Legal basis

Legal basis

Arbeitgeber: Rechtliche Grundlagen - en

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  • What laws do EU nationals have to consider?

    The European Union’s single labour market is based on the freedom of movement for workers. It is set down in Article 45 of the Treaty on the Functioning of the European Union and guarantees every EU national the right

    • to apply to any offered job inside the EU,
    • to move and reside freely within the territory of the member states during an employment, and 
    • to stay in within any member state even after the employment ends.

    The freedom of movement also includes the regulation of working conditions and ensures that none can be treated differently in regards to jobs or payment on the grounds of their nationality.

    Due to bilateral treaties the freedom of movement has been extended to include Iceland, Liechtenstein, Norway and Switzerland. That means, nationals from EU member states, from Iceland, Liechtenstein, Norway and Switzerland are allowed to take up employment in Germany without a residence or work permit. They thus enjoy equal conditions as German employees.

    Regardless of the freedom of movement some countries have legal requirements for certain professions. In Germany, this includes among other professions nurses, teachers, doctors, and lawyers. For foreign nationals to be employed in one of these so-called regulated professions, the foreign qualifications must be recognised.

  • What laws do third-country nationals have to consider?

    Third-country nationals have to consider more extensive rules and laws than nationals from the above mentioned countries. To reside in Germany for the purpose of working, third-country nationals need a residence permit. The grounds on which such a permit may be granted are covered by the residence act (Aufenthaltsgesetz) and the employment regulations (Beschäftigungsverordnung).

    Foreign workers can only apply for a residence permit for the purpose of working if a specific job has been offered to them. This job offer and a visa application have to be presented in time to the German embassy or consulate in the home country. The embassy or consulate then forwards the application to the immigration office at the future place of residence.

    Aside from the residence permit, foreign workers also need a work permit. The local immigration office applies for such a permit at the International Placement Services (Zentrale Auslands- und Fachvermittlung – ZAV) of the Federal Employment Agency. The International Placement Services then checks if the foreign worker may receive a work permit (prioritisation) and forwards its decision to the local immigration office. The time for this procedure can be reduced if the future employer applies for this prioritisation check to be realised beforehand.

    Depending on the International Placement Services’ decision, the immigration office evaluates the visa application. The immigration office’s decision will then be sent to the embassy or consulate which will – pending a positive decision – issue a visa for several months. It is important to note that this is merely a visa. After entering Germany, the foreign worker will have to apply for an actual residence permit at his or her local immigration office.

    Of course there are exceptions that might reduce the time for this procedure. For example, there are exceptions for academics who can receive an EU Blue Card, for workers belonging to professional groups on the “whitelist” (professions with an increased need) as well as graduates of German universities and colleges. Of course regulated professions still need to be recognised.

  • What laws do refugees have to consider?

    Refugees who have applied for asylum in Germany can have different status which are relevant for their access to the labour market.

    Refugees whose asylum application has been granted have unlimited access to the German labour market. There are also refugees with a so-called “Aufenthaltsgestattung” (permission to remain) who are waiting for the decision in their asylum application as well as refugees with a “Duldung” (temporary suspension) who have not been granted asylum but whose deportation has been temporarily suspended. After three months of residence in Germany, refugees with Aufenthaltsgestattung or Duldung have a limited access to the labour market. That means, on the one hand, they need the permission of the local immigration office. On the other hand, the prioritisation as well as the working conditions need to be checked.

    After 15 months of residence, prioritisation is no longer required while after four years the examination of the working conditions is ceased. It is also important to know that the examination of the working conditions and the prioritisation will only be carried out if the immigration office requests them.

    Some types of employment only need to be approved by the immigration office, the examination of the working conditions and the prioritisation are not necessary. These types of employment include:

    • vocational training,
    • internships for educational purposes,
    • voluntary services,
    • employment of highly skilled workers.

    Refugees intending to work in one of those types of employment still need to wait three months before starting to work.

    There are also restrictions of employment for some groups of people. Refugees whose deportation has been temporarily suspended and who have given false or insufficient information about their identity or nationality are not allowed to work. Also, during their first four years of residence in Germany, refugees with Aufenthaltsgestattung or Duldung are not allowed to work as a temporary workers through agencies.