I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Unlike many other jurisdictions, Germany, for the time being, does not have a points-based system but a visa category-based system; for example, the grant of a ‘residence permit for the purpose of employment’ (equal to what is called a work permit in other countries) is subject to meeting specific requirements of the visa category in question. Accordingly, applicants must check whether the conditions for the grant of the permit to the individual in question can be met. This includes both general conditions that are a prerequisite for the grant of each permit (e.g., sufficient health insurance), as well as specific conditions that are particular to each visa category (e.g., localised employment contract for some work visa categories or business case for the self-employment visa category).
At a glance, the following types of visa categories, inter alia, are available:
- business visitor visa;
- director, proxy and white-collar visa;
- academics visa;
- specialist visa;
- highly skilled visa;
- European Union (EU) Blue Card;
- Vander Elst visa;
- short-term deployment visa;
- long-term deployment visa;
- ‘any employment’ visa;
- intra-company transfer visa and intra-corporate transferee visa; and
- self-employment visa.
Also, unlike some other countries, there are no quotas available in Germany. Consequently, the number of visas that can be granted under each of the visa categories is unlimited as long as the labour authorities do not come to the conclusion that the position can be filled from the local job market in the case of visa categories with a labour market test requirement. Therefore, as a matter of principle, it makes no difference if one lodges the application at the beginning, during or at the end of the year (although the processing time is likely to be longer in the middle of the summer season or directly before Christmas).
i Legislation and policy
The key immigration law in Germany is the German Residence Act, which regulates the granting of residence permits to foreigners. It entered into force on 1 January 2005 and contains provisions on the entry of foreigners into Germany, their residence in the country, various purposes for residence (e.g., residence for educational purposes, residence for the purpose of economic activity), as well as the termination of residence and asylum procedures. With respect to obtaining residence permits for the purpose of employment, further details are set out in the Employment Regulation. Both the German Residence Act and the aforementioned regulation have been amended many times since they came into effect. The purpose of the latest major couple of amendments was on the one hand to facilitate the immigration of specialists and highly skilled individuals, and to make it easier for those already in the country for a mid- to long-term stay; and on the other hand to transpose EU directives dealing with sanctions and the implementation of the EU Blue Card and intra-corporate transfers into German law. Moreover, some special provisions dealing with the employment of migrants and asylum seekers have been implemented over the past couple of years.
Furthermore, the EU also has authority, to a certain extent, to create immigration laws that affect all Member States, while Member States retain rights to create other types of legislation and are, for instance, particularly entitled to set restrictions for the grant of work permits. According to Article 21 of the Treaty on the Functioning of the European Union (TFEU),2 any EU national is entitled to enter any Member State and to stay there at will. Furthermore, citizens of any EU Member State benefit from the free movement of workers, as granted by Article 45 of the TFEU,3 and do not need to file for a permit prior to engaging in employment.
Other important EU legislation includes:
- Regulation (EEC) No. 1612/68 of 15 October 1968, on freedom of movement for workers within the Community (OJ 1968 L 257/2);
- Council Regulation (EC) No. 539/2001 of 15 March 2001, listing the countries whose nationals must be in possession of visas when crossing the external borders, and those whose nationals are exempt from that requirement (OJ 2001 L 81/1);
- Directive 2008/115/EC of 16 December 2008, on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348/9);
- Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (EU Blue Card Directive, OJ 2009 L 155/17);
- Directive 2009/52/EC of 18 June 2009, providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (OJ 2009 L 168/24); and
- Directive 2014/66/EU of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (OJ 2014 L 157/1) (the ICT Directive).
ii The immigration authorities
The main immigration authorities concerned with applications for visas and work permits respectively are the German embassies or consulates abroad and the local foreigners offices in Germany, the local labour offices and the Centre for the Recruitment of Foreign and Expert Staff (ZAV).
Unless nationals of privileged states that benefit from the EU visa waiver programme are concerned, the visa is to be obtained before entering Germany. The responsible diplomatic representation abroad or the local foreigners office is solely responsible for the applicant, although it will liaise with the local labour offices, through the ZAV.
Following the most recent major reform of the German immigration law system, which came into effect on 1 January 2005, residence and work permits are granted in the form of a residence permit for the purpose of employment, which is granted by the foreigners office after the local labour office, through the ZAV, has given its consent to the grant, if required to do so. Therefore, unlike the previous proceeding, there is no need for the applicant to deal with two different authorities or to file two separate applications.
In practice, it is recommended to contact the German embassy or consulate (or the local foreigners office in Germany if filing in Germany is possible) directly to establish which documents will be requested for the category in question. Usually the following documents should be submitted together with the application form:
- a curriculum vitae;
- a copy of the identification card or passport;
- two biometric photographs;
- professional credentials (e.g., copies of diplomas);
- information on the proposed employment, especially a job description;
- information on any spouse or children; and
- proof of sufficient health insurance coverage during the period of stay.
Depending on the category in question, additional documentation might be requested (such as an excerpt from the company registrar for managing directors or proxy holders, list of shareholders, etc. In any case it should be checked with the foreigners office being in charge if anything else will be required for the visa category at hand.
Until 30 April 2011, the decision on the authorisation to work was made by the labour office competent for the area where the proposed place of employment is situated; the place of employment is either where the company is domiciled (the place where the correspondent running the payroll for the employer is located) or where its head office is situated. Since 1 May 2011, the ZAV has been granted the power to give consent; it will nevertheless liaise with the local labour offices at the place of the intended employment and ask them to carry out a job market test if required. In practice, what was meant to facilitate proceedings actually sometimes complicates matters further, especially when no feedback is given by the authority officially in charge with regard to the status quo of the matter, or the reason for a decision on the information pending with the labour authorities. On the other hand, dealing with a centralised agency that has detailed and special knowledge is surely not a disadvantage, and goes a long way towards professionalising and expediting proceedings.
Consent may in principle be given for employment up to a period of three years,4 although it is quite common practice to grant such consent at first for one year only, regardless of the intended duration of the employment relationship.
The approval to engage in employment can be limited with regard to the occupation, the employer, the district of the labour office, and the location and distribution of working hours.
