Court rulings in migration law
VISAGUARD case law database: Collection of the most important judgments in residence and migration law.
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Here you learn ...
what the most important court rulings in Germany in migration law are
the most important judgments in the field of skilled immigration
all judgments on actions for failure to act (e.g. in cases of naturalization)
Judgments on Golden Visa and Investors Visa in Germany
Table of contents
1. Judgments on residence titles and residence permits (Section 4 of the Residence Act)
2. Judgments on applications (Section 81 (1) Residence Act)
3. Judgments on the expiration of the residence permit (Section 51 of the Residence Act)
4. Judgments on skilled immigration (in particular EU Blue Card and ICT Card; Section 18 et seq. of the Residence Act)
5. Judgments on self-employed persons and freelancers (Section 21 of the Residence Act)
6. Judgments on employment permits/work permits (Section 39 of the Residence Act)
7. Judgments on training and studies (§§ 16 ff. Residence Act)
8. Judgments on specialty chefs (Section 11 (2) Employment Ordinance)
10. Judgments on parental reunification (Section 36 of the Residence Act)
11. Judgments on settlement permits (§§ 9 ff. AufenthG)
12. Judgments on actions for failure to act (Section 75 VwGO)
13. Judgments on urgent cases and interim injunctions (Section 123 VwGO)
14. Judgments on labor migration law (Section 4a of the Residence Act)
15. Vander-Elst judgments (Section 21 Employment Ordinance)
16. Judgments on the Schengen visa (Section 6 of the Residence Act)
17. Judgments on European freedom of movement (FreizügG/EU)
18. Judgments on securing livelihood (Section 5 (1) No. 1 Residence Act)
19. Judgments on visa requirements and visa procedures (Section 5 (2) Residence Act)
20. Judgments on change of purpose
21. Judgments on special residence purposes and Golden Visas (Section 7 of the Residence Act)
22. Judgments on fictitious residence certificates (Section 81 (3) and (4) of the Residence Act)
23. Judgments for Turkish nationals (ARB 1/80)
24. Judgments on criminal law for foreigners (§§ 95 ff. Residence Act)
25. Judgments on naturalization (StAG)
26. Judgments on labor law for foreigners
27. FAQ on judgments on migration and immigration law
28. Conclusion on judgments on migration and immigration law
1. Jurisdictions and branches of courts in administrative law/migration law
In Germany, there are specialized courts for every area of law. Administrative courts generally have jurisdiction over immigration law, as immigration law usually involves public law disputes within the meaning of Section 40 of the Administrative Court Act (VwGO) . However, there are important exceptions: In criminal law, local and regional courts have jurisdiction ( Section 13 of the GVG ), while in cases of breaches of official duty by the state, the local courts have jurisdiction pursuant to Article 34 of the Basic Law (GG ). Labor courts are responsible for labor law disputes ( Section 1 of the ArbGG ), and in social law, the social courts are responsible ( Section 1 of the Social Court Act (SGG ).
The addresses and contact details of all courts in Germany can be found in the court finder at Justiz.de (public resource) (see the directory of places and courts in the federal and state justice portal ).
2. Court instances in administrative law/migration law
Judicial proceedings in immigration law are governed by the Administrative Court Act (VwGO) , which also regulates the structure of administrative jurisdiction . The 51 administrative courts, such as the Berlin Administrative Court , form the first instance. They are responsible for their respective judicial districts. Above these are the Higher Administrative Courts (in some federal states also called Administrative Courts of Appeal (VGH)), which decide on appeals and complaints. Every federal state has such a court – with one exception: Berlin and Brandenburg share a joint Higher Administrative Court ( Higher Administrative Court of Berlin-Brandenburg ). The Federal Administrative Court (BVerwG) in Leipzig is the highest court of appeal. Only the Federal Constitutional Court (BVerfG) in Karlsruhe and the European Court of Justice (ECJ in Luxembourg) are above the Federal Administrative Court.
3. Collections of judgments in Germany
Administrative court rulings are generally publicly accessible , but are not automatically published. Anyone wishing to view a specific ruling can request it from the court's office. A small fee is usually charged for anonymization and copying. Some courts also make rulings available online. The following databases are particularly relevant for migration law, where relevant rulings can be researched:
Collection of case law/judgments of the Federal Administrative Court (BVerwG).
Collection of case law/judgments of the Federal Constitutional Court (BVerfG).
Collection of case law/judgments of the European Court of Justice (ECJ).
Collection of case law/judgments of the European Court of Human Rights (ECHR) .
In addition to these public collections of judgments, there are also case law databases from private providers. These include the following:
free judgment database openjur (non-profit project)
free judgment database from migrationsrecht.net (from a law firm)
fee-based judgment database Juris (cooperation of the Federal Ministry of Justice (BMJ) with juris GmbH)
4. Judgments in migration law
Below, we have compiled the most important judgments in immigration law from the databases. The core message of each judgment has been summarized in one sentence.
The most important judgments in migration law in Germany are the following:
1. Judgments on residence titles and residence permits ( Section 4 of the Residence Act )
The following court rulings are particularly relevant to general residence law:
It is possible to hold several residence permits ( BVerwG, judgment of 19 March 2013 - 1 C 12.12 ).
A second residence permit (which exists in parallel) can be entered in the supplementary sheet of the main residence permit ( BVerwG, judgment of 22 May 2021 - 1 C 6.11 ).
Residence permits can also be issued retroactively if an application has been submitted and the requirements have been met ( Higher Administrative Court of Berlin-Brandenburg, judgment of 24 November 2011, OVG 2 B 21.10 ).
