A. Facts
What had happened?
The client, a highly qualified analyst from the United Kingdom , was to begin a position in compliance with a financial services company based in Frankfurt am Main. His application to the German Embassy in London for a visa for the purpose of employment using the EU Blue Card (Section 6 of the Residence Ordinance in conjunction with Section 18g of the Residence Act ) was rejected. The embassy stated that there was no sufficient connection between the applicant's recognized university degree and the intended employment in Germany (so-called qualification connection, Section 18g Paragraph 1 Sentence 1 of the Residence Act).
In the Embassy's opinion, a qualification connection can only be affirmed if the knowledge acquired during the course of study is at least indirectly necessary for the performance of the intended activity. This is not the case in this case, as a degree in information technology and mathematics is not considered sufficient qualification for a position in the compliance department of a financial services company.
Given that this was a highly qualified employee whose short-term recruitment was of significant importance to the company, the employer commissioned an independent VISAGUARD lawyer to conduct a legal review and initiate appropriate legal proceedings against the embassy's rejection decision.
B. Legal solution
How did the VISAGUARD lawyer resolve the case?
Our attorneys immediately contacted the competent foreign representation and filed a remonstrance against the rejection notice. As a result, the remonstrance proceedings were initiated. In the course of the proceedings, the attorney instructed argued, in particular, that, according to established supreme court case law, "indirect qualification" alone is sufficient to establish a qualification connection. Accordingly, it is not necessary that the completed degree program be entirely focused on the activity being performed; rather, at least some overlap in content between the degree program and the professional activity is sufficient (see Higher Administrative Court of Bautzen, judgment of February 11, 2021 - 3 A 973/19).
To further substantiate the claim, the client's diploma supplement was submitted, which showed that the applicant had also completed a few legal courses as part of his studies. This documented knowledge, supplemented by the client's other qualifications, was sufficient to qualify him for a position in the financial services provider's compliance department.
Furthermore, the lawyer applied for a residence permit pursuant to Section 18b of the Residence Act ( residence permit for academic professionals ) in addition to the EU Blue Card by way of an extended application. Unlike the EU Blue Card, the residence permit pursuant to Section 18b of the Residence Act does not require a direct qualification connection between studies and the employment held. In this respect, proof of a recognized university degree is sufficient, without any requirement for a substantive connection to the specific activity.
As a result, the appeal was upheld based on the lawyer's arguments, the EU Blue Card was issued, and the client was able to take up his duties as a compliance officer at the financial services provider within the deadline.
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C. Conclusion
What can we learn from this case?
The present case clearly illustrates that applying for a national visa is a complex and multifaceted process. The visa application is not limited to the mere submission of the application; rather, its legal effect is determined, in particular, by the documents it encloses. Although German diplomatic missions abroad generally only require the submission of certain standard documents, this procedure is often insufficient in cases that deviate from the norm.
Therefore, at least a basic knowledge of residence and visa law is required to assess in each specific case what evidence is required to substantiate the application. In the present case, the submission of the Diploma Supplement was particularly appropriate in order to disclose to the foreign mission the legally relevant fact that the employee had acquired legal knowledge during his studies, which he would apply in his intended employment with the financial services provider.
Furthermore, the supplementary application for a residence permit pursuant to Section 18b of the Residence Act proved crucial. This is because the issuance of an EU Blue Card requires a qualification link between a university degree and the current employment. However, for a residence permit pursuant to Section 18b of the Residence Act, such a link is unnecessary; in this case, proof of a recognized academic degree is sufficient, regardless of the specific profession.
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