The process usually lasts between eight and 12 weeks once all documents have been submitted but can be shorter or even much longer depending on how busy the authorities of the city where the application is filed are. For those nationals having the privilege to file from within Germany to file abroad might therefore be an option to consider if the local authorities are too busy (the latter generally being the case for the big international cities such as Frankfurt and Berlin).
The fee for a ‘national visa’ (the residence permit applies for Germany only if a long-term residence of more than three months – for example, for studies – is intended) in the form of a residence permit, EU Blue Card or ICT Card amounts to €100 (regardless of whether the visa covers a period of more or less than a year). In the case of filing for an extension, the fee amounts to €96 for a period of less than three months, €83 for a period of more than three months and €98 if the purpose of the stay changes.5 In the case of the grant of a provisional permit an additional fee of €13 applies.6 All these administrative fees have recently been lowered.
iii Exemptions and favoured industries
For entry into Germany, the nationality of the foreigner seeking entry is decisive.
Citizens of the EU
EU nationals do not require a visa or the grant of a permit for entering Germany. This is applicable for all Member States of the EU, including those Member States that joined with effect from 1 May 2004,7 Bulgaria and Romania, which joined the EU on 1 January 2007, and Croatia, which joined the EU on 1 July 2013 and whose nationals have had complete access to the German job market since 1 July 2015. According to the provisions of Section 2 of Germany’s EU Freedom of Movement Act, EU nationals neither require a visa for entering Germany nor a residence permit to remain in Germany. For a residence period of up to three months, a valid identity card or passport is sufficient and must be shown to the respective authorities upon request. If the EU national is registered according to the provisions of the German Federal Act on Registration, the authorities will grant a certificate proving the existence of the right of free movement, if requested. The same applies for EU nationals’ family members without EU nationality as long as they are in possession of a valid passport or any other admissible identification document, and if they are accompanying the EU national or following the latter to Germany. No fees will be charged for such nationals and dependants.
EU citizens have the right of residence for longer than three months if they:
- are workers or self-employed persons or are seeking employment (for in principle no more than six months or longer if they can prove to be seriously looking for a position and to have prospects of success of finding a job);
- are not in employment or are students or trainees and have sufficient resources and comprehensive health insurance cover; or
- have the right of permanent residence (following legal residence of five years).
Family members, regardless of their citizenship, accompanying or joining an EU citizen who satisfies these conditions also have the right of residence for more than three months.
The above does also still apply to nationals of the United Kingdom. It has now been close to two years since the United Kingdom (UK) resolved, in a referendum held on 23 June 2016, with the slimmest majority imaginable (51.9 per cent : 48.1 per cent), to leave the EU. A period of ‘shock’ and paralysis on both sides was followed by highly controversial political and legal discussions regarding the consequences of the decision. As the result of these discussions, Prime Minister Theresa May submitted a written notification to the European Council on 29 March 2017, declaring the exit, which, however, would not come into effect until after two years. Unless the Council agrees otherwise with the exiting nation, European contracts will therefore no longer apply two years from the date of the formal application (i.e., after 28 March 2019, according to Article 50 Paragraph 3 of the Treaty on European Union (TEU)), provided that this extension is granted by mutual agreement of all Member States. Negotiations with regard to a potential transition agreement are ongoing.
Other European Economic Area nationals and Swiss nationals
The above regulations do also apply for citizens of the European Economic Area (EEA) and European Free Trade Association (EFTA) Member States (Iceland, Liechtenstein, Norway). As a result of Article 3 of the Switzerland EU Freedom of Movement Act providing for visa-free entry, this also applies for Swiss nationals.
Privileged third-country nationals
In certain circumstances, nationals of certain third countries may also enter without a visa. On the basis of an EU regulation, this is applicable for citizens of states that are listed on the ‘positive list’ of Regulation (EU) No. 539/2001. Such citizens are entitled to stay for a maximum of 90 days without being obliged to have previously obtained a visa.
Some of the nationals listed therein, according to national law, are even entitled to enter German territory without a visa for a residence period that exceeds a 90-day period; according to Section 41 of the Ordinance Governing Residence, this applies to Australia, Israel, Japan, Canada, the Republic of Korea, New Zealand and the United States. In this case, an obligatory residence permit can be obtained after a visa-free entry into Germany but has to be requested within three months of entry. According to the instructions on how to apply the Ordinance Governing Residence, the admittance of the Republic of Korea has been established because of an obligation under international law following an exchange of letters; the other admittances are based on positive experiences with nationals from the respective states. If the application for the grant of a residence permit is filed in a timely fashion, according to Section 81(3), Sentence 1 of the Residence Act, the subsequent stay is deemed to have been granted until the foreigners office issues its final decision. Even for these privileged nationals, however, it is in principle not permissible to take up employment, according to Section 4(3), Sentence 1 of the Residence Act, until the foreign national is in possession of a residence permit for the purpose of employment or the Employment Regulation stipulates that the short-term activities concerned do not qualify as dependent employment.
Moreover, nationals from Andorra, Brazil, El Salvador, Honduras, Monaco or San Marino also do not need to obtain a visa as long as they do not wish to engage in employment except for those activities where the Employment Regulation stipulates that the activities concerned do not qualify as dependent employment.
Other third-country nationals
To enter Germany, all other third-country nationals must have previously obtained authorisation, for example, a visa,8 a residence permit9 or a permission for permanent residence.10, 11 The German embassies or German representations in the third-country national’s home country or in his or her place of residence must be contacted.
Finally, it should be noted that anyone taking residency in Germany shall register with the local registry office within two weeks of having taken residency as foreseen by the Federal Registration Act.
In principle, the German immigration law system is no more favourable to any one industry than to others since the conditions for the grant of the visa category apply regardless of the industry in question. There are, however, some categories that apply specifically to certain industries or fields: for example, the academic research and development category12 and the category for teachers of languages and specialist cooks.13 Moreover, special conditions apply to international sports people14 and international traffic both on the rivers and seas and in the air.15 Finally, there are further facilitations applicable for the following groups of persons: applicants with an academic degree or similar qualification, IT experts and other experts,16 this being an incentive for certain industries as a matter of fact.