The granting/extension of a residence permit is not subject to a written form. Whether, when, and how a foreigner is granted a residence permit in person for the purpose of granting/extending a residence permit depends on the circumstances of the individual case ( VGH Kassel, decision of December 16, 2020 - 9 B 2282/20 ).
Although the "issuance" of an administrative act is not always necessarily synonymous with "notification", both coincide when the person concerned collects the notice personally from the authority ( VG Oldenburg, judgment of 31 May 2010 - 11 A 1520/09 ).
2. Judgments on applications ( Section 81 (1) Residence Act )
The following court rulings are particularly relevant to general residence law:
Applications can also be submitted to the immigration office verbally or by implied conduct. The use of an official application form is not mandatory ( Administrative Court of Osnabrück, decision of April 24, 2009, 5 B 29/09 ).
The relevant time for the decision on an application for a residence permit is not the time of application, but the time of granting ( BVerwG, judgment of 18.12.2019, 1 C 34.18 ).
When interpreting an application for a residence permit (Section 81 (1) of the Residence Act), which does not require a formal application, the legal principles applicable to the interpretation of declarations of intent under civil law that require receipt (Sections 133 and 157 of the German Civil Code) are to be applied ( Administrative Court of Aachen (8th Chamber), judgment of July 29, 2021 – 8 K 2528/20 ).
The application must clearly state the purpose for which a residence permit is being applied for. (OVG Berlin-Brandenburg BeckRS 2021, 980).
3. Judgments on the expiry of the residence permit ( Section 51 of the Residence Act )
The following court rulings are particularly relevant to general residence law:
Stays abroad which are typically limited in time according to their purpose and which do not entail any significant changes in living conditions in Germany are harmless with regard to the expiry of a residence permit according to Section 51 Paragraph 1 No. 6 of the Residence Act ( VG Augsburg, decision of 23 May 2019 - Au 6 E 19.549 ).
If a condition subsequent is added to a residence permit only subsequently, this constitutes a partial revocation, which is at the discretion of the authority and must be justified accordingly ( Munich Administrative Court, decision of 14 January 2015 - M 24 K 14.3629 ).
Conditions subsequent are permissible in the right of residence ( Higher Administrative Court of Berlin-Brandenburg, decision of 06.07.2006 - 11 S 33.06 ).
Conditions subsequent must comply with the principle of proportionality ( VGH Mannheim, decision of 11.12.2013 - 11 S 2077/13 – BeckRS 2014, 46012 ).
The ancillary provision “Expires upon non-commencement or discontinuation of preparatory measures for studies” is permissible (VG Berlin, decision of 24 November 2014, VG 15 L 439.14, VG Berlin, judgment of 28 May 2015, VG 15 K 65.15).
4. Judgments on skilled immigration (in particular EU Blue Card and ICT Card ; Section 18 ff. Residence Act )
The following court rulings are particularly relevant in the area of skilled immigration:
The possibility of granting a residence permit for the purpose of pursuing an employment pursuant to Section 18 Paragraph 4 Sentence 2 of the Residence Act applies only to such employment which requires qualified vocational training ( Higher Administrative Court of Hamburg, decision of 30 June 2008 – 5 Bs 86/08 ).
The requirement of a concrete job offer in Section 18 Paragraph 2 No. 1 of the Residence Act cannot be waived when applying for a residence permit for gainful employment purposes ( Higher Administrative Court of Munich (10th Senate), decision of March 4, 2021 – 10 CS 21.426 ).
The mere interest of a private entrepreneur in hiring a foreigner does not, in principle, constitute a public interest in the employment of the foreigner within the meaning of Section 18 IV, Sentence 2 of the Residence Act ( Higher Administrative Court of Münster, decision of 17 November 2006 - 18 B 613/06 ).
The equivalence of vocational training only exists if the equivalence has been established by the competent authority in a recognition procedure (VG Bremen, judgment of November 4, 2021, 4 K 2794/19).
The profession of dentist is appropriate in terms of qualifications for a position as an authorized signatory ( Saxon Higher Administrative Court, judgment of 11 February 2021, 3 A 973/19, juris, para. 27 ff .).
For training appropriate to their qualifications, it is sufficient if the skilled worker with academic training, regardless of the field of study, needs the knowledge acquired through higher education at least partially or indirectly for their employment ( Higher Administrative Court Bautzen, judgment of 11 February 2021 - 3 A 973/19 ).
The EU Blue Card and the settlement permit are not mutually exclusive, but can be issued alongside each other ( Administrative Court Dresden, judgment of 19 November 2020 - 3 K 1477/18 ).
Specialists within the meaning of Section 19 II No. 3 of the Residence Act are experts who possess above-average knowledge and skills in a particular field. A managerial position is not mandatory ( Stuttgart Administrative Court, judgment of June 9, 2006 - 1 K 2150/05 ).
5. Judgments onself-employed persons and freelancers ( Section 21 of the Residence Act )
The following court rulings are particularly relevant for self-employed foreigners:
The decisive factor for the difference between employment and self-employment is the characteristic of personal dependence and being subject to instructions ( BSG, judgment of 29 August 2012 – B 12 KR 25/10 R ).
It is not a prerequisite for a self-employment visa (entrepreneur visa) that the company creates 5 jobs (VG Berlin, decision of 20 January 2023, VG 17 K 86/22).
The granting of a residence permit under Section 21 (1) of the Residence Act requires more than just a prognosis that the applicant can secure his or her livelihood through the planned self-employment. It requires "added value" for the domestic economy ( Stuttgart Administrative Court, judgment of August 6, 2019 - 2 K 7356/18 ).
An investment of 250,000 euros or the creation of five jobs can qualify for an investor visa ( Administrative Court of Saarlouis, decision of 17 November 2015 - 6 L 834/15 ).
