Immigration Law: Russian Plaintiff Wants to Open a Guesthouse in the Form of a GmbH with His Brother

Administrative Court of Berlin, November 16, 2016, Case No.: 14 K 240-15 V

Russian Plaintiff Applied for Business Visa at the Consulate in Yekaterinburg

The plaintiff, born in 1979 and a Russian national, applied for a visa to engage in self-employment at the Consulate General of the Federal Republic of Germany in Yekaterinburg in June 2014. The plaintiff, along with his brother, who initially served as the managing director of A…-GmbH, was a shareholder of the GmbH. He held 90% of the company’s share capital and intended to become the second managing director. A…-GmbH operates a guesthouse in Bad Nenndorf, which has existed since the 1990s. The plaintiff submitted an employment contract as well as translations of his diplomas and evidence of his professional career. Despite these documents, the Federal Employment Agency refused to approve the visa issuance, which led the Consulate General to reject the application on July 21, 2014.

Chamber of Commerce Saw Minimal Economic Impact

The visa application was denied based on the Consulate General’s view that the conditions stipulated in the Employment Ordinance for visa issuance had not been met. The plaintiff filed a remonstration, arguing that the Federal Employment Agency’s approval was not necessary for self-employment and that, as an officer of the GmbH, he was exempt from this requirement. The Chamber of Commerce was consulted for an opinion, which was issued in May 2015. The Chamber denied the prerequisites for self-employment and concluded that the business’s economic impact was insufficient, as the company was only a small commercial enterprise and the plaintiff could not demonstrate relevant entrepreneurial experience in Germany.

Russian Plaintiff Filed a Lawsuit and Submitted Further Evidence

The Chamber of Commerce’s opinion was supported by the Nenndorf community’s business authority, which also believed that the conditions for visa issuance were not met. In July 2015, the plaintiff’s application for a visa was denied. Another remonstration decision by the Consulate General in September 2015 confirmed the rejection, relying on the Chamber of Commerce’s opinion. The plaintiff subsequently filed a lawsuit on October 16, 2015, submitting additional documents to demonstrate the economic significance of his self-employment and the necessity of the visa for his entrepreneurial activities.

Judicial Review and Grounds for Decision

The court ruled that the lawsuit was unfounded and that the plaintiff was not entitled to the requested visa. It found that the plaintiff had not convincingly demonstrated that he intended to pursue self-employment in a legal sense. A…-GmbH was considered more of an investment and management of personal assets, which did not meet the criteria for self-employment. The court concluded that the plaintiff had failed to show an economic interest in his intended activity, as the company operated on a small scale and had no significant impact on the regional economy. The plaintiff’s lack of entrepreneurial experience, particularly in the hotel industry, and his insufficient German language skills further contributed to the decision.

Conclusion and Legal Assessment

In summary, the court decided that the plaintiff did not meet the requirements for a visa to pursue self-employment. The legal criteria for demonstrating economic interest or regional need were not fulfilled. The documents presented did not show significant economic relevance or positive forecasts for the business. Furthermore, the plaintiff’s entrepreneurial experience was inadequate, and his language skills were insufficient, making it difficult for him to assume a managerial position in Germany. The plaintiff could neither convincingly demonstrate that the business would have positive effects on the regional economy, nor that he had the necessary entrepreneurial and linguistic qualifications. Therefore, the rejection of the visa application remained lawful.

Source: VG Berlin

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