II INTERNATIONAL TREATY OBLIGATIONS
i EU nationals
EU nationals not only enjoy freedom of movement as specified above, but also a freedom of movement for workers. Article 45 of the TFEU guarantees the freedom of movement for workers within the EU and forbids any different treatment of workers from Member States regarding employment, salary and other working conditions on the basis of nationality. It states the employees’ rights to:
- accept offers of employment;
- freely move within the territory of the Member States for this purpose;
- reside in a Member State for the purpose of employment in accordance with the provisions laid down by the law, regulation or administrative action governing the employment of nationals of that state; and
- remain in the territory of a Member State after having been employed in that state under conditions that have been stipulated by the Commission in directives.
However, for the Member States that joined the EU on 1 May 2004 and on 1 January 2007 the accession protocols of the respective treaties provide for transitional regulations. These provisions stipulate that the Member States may keep restrictions on the freedom of movement for nationals of the acceding states for a maximum period of seven years under certain conditions as follows:
- for the first two years, no factual justification is needed;
- for the following two years, factual justification is required; and
- for the final three years, an existing considerable disturbance or endangerment of the labour market must be at hand.
While most of the Member States did not make use of these transitional regulations, Germany has implemented the restrictions on the freedom of movement of workers for nationals of the new Member States in full. However, for the Member States that joined the EU on 1 May 2004 (e.g., Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovenia and Slovakia) these restrictions became ineffective from 30 April 2011 and for the Member States that joined the EU on 1 January 2007 (e.g., Bulgaria and Romania), these restrictions were lifted by the end of 31 December 2013, meaning that the nationals of these states are fully entitled to move freely as workers within the EU. A certificate of right of residence (an EU residence permit) is issued for them and the members of their family, if requested. There are no administrative fees for the issuance of the certificates. For Croatia, which joined the EU on 1 July 2013, these restrictions were lifted effective from 1 July 2015. Hence, there are no longer any limitations for nationals from the accession states with regard to the freedom of movement of their nationals in Germany.
Despite the UK having voted to leave the EU on 22 June 2016 and having filed a declaration in that regard to the European Commission on 29 March 2017, the UK remains a full Member State of the EU until the end of the transition period of two years as foreseen by Article 50, Paragraph 3 of the TEU (hence until 28 March 2019).
ii Other EEA nationals and Swiss nationals
Citizens of EEA and EFTA Member States are also entitled to move freely as workers, just as the nationals of EU Member States. The citizens of these states may even take up employment and work in Germany without obtaining a residence permit in advance and need only be registered.
This also applies for Swiss nationals as a consequence of the Agreement on Free Movement of Persons entered into with the EU.17
iii Turkish nationals
There are special regulations for Turkish nationals arising from the EEC–Turkey Association Agreement. According to Article 6 of this Agreement, Turkish employees belonging to the regular labour market of a Member State are entitled:
- to claim the renewal of their work permit if they have had ordinary employment for a period of one year with the same employer and a job is available for them;
- to apply for a job in their profession – subject to the preferential treatment provided for the employees of the Member States of the EU – that is offered by an employer of their choice once a period of three years of ordinary employment is completed, if such a job is offered under usual employment conditions and registered with the employment offices of this Member State; and
- after four years of ordinary employment to freely enter into any employment for remuneration.
III THE YEAR IN REVIEW
i Substantive law
Highly skilled migrants
In Germany, we have not seen any major material reform of the immigration laws over the past few years, but we have seen a couple of amendments and clarifications together with an active debate on the political level. In particular, as a consequence of the economic downturn and the overcoming of the recession (at least in Germany), there has been a major discussion as to whether the category-based system should be replaced by a points-based system (such as exists in Canada and Japan). For years now, a debate has taken place among politicians, trade unions and business persons on whether there is a lack of talent and highly skilled workers on the German job market, and whether there is a need to further facilitate the recruitment of foreign personnel. So far, it appears that the majority opinion is that there is no such need, and that amending the laws and regulations is enough to attract talent and to meet the needs of German companies. Against this background, it cannot yet be said whether there will be any further facilitations with regard to the recruiting of talented and highly skilled workers in the future.
Despite this debate, the employment of highly qualified staff (in comparison with the employment of ‘normal’ staff) is already subject to numerous privileges in comparison to other applicants, and the relatively high former salary threshold for executives and the highly skilled (€86,400 gross until 31 December 2008) had been reduced significantly (to €67,000 gross per year until 31 July 2012), and was further reduced a couple of years later. Effective from 1 August 2012, the aforementioned salary threshold for the highly skilled visa category has been eliminated. In addition, the salary threshold for applicants with an academic or comparable degree has been reduced by the transposition of the EU Blue Card Directive and the implementation of the EU Blue Card category in Germany. The thresholds for the EU Blue Card visa category are set on an annual basis and as of 1 January 2018, the salary threshold is now €52,000 gross for academic persons, and €40,560 gross for certain job categories (such as natural scientists, mathematicians, engineers, doctors or IT consultants) and applicants holding a degree from a German university. The grant of a residence permit for the purpose of employment under the EU Blue Card visa category is now possible without the need for a job market test, which alone cuts the processing time from four to eight weeks instead of eight to 12 weeks for those visa categories that can only be granted once a job market test has been carried out. However, the conditions of employment must be at least comparable to those that would be offered for the position to a person from the local (German and EU) job market.
With effect from 1 August 2017, with a considerable delay of over one year, the EU ICT Directive18 has been transposed into national law. The Directive had been adopted to enhance and facilitate the transfer of personal between legal entities that are affiliated but located in different member countries of the EU. The Directive provides for two categories, the intra-corporate transfer category and the mobile intra-company transfer category.
Moreover, further incentives have been set by the implementation of new categories allowing low-skilled migrants access to the German labour market under certain conditions. In particular, this applies to those applicants holding a German professional qualification or a foreign one recognised as equivalent to a German one.