The management of one's own assets is self-employment within the meaning of Section 21 of the Residence Act if it is associated with an active activity that goes beyond the mere passive holding of assets ( VG Berlin, judgment of 25 May 2022 - VG 12 K 215/21 V ).
The provision of Section 21 Paragraph 6 of the Residence Act does not provide a legal basis for the extension or reissue of a residence permit, but only allows the holder of a valid residence permit to be permitted to pursue self-employment at his or her discretion under the conditions stated therein ( Higher Administrative Court of Lüneburg, decision of 10 August 2018 - 13 ME 49/18 ).
The livelihood is not secured by income from self-employment as a sex worker if there is no authorization to carry out this activity according to Section 38 a III 2 in conjunction with Section 21 I AufenthG (VG Bremen, judgment of November 25, 2022 - 2 K 817/19).
A negative decision despite the factual requirements being met is only considered in atypical exceptional cases, for example if there are serious doubts about the reliability of the foreign national or the economic viability of his business concept (cf. VGH Mannheim BeckRS 2020, 31765 para. 78; VG Würzburg BeckRS 2022, 36377 para. 44).
6. Judgments on employment permits/work permits ( Section 39 of the Residence Act )
The following court rulings are particularly relevant for obtaining a work permit:
The employment permit is a secondary provision in the broader sense ( Administrative Court of Munich (4th Chamber), decision of 06.04.2021 – M 4 S 20.3996, M 4 K 20.3992 ).
The work permit is an independent, preferential administrative act (cf. VGH Baden-Württemberg, judgment of 10 July 2017 - 11 S 695/17 ).
In principle, a foreigner is only permitted to pursue gainful employment if he or she is in possession of a residence permit (Section 4a (1) Sentence 1 of the Residence Act) (VG Chemnitz (6th Chamber), decision of 18 July 2022 - 6 L 223/22).
The prerequisite for the granting of an employment permit is that, according to the applicant's presentation, it is clear what specific employment is sought (Munich Administrative Court (10th Chamber), decision of August 17, 2021 - M 10 E 21.4197).
Section 9 of the Employment Ordinance (BeschV) concerns the consolidation of residence through official admission to the German labor market. The exemption from consent under Section 9 of the Employment Ordinance does not apply to holders of a residence permit that legally entitles them to work (e.g., family reunification) ( Federal Administrative Court, judgment of August 21, 2018, BVerwG 1 C 22.17, para. 24 ).
7. Judgments on training and studies ( §§ 16 ff. AufenthG )
The following court rulings are particularly relevant for the study and training of foreigners:
Foreign nationals are entitled to a study visa if the relevant conditions are met ( ECJ, judgment of 10 September 2014, C-491/13 (“Ben Alaya”) ).
The ban on changing the purpose of residence for students expires after leaving the country (OVG Weimar BeckRS 2021, 7116 para. 24 et seq., VG Karlsruhe BeckRS 2020, 29567 para. 35).
The authorities may check whether study visas are being misused for other residence purposes (VG Berlin, judgment of 19.12.2014, VG 9 K 515.13 V).
Even applicants with only conditional admission must be granted a visa if the other requirements are met. The authorities are not permitted to assess whether sufficient motivation or ability to study is present ( Higher Administrative Court of Berlin-Brandenburg, judgment of May 20, 2015, Ref. No. OVG 3 N 120.14 ).
The course of study must lead to a recognized qualification in Germany in order to obtain a residence permit in accordance with Section 16b of the Residence Act ( Higher Administrative Court of Hamburg, decision of June 7, 2023 - 6 Bs 30/23 ).
A legal entitlement to an extension or (re-)issuance of a residence permit for study purposes only exists if the purpose of the stay has not yet been achieved and can still be achieved within a reasonable period of time ( VGH Munich, decision of August 1, 2022 - 10 CS 22.1596 ).
The prognosis as to whether the period is still appropriate is subject to full judicial review (OVG Bautzen, decision of 16.09.2020 - 3 B 184/2).
In any case, the studies must be completed within 10 years (or less) ( VGH Munich, decision of 18.09.2023 - 10 CS 22.863 , 10 C 22.864 ).
A mandatory requirement for the granting of a residence permit is the existence of a training contract and entry in the register of vocational training relationships at the competent authority ( VG Karlsruhe, decision of 09.06.2022, 19 K 1524/22 ).
The residence permit for job search purposes can only be granted once, even if further studies were undertaken after the first grant ( VG Aachen, decision of 02.12.2013 - 4 L 217/13 ).
8. Judgments on specialty chefs ( Section 11 (2) Employment Ordinance )
The following court rulings are particularly relevant for specialty chefs:
To be considered a specialty restaurant, the product range must consist of at least 90% country-specific specialties, the company name must refer to the country's cuisine, and the furnishings and design must reflect the national character of the respective country ( VG Berlin, judgment of December 22, 2022, VG 14 K 139.19 V ).
The status of specialty chef cannot be clarified within the framework of a declaratory action to the Federal Foreign Office ( Higher Administrative Court of Berlin-Brandenburg, decision of 10 November 2020, OVG 3 N 142/20 ).
Employers are at most marginally affected if visa applications from foreign employees are rejected ( Administrative Court of Munich, decision of 29 January 2021, M 4 E 21.148 ).
The “live cooking” offered by the restaurant speaks decisively against the classification as a Chinese specialty restaurant (VG Osnabrück (7th Chamber), judgment of 07.06.2021 – 7 A 179/18).
A kebab shop is not a speciality restaurant ( Administrative Court of Munich (4th Chamber), decision of 20 May 2015 - M 4 S 15.1589 ).
