Good news for the head of the kitchen at the Shanghai restaurant in Lübeck, Mr. Dasong Yin. The Schleswig-Holstein Higher Administrative Court has again ordered the suspensive effect of his objection to the rejection of the extension of his residence permit (OVG, decision of 13th February 2024 - 6 MB 1/24). The Higher Administrative Court thus overturned the negative decision of the administrative court that had previously dealt with the matter. Attorney Malte Barsch, a specialist in migration law, successfully filed the complaint with the Higher Administrative Court on behalf of Mr. Dasong Yin.  Mr. Barsch points out that Mr. Dasong Yin is allowed to work again at least until the appeal proceedings have been completed. In doing so, the Higher Administrative Court also corrected the decision of the Lübeck immigration department, which had already banned him from employment during the ongoing proceedings, although there was no legal basis for this. The Higher Administrative Court also found serious deficiencies in the procedures and file management of the Lübeck immigration department. It remained unclear until the end whether the immigration department had sent all the files to the court. Mr. Barsch pointed out this fact early on and the resulting impairment of Mr. Dasong Yin's constitutionally protected procedural rights. In addition, the Higher Administrative Court stated that the foreigner's obligation to cooperate in the residence procedure is not limitless. As part of its general obligation to investigate the facts, the authority department is obliged to inform the foreigner of the absence, incompleteness or inconsistency of information. Among other things, it will now be Mr Barsch's job to check and ensure that the immigration department ensure a proper objection procedure (www.sangong-recht.de).
 
details on this case in each newspapers please find as bellow:
The TAZ (https://taz.de/China-Restaurant-Leiter-soll-ausreisen/!5948880/),
WELT Online (https://www.welt.de/politik/deutschland/plus246615102/Fachkraeftemangel-Weshalb-Chefkoch-Yin-nach-Jahren-in-Deutschland-ausgewiesen-werden-soll.html )
previously reported by the Lübecker local newspaper (https://www.ln-online.de/der-norden/gegen-ausweisung-luebecker-gastronomen-unterstuetzen-chinesischen-koch-VZU5HV4KL5BVVDB6FSRDZ46DHE.html )

​Due to the pandemic or voluntarily: we are contacted again and again by our clients because they are denied to re-entry into Germany despite having a residence permit.
 
Reason: the non-temporary or more than six-months-lasting absence from German territory.
 
During the Covid 19 pandemic, there were exceptions. The Federal Ministry of the Interior responded to the massive travel restrictions by, among other things, requesting the immigration authorities (Ausländerbehörde) to grant generous extensions of time limits upon application.
 
In this article I would like to give you a brief overview of the subject:

Please inform your friends, family members and colleagues which are affected by this:

1. Ukrainian citizen can move to Germany without visa for 90 days (§ 40 Ordinance Governing Residence, Art. 20 Schengen Convention). Immigration department Berlin will announce on Monday a general decree that will extend the period for another 90 days. Other immigration departments will certainly follow as it is a reaction to an ordinance by the Federal ministry of interior (not yet published). During the extension employment should be permitted (my opinion).

2. No written conformation so far but ministry of interior of Brandenburg announced to its federal state's immigration departments that Ukrainian citizen will have the right to obtain a humanitarian residence permit under the terms of § 24 Residence Act. Which is so far interesting as the regulation requires EU council decision.

3. Several immigration departments throughout the country already signalized they will handle exemptions from the obligation of visa procedures generously (§ 5 II 2 Residence Act). Despite the fact that humanitarian residence permits shall be granted to Ukrainian citizen, § 24 Residence Act allows the government to decide the place of residency of individuals. Though, obtaining a regular residence permit seems at first glance more cumbersome it allows the individual to decide its place of residency.
(From here on common information:)

4. Though regular (employment) immigration law is mostly governed by the fact that the applicant must be an acknowledged professional, § 6 Ordinance on the employment of Foreigners e. g. allows individuals with three years of IT working experience to file an application for employment residence permit.

5. I also would like to mention our country's very well dual education system which allows to file for a residence permit for education purposes (§ 16a Immigration Act).

6. FAMILY UNIFICATION should be possible according to all the aforementioned rights of residency. Reunification of parents to adult Ukrainians with residence permit should be possible though the law requires exceptional hard circumstances (§ 36 Immigration Act).

7. Asylum law (AsylG) - subsidiary protection can be obtained as Ukrainians face serious individual threat to their life or physical integrity.

We must stay together strong during these hard times!

An employer approached Sangong Law Firm regarding a suitable trainee.
 