Finally, in response to the migration crisis that hit Europe, and in particular Germany, in 2015 and 2016, the laws dealing with the employment of migrants have been substantially modified. The opportunities for refugees to be employed in Germany depend on their residence status at any one time.
Foreign third-country nationals who have crossed the border and have sought asylum or filed for asylum, but whose asylum proceedings are ongoing, may in principle be granted a residence permit for the purpose of employment with the consent of the labour authorities once they have been in Germany for more than three months.
Before giving consent, the labour authorities carry out a job market test by examining the following criteria: the impact of the employment on the labour market; whether priority applicants are available; and the working conditions. With regard to the latter, particular attention is paid to ensure that the applicant benefits from the same working conditions (e.g., with regard to salary and working hours) as applicants from the local job market. However, such a test is not necessary if the application is filed under the EU Blue Card visa category for shortage occupations (e.g., natural scientists, mathematicians, engineers, doctors, or IT consultants earning at least €40,560). The same goes for applications filed under the vocational training visa category (Section 6 of the Employment Regulation) or the recognised occupation requiring formal training visa category (Section 8 of the Employment Regulation).
Furthermore, the Foreign Office can grant a residence permit for the purpose of employment without the consent of the labour authorities in the following cases:
- employment as an introductory trainee;
- employment in a state-recognised apprenticeable occupation;
- employment under the highly skilled category, the EU Blue Card category or under the academic person category for holders of a German degree (Section 2, Paragraph 1 of the Employment Regulation);
- employment under the executive category (Section 2 of the Employment Regulation);
- employment of a spouse, life partner, relative or first cousin by an employer living together with the applicant in a common household; and
- any employment after four years of having been duly employed in Germany with a residence permit, permission to reside or a temporary suspension of deportation status.
Moreover, consent with regard to employees that shall be employed by temp agencies shall only be given if the applicant resides in Germany for at least 15 months with a permission to reside. In that case, the priority review is limited to a check of the working conditions being based on the specific job, and with regard to the salary and working hours.
Finally, individuals with permission to reside that are obligated to live in a reception facility – with this restriction being possible for six weeks up to six months19 – shall not engage in any kind of employment at all.20 The same goes for individuals from countries declared safe countries of origin (e.g., Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal and Serbia) who filed their application for asylum after 31 August 2015 and are obliged to live in a reception facility for the duration of the asylum proceedings and, if their applications are turned down, until they leave the country.21
Applicants granted a positive decision as a result of the asylum proceedings, regardless of the type of protection (e.g., right of asylum, refugee protection, subsidiary protection) do in principle have the right to engage in any kind of employment, be it on a dependent or self-employed basis. However, in the case of a prohibition of deportation, the local foreigners office decides in the individual case whether a residence permit for the purpose of employment shall be granted. If so, it will be noted on the residence permit as well as on any additional sheet that has been issued whether this has been granted.
Moreover, consent with regard to employees that shall be employed by temp agencies shall only be given if the applicant resides in Germany for at least 15 months with a residence permit. In that case, the priority review is limited to a check of the working conditions being based on the specific job, and with regard to the salary and the working hours.
Finally, the foreigners office may grant a residence permit for the purpose of employment to applicants from the Balkan states declared as safe countries of origin (e.g., Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro and Serbia) with regard to any kind of employment, if the applicant – before entering Germany – duly filed an application with the German immigration authorities abroad in the country of origin. However, that privilege is limited in time (from 2016 until 2020) and shall not apply to applicants that have received benefits under the Seekers’ Benefits Act within the past 24 months. The latter shall not apply to applicants who filed for asylum between 1 January 2015 and 24 October 2015 and were residing in Germany on 24 October 2015 with temporary suspension of deportation status and immediately left the country. The aforementioned stipulation is an incentive for those refugees that were in Germany at the time to leave and come back by following the proper process so that the authorities can check the application while the applicant stays abroad.
Applicants who are not or are no longer in the asylum proceedings, or whose applications have been turned down but whose deportation has been suspended are granted a certificate of suspension of deportation by the immigration authorities.
Like applicants with permission to reside, they may in principle be granted a residence permit for the purpose of employment with the consent of the labour authorities once they have been in Germany for more than three months.22
Before giving consent, the labour authorities carry out a job market test by examining the criteria described above. Individuals who entered the country to obtain benefits under the Asylum Seekers’ Benefits Act are not permitted to work if they, for example, provide misleading information with regards to their identity or nationality, or if they come from a country declared a safe country of origin (e.g., Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal and Serbia) and their asylum application was filed after 31 August 2015 and was turned down.23
Intra-corporate transfer category
The intra-corporate transfer category is available for third-country nationals (non-EU, European Economic Area or Switzerland) that are qualified managers, specialists or graduate trainees and shall be assigned from an entity outside the European Union to an entity in the same corporate group in Germany on a temporary basis for a period of more than 90 days. However, there is a requirement of having previously worked with the company assigning the employee for a period of at least six months. Moreover, the conditions of employment shall be on the same level than those that would have been offered to an applicant from the local (German) labour market; in particular with regard to the salary.
Holders of a residence title for the purpose of employment granted under the intra-company transfer category by another member state are entitled to engage into employment in Germany for up to 90 days in any 180-day period once having complied with a notification requirement. In the case of longer stays, a national residence title for the purpose of employment in Germany is required and can be granted under the mobile intra-company transfer visa category.
The residence title for the purpose of employment under the intra-corporate transfer category can be granted for a period of up to three years (except for trainees, in which case it can be granted for up to one year) and in the case of consecutive assignments there is a cooling-off period of six months in between.
Mobile intra-corporate transfer visa category
The mobile intra-corporate transfer category is available for third-country nationals (non-EU, European Economic Area or Switzerland) that are in possession of a residence title for the purpose of employment under the intra-corporate transfer category issued by another Member State and shall be assigned by an entity outside the European Union to an entity in the same corporate group in Germany on a temporary basis for a period of more than 90 days.
Holders of a residence title for the purpose of employment granted under the intra-corporate transfer category by another Member State are entitled to engage in employment in Germany for up to 90 days in any 180-day period once they have complied with a notification requirement. In the case of longer stays, a national residence title for the purpose of employment in Germany is required and can be granted under the mobile intra-corporate transfer visa category.
