative Court of Düsseldorf, Judgment of March 17, 2016, Ref.: 8 K 3894/15
Entry and Initial Residence Permit
The plaintiff, a Nepalese national, entered the Federal Republic of Germany on March 31, 2012. The purpose of his entry was to work as a specialty chef in a restaurant. For his entry, he received a visa from the German Embassy in Kathmandu, which was valid from March 23 to April 11, 2012. Shortly after his arrival, on April 11, 2012, he was granted a residence permit that allowed him to work as a specialty chef at the restaurant “C. F.” in L. This residence permit was valid until October 10, 2012.
On May 3, 2012, the plaintiff registered in the city of E. After his initial residence permit expired, he planned a career change and applied for a new residence permit for self-employment.
Application for Self-Employment and Official Review
On November 14, 2012, the plaintiff applied to the competent immigration authority for a residence permit pursuant to Section 21(1) of the Residence Act (AufenthG). The plaintiff’s goal was to run his own restaurant serving Nepalese specialties. At that time, the restaurant “H. T.” in E., which he intended to take over, was operated by his brother as a Korean restaurant. The plaintiff planned to expand the menu with Nepalese dishes and renovate the restaurant to position it as a Nepalese specialty restaurant.
The immigration authority forwarded the plaintiff’s application for review to the Chamber of Commerce (IHK) E. and the Economic Development Department of the city of E. However, both the IHK and the Economic Development Department responded negatively. In a letter dated March 1, 2013, the IHK E. stated that, in its view, there was no economic interest in the plaintiff’s planned activity or in the plaintiff himself. The Economic Development Department of the city of E. also shared this view on March 19, 2013, likewise denying any economic interest.
Despite these negative assessments, the immigration authority granted the plaintiff a residence permit on December 6, 2013, valid until December 5, 2014. The residence permit was based on the assumption that the plaintiff would renovate the restaurant into a Nepalese specialty restaurant. In an accompanying letter, the plaintiff was informed that a possible extension of the residence permit would depend on the completion of this renovation.
Denial of Residence Permit Extension
On January 21, 2015, the plaintiff applied for an extension of his residence permit. From that time, he possessed several provisional residence certificates, allowing him to remain in Germany until a final decision on his application was made.
In April 2015, the IHK E. once again commented on the application, reporting that the restaurant continued to primarily offer Korean dishes. Neither the appearance of the restaurant nor the menu indicated a specialization in Nepalese cuisine. Based on these observations, the IHK once again denied any economic interest in the plaintiff’s activities.
On April 27, 2015, the immigration authority issued an administrative order rejecting the application for a residence permit extension. The reasoning was that the restaurant continued to be advertised as a Korean restaurant and mainly offered Korean dishes. The renovations that were supposed to transform the restaurant into a Nepalese specialty restaurant had not been carried out. The plaintiff was ordered to leave the country within 30 days. If he failed to comply, deportation to Nepal or another willing country was threatened.
Plaintiff’s and Defendant’s Arguments
The plaintiff filed a lawsuit on May 26, 2015, against the immigration authority’s decision. He argued that the reference in the authority’s letter of December 8, 2013, which made the completion of the renovation a condition for extending the residence permit, was not a legally binding requirement. Such a condition, he claimed, must usually be noted on a special attachment to the residence permit or be part of an administrative order. The plaintiff considered the wording in the letter to be too vague and uncertain.
Additionally, the plaintiff stated that he had already expanded the menu to include Nepalese dishes. He argued that it was unnecessary to completely change the restaurant’s name or its entire menu. In his view, it didn’t matter whether photos of the dishes were printed on the menu or how many Nepalese dishes were offered. He also claimed that the fact that the announced €40,000 had not been invested was irrelevant, as this was not explicitly required. The plaintiff maintained that the share of Nepalese dishes in the restaurant was steadily increasing.
The defendant, the immigration authority, countered that the letter of December 8, 2013, merely served as a reminder that the plaintiff had to actually convert the restaurant into a Nepalese specialty restaurant to justify an extension of the residence permit. However, this conversion had not taken place, and the restaurant continued to focus primarily on Korean cuisine.
Court Decision and RationaleCourt Decision and Rationale
The administrative court ruled in favor of the defendant and dismissed the plaintiff’s lawsuit. The court found that the denial of the residence permit extension was lawful because the requirements of Section 21(1) of the Residence Act were not met. There was no discernible economic interest or regional need for the operation of the restaurant.
The judge noted that the plaintiff did not operate a Nepalese specialty restaurant. Neither the exterior appearance nor the interior design of the restaurant met the standards required for a specialty restaurant, where national specialties dominate, and the ambiance reflects the national character of the respective country. Furthermore, most of the dishes offered remained Korean.
The receipts submitted by the plaintiff were also unconvincing, as they only showed a slight increase in the sale of Nepalese dishes but did not demonstrate the required focus of 90% on Nepalese cuisine. The court agreed with the IHK’s assessment that the restaurant in its current form did not make a significant contribution to the German economy.
Therefore, the court concluded that the plaintiff was not entitled to an extension of his residence permit and that the order to leave the country and the threat of deportation were lawful.
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