Administrative Court Augsburg, Judgment of September 19, 2012 – Au 6 K 12.557
Background of the Case: Establishment of a Ltd. and Application for a Residence Permit
On April 1, 2011, the plaintiff, along with four other individuals holding either Bosnian-Herzegovinian or Croatian citizenship, founded a limited liability company („Ltd.“) in the United Kingdom. This company, whose business activity was in the construction sector, had a share capital of only £10. The business plan projected investments of €25,000, and all shareholders were simultaneously appointed as managing directors.
On November 22, 2011, the plaintiff applied for a residence permit at the district office in Germany to engage in business activities. Along with his application, he submitted a subcontractor agreement for drywall work and a health insurance certificate. However, on April 2, 2012, the district office rejected the application and ordered the plaintiff to leave the country by April 30, 2012. The rejection was based on the fact that the plaintiff had entered Germany without the required national visa.
Rejection of the Residence Permit by the District Office
The district office argued that the plaintiff had not entered the country with the necessary visa, which is a mandatory requirement for issuing a residence permit. Furthermore, it was determined that the investments required for a residence permit under Section 21 of the German Residence Act (AufenthG) were insufficient, and no jobs had been created.
Additionally, the statements from the Chamber of Crafts and the Chamber of Industry and Commerce were negative. No right of residence was recognized under EU law either, as the plaintiff, being a third-country national, did not have the right to reside in Germany solely based on his position as the managing director of a Ltd. The authorities made it clear that founding a company in an EU member state could not be used as a means to bypass immigration rules.
Plaintiff’s Lawsuit and Applications
The plaintiff filed a lawsuit against the district office’s decision, arguing that the district office had not conducted a thorough examination. In particular, he claimed that the requirements under Section 4 of the Employment Regulation (BeschV), which would grant him the right to a residence permit as the managing director of a GmbH, had not been assessed. At the same time, he applied for a suspension of deportation, seeking to prevent his expulsion.
However, the district office requested the dismissal of the lawsuit, emphasizing that the plaintiff had no entitlement to a residence permit under Section 18(2) of the Residence Act (AufenthG). Additionally, there was no dependent employment under the German Social Code, as the plaintiff, being a managing director, was not subject to directives. The district office further argued that it was not unreasonable for the plaintiff to undergo the visa process, and it was unclear whether he could sustain himself financially.
-Court Decision: Dismissal of the Lawsuit
The administrative court rejected the plaintiff’s request for interim relief, and the Bavarian Administrative Court upheld this decision on June 20, 2012. In the main proceedings, the court ultimately ruled that the plaintiff was not entitled to a residence permit because he had not entered the country with the required visa. Waiving the visa requirement was not possible, as the conditions for such a waiver were not met.
The court emphasized that the visa process is an essential regulatory instrument in immigration law, and the plaintiff could not claim a residence permit without first completing this process. Additionally, under EU law, the plaintiff had no right of residence, as being a third-country national did not entitle him to a residence permit in Germany solely because of his position as the managing director of a British company. The lawsuit was dismissed in all respects.
Source: Administrative Court Augsburg
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