Again, there is a requirement to have previously worked with the company assigning the employee for a period of at least six months, the conditions of employment (including, in particular, the salary) must be comparable to the local market and the permit may be granted for up to three years (except for trainees: up to one year) with a cooling-off period of six months in the case of consecutive assignments.
ii Procedural law
As previously mentioned, until 30 April 2011, the foreigners office would request that the local labour office with responsibility for the area where the employment will be taken up consent to the grant of a permit. Since 1 May 2011, this competency is centralised with the ZAV (a specialised department of the Federal Employment Office located in Bonn, Duisburg, Frankfurt and Munich). Nevertheless, the ZAV liaises with the local labour offices at the place of the intended employment and asks them to carry out the job market test if a test is required.
Since 1 September 2011, the applicant is obliged to attend the meeting at the foreigners office in person (together with any accompanying family members), as fingerprints and biometric photographs will be taken to issue an electronic residence permit (eAT). The conventional residence permit, residence card and permanent residence card and replacement ID in paper form have been replaced by the eAT, which is issued in credit card format.
The eAT has a contact-free chip on which biometric features (photograph and two fingerprints), ancillary conditions (special requirements) and personal data are saved. The chip can be used as an electronic identity document and a qualified electronic signature (this provides eAT holders with the option of signing legally effective digital documents as desired). The photograph is saved on the body of the card and on the chip. Two fingerprints are also saved on the chip for all residents of non-Member States aged six and above. Only official bodies (such as the police) are authorised to access the photograph and fingerprints. Ancillary conditions saved on the chip are also saved on a unique supplementary sheet that comes with the eAT.
Economic and administration service suppliers (e.g., banks, official authorities) can offer electronic services when holders identify themselves electronically using the eAT. This simplifies the process of logging onto internet portals, filling out forms and verifying one’s age on the internet or at machines. Only suppliers who possess state authorisation can access the holder’s data. In addition, the holder must confirm the transfer of his or her personal data with a six-digit pin number. Service providers are unable to read the biometric features when using the online identification function.
As the eAT is not produced by the foreigners offices, it is necessary for applicants to attend a second meeting to pick up the permit. However, unlike the first meeting, there is no need to attend the meeting in person, and it is possible to grant power of attorney for another person to pick up the permit.
Any permit that has been granted before 1 September 2011 will remain valid only until 30 April 2021.
Moreover, to expedite proceedings, effective 1 July 2013, the following is stipulated by Section 36 of the Employment Regulation: if the labour authorities do not respond to the query within two weeks requesting additional information or stating that the employer has not sufficiently or not timely given the information requested by the authorities, consent shall be deemed to be given. Unfortunately, this does not seem to apply if the company files a pre-approval application. Moreover, the labour authorities shall check upfront if the conditions for consent are given, if the employer has provided the information requested and if the proceedings can be expedited. Finally, to expedite matters further, a pre-approval application has been implemented whereby it is possible for the sponsoring company to file an application upfront with the labour authorities to find out whether consent is needed and, if so, whether it will be granted.
IV EMPLOYER SPONSORSHIP
i Work permits
Privileged third-country nationals
For the privileged third-country nationals listed in Section 41 of the Ordinance Governing Residence,24 a double privilege is applied.
They are not only entitled to enter and reside in Germany without a visa (as specified previously), but do also have the privilege to apply for the grant of a residence permit for the purpose of employment after having entered Germany without a visa. In this respect – as previously mentioned – the application must be filed no later than 90 days after entry into Germany; otherwise the applicant will not benefit from the standardised provisional effect as laid down in Section 81(3), Sentence 1 of the Residence Act.25 From the 91st day until the final decision, a provisional permit permitting an extended stay may be granted. In such a case, an additional fee of €13 applies.26 However, engaging in employment will generally not be allowed before the grant of the final permit. Moreover, leaving the country during this period might result in a discussion (with either the border control when re-entering or the foreigners office before the grant of the permit) regarding whether the re-entry is legal. Whereas most of the commentaries available and the instructions on how to apply the law published by the Labour Office do not deal explicitly with this question, and neither favour nor disfavour it, the extended stay is likely to come to an end if the individual leaves the country and – accordingly – re-entry is then forbidden unless the reference period for the 90 days (of six months) is open again. This is also reflected in the instructions on how to apply the law that are published by the Ministry of Internal Affairs and applied by the foreigners offices. Against this background, such a permit should be applied for well ahead of time; however, once the reference period of 90 days (within any 180-day period) has expired, a visa-free entry would be possible again.
The second privilege is based on Section 26 of the Employment Regulation, which stipulates that a residence permit for taking up employment can be granted to citizens of Andorra, Australia, Canada, Israel, Japan, Monaco, New Zealand, San Marino and the United States. This provision must be read as follows: for citizens of these states the approval of the Federal Employment Office can be granted for all kinds of employment, irrespective of whether a category usually applicable to third-country nationals can be applied. Nevertheless, the requirements for obtaining a residence permit for the purpose of employment, which are explained below, must be fulfilled. Moreover, the grant of a residence permit for the purpose of employment is possible regardless of whether the company sponsoring the application has entered into a localised employment relationship with the employee (on behalf of a company duly established or branched in Germany) or if the individual has been assigned to Germany by a company established abroad.
Other third-country nationals
Other third-country nationals must file an application for the grant of a residence permit for the purpose of employment with a German embassy or representation abroad that is located in their home country or state of residence before entering Germany; the application is then forwarded to the responsible local foreigners office in Germany. Provided that the approval of the labour office is required, the foreigners office will then start an internal proceeding with the labour office through the ZAV. After having received the approval – see below for the requirements for approval – the file will be sent back electronically; in the case of a positive decision, the residence permit for the purpose of employment will be granted to the applicant by the German embassy or representation abroad before they travel to Germany. Moreover, since 5 March 2013, there has been no need for the embassy or general consulate to seek consent from the local foreigners office in the case of an application with regard to a residence permit for the purpose of (dependent) employment – in that case the file will be directly transferred to the local labour authorities via the Federal Administration Office, and returned once the decision has been taken. The latter does not, however, apply in the event that the applicant has previously been staying in Germany or is entitled to enter Germany visa-free and file the application in Germany (this, however, only applies to nationals from certain countries, including the United States and Australia).