9. Judgments on family reunification ( §§ 27 ff. AufenthG )
The following court rulings are particularly relevant for family reunification of foreign nationals:
The protection of the family according to Article 6 of the Basic Law also applies to foreigners ( BVerfGE 76,1 ff, judgment of 12 May 1987 ).
Every family member can invoke Article 6 of the Basic Law, even if he or she is not the addressee of the official measure ( Federal Constitutional Court decision of 18 July 1979, 1 BvR 650/77 ).
The granting of a residence permit for family reasons requires family life in the federal territory ( Munich Administrative Court, decision of 17 October 2022, M 9 S 21.2766 ).
The subsequent shortening of the period of validity of a residence permit is lawful according to Section 7 Paragraph 2 Sentence 2 of the Residence Act if the marital partnership no longer exists ( Administrative Court of Augsburg (1st Chamber), judgment of 24 May 2022 – Au 1 K 22.89 ).
The foreigner must explain and prove the existence of the marital partnership ( BVerwG judgment of 22 June 2011, 1 C 11.10 , , established case law).
An extension of the residence permit for family reunification is not possible if the spouses no longer live in a marital partnership ( Administrative Court of Munich, decision of 12 April 2021, M 10 S 21.252 ).
Proxy marriages are permissible if this is permitted under the respective state law ( BGH, decision of 29.09.2021 - XII ZB 309/21 ).
The domestic community of the spouses is neither necessary nor sufficient to assume a marital partnership (BGH, judgments of 14 June 1978 - IV ZR 164/77 -, NJW 1978, 1810 and of 27 April 2016 - XII ZB 485/14 -, BGHZ 210, 124 para. 13).
A German citizen may not be required to conduct his marriage abroad ( BVerwG, judgment of 4 September 2012, 10 C 12/12 ).
10. Judgments on parental reunification ( Section 36 of the Residence Act )
The following court rulings are particularly relevant for parental reunification in Germany:
The parents' need for care constitutes exceptional hardship and therefore constitutes a reason for the parents to join their children (VG Berlin, judgment of 7 March 2021, Ref. VG 23 K 202.11 V)
Exceptional hardship requires that the family member in need of protection living in the Federal territory can no longer lead an independent life (VG Berlin, judgment of 27 August 2021, VG 3 K 208/20).
Foreign fathers of German children can obtain a residence permit for family reunification if it is unreasonable for the child to live with the father abroad (VG Berlin, judgment of 7 January 2018, Ref. VG 30 L 158.17).
Constitutionally protected parenthood also exists if paternity was established by recognition according to Section 1592 No. 2 of the German Civil Code (BGB) and the person recognizing is not the biological father ( VG Magdeburg, judgment of 29 August 2018, 2 A 24/16 ).
11. Judgments on settlement permits ( §§ 9 ff. AufenthG )
The following court rulings are particularly relevant for applying for a permanent residence permit:
ALG I and ALG II periods are not to be taken into account for the required pension entitlement periods for the settlement permit ( Bavarian Higher Administrative Court, decision of December 7, 2015, Ref. No. 19 ZB 14.2293 ; VG Magdeburg, judgment of April 12, 2016, 4 A 187/15 MD).
There may be a legitimate interest in granting a settlement permit retroactively if a child thereby acquires German citizenship ( Higher Administrative Court of Lüneburg, judgment 8 LB 59/17, para. 27 ).
In the case of a permit for permanent residence in the EU, periods of absence/deadlines are interrupted by an entry of just a few days ( ECJ, judgment of 20 January 2022, C-432/20 ).
For the granting of a permanent residence permit in the EU, the same criteria apply with regard to pension insurance contributions (adequate retirement provision) as for a settlement permit ( VGH Mannheim, judgment of 02.02.2011 - 11 S 1198 ).
The element of proof of basic knowledge of the legal and social order and the living conditions in the Federal territory does not have to be proven by an integration course or the test “Living in Germany” (BVerwG, judgment of 28.04.2015 - 1 C 21.14 ).
According to Section 44a Paragraph 2 No. 3 Alternative 2 of the Residence Act, foreign nationals are exempt from the participation requirement if their participation is permanently impossible or unreasonable. According to case law, the criterion of "unreasonableness" within the meaning of Section 44a Paragraph 2 No. 3 of the Residence Act includes a proportionality test, specifically the question of whether a participation requirement is appropriate (see Mannheim Higher Administrative Court, judgment of June 12, 2013, Ref. No. 11 S 208/13 ).
By pursuing a qualified activity as a skilled worker, it can be assumed that even for English-speaking foreigners, part of the economic, social, societal and cultural integration takes place through contacts and experiences at work and that the foreigner will thus acquire a wide range of knowledge of the legal and social order (Higher Administrative Court of Hamburg, decision of April 26, 2023, case number 6 Bf 243/22.Z).
12. Judgments on actions for failure to act ( Section 75 VwGO )
The following court rulings are particularly relevant for actions for failure to act:
The relevant date for calculating the deadline under Section 75 VwGO is the date of application ( VG Weimar, decision of June 11, 2024, Ref. No. 1 K 135/24 We ).
The defendant's workload, which has existed since 2020/2021 due to the significantly increased number of applications in the area of naturalization, does not constitute a sufficient reason within the meaning of Section 75 of the Administrative Court Code ( VG Weimar, decision of June 11, 2024, case no. 1 K 135/24 We ).
According to the assessment of Section 75, Sentence 2 of the Code of Administrative Court Procedure (VwGO), the application should be ready for a decision within the three months specified therein (including request for documents, hearing and involvement of the authorities) ( Saxon Higher Administrative Court, decision of 14 February 2023 – 3 E 2/23 –, juris, para. 12).
