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] 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, 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 at the discretion of the authorities. This can apply to those whose application has been rejected as inadmissible or manifestly unfounded while their appeal is still pending before the administrative courts – but for whom the request for suspensive effect was rejected.
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.[4]
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.[5] 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.[6]
Restrictions on access to the labour market
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.[7] There are a few exceptions to this rule, e.g. for internships and vocational training.[8] 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.
Recent statistics on the number of employed and unemployed asylum seekers are not available. Available statistics from the Employment Agency include the number of unemployed persons per nationality, without distinguishing on the basis of legal status. However, an analysis by the Institute for Employment Research finds that persons with a nationality of the main countries of origin of refugees and asylum seekers have been more severely impacted by the effects of Covid-19 than German or EU nationals. Unemployment has risen to a much higher degree for this group in 2020, and they were more likely affected by short-time work schemes.[9]
[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(2) 1st Sentence Asylum Act and Section 61(2) 5th Sentence Asylum Act.
[5] Section 21(6) Residence Act.
[6] Section 61(1) 1st Sentence Asylum Act.
[7] Section 61(1) 2nd Sentence Number 2 and Section 61(2) 1st Sentence Asylum Act.
[8] Section 32(2) Employment Regulation (Beschäftigungsverordnung).
[9] Institute for Employment Research, ‘Die Arbeitsmarktwirkungen der COVID-19-Pandemie auf Geflüchtete und andere Migrantinnen und Migranten’, IAB Forschungsbericht 5-2021, available in German at: https://bit.ly/3qJYkOH.