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Dr. Sebastian Klaus criticizes (again) deliberate violations of the law by the immigration authorities in Bavaria.
The master's degree is completed, the job offer is on the table, the The employment contract is signed. Only at the appointment in the The immigration office or the HR department might notice something that had gone unnoticed for years on the supplementary sheet to the electronic residence permit: "Expires 14 days after deregistration from university." Suddenly, it's unclear whether one is still legally residing in Germany. We encounter precisely this situation repeatedly in our law firm, and not just in one federal state.
What is a termination condition in a residence permit?
One Residence permit can be granted after Section 12, paragraph 2 of the Residence Act (AufenthG) allows for the issuance of residence permits subject to conditions. A resolutory condition means that the permit automatically expires as soon as a specific event occurs. No further notification, hearing, or discretionary decision is required. The law links this to... Section 51 paragraph 1 number 2 of the Residence Act directly leads to the expiration of the residence permit. In the case of a Residence permit for Studies after Many people use Section 16b of the Residence Act. Immigration authorities use standardized text modules that link the expiration of the permit to deregistration, often with a deadline of 14 days or one month.
This is convenient for the authorities: they don't have to investigate why someone was deregistered or whether another purpose of residence is possible. For those affected, it's dangerous. Deregistration often occurs automatically after passing the final exam, sometimes weeks before the certificates are issued. And very few international students read the supplementary sheet accompanying their student ID card with a legal perspective.
Why is the clause "expires 14 days after deregistration" unlawful?
In the event that the purpose of the stay ceases to exist, the legislator has provided a separate instrument: the subsequent shortening of the validity period. Section 7, paragraph 2, sentence 2 of the Residence Act (AufenthG ) requires a discretionary decision. The authority must therefore consider the individual circumstances and hear the affected parties beforehand ( Section 28 of the Administrative Procedure Act (VwVfG )). A blanket termination clause circumvents precisely these protective mechanisms. Furthermore, the Residence Act explicitly offers graduates a future. After successful completion of their studies, they can... A residence permit for job seeking of up to 18 months may be granted ( § 20 para. 3 no. 1 AufenthG ). This also includes changing to employment as skilled worker or with the The EU Blue Card is a politically desired measure. A condition that cuts off precisely this transition contradicts the purpose of the law.
Case law has now clearly confirmed this. The Bavarian Administrative Court of Appeal has ruled that such conditions precluding student residence permits are unlawful. Another ruling in the area of labor migration points in the same direction. Particularly important for practical purposes: According to this case law, the authority's discretion to withdraw such a condition or reopen the proceedings is reduced to zero. If affected individuals request it, the authority must act ( § 48 and...). § 51 VwVfG ).
Why do immigration authorities still stick to these standardized text modules?
This is where the real problem begins, and it goes far beyond legal technicalities. Immigration law expert Dr. Sebastian Klaus recently criticized a Bavarian immigration authority for continuing to impose these conditions despite clear case law, instead of correcting its errors . He also describes a pattern we know from our own experience: Anyone who contacts the department head receives out-of-office replies and is referred to online services that offer no solution to this very problem. We agree: Dr. Klaus is right. An authority that knowingly continues to enforce unlawful conditions jeopardizes the rights of immigrants. Skilled immigration , which Germany urgently needs.
However, our experience shows that this is not a phenomenon limited to Bavaria. We encounter similar standardized text modules nationwide, in large cities as well as in rural districts. Often, templates from specialized software are adopted unchanged for years without anyone incorporating current case law. When the contract is renewed, the terms and conditions are simply rewritten.
What happens if graduates overlook the condition?
The typical case in our law firm looks like this: A graduate completes her master's degree, is automatically deregistered from the university and calmly begins her job search, or she has already signed a contract. Employment contract . She assumes her card is still valid for another year, as the expiry date is clearly visible on it. However, according to the authorities, the title has long since expired. The consequences range from a rejection of the application to Blue Card : problems with starting a job, up to and including being asked to leave Germany. Employers are also under pressure, because employment without a valid title is prohibited under German law. Section 4a of the Residence Act is inadmissible. The onboarding of the new The skilled worker's position is then suddenly on the brink.
Many affected individuals try to resolve the problem on their own. They write emails to the authority or wait for a reply that never comes. Others simply submit a new application without clarifying the issue of the title's expiration. Both approaches can worsen the situation: Those who submit a new application after the title has expired may not benefit from the legal fiction of continued validity. Section 81 Paragraph 4 of the Residence Act applies further. And every week of waiting reduces the available options.
How do we proceed against unlawful termination clauses?
In practice, a multi-pronged approach, which we adapt to the specific situation, has proven effective. First, we apply for the withdrawal of the unlawful condition or the reopening of the proceedings. In doing so, we rely on current higher court rulings regarding the reduction of discretion to zero. Simultaneously, we secure residency by filing a timely application for the appropriate supplementary permit, for example, for job searching. skilled worker with academic training or with the EU Blue Card . We explicitly argue that the existing title remains valid because the condition is not effective. If the authorities do not respond or if a deportation order is threatened, the next step is to... Administrative Court open, either with preliminary legal protection after Section 123 of the Administrative Court Procedure Act (VwGO) or by means of an action for failure to act pursuant to § 75 VwGO .
Timing is crucial. Those who discover the requirement before deregistration have the best chance of success. We therefore recommend that all international students in their final semester check the supplementary information sheet. Employers seeking to hire graduates of German universities should not only look at the card's expiry date but also at the accompanying regulations.
Conclusion: No one has to accept unlawful conditions.
Conditions that make enrollment contingent upon deregistration are unlawful under current case law. The authorities are obligated to remove them upon request. That some It's annoying that immigration authorities still insist on this, but it's no reason to resign. This applies to graduates who are considered Skilled workers who want to stay in Germany, and companies that want to hire these talents: assess early, act quickly, and consistently enforce your legal position. We support you in this process, from reviewing the supplementary document to... legal proceedings .
