Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes from the Government’s report that Germany’s migration policy has primarily focused on facilitating the entrance and residence of highly qualified workers, and the full implementation of the freedom of movement of new European Union (EU) citizens, except for Bulgaria and Romania, which are still subject to transitional arrangements regarding the freedom of movement of workers, which will presumably remain in force until 31 December 2013. With respect to highly qualified workers, the Committee notes the action programme on the “Contribution of labour migration to sustainable supply of skilled workers in Germany” and the Act implementing the European 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, which entered into force on 1 August 2012. The Act introduces a new residence permit, the EU Blue Card, for highly qualified nationals from countries outside the EU (“third-country nationals”), who, after a certain period of time, are granted an unlimited settlement permit. The Act contains a number of provisions designed to facilitate the access of foreign workers to the labour market, including for spouses of specialized workers with an EU Blue Card, who are granted immediate and unrestricted access to the labour market.

The Committee also notes the reports of the Commissioner for Migration, Refugees and Integration on the implementation of the integration policy, published on the Commissioner’s website, and the further development in 2012 of the National Integration Plan into a National Action Plan on Integration, which according to the Government, constitutes a paradigm shift in integration policy. The Committee further notes that the results of some of the studies undertaken by the Federal Office for Migration and Refugees between 2006 and 2012 indicate that most of the third-country nationals employed in Germany are either highly skilled (23 per cent) or low-skilled (20 per cent) workers, and that low wage workers, both foreign and of migrant origin, are usually assigned to unskilled jobs and overwhelmingly employed in medium-sized and large enterprises; highly qualified workers from third countries appear to be mostly male; the rising employment in the services sector has particularly benefited foreign women and immigrant women from some of the new EU Member States. The Committee requests the Government to continue to provide information on the following:

(i) the activities of the Commissioner for Migration, Refugees and Integration and the implementation of the National Plan of Action on Integration, and the results achieved;

(ii) the research carried out by the Federal Office for Migration and Refugees relevant to the application of the Convention; and

(iii) statistics, disaggregated by sex and nationality and, if possible, by sector of activity, on the number of migrants employed in Germany, specifying whether these are EU citizens, EU Blue Card holders or third-country nationals with a temporary, long-term stay or permanent work permit.

Integration courses. With regard to sections 43 and 44 of the Residence Act, the Committee notes that of the more than 1,037,000 persons authorized to participate in the integration courses between 1 January 2005 to 31 December 2011, more than 437,000 were required to take the courses; approximately 786,000 persons participated or are participating in an integration course and more than 500,000 persons have completed a course successfully. With regard to the statutory obligations and penalties for persons who are not citizens of the EU, the Government indicates while all new immigrants who are considered as being prospective permanent residents are entitled to participate in integration courses, they are, with some exceptions, obliged to do so if their level of German on arrival is insufficient; persons arriving in Germany through family reunification are also required to follow integration courses if the required level of proficiency in German is insufficient. Foreigners “in need of integration”, i.e. legal guardians of children who do not speak German themselves, are also required to participate. In the event that the foreigner fails to meet the obligation, the immigration authority has the right to take that fact into account when considering the extension of the residence permit and in extreme cases to deny such extension (section 8(3) of the Residence Act). Foreigners receiving social security benefits in accordance with Book II of the Social Security Code are required by the providers of basic benefits to participate in a language course as part of an integration agreement and non-participation may be sanctioned through benefit reduction or, in extreme cases, full benefit forfeiture (SGB II, section 3). Considering the importance of the integration courses to the Government’s immigration and integration policy, the Committee requests the Government to provide information on the number of third-country nationals who have been required to participate in integration courses, indicating any sanctions or penalties imposed, including regarding residency permits or receipt of social security benefits.

Articles 2–4 and 6. Women migrant workers. The Committee notes that a main focus of the National Action Plan for Integration is the integration of women and girls, and that studies undertaken by the Federal Office for Migration and Refugees indicate the importance of adequate training for the integration of migrant women in the labour market, and that differences exist among ethnic groups and generations of migrants. The Committee encourages the Government to continue to assess the situation of women migrants in the German labour market, in particular, with respect to the matters covered by Article 2 (provision of information and assistance), Article 3 (false information, including stereotypes, regarding immigrant workers), Article 4 (measures to facilitate the arrival of migrant workers) and Article 6 (equality of treatment) of the Convention, and to provide information on the results achieved and follow-up action taken.

Article 6. Equality of treatment. The Committee recalls its previous comments in which it considered that sections 39(2) and 41 of the Residence Act, pursuant to which migrant workers risk losing their residence permit as a result of their employer applying terms of conditions less favourable than those applying to comparable German workers, could be an important disincentive for migrant workers to seek redress in cases of unequal treatment. The Committee notes the Government’s explanations regarding the importance being given to remuneration when verifying the conditions of work under which the foreign worker will be employed. However, an approval of a residence permit authorizing employment may still be revoked if it is subsequently established that the foreign worker is actually employed under less favourable working conditions than comparable German workers. The Government further states that from a random inquiry regarding this issue with the Federal Employment Agency it appears that revocations of an approval are in practice non-existent or extremely rare. While taking due note of these explanations, the Committee does not consider the low number or non-existence of revocations of an approval to be an indication that migrant workers, in practice, enjoy no less favourable treatment than that which is applied to nationals with respect to conditions of work, including remuneration. For equal treatment to be enjoyed in practice, it is important that migrant workers can effectively seek redress for non-respect of this right by their employer without jeopardizing their residence permit and hence their employment. The Committee therefore requests the Government to provide information on the following:

(i) the mechanisms and procedures allowing migrant workers to seek redress regarding situations of non-respect of the right to equal treatment with respect to working conditions, in practice, without facing the risk of losing their residence permit;

(ii) the application in practice of sections 39 and 41 of the Residence Act, including information on the number of cases in which approvals for residence permits for the purpose of employment have been revoked and the resulting consequences for the migrant workers concerned; and

(iii) any measures taken or envisaged by the Commissioner for Migration, Refugees and Integration and any other competent authority with a view to preventing and addressing unequal treatment in respect of migrant workers with regard to the matters set forth in Article 6(1) of the Convention.

Article 6(1)(d). Access to legal proceedings. The Committee recalls its previous comments regarding section 84 of the Residence Act stipulating that an appeal against the rejection of an application for issuance or extension of a residence permit does not, as such, suspend the effects of the decision of rejection. However, migrant workers concerned can request the administrative courts under section 80(5) of the Administrative Court Ordinance to suspend the effects of the decision. The Committee reiterates its request to the Government to provide information on any cases in which migrant workers appealing negative decisions regarding their residence permits were granted temporary legal protection under section 80(5) of the Administrative Court Ordinance.

Parts III–V of the report form. Enforcement and practical application. The Committee requests the Government to continue to provide copies of judicial or administrative decisions concerning the application of the Convention. Please also supply details on violations detected by the bodies entrusted with the supervision of legislation giving effect to the provisions of the Convention, and any other information, including studies and surveys, which may enable the Committee to gain a general appreciation of the application of the Convention, as well as information on any practical difficulties encountered in giving effect to its provisions.