Time limit for the right to work
Access to the labour market for asylum seekers has been subject to further restrictions in recent years. The applicable legislation was amended again in 2019 by the Skilled Workers’ Immigration Act (Fachkräfteeinwanderungsgesetz) which entered into force in March 2020. As a result, the regulatory system has become more restrictive and complex.
Prior to March 2020, asylum seekers were barred from access to employment as long as they were under an obligation to stay in an initial reception centre. Outside these centres, they could be permitted to take up employment after having stayed in the federal territory for 3 months.
Access to employment for asylum seekers in reception centres
Since March 2020, the general rule still is that asylum seekers in initial reception centres are not allowed to take up employment.[1] The scope of this limitation has been severely extended as the result of the extension of the Obligation to stay in initial reception centres. For most adult asylum-seekers, in practice the time-limit before accessing employment is now 18 months, up to 24 months in some Federal States. Nevertheless, some asylum seekers with a permission to stay (Aufenthaltsgestattung) in initial reception centres are entitled to an employment permit after 9 months in the asylum procedure under certain conditions.[2] This applies to asylum seekers whose procedure is still ongoing before the BAMF or where an appeal is pending. Once their asylum procedure has been running for 9 months, they are entitled to access employment pursuant to Section 61(1) of the Asylum Act if the further requirements are met.[3] However, asylum seekers from safe country of origins are excluded by law from such possibilities. Hence, the law establishes an unequal treatment for the latter category. Since asylum seekers from safe countries of origin are generally obliged to stay in initial reception centres for the whole duration of the procedure, they have effective been excluded from access to the labour market.
Former asylum seekers with a tolerated stay (Duldung), who are still obliged to stay in reception centres, may only be allowed to take up employment after a waiting period of 6 months from the time they are granted a tolerated stay at the discretion of the authorities.[4]
Access to employment for asylum seekers staying outside of reception centres
Outside of reception centres, asylum seekers with a permission to stay (Aufenthaltsgestattung) are not allowed to take up employment during the first 3 months of their stay on the territory, after which they can be permitted to do so on a discretionary basis.[5]
Planned changes for 2024
In November 2023 the Federal Government drafted legislative plans to mitigate some of the restrictive rules.[6] Although the legislation is officially justified by relieving the burden on public budgets, these changes were preceded by a prominent debate about the national lack of skilled labour. Various stakeholders and media reports have criticised that Germany seeks skilled labour abroad while a lot of asylum seekers are trained and willing to work but forbidded to do so by law.[7] After plenary discussion those plans now foresee that asylum seekers inside reception centres should already be able to work after six months. For those outside reception centres, working should be definitely allowed after three months and not be up to discretion of the authorities. Also, asylum seekers with a Duldung should be able to work after six months without being dependent on this discretion. In November, the Federal Government has provided a draft legislation and the parliament adopted the law according to the recommendation for a decision by the Ministry of Interior.[8]
Restrictions on access to the labour market
Before the 2020 amendment of the Asylum Act, asylum seekers were not allowed to work on a self-employed basis for the whole duration of their asylum procedure, since the permission to pursue self-employment requires a regular residence permit. The asylum seeker’s permission to stay (Aufenthaltsgestattung) does not qualify as such.[9] However, the new Section 4a(4) Residence Act now provides that it is at the discretion of the responsible authorities to permit any economic activity including self-employment for those with a permission to stay (Aufenthaltsgestattung) or tolerated stay (Duldung). This only applies to those living outside of initial reception centres, though.[10]
On top of the restrictions mentioned above, there are additional limitations to the access to the labour market in practice. Firstly, asylum seekers have to apply for an employment permit each time they want to take up employment. To that end, they have to prove that there is a ‘concrete’ job offer, i.e. an employer has to declare that the asylum seeker will be employed in case the employment permit is granted, and a detailed job description must be shared with the authorities.
Secondly, employment is only granted upon approval of the Federal Employment Agency.[11] There are a few exceptions to this rule, e.g., for internships and vocational training.[12] Such approval depends inter alia on a ‘review of labour conditions’, i.e. an examination of whether labour rights are complied with and whether wages correspond to regional standards.
The so called ‘priority review’ which was previously applied in practice, and which consisted in checking whether another job-seeker would be more suited for the position (i.e. German citizens or foreigners with a more secured residence permit) has been abandoned following the 2020 reform.
The available statistic from the Employment Agency concerning asylum seekers only encompasses data concerning so-called “persons in the context of refugee migration” (Personen im Kontext von Fluchtmigration). These are people from third countries (Drittstaatsangehörige) with either a permission to stay (Aufenthaltsgestattung), a permit of residence due to refugee or subsidiary status or a tolerated stay (Duldung). Not included in those numbers are those that migrated to Germany from Ukraine, those within family reunification with asylum seekers or those that originally came as asylum seekers but now have a settlement permit (Niederlassungserlaubnis).[13] According to the statistic, 255,518 persons in the context of refugee migration are currently unemployed which means a share of 9,8% of all unemployed people in Germany.
