Administrative Court of Darmstadt, April 5, 2012, Case No.: 6 K 1633/10.DA
According to Section 38a of the Residence Act (AufenthG), a third-country national—meaning a foreigner who is neither from an EU state nor a family member of an EU citizen—may apply for a residence permit in Germany if they have long-term residence status in another EU state.
This residence right, analogous to the free movement rights of EU citizens, is often referred to as „limited free movement.“
To obtain this residence permit, the foreigner must also meet the general requirements for granting a residence permit under Section 5 of the Residence Act (AufenthG).
This includes the requirement that the foreigner’s livelihood is secured (Section 5 (1) No. 1 AufenthG). If the foreigner does not have sufficient means to secure their livelihood, they will need to engage in employment in Germany.
For employment, the foreigner requires authorization to work. According to Section 38a (3) AufenthG, a residence permit under Section 38a (1) AufenthG only permits employment if the conditions specified in Section 19c or Section 21 AufenthG are met (Section 38a (3) AufenthG).
Thus, the foreigner must generally also meet the requirements of Section 19c AufenthG. This means they need to find employment, and the relevant authorities (Federal Employment Agency) must conduct a positive priority and wage check (approval under Section 39 (3) AufenthG).
In the case decided by the Administrative Court of Darmstadt, the court had to determine whether an Indian cook/chef was rightfully denied approval under Section 39 AufenthG and, consequently, a residence permit under Section 38a AufenthG.
Case Background Indian Cook from Italy
The plaintiff, born on February 20, 1967, is an Indian national who had acquired long-term residence status in Italy. Before entering Germany, he lived in Italy and applied through his prospective employer in Germany for authorization to work as a cook or cook’s assistant at Restaurant Z. On May 5, 2010, the defendant sent a request for approval to the Federal Employment Agency in accordance with Section 39 AufenthG. The job description from the prospective employer dated April 28, 2010, indicated that the sought position as a cook/cook’s assistant did not require special qualifications. The employer stated that no formal training was needed and only a driver’s license was required. The gross monthly salary for this full-time job was to be €1,800. The employer refused to consent to the publication of the job offer on the employment agency’s website.
Rejection by the Federal Employment Agency
The Federal Employment Agency rejected the approval for the residence permit for the desired employment, stating that the conditions of Section 39 Sentence 2 No. 1b and the final clause of AufenthG were not met. Specifically, the restaurant was not an Indian specialty restaurant, and no specialized skills like those of a specialty cook were required. Moreover, the offered salary was below the tariff wage of €2,122. After being informed of the rejection, the employer requested the Federal Employment Agency on June 1, 2010, to reconsider the decision, arguing that the plaintiff, unlike German job seekers, was skilled in Indian cuisine. Additionally, the plaintiff was known personally to the restaurant and could significantly contribute to alleviating work demands, both as a cook and as a representative in the restaurant management.
Further Attempts by the Employer
On June 23, 2010, the employer submitted a job request to the employment office for an experienced cook with knowledge of Indian and Italian cuisine. The remuneration was to be subject to agreement. A vocational training as a cook was required, but a driver’s license was no longer needed. The employer also agreed to publish the job offer on the job board and other job placement platforms. The number of preferred job placements was limited to 15. Despite these adjustments, the position could not be filled otherwise. The defendant then asked the Federal Employment Agency to review the matter again, but the agency maintained its refusal, stating that the conditions of Section 39 AufenthG were not met and sufficient priority workers were available.
Plaintiff’s Legal Arguments
On November 12, 2010, the plaintiff filed a lawsuit with the Administrative Court, arguing that the rejection of the approval was erroneous. He contended that it could not be assumed that sufficient priority workers were available since the position could not be filled despite significant efforts. Only one applicant had applied, who turned out to be a dishwasher. The employer had already removed Indian dishes from the menu due to the lack of a specialty cook. The plaintiff further argued that there was no comparable training for cooks/cook assistants in Europe or outside Europe as required in Germany and that his background made him particularly qualified to prepare Indian specialties. A certificate from Ristorante H. in Brescia was presented as proof of his professional qualifications. Additionally, the plaintiff claimed that due to the new legal situation since May 31, 2011, Section 41 BeschV would apply to his case.
Decision of the Administrative Court
The Administrative Court of Darmstadt did not agree with the plaintiff and ruled that the lawsuit was inadmissible due to a lack of prior administrative remedy. According to Sections 68 and 75 of the Administrative Court Procedure Act (VwGO), a lawsuit is only admissible if the authority has issued an administrative act or failed to make a decision on an application. Since the plaintiff initially applied for a residence permit for a qualified position as a cook, but later changed the application to an unqualified position as a cook’s assistant, he should have submitted a new application before filing the lawsuit. Even if the original application were considered, the lawsuit would be unfounded as the plaintiff did not have a right to a residence permit for employment as a cook/cook’s assistant. The requirements of Section 38a AufenthG, particularly the approval of the Federal Employment Agency, were not met.
Labor Market Examination and Implications
The court further stated that the plaintiff did not meet the requirements of Section 18 (2) AufenthG and that the Federal Employment Agency rightly refused the approval. The unqualified employment as a cook’s assistant did not fall under the occupational groups listed in the Employment Ordinance that would justify approval. It was sufficient that priority workers were available, even if they could only be placed with the support of the employment agency. Employing foreign workers without adequate professional qualifications could also negatively impact the labor market structure. Although the potential employer indicated that the position could not be filled, he himself stated that at least one applicant had come forward who could have been hired as a cook’s assistant. Thus, employing the plaintiff would have adverse effects on the labor market, particularly concerning employment structure.
Source: Administrative Court of Darmstadt
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