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

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

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.