Another statistic of the Employment Agency only differentiates between those that have, inter alia, German citizenship (Deutsche) and those that do not (Ausländer). Accordingly, 16% of all people without German citizenship have been unemployed in January 2024.[14] This means a slight rise from 15,6 % in January 2023 and from 12,6 % in January 2022. However, it has to be kept in mind that the data encompasses also people that are born and raised in Germany but always kept the citizenship of their parents or people that migrated for other reasons to Germany besides asylum.
While searching for employment, asylum seekers are regularly confronted with diverse hurdles in addition to legal restrictions. Insecurity about the residence status, lack of language skills or prejudices and discrimination are just some of them.[15] Especially qualification recognition is a significant issue. The recognition procedure is regulated by every Federal State itself and is thus not uniform and difficult to understand. In addition, the recognition procedures are only possible for those degrees that lead to a regulated profession such as professors or lawyers. Degrees that do not lead to a certain profession, such as Mathematics, Economics or others, need to be evaluated at the Central Office for Foreign Education at the Conference of Ministers of Education and Cultural Affairs.[16]
Support during this process can be sought at the ESF programme “Integration through qualification”. However, this is a project dependent on funding and the current funding period is only running until 2027.[17] Other European funds, like the AMIF, funds diverse and regional projects that help asylum seekers through the different stages of their arrival, inter alia with finding employment. The Employment Agency has established in 2022 the ‘Service Centre for Professional Recognition’ that counsels jobseekers and supports them in the recognition process. However, the process remains lengthy and expensive.[18] In order to further simplify access to the labour market, the Federal Government once again approved measures for labour market integration in November.[19] The so-called “Job-Turbo” is divided into three phases. In the first phase, basic German language skills are to be taught and workers who could work in their profession even without German language skills are to be placed directly by the job centre. In phase two, asylum seekers are to be placed in cooperation with the job centre. Companies and associations are specifically approached for this purpose. At this point, the Federal Government also deliberately reduces benefits if the refugees do not cooperate as desired. Phase three is also intended to stabilise employment through further training. The extent to which these new instruments are actually more effective than previous ones remains to be seen.
[1] Section 61(1) 1st Sentence Asylum Act.
[2] Section 61(1) 2nd Sentence Asylum Act.
[3] Section 61(2) 5th Sentence Asylum Act.
[4] Section 61(1) 1st Sentence Asylum Act.
[5] Section 61(2) 1st Sentence Asylum Act and Section 61(2) 5th Sentence Asylum Act.
[6] Deutscher Bundestag, Recommendation for a resolution and report of the Committee on Home Affairs and Community (4th Committee) on the Federal Government’s draft bill of the Act to Improve Removals (Entwurf eines Gesetzes zur Verbesserung der Rückführung (Rückführungsverbesserungsgesetz)), available in German at: https://bit.ly/49CaKMs.
[7] WDR.de, Fachkräfte-Mangel: Bloß keine Flüchtlinge?, 8 June 2023, available in German at: https://tinyurl.com/3ak7sv67; SWR.de, Fachkräftemangel in RLP – sind Flüchtlinge die Lösung?, 16 November 2023, available in German at: https://tinyurl.com/ynxn83s7; Spiegel, Das große Rätsel der offenen Stellen, 17 March 2024, available in German at: https://tinyurl.com/2rcekmwr.
[8] Federal Parliament, Recommendation for a resolution and report of the Committee on Home Affairs and Community (4th Committee) on the Federal Government’s draft bill of the Act to Improve Removals (Entwurf eines Gesetzes zur Verbesserung der Rückführung (Rückführungsverbesserungsgesetz), Ds. 20/10090, available in German at: https://bit.ly/3uEbG3S.
[9] Section 21(6) Residence Act.
[10] Section 61(1) 1st Sentence Asylum Act.
[11] Section 61(1) 2nd Sentence Number 2 and Section 61(2) 1st Sentence Asylum Act.
[12] Section 32(2) Employment Regulation (Beschäftigungsverordnung).
[13] Statistik der Bundesagentur für Arbeit, Personen im Kontext von Fluchtmigration, 31 January 2024, available in German at: https://bit.ly/3SEIced.
[14] Statistik der Bundesagentur für Arbeit, Arbeitslosigkeit im Zeitverlauf, 29 January 2024, available in German at: https://tinyurl.com/3cadhrau.
[15] Informationsverbund Asyl & Migration, Themenschwerpunkt Integration in den Arbeitsmarkt, Teil II, available in German at: https://bit.ly/3uNuoGa, 10.
[16] Informationsverbund Asyl & Migration, Themenschwerpunkt Integration in den Arbeitsmarkt, Teil II, available in German at: https://bit.ly/3uNuoGa, 16.
[17] Netzwerk Integration durch Qualifizierung, available in German at: https://bit.ly/48gFFN6.
[18] Informationsverbund Asyl & Migration, Themenschwerpunkt Integration in den Arbeitsmarkt, Teil II, available in German at: https://bit.ly/3uNuoGa, 16.
[19] BMAS, Job-Turbo zur Arbeitsmarktintegration von Geflüchteten, available in German: https://bit.ly/3I1E4js.