If the authority justifies excessive processing times with work overload, this is only admissible as a justification if the situation is temporary. Normal downtime due to illness must be compensated for by appropriate organizational measures (Federal Constitutional Court, decision of January 16, 2017 – 1 BvR 2406/16 –, juris para. 9 with further references; Higher Administrative Court of Berlin-Brandenburg, decision of July 27, 2017).
A persistent overload of the authority or a continuously increasing workload to which no response is made even though this would have been possible does not constitute a sufficient reason ( Saxon Higher Administrative Court, decision of 14 February 2023 – 3 E 2/23 –, juris para. 9; Saarland Higher Administrative Court, decision of 2 November 2023 – 2 E 123/23 –, juris para. 16).
Even a persistent shortage of personnel cannot justify excessively long proceedings ( Higher Administrative Court of Mannheim, decision of 31 July 2024, 11 S 1117/24 ).
The authority has the burden of proof for the factual circumstances that are intended to establish a sufficient reason within the meaning of Section 75 of the Administrative Court Code ( Saxon Higher Administrative Court, decision of 14 February 2023 – 3 E 2/23 –, juris para. 9 with further references).
A declaration of consent regarding an excessively long processing time restarts the 3-month period for the action for failure to act ( VG Gießen, decision of 18 April 2024, 4 K 2799/23GI ).
13. Judgments on urgent cases and interim injunctions ( Section 123 VwGO )
The following court rulings are particularly relevant for emergency visas:
The impending birth of a child in Germany constitutes a reason for urgency ( VG Berlin, decision of 06.03.2009, Ref. VG 10 L 53.09 V ).
A missing fictitious certificate constitutes a reason for urgency ( VG Berlin, decision of 7 February 2012, Ref. VG 15 L 3.12 ; VG Schleswig-Holstein, decision of 27 March 2013, Ref. 6 B 11/13; VG Bremen, decision of 13 April 2011, Ref. 4 V 62/11; VGH Baden-Württemberg, decision of 17 June 2010, Ref. 11 S 1050/10; OVG Bremen, decision of 31 July 2009, Ref. 1 B 169/09; OVG Bremen, decision of 17 September 2010, Ref. 1 B 140/10).
The start of a course of study does not constitute a reason for urgency (VG Berlin, judgment of 20 March 2020, VG 32 L 12/20 V).
A seriously injured son in Germany represents a reason for urgency for the mother ( VG Berlin, judgment of 08.08.2011, VG 20 L 219.11 V ).
The expected separation from the husband for several years may constitute a reason for urgency (VG Berlin, decision of 19 April 2005, VG 24 A 2.02).
14. Judgments on labor migration law ( Section 4a of the Residence Act )
The following court rulings are particularly relevant in labor migration law:
Voluntary activities do not constitute employment, even if an expense allowance is paid ( Federal Labor Court, judgment of 29 August 2012 – 10 AZR 499/11 ).
Multiple adjustments to the employer's certificate and the employment contract during the ongoing proceedings and the existence of incorrect salary statements may constitute indications that an applicant is employed under less favorable working conditions than comparable domestic employees (Munich Administrative Court (9th Chamber), decision of June 21, 2021 - M 9 S 20.5270).
The approval decision of the Federal Employment Agency is an internal administrative matter ( BVerwG, judgment of 19 November 2019, 1 C 41.18 ).
The approval decision of the Federal Employment Agency is binding for other authorities ( BVerwG, judgment of 19 November 2019, 1 C 41.18, paras. 34 et seq. ).
The approval decision of the Federal Employment Agency is not binding for the administrative courts ( VG Berlin, decision of 9 November 2017, Ref. VG 10 L 858.17 V ).
The immigration authorities are obliged not to delay approval of visa applications longer than necessary ( OVG Bremen, 21.12.2011, 1 B 246/11 ).
A "company specialist" within the meaning of Section 3 No. 3 of the Employment Ordinance is a person who has specific (technical) knowledge that is particularly relevant to the intended employment in the company and of particular benefit to the employer ( VGH Mannheim decision of 4 October 2022 - 11 S 3478/21 ).
A purely formal position is not sufficient for the assumption of a managerial position. It is necessary that the foreign national with these powers actually intends to work as a managerial employee (OVG Koblenz BeckRS 2020, 648; VG Potsdam BeckRS 2022, 7049; VG Düsseldorf BeckRS 2016, 53097).
The decisive criteria for accepting a managerial position are the authority to make independent personnel decisions, general power of attorney or commercial power of attorney and the ability to perform tasks essentially without instructions ( Higher Administrative Court Koblenz, decision of 13 January 2020, 7 B 11770/19.OVG ).
15. Vander-Elst judgments ( Section 21 Employment Ordinance )
The following Vander-Elst court rulings are particularly relevant:
The European freedom to provide services must make it possible to send third-country nationals from one EU Member State to another so that they can provide cross-border services there ( ECJ judgment of 9 August 1994 – C-43/93 (“VanderElst”) ).
The Vander-Elst visa does not document an existing legal status (declaratory effect), but only becomes effective upon issuance of the visa (constitutive effect) ( VGH Kassel, decision of 22.04.2021, 7 B 312/21 ).
Failure to obtain a Vander-Elst visa may justify deportation ( VG Potsdam, decision of November 2, 2020, Ref. VG 8 L 660/20 ).
Vander-Elst visas are not possible if the main stay is in Germany in order to provide or receive services there for an indefinite period ( ECJ judgment of 5 October 1988 – 196/87 (Steymann) ).
A Vander-Elst visa may only be issued if the employee is legally employed in another Member State (ECJ judgment of 19 January 2006 – Case C-244/04).
