UNIVERSITY OF KONSTANZ
FACULTY OF LAW
PROF. DR. KAY HAILBRONNER
Center for International and European Law on
Immigration and Asylum
P.O. Box 5560 D116
D - 78434 Konstanz
Phone: +49 (0)7531/88-3021
Fax: +49 (0)7531/88-3146
Paper presented at the conference
"Managing Migration in the 21st Century"
on February 20th 1998
at the University of California - San Diego
Dependance on Migrants in Germany
Legal reactions on needs of economy
by Assessor Christian Klos
University of Konstanz, assistant at the Center for International and European Law on Immigration and Asylum
Dependance in labour force
Germany is dependant on migrants. This is especially true for the economic situation. The need for support of the labour force by labour migration became obvious with the massive recruitment of guest workers in the 1960s. This measure neednÂ´t be stressed further, because it is well-known and - moreover - the situation changed completely. Recruitment has already been stopped in the beginning of the 1970s, but the number of people, who wish to work in Germany remained high. The tremendous political changes in eastern Europe led to a new impact to the phenomenon of labour migration to Germany. ItÂ´s a fact, that today the supply of jobs is still smaller, than the demand of foreign workers. Although the unemployment rate of foreigners in Germany is much higher as the general unemployment rate, another fact shouldnÂ´t be neglected: The share of foreign workers in GermanyÂ´s labour force amounts up to 9,4 per cent. The number of foreigners liable to social insurance increased continuously from 1980 to 1993, from 1.583.898 to 2.183.579. It has to be recognized, that migrants changed the entire structure of the labour force and caused far-reaching dependancies. Despite the actual problems of unemployment in Germany, the important role of foreign workers in Germany is to be emphasized here.
Dependances in different market segments regarding employed personnel
The employed foreigners in Germany by economic activities in 1996 are shown in the next table and graph:
Employed foreigners in Germany by economic activities in 1996
Economic activities absolute percentage
Agriculture, forestry and fishing 27272 13,4
Construction 196070 12,7
Manufacturing 823118 11,3
Services (restaurants, hotels, cleaning etc.) 588558 10,2
Transport and communication 103425 9,2
Commerce 217282 6,7
of which: mining 13,3% in 1995 21899 5,9
Non-profit organizations, private households 35492 5,7
Local authorities, social insurance institutions 48909 3,5
Banks, insurances 22609 2,4
Total 2084690 9,3
Foreigners are represented in low-skilled jobs especially. The average of employed foreigners of 9,3% is exceeded in agriculture, forestry, fishing, mining, construction and manufacturing. Far below average is the share in white-collar jobs at banks and insurances. Minor representation at local administration might be mainly traced back to the fact, that civil servants are often employed in these positions, which require German or EU nationality.
The share of foreign employed is over 20% in the following professions:
metalworkers (of which welders: 28%) 23,3
service personnel 24,3
unskilled workers 23,9
plastic manufacturers 23,9
cleaning personnel 22,8
Activities of self - employed
Approx. 239000 self-employed persons worked 1995 in Germany. They were supported by approx. 25000 family members. The most important country of origin for self-employed persons is - as in the case of employed personnel - Turkey. About 40000 entrepreneurs were of Turkish nationality.
The share of self-employed in the foreign labour force run up to 8,7% in 1995. One can realize a growing number of self-employed activities. In 1987 it amounted only 7,2%.
Legal admission to the labour market
After the description of the statistical situation of the foreign labour force in Germany and its significant importance, some questions must be raised: How is the admission to the labour market legally founded? Which legal instruments guarantee a safe residence status of aliens and the admission in accordance with stateÂ´s economic interests simultaneously? Is there and how is the interdependance between the admission to GermanyÂ´s territory and to its labour market?
Concerning the last question the first principle of legal admission to the labour market in Germany must be mentioned: the principle of bipolarity.
In general migrants need two permissions to work in Germany legally, a residence and a work permit. The permissions are granted by different authorities according to corresponding, but little different legal regimes. The residence permit is granted by the alienÂ´s office (AuslÃ¤nderbehÃ¶rde), the work permit permit by the public employment agency (Arbeitsamt).
