The stay for the purpose of education is regulated in Chapter 2, Section 3 of the Residence Act (Aufenthaltsgesetz), which governs the residence, employment, and integration of foreigners in the Federal Republic of Germany.
Section 16a, Paragraph 1 regulates the residence permit for company-based training and further education, while Section 16a, Paragraph 2 of the Residence Act covers the residence permit for school-based vocational training.
Section 16b of the Residence Act, in turn, governs stays for the purpose of pursuing full-time and part-time studies.
Studies by foreigners are only permitted at the institutions of higher education listed therein, which include:
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- State or state-recognized universities (university, art school, university of applied sciences),
- A comparable educational institution (e.g., vocational academy).
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Foreign students often find a well-paying job in Germany during their studies and then apply for a residence permit for the purpose of employment (purpose change).
However, Section 16b, Paragraph 4 of the Residence Act often opposes such an application. During a study stay, a residence permit for another purpose of stay may only be issued for the purpose of qualified vocational training, employment as a skilled worker, employment with pronounced practical professional knowledge according to Section 19c, Paragraph 2, or in cases of a legal entitlement.
A change of study program may also be opposed by Section 16b, Paragraph 4 of the Residence Act. Moreover, this change of study program may also be restricted by Section 16b, Paragraph 2, Sentence 4 of the Residence Act.
Section 16b, Paragraph 2, Sentence 4 of the Residence Act stipulates that the residence permit for the purpose of studying can only be extended if the purpose of the stay has not yet been achieved and can still be achieved within a reasonable period.
Therefore, if a change of study program leads to exceeding the reasonable period for the study, the extension of the residence permit may also be denied by the immigration authority pursuant to Section 16b, Paragraph 2, Sentence 4 of the Residence Act.
In the aforementioned decision, the Administrative Court of Freiburg had to decide in summary proceedings whether the student’s intended change of study program constitutes a change of purpose for the stay and whether an exception to the regular grounds for refusal was present.
Please note: The judgment refers to the old legal situation but may also apply to the new Section 16b of the Residence Act.
Facts of the Court’s Ruling
The applicant initially studied law without success.
The applicant had studied law in Germany with a residence permit for study purposes for several semesters but was unable to successfully complete the course.
Between November 30, 2009, and August 13, 2010, the applicant stayed continuously in the Republic of Guinea. He did not apply for an extension of the re-entry deadline in a timely manner.
After returning from abroad, the applicant wanted to study Islamic Studies.
After re-entering on August 13, 2010, the applicant applied for an extension or issuance of a residence permit for the purpose of studying Islamic Studies on September 15, 2010.
Decision of the Administrative Court of Freiburg:
The Administrative Court of Freiburg rejected the applicant’s request for interim relief. According to Section 5, Paragraph 2, Sentence 1 of the Residence Act, the issuance of a residence permit requires that the applicant has entered the country with the necessary visa.
Due to the prolonged stay abroad, the residence permit expired.
Due to the applicant’s eight-month stay in the Republic of Guinea, the original residence permit, which might have allowed re-entry, expired pursuant to Section 51, Paragraph 1, Number 7 of the Residence Act.
Furthermore, the change of study program constitutes a change of purpose.
The change of study program from Law to Islamic Studies and History also likely constitutes a change of purpose for the stay within the meaning of Section 16, Paragraph 2, Sentence 1 of the Residence Act.
An exception is not apparent, as there is no atypical course of events.
There is also likely no room to assume an exception to the regular grounds for refusal under Section 16, Paragraph 2, Sentence 1 of the Residence Act, because the failure to achieve the originally intended study goal does not constitute an atypical course of events.
Under the regular grounds for refusal in Section 16, Paragraph 2, Sentence 1 of the Residence Act, a residence permit for another purpose of stay shall generally not be issued or extended during a stay under Section 16, Paragraph 1 or 1a of the Residence Act unless there is a legal entitlement.
The applicant’s change of study program from Law to Islamic Studies and History constitutes a change of purpose for the stay within the meaning of Section 16, Paragraph 2, Sentence 1 of the Residence Act, especially since the applicant likely abandoned the original Law studies due to the unlikelihood of successful completion, and his previous study achievements could not be credited.
There is also likely no room to assume an exception to the regular grounds for refusal under Section 16, Paragraph 2, Sentence 1 of the Residence Act in the applicant’s case, as the failure to achieve the originally intended study goal does not constitute an atypical course of events.
Moreover, the provision in No. 16.2.5 of the General Administrative Regulation to the Residence Act (VV-AufenthG), which states that a change of subject may be allowed in exceptional cases if the total study duration does not exceed ten years, does not provide an exception to the regular grounds for refusal under Section 16, Paragraph 2 of the Residence Act.
Source: Source: Administrative Court Freiburg
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