Stay for study purposes in the Federal Republic of Germany
November 28, 2009 | 50,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Dear Sir or Madam,
On November 9, 2009, I received the following letter from the Foreigners' Office in Gießen:
Foreigners Law;
Your stay for study purposes in the Federal Republic of Germany
Hearing under §28 of the Hessian Administrative Procedure Act (HVwVfG)
Dear...,
I intend to reject your application for an extension of the residence permit for study purposes from 09.04.2009 according to § 16 (1) of the Residence Act (AufenthG) and to request you to leave the country.
Reason:
On 24.02.2005, you entered the Federal Republic of Germany for the purpose of studying. Residence permits were regularly extended for this purpose and for a language course until 06.04.2009.
According to the submitted enrollment certificates, you enrolled at the University of Würzburg for the degree course in Computer Science (Diploma) starting from the summer semester 2007. On 15.03.2009, you moved to Gießen and enrolled at the University of Applied Sciences Gießen-Friedberg for the degree course in Computer Science (Bachelor) starting from the summer semester 2009. This change was made after the fourth semester. Your previous study achievements were not recognized, so you were admitted for the first semester. The University of Applied Sciences Gießen-Friedberg was asked to provide a statement based on your previous study achievements. It is indicated that you achieved a pass in the summer semester of 2009.
According to § 16 of the Residence Act, a residence permit cannot be granted or extended for a different purpose of stay. A change of university type generally constitutes a change of purpose of stay.
If the change of university occurs within the same degree program in the first 18 months after the start of studies, the purpose of stay remains unchanged. A later change is only possible if the study period does not extend by more than 18 months. According to the enrollment certificate from the University of Applied Sciences Gießen-Friedberg, you were admitted for the first semester. You made the change after the fourth semester in the Computer Science program at the University of Würzburg. Based on the transcript of records from the University of Würzburg dated 17.03.2009, you did not pass any exams successfully. Your previous study achievements were not recognized. Additionally, you achieved a pass in the first semester. Therefore, the study period will exceed the prescribed 18 months. The change in the study subject should not have been allowed.
I am an Israeli citizen and completed a language course in 2005, followed by starting my Computer Science studies at the university in 2007, as at that time, a study at a University of Applied Sciences in Israel was not recognized. However, now a University of Applied Sciences degree is recognized in Israel, so I decided to switch to a University of Applied
Dear seeker of advice,
thank you for your inquiry!
I would like to address your questions in consideration of the circumstances you have described as follows:
You should definitely respond to the legal reasoning of the authority within the framework of this hearing process.
Essentially, the authority bases its decision on § 16 of the Residence Act, specifically on the purpose of residence.
The authority argues that due to the change of study location, a change of the purpose of residence has occurred, which is not covered by the originally granted permission to stay in Germany.
I see this somewhat differently, and you should argue accordingly in your letter to the authority.
Below, I have provided you with the relevant legal provision which the authority refers to in their (initially announced) decision, so that you can better understand my explanations. Please read this provision carefully, especially paragraph 1.
§ 16 Residence Act
Study; Language courses; School attendance
(1) A foreigner may be granted a residence permit for the purpose of studying at a state or state-recognized university or a comparable educational institution. The purpose of studying also includes preparatory language courses and attending a study college (preparatory measures for studying). The residence permit for the purpose of studying may only be granted if the foreigner has been admitted by the educational institution; conditional admission is sufficient. Proof of knowledge of the educational language is not required if language skills have already been taken into account in the admission decision or are to be acquired through preparatory measures for studying. The validity period for the initial grant and extension of the residence permit for studying is at least one year and should not exceed two years for studying and preparatory measures for studying; it can be extended if the purpose of residence has not yet been achieved and can still be achieved within a reasonable period of time.
(1a) A foreigner may also be granted a residence permit for the purpose of applying for studies. The stay as a student applicant may not exceed nine months.
(2) During the stay under paragraph 1, a residence permit for another purpose of residence shall generally not be granted or extended unless there is a legal entitlement. Section 9 does not apply.
(3) The residence permit entitles to pursue employment, which may not exceed a total of 90 days or 180 half days per year, as well as to engage in student sideline activities. This does not apply during the stay for preparatory measures for studying in the first year of residence, except during the holiday period and in the case of a stay under paragraph 1a.
(4) After successful completion of studies, the residence permit can be extended for up to one year to search for a job appropriate to this qualification, provided that it may be filled by foreigners in accordance with the provisions of §§ 18, 19 and 21. Paragraph 3 applies accordingly. Section 9 does not apply.
(5) A foreigner may be granted a residence permit for participation in language courses that do not serve the preparation for studies, and in exceptional cases for school attendance. Paragraph 2 applies accordingly.
(6) A foreigner who has been granted a residence permit for the purpose of studying by another Member State of the European Union, falling within the scope of Directive 2004/114/EC of the Council of 13 December 2004 on the admission of third-country nationals for the purpose of studies or for participation in a student exchange, unpaid training or volunteering (OJ EU No. L 375 p. 12), shall be granted a residence permit for the same purpose if he
1.
wants to conduct part of his studies at an educational institution in the federal territory because he is obliged within the framework of his study program to conduct part of his studies at an educational institution in another Member State of the European Union or
2.
meets the requirements of paragraph 1 and wants to continue or supplement part of his studies already begun in that other Member State in the federal territory or through studies in the federal territory and
a)
participates in an exchange program between the Member States of the European Union or in a program of the European Union or
b)
has been admitted for studies in the other Member State of the European Union for a period of at least two years.
A foreigner applying for a residence permit under sentence 1 no. 2 must submit documents to the competent authority regarding his academic background and intended studies in Germany, demonstrating the continuation or supplementation of his previous studies through studies in the federal territory. Section 9 does not apply.
(7) If the foreigner has not yet reached the age of 18, the persons entitled to care must agree to the planned stay.
As you can see from paragraph 1, it concerns a residence permit "for the purpose of studying".
Therefore, the permit should generally only be granted if it serves the purpose of studying. And that is exactly the case with you. You are still applying for the extension for the purpose of studying, not for the purpose of employment or similar.
The change from one university to another, especially while maintaining the same field of study, does not affect this purpose.
Moreover, § 16 para. 1 (at the end) regulates that it (meaning the permit) can be extended if the purpose of residence has not yet been achieved and can still be
