5.1. Alien’s Access to the Labor Market: Involvement of the Federal Agency for Labor
Access of alien workers to the German labor market has expanded slightly with the recent implementation of the Zuwanderungsgesetz.
The new law constitutes a modification on the virtual ban on recruit- ment of foreign labor that had been in place since 1973, in particular with respect to high-skilled workers. The Residence Act now explicitly provides for the entry of aliens into the labor market to address the de- mands of the market and to reduce unemployment within Germany in an effective manner (§ 18(1)). However, in reality, access continues to be limited and highly regulated, and the extent to which the new law will satisfy future economic demands remains questionable.
Pursuant to § 4(2) Residence Act an alien must not take up an employ- ment unless provided for by his/her residence permit. Some permits al- low for unrestricted access to employment, such as a Residence Au- thorization granted for family reunion with a German (§ 28(5) Resi-
dence Act), or any kind of Establishment Authorization (§ 9(1) Resi- dence Act). In other cases, the local Aliens Office decides on the scope of permission when issuing the individual residence permit. An au- thorization of employment may be (and often is) limited in time and to a particular employer, occupation, or district.
A grant of access to the labor market regularly requires the assent of the Federal Agency for Labor, unless the Residence Act itself or an execu- tive rule eliminates this requirement as to particular occupations, resi- dence purposes, or nationals.88 According to § 39 Residence Act, the Federal Agency’s consent is based on a determination that the employ- ment will not have a negative impact on the German labor market and that no privileged employees are available for the position. Privileged persons are Germans and aliens with an unrestricted right to employ- ment, such as Union citizens from the old Member States, EEA, Mal- tese, Cypriote or Swiss nationals, or Turkish nationals benefiting from Decision No 1/80.89 Alternatively, an assessment of the market segment concerned may lead to the conclusion that the employment is economi- cally and politically acceptable. In all cases, the Federal Agency’s assent is based on an employer guarantee that employment conditions are comparable to those provided to German nationals. Pursuant to execu- tive rule however, certain types of employment do not require consent due to the fact that they will unlikely have a negative impact on the la- bor market or the employment opportunities of privileged employees.90 Examples of these types of employment include: mandatory internships in the context of academic learning; some executives and managers; pro- fessors, academics and teachers; renowned artists and athletes, etc.
The number of employment permits91 issued since 2000 has continued to decrease (2000: 1,083,268; 2001: 1,054,526; 2002: 945,073; 2003:
88 See above, sections 3.2. and 3.3.4.
89 EU nationals from the new Member States other than Malta or Cyprus enjoy second-range privileged access to the German labor market, in accor- dance with the transitional arrangements in the Act of Accession (see § 39(6) Residence Act). For these Union citizens, a system of issuing employment per- mits is still in force.
90 See §§ 1–16 Employment Regulation; §§ 1–4 Employment Procedure Regulation.
91 Before 2005, there was a two-fold application process, in which the appli- cant submitted separate applications to two government agencies for a residence permit and an employment permit. The two-fold process was recently replaced with a single internal process (‘one-stop-government’).
886,386), mainly due to the rise in unemployment. A total of 873,470 employer requests for foreign workers were approved in 2004, although in some cases the same individual could have come to Germany several times, as with the seasonal worker program.92 Only 14% of the permits were not contingent on the market and, therefore, unrestricted as to employment.93
5.2. The Employers’ Stance on Future Immigration Policy
Throughout the recent debate on immigration reform, employer groups advocated for a more permanent system of migration for employment purposes in order to more effectively address Germany’s economic dif- ficulties and labor shortages.94 One model adopted in an early draft of the Residence Act provided for a selection process based on a point sys- tem, similar to systems in Canada and Australia, in which a specified number of qualified workers based on criteria such as age, health, edu- cation, familial status, country of origin, language capacity and ties to Germany, would be admitted irrespective of the availability of a specific position in Germany. This system, however, was not incorporated into the final legislation. Moreover, employer advocates have stressed the need to expand recruitment programs, such as Germany’s ‘green card’
program for IT specialists, to other industry areas with labor short- ages.95 In addition, they have emphasized the need to improve integra- tion policies so that Germany can attract foreign talent away from other immigration countries.96
A further concern involves the capacity of the Federal Agency for La- bor to evaluate aptly the needs of the labor market and as a result, to
92 See above, section 3.3.4.
93 All figures taken from Bundesagentur für Arbeit, Arbeitsmarkt 2004:
Amtliche Nachrichten der Bundesagentur für Arbeit, 53. Jahrgang, Sonder- nummer (August 30, 2005), at 33; available at <http://www.pub.arbeitsamt.de/
hst/services/statistik/000100/html/jahr/arbeitsmarkt_2004_gesamt.pdf>.
94 Bundesverband der Deutschen Industrie, Die 8 BDI Thesen zur Zuwan- derungspolitik, 2001; H.-O. Henkel, Die Steuerung der Zuwanderung durch ein Zuwanderungsgesetz aus bevửlkerungs- und wirtschaftspolitischer Sicht, ZAR 2003, 124.
95 BDI Thesen zur Zuwanderungspolitik (note 94).
96 Id.
provide proper consent or not with regard to individual applications.
The task of the Federal Agency in this matter is significant and could threaten it with overload, thereby risking the issuance of bureaucratic, inaccurate decisions.97
5.3. Undocumented Migrants and the Issue of Illegal Employment The above regulations reveal the highly regulated nature of aliens’ entry into the German labor market. Some experts attribute the restrictive na- ture of the German labor market, in which entry is primarily based on contemporary market indicators and often only temporary, to produc- ing a substantial number of undocumented migrants since many over- stay their temporary visas.98
In the 1990s, Germany expanded the availability of restricted residency and work authorization for seasonal work and contract work, in reac- tion to the increase of unauthorized employment and the increase in the undocumented population from Eastern Europe in the agricultural sphere, in the hotel and restaurant industry, and in construction.99 With the opportunity to employ workers legally, it was thought that indus- tries would have the incentive to forego hiring undocumented workers and to pay taxes and social benefits on the employment.100 In addition, in 2002, employment authorizations were made available to caretakers in private households, and private households were entitled to tax bene- fits for their employees in order to decrease the cost difference between legal and illegal employment.
97 K.F. Zimmermann/H. Hinte, Zuwanderung und Arbeitsmarkt: Deutsch- land und Dọnemark im Vergleich, 2005, 236.
98 It is estimated, however, that only 13% of unlawful employment in Ger- many is engaged in by aliens. As a result, most infractions of unlawful employ- ment involve German citizens: Beauftragte der Bundesregierung für Migration, Flỹchtlinge und Integration, Bericht ỹber die Lage der Auslọnderinnen und Auslọnder in Deutschland, 2005, 75.
99 Ph. Martin, Bordering on Control: Combating Irregular Migration in North America and Europe, 2003, 51 et seq.
100 See Beauftragte der Bundesregierung für Migration, Flüchtlinge und Inte- gration, Migrationsbericht 2003, at 52 et seq.; available at <http://www.Integra tionsbeauftragte.de/download/Migrationsbericht_2003.pdf>.
On the other hand, a variety of controls exist that are designed to pre- vent the entry of unauthorized employees into the labor market.101 Em- ployers who hire unauthorized aliens face substantial sanctions, includ- ing monetary fines and imprisonment terms. Raids are also common as a result of tips received from the public (competitive businesses, neighbors, unions, those legally employed) or from other agencies. If detected in a position of unauthorized employment, the undocumented are most likely subject to detention, criminal charges for illegal stay, and deportation.