The requirement of bipolar permission is partly overlapped by privileges of specific nationals. Nationals of the EC - Member States have a right of residence according to Art. 8a EC-Treaty. This right is not independant or directly applicable, but relates to the fundamental liberties of the EC-Treaty. First of all the freedom of movement guarantee for employed personnel according to Art. 48 ECT must be mentioned as the most important gateway to the labour market. Art. 48 ECT gives the right of residence. Nevertheless a residence permit is needed, but it has declaratory character only. The freedom of movement guarantee includes admission to the labour market without a work permit requirement. Self-employed join the freedom of settlement according to Art. 52 ECT, whereas service-providers are covered by the freedom to provide services according to Art.59 ECT. As for employed personnel for both groups the declaratory residence permit is required only. Some other groups of EC-nationals have a right of residence according to secondary law, which has been adopted by the EC-Council due to the competence of primary treaty law. Family members may join their relatives and have the right to take up employment regardless of their own nationality. Pensioners and students are allowed to live in another member state as well as all other EC - nationals. Each member of a group has to meet specific requirements like the proof of health insurance or sufficient financial means. The requirements differ a little bit due to the reason of the residence, e.g. family reunion for students is restricted to spouses and children.
The second overlap over the principle of bipolarity is with regard to nationals of EC - associated states. The nationals of the European Economic Area have the same rights as EC - nationals concerning the freedom of movement. There is no difference in status.
27% of the 2.1 million employed foreigners in Germany are Turks. Therefore the association treaty EEC/Turkey has a major impact on Germany regarding their residence status due to the jurisdiction of the European Court of Justice.
Turkish nationals, who are regular employed for over one year, have the right to renew their work permits according to Article 6 para. 1 of the decision of the association council 1/80. The ECJ extended this right, which related to the work permit originally, to the residence law and gave an "implicit" right of residence for those workers. This extensive interpretation violates the principle of bipolarity, which is part of immigration law of most other member states of the EU too. ItÂ´s adverse to the regime of granting residence permits, if it is dependant on the status in the labour market. ItÂ´s doubtful, whether the giving up of the distinction between residence law and the labour law, leads to an easier and clearer legal position.
Anyway the ECJ jurisdiction lead to the reserve of the Council during the negotiations of the European Agreements with Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia. The treaties provide for "facilitation" for granting resp. renewing residence and work permits only. Therefore these nationals are treated as other third-country nationals principally.
Some third-country nationals are privileged due to treaties on border commuter, project-tied and guest workers. Within these programmes the set-up quotas werenÂ´t exhausted mostly.
The treaties on project-tied workers are suspended by the federal government, because of obligations according to European Law. The federal government wanted to restrict the possibility to hire cheap staff from eastern European States for German companies, especially in the construction sector. After a French company was refused to get some persons out of the resp. contingent too, the European Commission intervened and claimed, that companies from other Member States mustnÂ´t be discriminated. In order to avoid higher demand for these migrant workers as a result of the EC - freedom to provide services, the federal government stopped the whole programme.
The most restrictive system of admission to the labour market is set up for employed third-country nationals. Self - employed may get their residence permit according to the general national rules, which means a decision by discretion. The decision might be influenced by guidelines comparable to the principles set up by the Council Resolution of November 30th 1994 relating to the limitations on the admission of third-country nationals to the territory of the Member States for the purpose of pursuing activies as self-employed persons. This resolution contains eleven principles for the admission of self-employed persons and represents the common sense of the member states with regard to the taking-up of a self-employed activity.
In GermanyÂ´s law system the general admission of non-privileged third-country nationals for employed activity has the lowest priority. The law of residence is orientated to the principle, that labour migration is generally not needed and is an exception. Moreover the law of employment provides that EU/EEA workers have to have primacy. A work permit will be granted only, if thereÂ´s no EU/EEA or domestic worker available for the resp. job. Both legal systems divide into the same two periods of residence: stays up to three months and such more than three months. A residence limit of three months is established for seasonal workers in catering trade, tourism, agriculture and forestry. Residence and work permits are granted by discretion within the quotas defined by treaties or statutory order. Stays of more than three months are mainly provided for trainees, contract workers, temporarily employed and specialists. While residence permits are linked with the specific purposes of the stay, work permits are made conditional on concrete job offer, health insurance and other requirements to avoid dependancies from public welfare. All detailled entry conditions are laid down in statutory order. The number of work permits decreased in 1996 significantly from 1.32 million down to 1.19 million (- 9,9%) due to the economic situation and stricter enforcement of the primacy for EU/EEA workers. The share of rejected applications for work permits increased from 4% in 1995 to 5% in 1996.
The principle of bipolar admission to the labour market plays a minor role for 90% of all 1,11 million foreigners with a work permit requirement, who live in Germany already. Privileges due to nationality as well as duration of the resp. stay lead to legal positions, where work permits cannot be denied. This is - as described earlier - especially true for Turkish nationals. E. g. in 1996 32.200 work permits had the protected status of Article 6 para. 1 of the decision of the association council 1/80.