General conditions of granting
The grant of a residence permit for taking up employment will only be possible if the general preconditions stipulated in Section 5 of the Residence Act are fulfilled. Accordingly, the granting of a residence permit generally presupposes:
- that the foreigner’s livelihood is secure;
- that the foreigner’s identity is established, and also their nationality, if they are not entitled to return to another state;
- that no grounds for expulsion apply;
- insofar as the foreigner has no entitlement to a residence permit, that the foreigner’s residence does not compromise or jeopardise interests for any other reason; and
- that the passport obligation pursuant to Section 3 of the Residence Act is met.
Furthermore, the granting of a residence permit, a settlement permit or an EU long-term residence permit presupposes that the foreigner has entered the country with the necessary visa and has already furnished the key information required for granting of the title in his or her visa application. These requirements may be waived, however, if the prerequisites qualifying a foreigner for the granting of a residence permit are met, or if special circumstances of the case render a subsequent visa application procedure unreasonable.
Residence permit for the purpose of employment
Under Section 18(1) of the Residence Act, the admittance of foreign employees depends on the requirements of the industrial location in Germany and must be made in consideration of the labour market situation and the need to combat unemployment, whereas international agreements remain unaffected. The grant is subject to explicit requirements. Pursuant to Section 18(2) of the Residence Act, a residence permit for the purpose of employment may only be granted to foreigners if the Federal Employment Office has given its approval according to Section 39 of the Residence Act or if it is determined, according to Section 42 of the Residence Act or by an international agreement, that employment is permitted without the need to obtain approval from the Federal Employment Office. In addition, Section 18(5) of the Residence Act provides that such residence permits may only be granted if a concrete job offer has been made.
The regulation on the admittance of new foreigners entering Germany for taking up employment (the Employment Regulation) must be observed. This means that the labour market is basically not accessible for other third-country nationals unless the requirements of the criteria defined in the Residence Act or statutory regulations established as a result of the Residence Act are fulfilled (numerus clausus). Consequently, a residence permit for taking up employment can be granted for the following categories:
- EU Blue Card27 – for applicants holding a German university degree or a foreign university degree that is recognised in Germany or comparable to a German university degree, or that have a comparable qualification that is proven by professional experience of at least five years, and that should earn a salary of at least two-thirds of the social security contribution ceiling for the statutory pension scheme,28 or 52 per cent of said ceiling for certain job categories in shortage occupations (e.g., natural scientists, mathematicians, engineers, doctors or IT consultants;29
- executives30 – for example, executive staff with general power of attorney or power of procuration; members of an institution of a legal entity who are authorised to legally represent it;
- short-term deployments31 – for example, deployment of IT specialists for the implementation of sold software for up to three months during an overall period of 12 months;
- service delivery32 – deployment of an employee who is employed in a EU or EEA Member State to temporarily render services in another Member State;
- academics and applicants with a degree from a higher educational institution33 – for taking up employment that suits the professional qualification for specialists with a recognised German graduate degree or a foreign graduate degree that is comparable to a German degree; specialists with a German graduate degree or graduates from German schools abroad with a recognised degree or a degree that is comparable to a German degree; or a professional training qualification that has been acquired in Germany in a job requiring formal training that is state-approved or comparably regulated;
- executive staff and specialists34 – for executive staff and other persons who have particular and specific corporate knowledge (specialists) for a company that is based in Germany for a qualified employment with this company, or executives for an employment in a German-foreign joint venture that was founded on the basis of international agreements, without the need for checking prioritisation;
- international labour exchange35 – for qualified specialists with a university or college degree or comparable qualification within the framework of labour exchange in an international company or company group for a period of up to three years without the need for checking prioritisation;
- employment of nationals of certain countries36 – for citizens of Andorra, Australia, Israel, Japan, Canada, Monaco, New Zealand, San Marino and the United States, the approval for the grant of a residence permit for taking up any employment may be given; and
- long-term deployments37 – for example, deployment of staff for a period of up to three years to set up an industrial plant.
The residence permit for the purpose of employment may generally be granted for a period of three years (four years for the EU Blue card), but in the first instance is often only granted for one year to ensure that the general conditions of granting as previously specified and the approval requirements stipulated by the labour office are still fulfilled.
ii Labour market regulation
Generally, a residence permit for the purpose of employment is subject to the approval of the Federal Employment Office. Section 39(1) of the Residence Act provides that a residence permit enabling the foreigner to take up employment may only be granted if the approval is given by the Federal Employment Office, unless otherwise provided by a statutory regulation. In addition thereto, it provides that approval can only be given if the regulation is part of international agreements, legal provisions or statutory regulations.
Unless otherwise provided by a statutory regulation, the approval of the grant of a residence permit for the purpose of employment pursuant to Sections 18 and 39(2), Sentence 1 of the Residence Act may be granted by the Federal Employment Office if:
- the employment of foreigners does not result in any adverse consequences for the labour market, in particular with regard to the employment structure, the regions and the branches of the economy; and no German workers, foreigners who possess the same legal status as German workers with regard to the right to take up employment, or other foreigners who are entitled to preferential access to the labour market under the law of the EU, are available for the type of employment concerned; or
- it has been established, via investigations for individual occupational groups or for individual industries in accordance with Sentence 1, No. 1, Letters (a) and (b), that filling the vacancies with foreign applicants is justifiable in terms of labour market policy and integration aspects.
Another condition for the grant of the permit (that applies to both of the aforementioned case groups) is that the foreigner is not employed on terms less favourable than those that apply to comparable German workers, in particular with regard to salary.
Therefore, prior to consenting to the grant of the permit, the labour authorities must check the consequences of the employment for the local labour market, carry out a job market test and compare the conditions of employment offered. In practice, a job description form as provided by the labour authorities together with a draft employment or assignment contract must be filed with the application.