Everything was perfect: the trainee was to be employed after successful training, he was offered alimentation, accommodation, a car and even prospects for employment and accommodation for his family.
The only problem was that the trainee was still in his home country.
 
Normally, the trainee would first have to apply for a visa at the German embassy abroad before entering Germany. The visa procedure - as it turns out again and again! - is time-consuming and exhausting.
 
Now it happened, as it happens - unfortunately - more and more often! The German embassy blockaded, refused to issue visas and it was almost impossible to book appointments.
 
Sangong Law Firm has therefore carried out a so-called accelerated skilled worker procedure for the trainee.
 
What is the accelerated procedure for skilled workers according to Section 81a (1) of the German Residence Act (AufenthG)?
 
The accelerated procedure for skilled workers in accordance with Section 81a (1) of the German Residence Act (AufenthG) offers the possibility - as the name suggests - of accelerating the procedure.
It is a product of the Skilled Workers Immigration Act (Fachkräfteeinwanderungsgesetz) and is intended to respond to the urgent need for skilled workers from third countries.
After all - the legislator has also recognized this - a lack of skilled workers will not be remedied by slow and complicated procedures.
 
How is the accelerated procedure for skilled workers structured?
 
Section 81a of the Residence Act provides that future employers can submit an application for the accelerated procedure for skilled workers to the designated Foreigners authority (Ausländerbehörde) in case of a concrete job offer and with the foreigner's power of attorney, and can thus actively support the procedure in advance from the Federal Republic of Germany.
 
However, this also requires a visa procedure to be carried out in advance.
 
In contrast to the "normal" procedure, the Foreigners authority, and not the relevant German embassy, deals with the case in advance and, among other things, obtains the prior approval of the Federal Employment Agency (Bundesagentur für Arbeit). The Foreigners authority thus acts as a mediator between the employer and the German embassy or the Federal Employment Agency.
 
In the event of success, the Foreigners authority issues a so-called preliminary approval for the issuance of the visa, which anticipates the examination of the German embassy accordingly and thus "accelerates" the procedure.
The basis for the procedure is an agreement that the employer concludes with the Foreigners authority.
 
But unlike the regular procedure, however, all the authorities involved are bound by tight deadlines, which in turn speeds up the procedure substantially.
For example, once the preliminary approval has been granted according to the law, the foreigner receives an appointment to file an application at the embassy within three weeks. The appointment is booked by the German embassy itself. The decision of the embassy must also be made within three weeks of the application being filed.
 
Can the accelerated procedure for skilled workers be applied for any purpose of residence?
 
Unfortunately, no! This already follows from the wording "skilled worker". The accelerated procedure is only applicable to the purposes of residence according to Sections 16a (vocational training/company-based further training), 16d (implementation of measures for the recognition of foreign professional qualifications), 18a (employment as a skilled worker with vocational training), 18b (employment as a skilled worker with academic training) and 18c paragraph 3 AufenthG (employment as a highly qualified skilled worker with academic training).
 
In addition, however, the accelerated skilled worker procedure is also to apply to executive employees beyond the wording of the law.
 
What is the disadvantage?
 
Initially there is none, except that in addition to the visa fee at the German embassy, a fee for the accelerated skilled worker procedure in the amount of EUR 411.00 is incurred by the Foreigners authority.
 
Nevertheless, the verification of the training or employment requirements, which the Federal Employment Agency carries out after being requested to do so by the Foreigners authority, should not be left exclusively to the latter. The numerous experiences that Sangong Law Firm has gathered in this area show that even if this verification takes place within the administration and there is initially no possibility of external influence, it is still necessary to influence the examination in order to convince the Federal Employment Agency to give its consent, especially in cases of doubt.
 
Conclusion
 
The accelerated procedure for skilled workers in accordance with Section 81a of the Residence Act is an appropriate instrument for specifically addressing the lack of skilled workers in Germany. It is accessible to all skilled workers or those who are to become such, including, for example, specialty cooks.
It should be noted that, although the procedure is actually accelerated once the Foreigners authority has given its prior approval, there are in fact no simplifications in terms of content.
This is because the same requirements and proof obligations apply as in the "normal" procedure. However, the examination is concentrated on one authority - the Foreigners authority.
 
Attention: The accelerated procedure for skilled workers also includes the family reunification of spouses and unmarried minor children whose visa applications are filed in chronological connection!
 
If you have any questions on this or on the subject of immigration of skilled workers in general, please contact us. Sangong Law Firm will advise you on all issues related to the accelerated skilled worker procedure. Sangong Law Firm will also be happy to assist you with your visa application under the accelerated skilled worker procedure. General experience has shown that legal assistance significantly increases the chances of success of a visa application under the accelerated skilled worker procedure.
 