For a Vander-Elst visa, the posted worker does not have to provide evidence of previous employment (ECJ judgment of 19 January 2006 – C-244/04).
In order to be granted a Vander-Elst visa, it is necessary that cross-border “temporary” services are provided ( BVerwG, decision of 20 June 2019, 1 B 10/19 ).
A posting is no longer temporary within the meaning of the Vander-Elst visa if it is a long-term rotation system of employees to support the ongoing production of a company in the host country ( Higher Administrative Court of Berlin-Brandenburg, judgment of 9 November 2018, OVG 6 B 7/18 ).
16. Judgments on the Schengen visa ( Section 6 of the Residence Act )
The following court rulings are particularly relevant for Schengen visas:
The willingness to return is demonstrated, among other things, by booking a return ticket, providing evidence of financial resources in the country of residence, proof of employment, bank statements, and property ownership, as well as proof of integration in the country of residence based on information about family ties and professional status. ( VG Berlin, judgment of October 26, 2012 - 22 K 30.12 ).
The authorities have a wide margin of appreciation when assessing the willingness to return ( BVerwG, judgment of 17.09.2015, 1 C 37.14 ; VG Berlin, judgment of 21.02.2014, Ref. VG 4 K 232.11 V).
17. Judgments on European freedom of movement ( FreizügG/EU )
The following court rulings are particularly relevant to European freedom of movement law:
A right of freedom of movement does not constitute a residence permit that is eligible for subsequent immigration within the meaning of the Residence Act ( VG Leipzig, decision of 02.06.2021, 3 L 227/21 ).
The authorities may require third-country nationals of EU citizens to have a visa, but they may not prevent family members from entering the country due to freedom of movement if they still do not have a visa ( ECJ Case MRAX, judgment of 25 July 2002, C-459/99 ).
The concepts of “accompanying” and “following” within the meaning of the Freedom of Movement Act are to be interpreted broadly ( ECJ, judgment of 25 July 2008, Case C-127/08 -Metock ).
Entry visas for third-country national family members of EU citizens do not require proof of sufficient means of subsistence or health insurance coverage (VG Berlin, judgment of 29 April 2019, Ref. VG 28 K 554.18 V).
In order to acquire the right of permanent residence, a continuous right of free movement is required ( ECJ, judgment of 21.12.2011, case C-424.10 ).
The right of freedom of movement does not expire automatically, but the expiration must be determined by the immigration authorities ( VG Bremen, judgment of 19.12.2011, Ref. No. 4 V 1528/11 ).
EU citizens can stay in Germany for a period of up to 6 months to seek employment (ECJ, judgment of 26 February 1991 - C-292/89).
Article 20 TFEU obliges Member States to grant or recognise a right of residence under certain circumstances ( Administrative Court of Düsseldorf, judgment of 19 November 2020, 8 K 5232/19 ).
18. Judgments on securing livelihood ( Section 5 (1) No. 1 Residence Act )
The following court rulings regarding livelihood security are particularly relevant:
Ensuring the livelihood of foreigners is a fundamental state interest ( BVerwG, judgment of 26.08.2008 - BVerwG 1 C 32.07 ).
When assessing the security of livelihood, a prognosis must be made as to whether the livelihood will be secured in the future ( BVerwG 29.11.2012, 10 C 4.12 , para. 25; OVG Berlin-Brandenburg, decision of 30.03.2016, OVG 2 N 65.13).
The forecast may cover a period of at least one year into the future and may consider the employment situation in the last six months ( ECJ, Case Mimoun Khachab, judgment of 21 April 2016, C-558/14 ).
The mere possibility that one's livelihood might no longer be secure at some point does not preclude a positive prognosis ( Higher Administrative Court of Berlin-Brandenburg, judgment of 5 November 2020 - 12 B 10.19 ).
The livelihood can also be secured by third parties or a family member of the foreigner ( ECJ, judgment of 03.10.2019, C-302/18, case X v Belgian State ).
The livelihood is not secured if the comparison of income and needs reveals a gap (BVerwG, 22.05.2012, 1 C 6.11).
Particularly cheap rents raise doubts about the sustainability of the livelihood security ( Higher Administrative Court of Berlin-Brandenburg, judgment of 25 March 2010 – 3 B 9.08 ).
A reduction of the required apartment size by 10% is harmless ( OVG Berlin-Brandenburg, 25.03.2010, OVG 3 B 9.08 ).
The living space is sufficient if “12 square meters of living space are available for each family member over six years of age and 10 square meters for each family member under six years of age and ancillary rooms (kitchen, bathroom, toilet) can be used to a reasonable extent” ( Higher Administrative Court of Berlin-Brandenburg, judgment of 31.07.2015 - 7 B 39.14 ).
Foreigners have the right to be included in the basic tariff of private health insurance ( OVG Bln-Bbg judgment of 25.1.2012 – OVG 2 B 10.11 ).
Whether an exceptional case exists to secure a livelihood is subject to full judicial review. The standard requirement for granting a residence permit under Section 5 (1) No. 1 of the Residence Act cannot be waived at the discretion of the court (Federal Administrative Court, judgment of April 30, 2009 - BVerwG 1 C 3.08).
19. Judgments on visa requirements and visa procedures ( Section 5 (2) Residence Act )
The following court rulings on visa requirements are particularly relevant:
Exceptions to the visa requirement are generally to be interpreted narrowly ( Higher Administrative Court of Munich, decision of 11 March 2021, 19 C 19.500 ).
The purpose of the visa is the same if it is taken from the same section of the Residence Act as the purpose underlying the previous residence permit ( BVerwG, judgment of 4 September 2007, 1 C 43.06 ).