No approval of the labour authorities is required for taking up employment, however, if taking up employment is permitted pursuant to the Residence Act,38 or a statutory regulation according to Section 42 of the Residence Act provides that approval by the Federal Employment Office will not be required.39 It is worth noting, however, that in most cases this is not the case, but rather as a general rule an approval for the grant of the permit by the labour authorities will be needed – see above for further details.
iii Rights and duties of sponsored employees
In the case of employer sponsorship, the holder of a residence permit for the purpose of employment may only work for the employer that has sponsored the application. Moreover, as a matter of principle, any permit will be limited not only with regard to the employer and the activities that are permitted, but also with regard to time and the job location. Although consent may be given for an employment period of up to three years,40 or four years for the EU Blue Card,41 it is common practice to grant such consent at first for a period of one year only, regardless of the intended duration of the employment relationship. Furthermore, the approval to engage in employment can be limited with regard to the occupation, the employer, the district of the labour office, and the situation and the allocation of the working hours. This does not apply to non-sponsored visa categories allowing their holders to engage into employment regardless of the employer and location (e.g., the highly skilled visa category; see Section V).
The same applies for the settlement permit. The settlement permit allows the holder to take up employment and may only be supplemented with a subsidiary provision in those cases that are expressly permitted by law. According to Section 9 of the German Residence Act, a foreigner will be granted the settlement permit provided that:
- he or she has held a residence permit for five years;
- his or her livelihood is secure;
- he or she has paid compulsory or voluntary contributions into the statutory pension scheme for at least 60 months, or furnishes evidence of an entitlement to comparable benefits from an insurance or pension scheme or from an insurance company (time off for the purposes of childcare or nursing at home must be duly taken into account);
- the granting of the residence permit is not precluded by reason of public safety or policy, giving full consideration to the severity or the nature of the breach of public safety or policy or the danger emanating from the foreigner, with due regard to the duration of the foreigner’s stay to date and the existence of ties in the federal territory;
- he or she is permitted to be in employment, insofar as he or she is in employment;
- he or she is in possession of the other permits that are required for the purpose of the permanent pursuit of his or her economic activity;
- he or she has an adequate knowledge of the German language;
- he or she possesses a basic knowledge of the legal and social system and the way of life in the federal territory; and
- he or she possesses sufficient living space for himself or herself and the members of his or her family forming part of his or her household.
Since 1 August 2012, there have also been facilitations with regard to the grant of a settlement permit to holders of a German degree. According to Section 18b of the German Residence Act, a settlement permit will be granted to a foreigner with a German university degree or a German degree from a comparable institution if the applicant:
- is in possession of a residence permit for the purpose of employment;
- is adequately employed, given his or her academic background;
- has contributed to the German pension scheme for at least 24 months; and
- if the other general conditions for the grant of a settlement permit are met.
Employees meeting the conditions for the grant of a settlement permit may remain in the country indefinitely and apply for a permanent status. Unlike a residence permit for the purpose of employment, the settlement permit can be granted by the foreigners office without having to request the consent of the labour office, and it is not limited either in time or with regard to the activity or the employer. Whereas the latter is of course an advantage for the holder of the permit, it may be disadvantageous for the employer, since it facilitates changing employers. The application for a settlement permit must be lodged with the foreigners office responsible for the applicant’s place or residence. According to Section 44 of the Ordinance Governing Residence, the administrative fee for the grant of a settlement permit is €113; this fee was recently lowered significantly.
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
i Investors and entrepreneurs
Unlike in many other countries, there is no investor category available in Germany that would enable a residence permit to be granted to the applicant under the sole condition of investing money; therefore, any investor or entrepreneur needs to meet the conditions for the self-employed visa category. According to Section 21 of the Residence Act, residence permits with regard to self-employment may only be granted if:
- there is a higher economic interest or a certain local requirement;
- the activity is expected to have positive effects on the economy; and
- the foreign national holds capital or is the beneficiary of a loan that is sufficient.
Until 31 July 2012, the first two preconditions were regarded as met if at least €250,000 was invested and five jobs were created. However, since 1 August 2012, these thresholds have been abolished to attract more entrepreneurs to invest in Germany and to facilitate investment in Germany. Moreover, unlike the previous stipulation, since 1 August 2012, an economic interest as opposed to a higher economic interest, and a local requirement as opposed to a particular local requirement, suffice. However, the following criteria still apply to the assessment of the preconditions: the carrying capacity of the business idea, the entrepreneurial experience of the foreigner and the amount of the capital investment. To assess these criteria, the foreigners office regularly asks for an expert’s statement at a competent authority (e.g., the local chamber of industry and commerce).
Furthermore, a residence permit for the purpose of self-employment may also be granted by the foreigners office according to Section 21(2) of the Residence Act if there are privileges because of bilateral conventions, as is the case for Japan and the United States.
Finally, according to Section 21(2a) of the German Residence Act, a residence permit for the purpose of self-employment may also be granted to a foreigner with a degree from a German university or a comparable German educational institution without the aforementioned conditions being met. This also applies to holders of residence permits for research or scientific purposes42 if the envisaged activity is connected to the educational background.
The application for a highly skilled settlement permit must be lodged with the foreigners office responsible for the applicant’s place or residence. According to Section 44 of the Ordinance Governing Residence, the administrative fee for the grant of a settlement permit to self-employed persons is €124; this fee was recently lowered significantly.
ii Highly skilled migrants
When dealing with applications of highly qualified persons, the foreigners office does not require the consent of the labour authorities before granting the permit.43 Furthermore, such persons will also be given a permanent residence permit immediately, to facilitate planning and provide an incentive for establishment in Germany. This permit is not limited with regard to any specific employer or region; nor is it limited in time.
According to the legal definition of Section 19(2) of the Residence Act, highly qualified persons include scientists with special theoretical knowledge, and teachers, professors or scientific assistants of high standard.