 
This text is available in German and Chinese. Just go to the News section in your preferred language.

The Transparency Register was introduced in Germany in 2017 to implement the Fourth EU Money Laundering Directive and serves to prevent money laundering and terrorist financing. In the transparency register, information on the beneficial owner is recorded and made accessible. The register is maintained by Bundesanzeiger Verlag GmbH.
 
With the amendment of the law on 01.08.2021, registration in the transparency register will become mandatory for many companies and institutions.
 
But who must register when and where? Sangong Law firm explains the changes below. 
 
What are the changes?
 
Until 31 July 2021, companies and institutions were exempt from the obligation to notify the Transparency Register if the prescribed information on the beneficial owner already resulted from entries in other electronically retrievable registers, in particular the Commercial Register (so-called notification fiction). With the amendment of the law, an entry on the beneficial owner is now required in the vast majority of cases. 
 
Who is the beneficial owner?
 
According to § 3 GWG, beneficial owners are the natural persons who ultimately own or control a legal entity (e.g. a GmbH) or legal structure.
 
Who must make entries in the future? 
 
According to § 20 GWG, legal entities under private law and registered partnerships, i.e. all:
 
- Limited liability companies (GmbHs)
- limited partnerships (KGs, GmbH & Co. KGs)
- foundations with legal capacity
- registered associations
 
and, for example, associations with their registered office abroad, if they undertake to acquire ownership of a property located in Germany. 
 
§ 21 GWG may also oblige administrators of trusts, foundations without legal capacity and corresponding legal structures.
 
Not covered by the transparency obligation is the partnership under civil law (GbR).
 
What must be done?
 
The following information on the beneficial owner must be provided to the Bundesanzeiger Verlag via www.transparenzregister.de for registration: 
 
- First name and surname
- Date of birth
- Place of residence (e.g. Berlin) 
- type and scope of the beneficial interest (§ 19 Abs. 1 GwG),
- all nationalities
 
The notification can be made by persons with power of representation, e.g. your lawyer. The authority can be based on legal (e.g. managing director of a limited liability company) or legal representation (e.g. authorisation within the scope of a mandate as tax advisor or lawyer).
 
By when must the registration be made?
 
The deadline depends on the legal form:
 
- AG, SE or KGaA by 31 March 2022, 
- GmbH, cooperative, European cooperative or partnership by 30 June 2022,
- in all other cases by 31 December 2022.
 
Conclusion
 
Upon expiry of the listed deadlines, the obligation to notify will commence for all legal entities subject to transparency requirements. Sangong Law Firm therefore recommends that registration be done promptly to avoid fines.
 
For all those who have already actively made entries in the Transparency Register in the past, Sangong Law Firm recommends that you check your notification for completeness and correctness as soon as possible. The transitional periods do not apply to you. Sangong Law Firm will assist you in making your notifications to the register-keeping authority. 
 
If you have any questions, please contact us now.

This text is available in German and Chinese. Simply go to the news section in the respective language.

The Federal Department for Economic Affairs and Energy has now specified the requirements for payment of the so-called extraordinary economic aid.
 
First of all, it has been confirmed that the financial aid must be requested via the website www.ueberbrueckungshilfe-unternehmen.de. Self-employed individuals who do not apply for support of more than 5.000,00 EUR are not required to have a controller (tax advisor, lawyer, etc.) for the application.
 
For companies in the form of a GmbH and UG (limited liability), it is not the time of establishment that is relevant, but the time operations started. For example, if a GmbH was founded in May 2019, but did not start operations until May 2020, the GmbH should be entitled to receive financial aid based on its turnover of October 2020.
 
Companies will receive compensation of 75% of the turnover the company made during the same period of the previous year. The Federal Department for Economic Affairs and Energy has now also answered the question of how take-away services, i.e. deliveries and self-pickup (“To-Go“) will be dealt with when applying for extraordinary economic aid.
 
In the following, Sangong law firm will illustrate the financial support a permanently closed restaurant would receive and the financial support a restaurant that is open for take-away sales would receive:
 
Version 1: The restaurant closes permanently for November 2020 and does not offer any take-away services.
 
Turnover November 2019
 
Total                                                                 10,000.00 EUR
 
> Of which in the restaurant              8,000.00 EUR
 
> Of which take-away                            2,000.00 EUR
 
Entitlement to support in November 2020:
 
In November 2020 the restaurant would receive financial aid in the amount of 75% of the turnover it made during the same period of the previous year. In this case the restaurant made a total of 10,000.00 EUR in November 2019. The restaurant therefore receives 7.500,00 EUR compensation, minus any other official support it may have received, such as short-time allowance.
 