The subsequent visa procedure is unreasonable not only because the visa procedure results in a separation of the spouses (OVG Berlin-Brandenburg, decision of 05.03.2007, OVG 2 S 19.07).
The subsequent visa procedure is unreasonable not only because military service still has to be fulfilled in the home country (OVG Berlin-Brandenburg, decision of 06.03.2008 OVG 11 S 43.07).
Despite temporary separation from a small child, it may be reasonable to complete the visa procedure ( VGH Munich, decision of 25 January 2022, 19 CE 21.2859 ).
A strict legal claim only exists if all mandatory and regular requirements are met ( BVerwG, judgment of 10.12.2014, 1 C 15.14 ).
A "should" provision is not a strict legal entitlement within the meaning of Section 5 Paragraph 2 of the Residence Act ( BVerwG, judgment of 17 December 2015, 1 C 31.14 ).
The immigration authorities are obliged to counteract excessively long visa procedures ( OVG Bremen, 21.12.2011, 1 B 246/11 ).
20. Judgments on change of purpose
The following court rulings on change of purpose are particularly relevant:
The purpose of the visa procedure is to control immigration ( BVerwG, judgment of 16.11.2010, 1 C 17.09 ).
Further training to become a specialist falls under the purpose of residence of the training, not that of gainful employment ( Administrative Court Hannover, judgment of 17 June 2010 - 2 A 3924/09 )
The ban on changing the purpose of residence expires after departure ( Higher Administrative Court Weimar, decision of 11.01.2021, 3 EO 279/19 ; Administrative Court Karlsruhe, judgment of 09.07.2020 - 3 K 7685/18; Administrative Court Aachen, judgment of 25.02.2021 - 8 K 2456/18).
The ban on changing the purpose of residence is intended to ensure that the residence permit for study purposes is not misused as a means for uncontrolled immigration for other residence purposes (VG Gelsenkirchen BeckRS 2023, 20702 paras. 30 and 32).
The term “purpose of residence” in Section 16b of the Residence Act is linked to the specific course of study being pursued and not to the abstract purpose of residence “study”, so that if the field of study (course of study and, if applicable, subjects of study) changes, the purpose of residence is different and a new residence permit for the study objective now sought is required ( Munich Administrative Court, decision of June 2, 2022 - M 10 S 22.182 ).
21. Judgments on special residence purposes and Golden Visas ( Section 7 of the Residence Act )
The following court rulings on special residence purposes and Golden Visas are particularly relevant:
Residence permits under Section 7 of the Residence Act may only be issued for purposes not regulated by law (VG Berlin, judgment of 5 March 2009 - VG 15 A 172.08).
Reunification with an unborn child is a case of Section 7 of the Residence Act ( VG Berlin, decision of 08.03.2009, Ref. VG 10 L 53.08 V ; OVG Bremen, decision of 06.07.2015, 1 PA 80/15).
Entry into the Federal Republic of Germany for the purpose of marriage/establishing a civil partnership is a case under Section 7 of the Residence Act ( Higher Administrative Court of Berlin, judgment of 10 November 2011, 2 B 11.10 ).
The implementation of an adoption procedure under certain conditions is a case of Section 7 of the Residence Act ( BVerwG, judgment of 26.10.2010, 1 C 16/09 ).
The residence of a US Army reservist with monthly remuneration does not in itself justify the granting of a residence permit pursuant to Section 7 Paragraph 1 Sentence 3 of the Residence Act ( VG Karlsruhe, judgment of November 23, 2021, 1 K 3409/20 ).
The case groups of Section 41 Paragraph 1 of the Residence Ordinance do not constitute a reason for residence within the meaning of Section 7 Paragraph 1 Sentence 3 of the Residence Act ( VG Oldenburg, decision of 26 March 2008, 11 B 730/08 ).
In the exercise of discretion under Section 7 of the Residence Act, capital claims must be taken into account positively ( VG Stuttgart B. v. 10.6.2010, 2 K 1260/10 ).
Within the scope of the exercise of discretion under Section 7 of the Residence Act, income from renting and leasing must be taken into account positively ( VG Freiburg, judgment of 18.07.2018 - 1 K 1083/17 ).
22. Judgments on fictitious certificates ( Section 81 (3) and (4) of the Residence Act )
The following court rulings on fictitious certificates are particularly relevant:
A fictitious certificate has only a declaratory, but not a constitutive effect ( VGH Munich, decision of 25.08.221, 10 CS 21.1957 ).
The fictitious certificate is to be issued to the foreigner without an application by law/officially. Therefore, no application is required for the fictitious certificate (BayVGH decision of June 16, 2015 – 10 C 15.241, BeckRS 2015, 48005 para. 10).
It makes no difference for the fictitious certificate whether the Schengen visa was issued by a German authority or an authority of another Schengen state ( BVerwG, judgment of 19 November 2019 - 1 C 22.18 ).
The fiction of continued existence of Section 81 Paragraph 4 of the Residence Act also applies if the application for extension is submitted late, provided that the delay is so minor that an internal connection between the expiry of the title and the application is maintained ( Higher Administrative Court of Münster, decision of 23 March 2006, 18 B 120/06 ).
If a foreigner whose stay in the federal territory is lawful according to Section 2 I, IV 1 Ukraine Residence Regulations applies for a residence permit, he or she must be issued with a fictitious certificate according to Section 81 V in conjunction with Paragraph 3 Sentence 1 of the Residence Act if the requirements of Section 81 VII Residence Act are met, regardless of whether the residence title will ultimately be granted to him or her ( VGH Mannheim decision of 26.10.2022 - 11 S 1467/22 ).
