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

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee takes note of the observations of the Confederation of German Employers’ Associations (BDA) received on 1 September 2017.

Article 1 of the Convention. Information on laws and regulations. The Committee notes that in its observations, BDA indicated that the country needed skilled migrant workers and that the complexity of the applicable legislation was an obstacle to their immigration into the country. The Committee takes note of the indication, in the report of the Government, that the high demand in certain sectors for skilled workers has prompted the adoption of the Skilled Immigration Act, on 15 August 2019. The Committee also notes the Government’s indication that, following the entry into force of this Act, the “priority review”, by which the Federal Employment Agency verifies whether an open position can be fulfilled by a German worker before authorizing the hiring of a foreign skilled worker, will no longer apply. In addition, the Government indicates that the new Act provides for the possibility for foreign skilled workers with vocational trainings to enter the country on a temporary basis to seek employment or to stay in the country to obtain supplementary qualifications. Lastly, the Government indicates that an administrative fast-track process would be created for skilled migrant workers. The Committee further notes that the Government refers to a series of other reforms on migration-related issues adopted in 2019 (including the Law on the removal of the time limit from the Integration Act, of 4 July 2019; the Law on tolerated stay in case of training or employment of 8 July 2019; and the Law on the promotion of the training and employment of foreign nationals of 8 July 2019). The Committee requests the Government to provide detailed information on the impact of the recent reforms on migration-related issues for the application of the Convention.

Directive (EU) 2018/957 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. The Committee welcomes the adoption of Directive (EU) 2018/957, pursuant to which Member States of the European Union shall apply to posted workers the terms and conditions of employment of the host country in a series of matters, that include remuneration, maximum work periods and minimum rest periods, minimum paid annual leave, minimum age, health, safety and hygiene at work, and accommodation. The Committee notes that Member States of the European Union shall adopt by 30 July 2020, the laws, regulations and administrative provisions necessary to comply with this Directive.

Information on national policies. In its previous comment, the Committee requested the Government to provide information on the implementation of the National Plan of Action on Integration (NPAI), as well as on the activities of the Federal Office for Migration and Refugees (FOMR). On the implementation of the NPAI, the Committee notes that, the Government refers to the programme “integration through qualifications”, and to the establishment of the Office for Equal Treatment of EU Workers to assist EU workers and their families, as required pursuant to EU Directive 2014/54/EU. However, the Committee notes that the Government does not provide details on the implementation in practice nor on the concrete results of the NPAI, in particular with regard to migrant workers non EU Member States. With regard to the activities of the FOMR, the Committee takes note of the Government’s indication that it is responsible for carrying out research projects on the economic aspects of migration and provides a list of its recent surveys. The Committee requests the Government to provide further details on the implementation of the NPAI in practice, in particular with regard to migrant workers from non EU Member States, and on any other national policy relating to migration.

Articles 2 and 4. Free services provided to migrant workers. Integration courses. In follow-up to its previous request to provide this information, the Committee takes note of the Government’s indication regarding the number of third country nationals required to take part in integration courses (184,415 persons in 2016).

Articles 2, 4 and 6. Application of the Convention to women migrant workers. In follow-up to its previous comment, the Committee notes that the Government does not provide information on its assessment of the application of the Convention to women migrant workers. The Committee takes note of the indication by the BDA that employers support the activities undertaken by the Federal Employment Agency for the better integration of refugee women. The Committee observes that the United Nations Committee on the Elimination of Discrimination against Women, while noting the efforts of the Government to facilitate the integration of migrant women, also noted that they suffered from stereotyped media portrayals, had limited access to the formal labour market, and were at risk of experiencing intersecting forms of discrimination in access to employment (CEDAW/C/DEU/CO/7-8, 9 March 2017, paragraphs 21, 35, and 43). The Committee requests the Government to provide information on the assistance services delivered to migrant women workers to address their specific needs.