As there is a special economic and social interest in staffing the top positions in the fields of business and science, the employment of highly qualified persons is possible without prior permission of the labour authorities; however, the requirements of the law concerning foreigners must be complied with. In particular, integration into the standard of living in Germany and the living expenses must be assured without state subsidy. The foreigners office may ultimately grant a permanent residence permit but is not obliged to do so; in fact, the foreigner is only entitled to claim a decision without abuse of discretion.
The application for a highly skilled settlement permit must be lodged with the foreigners office responsible for the applicant’s place or residence. According to Section 44 of the Ordinance Governing Residence, the administrative fee for the grant of a highly skilled settlement permit is €147; this fee was recently lowered significantly.
VI OUTLOOK AND CONCLUSIONS
Regardless of whether there is a lack of talent in Germany and a need for further facilitation with regard to the recruiting of international personnel, it can be said that, on the basis of the current laws and regulations, there are already various options available for companies to employ foreign personnel, both skilled and low-skilled. Therefore, the currently available categories are sufficient. Nevertheless, there is a need for further amendments and clarifications with regard to some of the visa categories available.
Regardless of this, in the coalition agreement between the CDU, CSU and SPD of 12 March 2018, Chapter VIII, under the heading ‘Managing immigration – Demanding and supporting integration’, contains the memorandum of understanding on ‘Rules governing immigration into the labour market and the related right of residence and return in a legal framework oriented to the needs of our economy’.
In contrast to the announced agreements of the ‘Jamaica coalition’, this at least is a departure from a complete system change and the introduction of a points-based system. Instead, the intention is to bring together and streamline existing regulations. It remains to be seen if this will happen and, if so, how much of it will actually be implemented. There is certainly sufficient regulatory latitude for the national legislature to achieve this, given the European law framework that would have to be observed. Finally, a similar bill would have to be drafted and go through the legislative process. It should therefore be clear that the result of such a process can hardly be predicted. Whether a comprehensive reform will ultimately result at all or some arrangements merely be added to the existing system is therefore uncertain, regardless of the declarations of intent contained in the coalition agreement.
In my view, such a comprehensive new regime in the area of labour migration is not at all necessary, as the legal framework currently in force might prove adequate or, if applied efficiently, could work well. The problems frequently complained of (or at least alleged) regarding shortages of skilled workers frequently have many causes, and migration legislation is only one of these possible causes, so it is already doubtful whether the merging of a set of rules would change this.
More importantly, from a practitioner’s standpoint, one would wish that the authorities involved (e.g., the foreigners office and the labour office) would apply the laws and regulations more uniformly, and with a focus on positive results instead of simply applying the strict wording of the laws and regulations or – even worse – merely replacing the wording with the instructions of the ministries on how to apply the law. Even though these instructions do not have any binding legal effect, the authorities generally refuse to debate arguments that comply with the law but that, at least at first sight, seem to differ from the instructions. For instance, the consent of the Labour Office with regard to the grant of a residence permit for the purpose of employment for academic persons under the EU Blue Card visa category will only be given if the employer is domiciled or has a branch in Germany and concludes a local employment contract with the employee in Germany (whereas the law itself provides no such limitation). As a result, it is not clear whether the instructions suggest that the consent may only be given if a local employment contract will be concluded and – if so – what impact such a practice would have on temporary assignments to Germany. It does not look like the government or the Federal Ministry of Labour and Social Affairs are likely to change this or clarify the instructions. Therefore, it is generally recommended that the competent authorities are contacted, and that their interpretation of the laws and regulations regarding the visa category in question is checked up front.
Finally, the processing time (at least eight to 12 weeks on average) is generally considered too long and not competitive on an international scale, and needs to be improved.
1 Gunther Mävers is a partner at michels.pmks Rechtsanwälte Partnerschaft mbB.
2 Ex Article 18 of the EC Treaty.
3 Ex Article 39 of the EC Treaty.
4 See Section 34(2) of the Employment Regulation.
5 Section 45 of the Ordinance Governing Residence.
6 Section 47(1)(8) of the Ordinance Governing Residence.
7 Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovenia and Slovakia.
8 Section 6 of the Residence Act.
9 Section 9 of the Residence Act.
10 Section 9a of the Residence Act.
11 See Section 4(1), Sentences 1 and 2 of the Residence Act.
12 Section 5 of the Employment Regulation.
13 Section 11 of the Employment Regulation.
14 Section 23 of the Employment Regulation.
15 Section 24 of the Employment Regulation.
16 Section 19, 19a of the German Residence Act; Section 2 of the Employment Regulation.
17 See Article 4 of the Agreement.
18 Directive 2014/66/EU; see Section I.i.
19 See Section 47, Paragraph 1 of the Asylum Act.
20 See Section 61, Paragraph 1 of the Asylum Act.
21 See Section 61, Paragraph 2, Sentence 4 of the Asylum Act.
22 See Section 61, Paragraph 2, Sentence 1 of the Asylum Act.
23 See Section 60a Residence Act.
24 Citizens of Australia, Canada, Israel, Japan, the Republic of Korea, New Zealand and the United States of America.
25 For example, the applicant’s residence will be deemed permitted up to the time of the decision by the foreigners office.
26 Section 47(1)(8) of the Ordinance Governing Residence.
27 Section 19a of the German Residence Act; Section 2(1)(2), 2(3) and 2(4) of the Employment Regulation.
28 €52,000 as of 1 January 2018.
29 €40,560 as of 1 January 2018.
30 Section 3 of the Employment Regulation.
31 Section 19(1) of the Employment Regulation.
32 Section 21 of the Employment Regulation.
33 Section 2(2) and (4), of the Employment Regulation.
34 Section 4 of the Employment Regulation.
35 Section 10 of the Employment Regulation.
36 Section 26 of the Employment Regulation.
37 Section 19(2) of the Employment Regulation.
38 See, for example, Section 4(2).
39 See, for example, Sections 2 to 16 of the Employment Regulation.
40 See Section 34(2) of the Employment Regulation.
41 See Section 19a(3) of the Residence Act.
42 Sections 18 and 20 of the Residence Act.
43 See Section 2(1)(1) of the Employment Regulation in connection with Section 19 of the Residence Act.