Version 2: The restaurant opens for take-away sales in November 2020.
 
Sales November 2019
 
Total                                                                 10,000.00 EUR

> Of which in the restaurant              8,000.00 EUR
 
> Of which take-away                            2,000.00 EUR
 
Entitlement to support in November 2020:
 
The restaurant receives financial aid in the amount of 75% of 8,000.00 EUR (not 10,000.00 EUR!). When calculating financial aid, turnover made through take-away services in November 2019 will not be taken into account. Therefore, the restaurant receives financial support to the amount of 6,000.00 EUR.
 
The restaurant can make extra turnover through take-away services (deliveries, pick-up). The absolute limit for additional earnings is 100% of the total amount of turnover made in November 2019. In the example, the total amount of turnover was 10,000.00 EUR. The restaurant in the example may not make more than 4,000.00 EUR turnover through take-away services without any deductions from government support, which it already received or receives.
 
This content has been compiled based on the currently available information. The information is therefore not legally binding.
 
If you have any questions regarding this subject or company closures in general, please contact us. Sangong law firm will keep you updated.
 
This text is also available in German and Chinese. Just go to the News section in your preferred language.

Due to the developments of the corona pandemic, new regulations have been in effect since November 2, 2020. The gastronomy business is also affected by the extensive restrictions in the private and public sector. Restaurants must close by November 30, 2020. Exceptions only apply to delivery or pick up of food. In order to compensate for the financial losses, it was decided that restaurants would be reimbursed 75% of the turnover of the same month last year if the company has no more than 50 employees. It is a so-called extraordinary economic aid.
 
Questions from our clients
 
Clients of Sangong law firm have frequently the following questions, which should be answered here in general for interested gastronomic businesses: 

1. How do I get my financial aid?
2. When will I get my financial aid?
3. How high will the support be?
4. Does the financial aid also apply to companies that are still delivering or preparing food for collection ("To-Go")?
5. What if I had not opened in the year before? Will I still get financial aid?

 
(Temporary) answers

1. As of November 2, 2020, the federal government is still working on making the application and processing feasible. It is intended that the application procedure will be executed by the website www.ueberbrueckungshilfe-unternehmen.de.
2. This is also not yet clear as of November 2, 2020. The possibility of an advance payment is currently being examined.
3. According to the Federal Department of Finance, restaurants should in particular be reimbursed for their fixed costs. These are the costs that arise despite a closure. To keep the approval simple, 75% of the corresponding turnover of the same period of the year before or the month before should be reimbursed.
4. The resolution does not contain any information on this. It cannot be ruled out that a reimbursement is not possible or only possible to a lesser extent in these cases.
5. Young companies founded after November 2019 should be allowed to use October 2020 sales as a benchmark. It is currently still completely unclear what happens to companies that were founded as GmbH or UG (limited liability) in November 2019 or before and only started their business activities later.

 
It must also be pointed out that the extraordinary economic aid for the relevant period of October 2020 will be cleared against other support programs already received, such as short-time working allowance.
 
Conclusion
 
Experience has shown that federal or state support is actually not as easy to obtain as announced by authorities. Here, too, it remains to be seen how the program will actually be implemented.
 
Sangong law firm will keep you updated. If you have any questions on this topic or other related questions, please contact us.

​This text is also available in German and Chinese. Just go to the News section in your preferred language. 

Visa, residence permit (Aufenthaltserlaubnis), settlement permit (Niederlassungserlaubnis), the permanent EU Residence permit… 
​There are seven different ways for a foreigner to enter Germany, to remain here and to eventually be able to work here. But what makes the permanent EU Residence permit acc. to § 9a AufenthG so special and how does it differ from the other possibilities? 
 
For one thing, the permanent EU Residence permit as well as the settlement permit do not carry an expiration date. While the visa or the residence permit are granted only for a limited period of time, which usually will not be longer than three years, the permanent EU residence permit and the settlement permit allow an unlimited stay in Germany.
 
Furthermore, especially for third-country nationals (citizens from non-EU-member states) the permanent EU residence permit is of great significance.
 
The permit allows them to be gainfully employed in Germany. In contrast to citizens from other EU member states, who can work in Germany because of the EU Freedom of Movement Law, third-country nationals are required to obtain one of the previously mentioned residence permits to do this. The permanent EU residence permit gives non-EU citizens the right to access the labour market (with the reservation of a labour market test).
 
