Administrative Court of Berlin, July 15, 2011, Case No.: 35 K 253.10 V
Under Section 16f (1) of the Residence Act (formerly Section 16 (5) of the Residence Act), a residence permit for attending a language course that does not serve as preparation for university studies can also be granted. There is no requirement for a special purpose for learning the German language.
However, in practice, it is extremely difficult for third-country nationals who have never been to Germany to obtain a visa or residence permit under Section 16 (5) of the Residence Act, as the responsible embassies or immigration authorities often assume that the language course is merely a pretext to enable illegal entry into Germany.
In such cases, the applicant has only the option to remonstrate against the rejection or to file a lawsuit. In the case discussed here, the Berlin Administrative Court had to decide on the application of a Cuban national for a visa to attend a language course.
Case Summary
Cuban Plaintiff Seeks to Attend Language Course
The plaintiff, born in 1980 in Cuba, obtained her high school diploma there and subsequently completed training as a specialist in the hotel and restaurant industry. She worked in the gastronomy sector in Cuba. In 2003, she met a German citizen, a self-employed dentist, who later helped her finance several stays in Germany. These stays initially took place under visitor visas, and between 2007 and 2008, the plaintiff completed a language course in Germany, which she successfully finished with the “START DEUTSCH 2” certificate.
In 2010, the plaintiff applied for a visa again to attend another language course in Germany, which was offered by a community college and was scheduled to run from February to July 2010. However, this application was rejected by the German embassy in Havana, prompting the plaintiff to file a lawsuit with the Berlin Administrative Court. The plaintiff argued that the rejection was unlawful and violated her rights.
Visa Application and Rejection by German Authorities
The plaintiff’s visa application was rejected by the German embassy in Havana without detailed justification or legal recourse information. The immigration authority, which must approve such cases, also refused, citing that the plaintiff already had sufficient German language skills for her job as a waitress in Cuba and that the requested language course was not essential. The decision was based on the assumption that the plaintiff was not genuinely interested in pursuing studies in Germany and that the language course was merely a pretext to enable a prolonged stay in Germany.
In her lawsuit, the plaintiff argued that she had previously completed a language course in Germany successfully and had always renewed her visa on time or left the country upon its expiration. Her goal was to improve her language skills further to pursue a bachelor’s degree in health and tourism management at a German university, which required the small German language diploma (C2), making the requested language course necessary.
Legal Basis and Decision of the Administrative Court
The Administrative Court of Berlin had to determine whether the rejection of the visa application by the embassy and the immigration authority was lawful. The legal basis for issuing a visa is Section 6 (4) of the Residence Act (AufenthG). For long-term stays in Germany, a national visa is required, whose issuance is governed by the provisions for the residence permit. In this case, the requested stay for attending a language course had to be assessed according to Section 16 (5) of the Residence Act, which allows for the issuance of a visa for language courses that are not directly preparatory for studies.
The Administrative Court found that the requirements for issuing the visa were met. The plaintiff had provided a declaration of commitment from the dentist friend, proving that her living expenses during the stay were secured. It could also be assumed that she would obtain the required health insurance once the visa was granted. Thus, the legal basis for issuing the visa was established.
Distinction Between “Isolated” Language Course and Study Preparatory Language Course
A key point in the court’s decision was the distinction between an “isolated” language course, which is not directly preparatory for studies, and a study preparatory language course, which, under Section 16 (1) of the Residence Act, is only granted if all requirements for subsequent studies are already met. The course requested by the plaintiff fell into the category of an “isolated” language course, as it only aimed to improve her language skills to later attend a study preparatory course.
The court emphasized that there is no mandatory connection between the language course and subsequent studies in the case of an “isolated” language course. It was therefore irrelevant whether the plaintiff had already met all the necessary requirements for studies in Germany at the time of the decision. What mattered was that the plaintiff wanted to improve her language skills to possibly pursue studies in the future. The authority’s discretion had been improperly exercised, as the visa was rejected without considering this distinction.
Discretionary Error of the Authority and Court Instructions
The Administrative Court found that the embassy had not properly exercised its discretion in rejecting the visa application. The decision lacked both a justification and discretionary considerations that could justify a rejection. Even the considerations put forward later in the court proceedings were insufficient to remedy the error.
The court highlighted that public interest in the promotion of the German language should be considered. According to the administrative regulation for the Residence Act, a residence permit should generally be granted to a foreigner who wishes to attend an intensive language course and has sufficient means to secure their livelihood. These requirements were met in the plaintiff’s case, as she had proven sufficient financial means and planned to attend an intensive language course. Additionally, the low risk of illegal immigration supported the issuance of the visa, as the plaintiff had always returned to Cuba on time in the past.
Conclusion and Further Court Instructions
In its decision, the Administrative Court largely ruled in favor of the plaintiff. It instructed the defendant to make a new discretionary decision that considers the court’s legal guidelines. Specifically, it must be examined whether the plaintiff meets the university admission requirements for studies in Germany and whether such studies would also be possible in Cuba. The plaintiff’s age, professional qualifications, and the duration of the intended language course should also be considered in the discretionary decision.
However, the court emphasized that the visa could only be rejected if, after a renewed review, serious doubts about the plaintiff’s intention to study in Germany were substantiated. These doubts would need to be well justified, as the existing evidence rather supports the genuineness of her intentions. The court saw no compelling reason against granting the visa, especially given the plaintiff’s successful participation in a previous language course in Germany and the financial security provided by the dentist.
Overall, the ruling clarified that the rejection of the visa application was unlawful and that the defendant is obliged to reassess its discretionary decision following the court’s legal guidelines.
Source: Administrative Court of Berlin
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