Article 6(1)(d). Treatment no less favourable in respect to access to legal proceedings relating to the matters referred to in the Convention. In its previous comments, the Committee requested the Government to provide information on the mechanisms and procedures available to migrant workers to seek redress regarding situations of non-respect of the right to equal treatment. The Committee notes that the Government indicates that migrant workers have access to legal remedies and may file complaints and seek compensation in cases of discrimination pursuant to sections 13 and 15 of the General Act on Equal Treatment. The Committee further notes that pursuant to section 75(1) of the Works Constitution Act, the employer and the works council shall ensure that all persons working in the establishment are treated in accordance with the principles of law and equity, and that no one is subject to discrimination on the ground of nationality.

Access to legal proceedings in practice. In its previous comments, the Committee had observed that pursuant to section 39(2) of the Residence Act, the Federal Employment Agency may approve the granting of a temporary residence permit if, among other requirements, it has established that the foreign worker is not employed on terms less favourable than the ones that apply to comparable German workers. It had also observed that pursuant to section 41 of the Residence Act, the approval may be revoked and the seasonal work permit withdrawn if, among other grounds, the foreigner is employed on less favourable terms than comparable German workers. The Committee takes note of the Government’s indication that given the serious consequences attached to these decisions, the Federal Employment Agency only revokes residence permits in rare instances, when it acquires knowledge of the less favourable treatment. The Committee requests the Government to ensure that the application of section 41 of the Residence Act does not, in practice, deter migrant workers from seeking legal remedies relating to the matters covered by the Convention.

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

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.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 1 of the Convention. Information on national policy and laws. The Committee notes the entry into force on 1 January 2005 of the new Immigration Act, encompassing the Residence Act and the Act on the General Freedom of Movement for EU Citizens. The Residence Act was subsequently amended by the Act on Implementation of Residence and Asylum-related Directives of the European Union of 19 August 2007. Under the new legislation, foreigners, including migrant workers, must hold a visa and a residence permit, which is a temporary permit (section 7 of the Residence Act) or, alternatively, a settlement permit (section 9) which is permanent and allows the holder to take up any employment without restrictions. By comparison, residence permits for the purpose of employment are issued following consultation and approval by the Federal Employment Agency under the conditions set out in section 39 of the Act. A separate application for a work permit is thus no longer required. Section 9(a) of the Act provides for the granting of EC long-term residence permits in accordance with Directive No. 2003/109/EC.

The Committee further notes that Chapter 8 of the Residence Act provides for the appointment of a Commissioner for Migration, Refugees and Integration with the  mandate of, inter alia, supporting the federal Government in developing its integration policy, including with regard to aspects of employment and social policy. The Act also provides for the organization of integration courses for migrants (sections 43 and 44) and the development of a National Integration Programme, with the involvement of, inter alia, workers’ and employers’ organizations (section 45). The Federal Office for Migration and Refugees is responsible for carrying out research on migration issues with a view to obtaining background information and thus regulating migration flows accordingly (section 75). The Committee requests the Government to supply information on the following: (a) the activities of the Commissioner on Migration, Refugees and Integration and the implementation of  the National Integration Programme; (b) the research activities concerning migration issues carried out by the Federal Office for Migration and Refugees and on their results; and (c) the implementation of integration courses, including indications on the extent to which migrant workers have been obliged to participate in such courses, as well as the sanctions imposed for non-participation.

Article 6. Equality of treatment. The Committee recalls that under Article 6 of the Convention migrant workers are entitled to treatment no less favourable than that which is applied to German nationals in respect of the matters set forth in paragraph 1(a) to (d) of this Article. For this right to be enjoyed in practice, it is important that effective mechanisms are in place to address situations of non-respect of this right, including complaints procedures for migrant workers that are accessible and effective. In this context, the Committee notes that, pursuant to section 39(2) of the Residence Act, the Federal Employment Agency may approve the granting of a residence permit authorizing the foreigner to take up employment on condition that, among other things, the foreigner is not employed on terms less favourable than those which apply to comparable German workers. Should this condition not be respected, the approval to grant a residence permit for the purpose of employment can be revoked (section 41). It thus appears that migrant workers may risk losing their residence permit as a result of their employer applying terms of conditions less favourable than those applying to comparable German workers. The Committee considers that this may be an important disincentive for migrant workers to seek redress in cases of unequal treatment. Furthermore, the Committee notes that the Commissioner for Migration, Refugees and Integration is charged with the task of “counteracting unequal treatment” in respect of foreigners (section 93(3)). The Committee requests the Government to provide information on the following:

(a)   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;

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

With regard to its previous comments concerning the right of migrant workers to have equal access to legal proceedings, the Committee notes that section 84 of the Residence Act maintains the provisions of section 72 of the previous 1990 Aliens Act stipulating that an appeal against the rejection of an application for issuance or extension of a residence title does not, as such, suspend the effects of the decision of rejection. However, the Government states that the 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 asks the Government to provide information on any cases in which the courts granted temporary legal protection to migrant workers under section 80(5) of the Administrative Court Ordinance appealing negative decisions regarding their residence title.

Women migrant workers. The Committee notes from the Government’s report under the Convention on the Elimination of All Forms of Discrimination against Women that one of the focuses of the National Equality Policy is on women with migrant backgrounds (CEDAW/C/DEU/6, 22 October 2007, pages 9 and 84). It also notes that in December 2004 two studies were presented concerning, respectively, the living situations of girls and young women with Greek, Italian, Yugoslavian, Turkish and repatriate backgrounds and on the so-called “wives of the migrant generation”, i.e. older migrant women living alone. The Committee further notes that a number of projects aimed at increasing migrant women’s participation in the labour market are being designed. The Committee invites the Government to provide information on the measures taken or envisaged to promote equality of treatment in respect of women migrant workers, including information on the results of the abovementioned studies and the steps taken accordingly. The Committee asks the Government to provide information on the implementation of the measures targeting women migrants envisaged under the National Integration Programme.

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 the application 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.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied by the Government in its report.

1. Article 6, paragraph 1(d), of the Convention. The Committee refers to its previous direct request concerning the rights of migrant workers to equal access to legal recourse. Considering that, pursuant to section 72 of the 1990 Aliens Act, an appeal against the refusal to grant or renew a residence permit does not postpone the effect of such a refusal, the Committee asked the Government to indicate whether and by what means migrant workers are able to complete the necessary administrative formalities and have a right of access to legal recourse that is no less favourable than that available to German nationals. According to the Government, refusal to grant or renew a residence permit does not as such entail refusal of subsequent entry into the federal territory. The Government notes in its report that no visa is required for entry into the federal territory for up to three months in the case of the nationals of all countries bordering on the Federal Republic of Germany, provided that they do not carry out any remunerated activity. The Government therefore considers that the migrant workers concerned can attend to the necessary formalities on the spot in Germany. The Government also points out that, since German nationals do not fall within the scope of the Foreigners Act and do not therefore have occasion to have recourse to legal proceedings in this context, migrant workers are not treated less favourably than German nationals. The Committee notes this information. It wishes to clarify that equality of treatment in this respect means that it is necessary to ensure that the persons concerned - with no distinction on grounds of nationality between the migrant workers themselves - have access to the same legal remedies in respect of any decision concerning entry, or refusal to issue or renew a residence permit, or an expulsion order from the territory, as are available to German nationals in respect of administrative acts. The Committee notes that no information is provided on the manner in which migrant workers from non bordering States with Germany are able to fulfil the administrative formalities that may require presence in the country to appeal the denial of a residence permit. The Committee would be grateful if the Government could provide information on the manner in which access to legal proceedings is guaranteed to such persons.

2. The Committee asks the Government to state whether courts of law or other tribunals have handed down decisions concerning access to justice issues and, more generally, involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.

