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Case study: Blue Card withdrawal

Practical tip from a lawyer: How can you defend yourself against the revocation of your Blue Card?

What is the problem with the Blue Card and alleged sham work?

  • In some cases, Blue Cards (or work visas in general) are applied for using sham employment contracts. This happens, for example, when the requirements for family reunification are not met (e.g., if the child is too old).

  • The legislature has attempted to combat the problem of sham employment relationships through a reform. Now, applicants must declare that the job will actually be performed (see Section 18 Paragraph 2 No. 4a of the Residence Act).

  • However, the line between sham work and actual employment is often blurred when there is a family relationship between employer and employee.

Here's how lawyers solve the problem:

  • A family relationship between employee and employer does not necessarily lead to the assumption of a sham employment relationship.

  • In practice, the decisive factor in determining whether a sham employment relationship exists or not is usually whether the company can demonstrate actual economic activity.

  • If the company generates actual revenue, has a verifiable public presence (e.g., a website), and its economic activities can be demonstrated (e.g., completed contracts), the applicants and the company have a good chance of obtaining the visa.

A. Facts
What had happened?

The clients – a married couple – contacted VISAGUARD after the immigration authorities had rejected the wife's application for a residence permit to pursue employment in accordance with Section 18g of the Residence Act ( EU Blue Card ).

The husband is the managing director and shareholder of a limited liability company (GmbH) duly established and operating in Germany. As part of the company's development, he hired his wife, who holds a recognized foreign university degree, in a qualified position within the GmbH. Subsequently, they both applied to the relevant German embassy or consulate for a national work visa for the wife. After reviewing the documents and recognizing the employment, the embassy initially granted the visa.

After entering the Federal Republic of Germany, the wife applied for a residence permit to continue her employment and requested an EU Blue Card. The responsible immigration authority rejected the application, stating that the employment was sham ( § 40 para. 3 no. 7 of the Residence Act ) and had been established solely for the purpose of fraudulently obtaining residence. Furthermore, the salary threshold for obtaining a Blue Card had since increased, meaning that the requirements were no longer met.

With legal support from VISAGUARD, the couple filed a lawsuit against the rejection of their application with the Administrative Court .

B. Legal solution
How did the VISAGUARD lawyer resolve the case?

In the legal proceedings, the appointed attorney presented a comprehensive and nuanced argument regarding the facts and the law. It was initially argued that sham employment neither actually existed nor could it be legally presumed. It was emphasized that a presumption of sham employment based solely on the existence of a marital relationship constitutes an inadmissible blanket prejudgment. This violates the principles of administrative procedure law, in particular the principle of individual case review and official investigation pursuant to Section 24 of the Administrative Procedure Act (VwVfG ).

Extensive evidence was provided to substantiate the actual employment, including:

  • Travel expense reports and receipts related to business trips,

  • Work samples and project documentation,

  • Pay slips and proof of proper salary payments,

  • Employment contracts, job descriptions, and internal company correspondence.

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Furthermore, it was emphasized that the GmbH (limited liability company) is a properly registered and operational company that presents itself as a reputable player in the market. The wife, due to her recognized academic degree and proven professional experience, fulfills the qualification requirements for the requested position. This demonstrates both the seriousness and the economic substance of the employment relationship.

Regarding the increase in the salary threshold for the EU Blue Card, the lawyer argued that the eligibility requirements should be based on the point in time when the original visa was issued. According to the relevant administrative regulations and established practice (including guidance from the Federal Ministry of the Interior on the application of Sections 18 et seq. of the Residence Act), a subsequent increase in the salary thresholds does not render a previously lawfully issued Blue Card invalid or revoke it. The immigration authority's legal interpretation was therefore identified as erroneous.

The client's defense was successful. The administrative court accepted the lawyer's arguments and overturned the immigration authority's rejection. It determined that there was no evidence of sham employment and that the increase in the salary limits had no impact on residence permits already granted in the form of EU Blue Cards.

C. Conclusion
What can be learned from this case?

This case study exemplifies the importance of sound evidence in matters of employment and immigration law. Therefore, the legal opinion of the immigration authorities should not be given undue weight if it consists merely of sweeping value judgments without individual case assessment. This applies particularly to the inadmissibility of blanket suspicions based on family ties.

The case further illustrates the need to always critically review administrative decisions in light of current legislation and administrative practice. While it is true that Blue Cards cannot be issued if the salary threshold is not met, this does not necessarily mean that previously issued Blue Cards can be revoked. In this case, extensive knowledge of administrative law regulations and relevant case law led to the successful safeguarding of the client's prospects of residence and employment in Germany.

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