A. Facts
What had happened?
The clients – a married couple – turned to 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 operated 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 company. Subsequently, both applied for a national employment visa for his wife at the responsible German diplomatic mission abroad. The visa was initially granted after reviewing the documents and recognizing the employment by the embassy.
After entering the Federal Republic of Germany, the wife applied for a residence permit to continue her employment and, in doing so, applied for an EU Blue Card. However, the responsible immigration authority rejected the application. They argued that the employment was bogus ( Section 40, Paragraph 3, No. 7 of the Residence Act ), which had been established solely for the purpose of obtaining residence permits. Furthermore, the salary limit for obtaining a Blue Card had increased in the meantime, meaning that the requirements for this permit were no longer met.
With legal support from VISAGUARD, the couple filed a lawsuit against the rejection of their application before the administrative court .
B. Legal solution
How did the VISAGUARD lawyer resolve the case?
During the lawsuit, the attorney appointed to the case presented a comprehensive and detailed account of the factual and legal situation. Initially, it was argued that bogus employment neither actually existed nor could it be legally justified. It was emphasized that a presumption of bogus employment based solely on the existence of a marital relationship constituted an inadmissible, blanket prejudgment. This violated the principles of administrative procedural 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 actual employment, including:
Travel expense reports and receipts in connection with business trips,
Work samples and project documentation,
Payroll statements and proof of proper salary payments,
Employment contracts, job descriptions and internal company correspondence.
It was further emphasized that the GmbH was a properly registered and operating company that operated as a reputable player on the market. The wife, based on her recognized academic degree and proven professional experience, met the qualification requirements for the position applied for. This demonstrated both the seriousness and economic substance of the employment relationship.
Regarding the increase in the salary threshold for the EU Blue Card, the lawyer argued that the conditions for granting the visa are primarily based on the date of the original visa issuance. According to the relevant administrative regulations and administrative 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 threshold does not subsequently invalidate or revoke a Blue Card that was once legally issued. The immigration authorities' legal opinion was found to be legally incorrect in this regard.
The client's defense was successful. The Administrative Court upheld the lawyer's arguments and overturned the immigration authorities' negative decision. It found that there was no evidence of bogus employment and that the increase in the salary limits would not affect previously granted residence permits in the form of the EU Blue Card.
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C. Conclusion
What can we learn from this case?
The case study exemplifies the importance of sound evidence in the area of integrity under employment law and residence law. Therefore, the legal opinion of the immigration authorities should not be given too much weight if it merely involves blanket value judgments without examining each individual case. This applies in particular 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 residence and employment prospects in Germany.
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