23. Judgments for Turkish nationals ( ARB 1/80 )
The following court rulings are particularly relevant for Turkish nationals:
Short-term interruptions in the employment relationship do not prevent the creation of the ARB periods ( ECJ, judgment of 10 January 2006, C 230/03 ).
Au pairs and students can also be employees within the meaning of ARB 1/80 ( ECJ, judgment of 24 January 2008, Ref. C-294/06 ).
Regular employment can also exist if the monthly salary is only 150 euros and the employee only works 5 hours per week (VG Bremen, judgment of 26 March 2012, Ref. No. 4 K 1487/10).
24. Judgments on criminal law for foreigners ( §§ 95 ff. AufenthG )
The following court rulings on criminal law for foreigners are particularly relevant:
A violation of the law within the meaning of Section 54 (2) No. 9 Alt. 1 AufenthG is only irrelevant if it is isolated and minor, but it is always significant if it is isolated but not minor or minor but not isolated ( VGH Munich, decision of 13 April 2023, 19 ZB 22.79 ).
If criminal proceedings are discontinued due to triviality according to Section 153 of the Code of Criminal Procedure, this also constitutes a minor violation of legal provisions under immigration law ( VG Stuttgart, judgment of 28 January 2023, 4 K 1661/12 ).
The time limits for a prohibition on use in cases of convicted criminal offenses committed by foreigners are the limits of Section 51 of the Federal Civil Service Act (BZRG) ( BVerwG, judgment of 12 July 2018 - 1 C 16.17, para. 22 et seq. ).
Entry with a Schengen visa for the purpose of permanent residence does not constitute legal residence ( Higher Administrative Court of Berlin-Brandenburg, decision of 28 February 2019, OVG 11 S 21.18 with further references ).
Although entry contrary to the SGK regulations justifies rejection, it does not constitute unlawful entry (VG Stuttgart, decision of 14 May 2021, 11 K 415/21).
The exercise of gainful employment that exceeds a residence restriction such as that in Section 16b Paragraph 3 Sentence 1 of the Residence Act violates legal provisions within the meaning of Section 54 Paragraph 2 No. 9 of the Residence Act ( Higher Administrative Court of Mannheim (11th Senate), decision of November 18, 2020 – 11 S 2637/20 ).
25. Judgments on naturalization ( StAG )
The following court rulings on naturalization and citizenship law are particularly relevant:
Employment history is decisive for securing a livelihood within the meaning of the StAG (BVerwG, judgment of 19 February 2009 – 5 C 22/08, para. 27 ; OVG of Saarland, decision of 13 October 2021 – 2 D 168/21 ; VG Potsdam, judgment of 28 May 2021 – 9 K 2439/18 ; VG Stuttgart, judgment of 24 November 2011 – 11 K 1058/11).
If no passport is available, identity verification is carried out in a graduated procedure ( BVerwG, judgment of 23 September 2020, 1 C 36/19 ).
An applicant for naturalization who, as a result of fundamentalist cultural and value systems, refuses to shake hands with any woman because she is of a different gender and is therefore considered per se to be a threat to the man of sexual temptation or immoral behavior, does not guarantee his integration into German living conditions ( Higher Administrative Court of Mannheim, judgment of 20 August 2020 – 12 S 629/19 ).
26. Judgments on labor law for foreigners
The following court rulings on labor law for foreigners are particularly relevant:
The burden of proof for receipt of the notice of termination lies with the employer or the person giving notice ( Federal Labor Court judgment of August 22, 2019, case number 2 AZR 111/19 ).
The material limitation period of Section 4 KSchG does not apply to the written form within the meaning of Section 623 BGB ( Federal Labor Court, judgment of 18 January 2012, Ref. No. 6 AZR 407/10) .
Termination agreements are invalid if the principle of fair procedure has been violated ( Federal Labor Court, judgment of February 7, 2019, case number AZR 75/18 ).
Whether business trips abroad may be ordered by virtue of the right of direction depends on whether the "promised services" in the employment contract pursuant to Section 611 Paragraph 1 of the German Civil Code (BGB) may, by their nature, involve occasional assignments abroad. Given the increasing internationalization of business life, this is likely to apply to a large proportion of job profiles ( Lag Baden-Württemberg, judgment of September 6, 2017 - 4 Sa 3/17 ).
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FAQ – Court rulings in migration law
Which courts have jurisdiction in migration law?
As a rule, the administrative courts have jurisdiction. Criminal law issues (e.g., under Sections 95 et seq. of the Residence Act) are decided by criminal courts, labor courts by labor law issues, and social law issues by social courts.
How many instances are there in administrative law?
There are three levels of administrative law: administrative courts (VG), higher administrative courts (OVG/VGH), and the Federal Administrative Court (BVerwG). In addition, constitutional matters can be referred to the Federal Constitutional Court, and questions of European law can be referred to the European Court of Justice (ECJ) (so-called prior approval procedure).
Where can I see court rulings on immigration law?
Many decisions are available in public databases such as openjur, migrationsrecht.net, or the collections of the Federal Administrative Court, Federal Constitutional Court, European Court of Justice, and European Court of Human Rights. There are also fee-based services such as juris that provide extensive databases of judgments.
Conclusion Court rulings on residence rights
Court rulings are the backbone of legal development in German immigration law. They breathe life into statutory provisions, provide clarity on vague legal terms, and set boundaries for administrative practice. Judgments provide important guidance, particularly in the dynamic areas of skilled immigration, parental reunification, and actions for failure to act. Anyone who wants to navigate immigration law with confidence—whether as a lawyer, employer, or migrant—should be familiar with current case law. VISAGUARD therefore provides you with the most important decisions in a transparent, understandable, and up-to-date format.
