Administrative Court of Berlin, Judgment of December 22, 2022, Case Number: 14 K 139.19 V
Background:
Before entering Germany, you must apply for a national visa in your home country. The representation of the Federal Republic of Germany will then involve the responsible immigration authority. In the visa procedure, you must provide information about your job in Germany. After entering, you must apply for a residence permit in writing at the immigration office before your visa expires. This also applies to so-called specialty chefs who wish to work in a specialty restaurant in Germany. The case presented here by the Administrative Court of Berlin concerned the question of whether the employer was a specialty restaurant and whether the employee was a specialty chef.
Facts of the Case:
The plaintiff sought the issuance of a visa for employment as a specialty chef from the defendant. The plaintiff applied for a visa at the German Consulate in Izmir on March 21, 2018. He submitted, among other things, an employment contract with his employer for a position as a chef starting on April 2, 2017, and a not mutually signed employment contract starting on April 2, 2018, as well as a menu.
Both the Immigration Authority and Consulate Denied the Visa:
On August 20, 2018, the involved immigration authority denied approval for the issuance of the visa, stating that the employer’s establishment was not a specialty restaurant but a self-service snack bar. The Consulate then also denied the visa in a letter dated August 22, 2018.
The Plaintiff Filed a Remonstration Against this Decision at the Consulate:
The plaintiff filed a remonstration on August 29 and 31, 2018, which was received by the Consulate on September 3, 2018. The plaintiff argued that the employer’s establishment exclusively offered Turkish specialties, with Turkish cuisine dominating the menu. However, both the immigration authority and the embassy rejected the remonstration. The term “specialty restaurant” is associated with an expectation of a certain external standard corresponding to a fine dining appearance, which was not met by the employer’s establishment. It was a Turkish self-service snack bar with a low-price range. Therefore, the plaintiff was not considered a specialty chef, and the employer’s establishment did not meet the requirements of a specialty restaurant. Additionally, the validity of the employment contract submitted by the plaintiff was highly questionable since the visa was applied for on March 21, 2018, but the employment relationship had already started on April 2, 2017.
Following Another Rejection, the Plaintiff Filed a Lawsuit:
The plaintiff filed a lawsuit on June 11, 2019, claiming that the employer’s establishment was a specialty restaurant and not a snack bar. He argued that the establishment was a self-service restaurant offering only traditional dishes based on original recipes. The plaintiff, as a trained chef, would prepare these traditional dishes according to original recipes. The restaurant had a significant demand and was seeking to hire appropriate chefs.
Decision of the Administrative Court of Berlin:
The court agreed with the immigration authority and the embassy, ruling that the lawsuit was unfounded.
Legal Basis for the Requested Visa:
The legal basis for the requested visa is Section 6(3) in conjunction with Section 19c(1) of the Residence Act (AufenthG). Under these provisions, a visa may be granted for employment purposes to a foreigner, regardless of their qualification as a skilled worker, if the Employment Regulation or an international agreement provides for such admission. Additionally, according to Section 18(2) No. 1 AufenthG, a concrete job offer must be present. The issuance of a visa for employment also requires the approval of the Federal Employment Agency, unless this is waived by law, regulation, or international agreement (Sections 18(2) No. 2, 39(1) AufenthG). Approval can be granted under Section 11(2) of the Employment Regulation (BeschV) for specialty chefs for up to four years of full-time employment in specialty restaurants. Initial approval is granted for a maximum of one year. General requirements for issuance must also be met (Section 5 AufenthG).
The requirements for issuing a visa or making a discretionary error-free decision are not met, as the factual requirements of the legal basis are not fulfilled. The approval of the immigration authority for issuing the visa is not present. The factual requirements for such approval under Section 39(1) AufenthG in conjunction with Section 11(2) BeschV are also not met, as the employer’s establishment is not considered a specialty restaurant.
The Employer is Not a Specialty Restaurant:
A restaurant, according to general linguistic understanding, is a dining establishment where food is served and where guests usually stay for a certain period (source: Duden, accessed on December 22, 2022). Higher standards apply to specialty restaurants. According to general understanding, a specialty restaurant is a restaurant that primarily offers specially prepared dishes. In literature, the term “specialty restaurant” typically describes establishments where the offering of a specific foreign cuisine clearly dominates. The menu should consist of at least 90% local specialties, the business name should refer to the national cuisine, and the decor should reflect the national character of the respective country. No specialty restaurants within the meaning of Section 11(2) BeschV are snack bars, bistros, fast-food outlets, quick-service restaurants, or restaurants without service staff. This understanding corresponds to the internal guidelines of the involved Federal Employment Agency, which are subject to judicial review.
The Turkish Employee is Not Considered a Specialty Chef at this Establishment:
The purpose of Section 11(2) BeschV is to enable restaurants specializing in a specific foreign cuisine to hire skilled workers to offer their products authentically and traditionally. The rule allows for the recruitment of specific personnel needs that cannot be met in the local job market. Accordingly, the establishment’s concept must be characterized by an “authentic national cuisine,” meaning a menu of foreign dishes and beverages prepared according to the respective country’s recipes. Only chefs who, due to their origin and training, possess the necessary knowledge and skills to authentically prepare these traditional dishes should be granted privileged access to the labor market and residency under Section 11(2) BeschV. The regulation’s intent of originality is underscored by the limitation of employment and residence to a maximum of four years and the requirement of a three-year minimum absence before reapplying, ensuring that individuals stay familiar with the preparation of dishes in their home country.
Given the information presented in the employer’s website and the parties’ statements, the court found that the establishment is not a specialty restaurant. It remains undecided whether the restaurant, which focuses on Döner products and Turkish pizza, primarily offers authentic Turkish cuisine or whether the Döner products are adaptations developed for the German market. Additionally, it is unnecessary to determine whether a specialty restaurant must meet the expectations of fine dining, as the employer’s establishment is not considered a restaurant. The business is a self-service fast-food outlet where dishes are prepared and sold at a snack counter for takeout or on-site consumption at available seating. The employer’s website advertises that the food can be taken away. No food is served, guests are not attended to at the tables, and the establishment is not designed for guests to stay beyond the short-term consumption of food.
The Job Offer is Not Sufficiently Specific:
Moreover, there is no concrete job offer under Section 18(2) No. 1 AufenthG. A specific job offer requires that the employer shows a binding intention to fill the position with the foreigner, and the position must be available. The plaintiff has not sufficiently demonstrated this. The employment contract submitted by the plaintiff relates to a job starting on April 2, 2017. Another unsigned employment contract from February 12, 2017, also relates to employment starting on April 2, 2018. These documents are four to five years old. The plaintiff has not submitted any new contract or other documents showing the employer’s continued willingness to employ him. Given the defendant’s statements in the remonstration decision, there were sufficient reasons to provide evidence of a specific job offer during the litigation, especially since the defendant reiterated its position in the remonstration decision during the trial. Therefore, the court has significant doubts that any previously existing specific job offer still remains.
Source: VG Berlin
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