Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

Migration for Employment Convention (Revised), 1949 (No. 97) - Germany (Ratification: 1959)

The Committee notes the decision of the Federal Administrative Tribunal of 28 May 1991 (BVerwG 1 C 20.89) concerning the limitation a posteriori of the duration of an indefinite residence permit granted to a migrant worker, in view of the permanent social assistance he had received. It notes that the Federal Administrative Tribunal interprets Article 8, paragraph 1, of the Convention as meaning that in order to be admitted on a permanent basis a migrant worker must be in possession of both a residence permit of unlimited duration and a work permit of unlimited duration.

The Committee notes that in the case examined by the Federal Administrative Tribunal, after 12 years of residence the migrant worker had obtained a residence permit of unlimited duration and a new fixed term work permit which was not renewed, as the public employment service refused to issue an additional special work permit because the worker had not been engaged in uninterrupted occupational activity during the five previous years. It recalls that Article 8, paragraph 1, which stipulates that a migrant worker who has been admitted on a permanent basis shall not be returned to his territory of origin because he is unable to follow his occupation by reason of illness contracted or injury sustained subsequent to entry, aims to maintain the migrant worker's right of residence when he is unable to follow his occupation. The Committee considers that the requirement that a residence permit of unlimited duration and a work permit of unlimited duration must be issued for admission on a permanent basis, would make the protection afforded by Article 8, paragraph 1, of the Convention to migrants admitted on a permanent basis upon issuance of a residence permit of unlimited duration inoperative.

In addition, the Committee recalls that the terms "unable to follow his occupation" set out in the Convention are considerably more restrictive than the terms unable to perform any activity.

The Committee asks the Government to indicate the provisions in the national legislation and the decisions of the legal authorities that define or explain the notion of admission of migrant workers on a permanent basis, as well as those which give effect to the provisions of Article 8, paragraph 1, of the Convention which protect migrant workers who are unable to follow their occupation.