Employment Law: New Guidelines for the Employment of Refugees

Good news for employers: the regulatory framework for the employment of refugees has been improved. Refugees from third-party nations who are still going through the procedure for the granting of asylum (“asylum seekers”) or have been granted discretionary leave to remain in the country (“tolerated persons”) may now be employed by business enterprises (with the exception of temporary employment agencies) after only 3 months instead of 9 or 12 months as was previously the case.

As a result, refugees will be available to the job market at an earlier stage. This will place businesses in Germany which wish to hire asylum seekers or tolerated persons, in a considerably stronger starting position.

However, asylum seekers and tolerated persons will continue to have inferior access to the labour market: a refugee who wants to take up a specific employment must apply to the immigration authorities for permission to do so; authorities must then in turn obtain the consent of the International Placement Services (Zentrale Auslands- und Fachvermittlung – “ZAV”) department of the German Federal Employment Agency (Bundesagentur für Arbeit). The application must comprise (a) confirmation from the business in question that it wishes to employ the applicant in a specific position and (b) the information of the business concerning payment terms and conditions of employment. The ZAV will then perform a so-called “priority review”, as well as a review of the conditions of employment. The consent for the granting of approval will be given if no other applicant with a preferential claim to the specific position in question (German applicants or any individuals already in possession of or not requiring a work permit) are available and if the conditions of employment regarding payment, working hours, etc. are not less favourable than those granted to comparable employees. Asylum seekers and tolerated persons resident in Germany for at least 15 months will no longer be subject to the so-called “priority review”. The ZAV will then limit its review to the conditions of employment and decide whether to approve or dismiss the application on this basis.

The procedure is simpler in the case of certain types of employment, for which approval may be directly granted by the immigration authorities and with respect to which no additional involvement of the ZAV is required: the commencement of vocational training, work requiring a high level of qualification, voluntary work or work experience as part of schooling or an EU-funded project. Tolerated persons may commence vocational training immediately after arrival in Germany, if the immigration authorities give their consent thereto. Asylum seekers may start training after 3 months with the consent of the immigration authorities. Asylum seekers commencing vocational training who have not yet reached 21 years of age may be granted a “tolerated person” status by the immigration authorities for the duration of one year, with such grant being capable of extension until the completion of their training. This will reduce the risk for both the asylum seekers and the businesses providing them with training of the asylum seekers deportation during their vocational training.

Asylum seekers and tolerated persons who have been resident in Germany for four years will have unrestricted access to the labour market with regard to all types of employment, and will also be eligible to work for temporary employment agencies. However, permission from the immigration authorities will still be required.