3. The Committee asks the Government to provide statistics on the number and origin of foreigners employed in Germany and to communicate the results of the relevant activities of the labour inspection services, in accordance with the provisions of the Convention.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 6, paragraph 1(d).  The Committee notes that section 72 of the 1990 new Aliens Act (Gesetz zur Neuregelung des Ausländerrechts) states that an objection or action against the refusal to grant or renew a residence permit does not postpone the effect of such refusal. In this connection, the Committee would be grateful if the Government would indicate whether and by which means it is assured that migrants for employment will be able to fulfil the administrative formalities and have the right to legal proceedings no less favourable than those which the Government applies to its own nationals.

Article 8, paragraph 1.  The Committee wishes to revert to its former direct request and recall the explanation provided for in paragraph 458 of its General Survey of 1980 on migrant workers, according to which a permanent admission is exclusively connected to a status of permanent residence, whereas the Government states that (at least before the entry into force of the 1990 Aliens Act) under national law the status of a permanent admission presupposed both the possession of a permanent residence permit as well as a permanent work permit. This condition not being fulfilled, incapacity for work did not stand against expulsion. The Committee would appreciate receiving information on whether sections 45 and 46 of the 1990 Aliens Act provide for the possibility of expulsion of a migrant worker who is in possession of a permanent residence permit, solely on the grounds of illness or injury sustained, or whether such an expulsion, according to the new law, is possible only where the worker depends on social welfare schemes.

Article 11, paragraph 2(a).  According to previous reports of the Government, the term "frontier worker" designates a person who, while maintaining his domicile in the frontier region of a given country, is employed as a wage-earner in the frontier region of a neighbouring country and returns to his place of domicile at least once a week. On the other hand, it appears (according to section 6 of the 1990 Order to make exceptional regulations concerning the granting of work permits to newly arriving foreign workers) that a frontier worker can be granted a work permit for a gainful occupation other than self-employment only if he returns daily to his home country or if his occupation is limited to two days per week. The Committee would therefore be grateful if the Government would provide further information as to the precise definition of the term "frontier worker".

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information in the Government's report. It would appreciate receiving further information relating to the following points.

Article 6, paragraph 1(d). The Committee notes that section 72 of the 1990 new Aliens Act (Gesetz zur Neuregelung des Ausländerrechts) states that an objection or action against the refusal to grant or renew a residence permit does not postpone the effect of such refusal. In this connection, the Committee would be grateful if the Government would indicate whether and by which means it is assured that migrants for employment will be able to fulfil the administrative formalities and have the right to legal proceedings no less favourable than those which the Government applies to its own nationals.

Article 8, paragraph 1. The Committee wishes to revert to its former direct request and recall the explanation provided for in paragraph 458 of its General Survey of 1980 on migrant workers, according to which a permanent admission is exclusively connected to a status of permanent residence, whereas the Government states that (at least before the entry into force of the 1990 Aliens Act) under national law the status of a permanent admission presupposed both the possession of a permanent residence permit as well as a permanent work permit. This condition not being fulfilled, incapacity for work did not stand against expulsion. The Committee would appreciate receiving information on whether sections 45 and 46 of the 1990 Aliens Act provide for the possibility of expulsion of a migrant worker who is in possession of a permanent residence permit, solely on the grounds of illness or injury sustained, or whether such an expulsion, according to the new law, is possible only where the worker depends on social welfare schemes.

Article 11, paragraph 2(a). According to previous reports of the Government, the term "frontier worker" designates a person who, while maintaining his domicile in the frontier region of a given country, is employed as a wage-earner in the frontier region of a neighbouring country and returns to his place of domicile at least once a week. On the other hand, it appears (according to section 6 of the 1990 Order to make exceptional regulations concerning the granting of work permits to newly arriving foreign workers) that a frontier worker can be granted a work permit for a gainful occupation other than self-employment only if he returns daily to his home country or if his occupation is limited to two days per week. The Committee would therefore be grateful if the Government would provide further information as to the precise definition of the term "frontier worker".

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

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.