The settlement permit acc. to § 9 AufenthG, which is also valid for an unlimited period of time, grants this right as well. But in contrast to the settlement permit, the permanent EU residence permit also facilitates the mobility in the other Member States of the EU. As the settlement permit is only a national right, it is limited to German territory. The permanent EU residence permit on the other hand is based on an EU Directive (2003/109/EG). For third-country nationals who obtained the permanent EU residence permit, it is in this way facilitated to obtain the residence permit and thus even the permission to work in another Member State of the EU.
 
It also grants the holder a special legal protection against deportation, which is similar to the one of EU citizens.
 
The permanent EU residence permit is not only granted for an unlimited period of time but also gives the holder far-reaching rights compared to the settlement permit. For example, the right of residence in foreign countries for up to 12 months, while the other permits only grant up to six months.
 
To be able to apply for the permanent EU residence permit, a few requirements have to be met.
 
Firstly, it is decisive whether the applicant stayed in Germany uninterrupted in the last five years with a residence permit. To not interrupt the calculation, a stay outside of Germany cannot be longer than six consecutive months or ten months in total.
 
In addition to this, the applicant or his spouse (with which he lives in a family community) must have a stable and regular income. In principle that is the case if all tax obligations are fulfilled and retirement provision has been taken care of. This means that the own living and the one of all those relatives who are entitled to maintenance must be secured without the use of most public funds.
Another requirement is sufficient knowledge of the German language. If neither the attendance of a German school nor a language or integration course can be proven, the language capability of the foreigner will be measured by his ability to verbally navigate his daily life and the ability to, considering his age and level of education, converse with somebody and express himself in written form (level B1 of the Common European Framework of References for Languages). However, this can be disregarded if the applicant is able to communicate in simple German language (level A1 of the Common European Framework of References for Languages) and did not have a claim to participate in an integration course or was not obligated to participate in one.
 
The applicant should also have basic knowledge of the legal system, the social order, and the living conditions in Germany. But equal to the requirements of the language skills, this requirement can also be waived.
 
On top of this, the applicant should not constitute a threat to public policy or public security. The permanent EU residence permit is therefore out of question if the foreigner has violated the German legal system repeatedly or gravely or has committed an act outside of Germany that is considered as an intentional crime here.
 
Finally, the foreigner must have sufficient living space for himself and for the relatives living with him at his disposal. It is sufficient to live in a publicly funded council house.
 
Sangong Law Firm supports you in the retrospective review of your application and in the review of an application yet to be filed. If you have any questions, please contact us in German, Chinese or English.
 
This text is also available in German and Chinese. Just go to the News section in your preferred language. 

​The new immigration law for skilled workers has been in force since 01.03.2020. Section 18a of the Residence Act was created as part of the introduction of the law. According to this new law, specialists with vocational education can obtain a residence permit for the pursuit of qualified employment, which the qualification they have acquired enables them to do.
 
Does this regulation also apply to specialty chefs?
 
The experience of the first months after the law has been implemented has shown that this regulation can also be applied to foreigners who have otherwise moved in as specialty chefs.
 
However, it is a requirement that the foreigner has acquired an equivalent professional qualification abroad (equivalent to German education). This is the case if the education period is at least two years. Then the recognition must be done by an external entity. For cuisine chefs, this is the Chamber of Commerce and Industry Foreign Skills Approval / Industrie- und Handelskammer (IHK FOSA). It is important that not every education in China is recognized as a chef, since the training standards in the provinces can differ.
 
What else needs to be considered?
 
The Federal Employment Agency continues to be involved in the application process. However, approval can only be refused if the salary or the working conditions are not comparable to domestic workers.
 
Important!
 
The regulation represents a circumvention of the specialty cooking regulation in Section 11 Paragraph 2 BeschV (Employment Ordinance). The Residence Act regulates that the Employment Ordinance specifies more detailed requirements regarding employment. This is currently not the case (Bundestag printed paper 19/8285, page 108). For a change, a procedure of the Federal Ministry of Labor and Social Affairs with the approval of the Federal Council is required.
 
The regulation of Section 11 paragraph 2 BeschV will currently only be of importance for foreigners who come from regions in which the standard of training cannot be recognized or in which a corresponding training is basically not available and the chef has to prove six years of practical experience in his home country.
 
Perspective
 
It can be assumed that the gap will be closed by supplementing the Employment Ordinance, otherwise the specialty cooking regulation will hardly be applicable anymore.
 
Specialty chefs in Germany should therefore quickly check whether the new regulation applies to them.
 
Sangong Law Firm supports foreign chefs in applying for a residence permit as a skilled worker and in the recognition of foreign vocational education.
 
Contact us.
 
This text is available in German and Chinese. Just go to the News section in your preferred language.