Turkish Law Blog

Immigration of Skilled Workers to Germany

Hülya Oruç Hülya Oruç/ O.Law
03 December, 2019
1360

Hülya Oruç, LL.M. & Mehmet Kaya

Preamble

Germany is experiencing an unprecedented shortage of skilled workers. Many positions cannot be filled. The high average age of Germans is gradually causing problems for the German economy. Old people cannot work and there is nobody to take care of them. This so-called demographic change is supposed to cause big economic problems in Germany, which is one of the most successful economies of the world.  Another problem is that many people living in Germany cannot and do not necessarily want to take on jobs that someone else from abroad would like to do. Germany is facing a lack of specialist especially in sectors like health, science, and craftsmanship. More than 1.2 million vacancies cannot be taken.

After long discussions, the legislator has now passed the final version of the so-called “Fachkräfteeinwanderungsgesetz” (from now on AufenthG n.F.) and announced it in the Federal Law Gazette. The new law will come into force on 1 March 2020. The law is not a new special law. It merely amends and supplements the Residence Act in the necessary places.

The new legislative package is intended to open up and newly systematise the regulations for immigration from third countries and the residence of skilled workers in Germany. The aim is to create a clearer and more transparent legal structure. More targeted immigration of skilled workers is to be achieved.

An important goal of the new specialist immigration law in Germany is to ensure the business location of Germany by the recruitment of specialist from other countries outside the EU.

Not only persons with universal degrees, furthermore persons who obtained vocational trainings will be recognized in Germany.

As of Germany is a very bureaucratic county it is promised that the procedure of recognition will be easier and quicker compared to today´s time. The approval of the qualifications shall not take longer than three months and the visa shall be granted within four weeks. In order to achieve this, the internal administration shall be simplified and concentrated to specialized public authorities.

Who is a skilled worker?

As the amendment calls itself “Law for Immigration of Skilled Workers” it has to be known what exactly a skilled worker is.

The definition of the term skilled worker is important and essentially new. The former Resident Law did not know any term like this, although like almost any law in Germany there is a paragraph with definitions of the terms being used in the law. With the new law, the concept of skilled worker is uniformly defined and is thus intended to avoid confusion and difficulties with regard to demarcation.

According to Article 18 Par. 3 AufenthG n.F, a skilled worker is,

"[...] a foreigner who

  1. has a domestic qualified vocational training or a foreign professional qualification equivalent to a domestic qualified vocational training (skilled worker with vocational training), or
  2. holds a German university degree, a recognized foreign university degree or a foreign university degree comparable to a German university degree (skilled worker with academic training).”

In short, this means that skilled workers are both university graduates and employees with qualified vocational training. In the past, the law did not distinguish between people with vocational training and university graduates. Also, university graduates were particularly favored by regulations such as the Blue Card EU. Now people with vocational training and university graduates who wish to take up a job unrelated to their degree are given the same opportunity. The construct of the Blue Card EU is still preserved (Article  18 b AufenthG n.F.).

New Procedure: New Requirements

A major hurdle before the law was changed was that a so-called priority check had to be carried out before an immigrant could start a new job or even enter the country to look for a job. Under the new law, however, this so-called priority check no longer applies. It will be much easier to enter the labour market if you have an employment contract and a recognized qualification, because the present "priority review" will be dropped. The priority review is a current procedure in which the employment agency needs to prove if there is a possibility to fill a vacancy with a German citizen before giving the immigrant permission to occupy the vacancy.

Prerequisite for the granting of a temporary residence title for skilled workers is according to Article 18 Par. 2 AufenthG n.F.:

  1. concrete job offer,
  2. approval by the Federal Employment Agency (exception: intergovernmental agreements or so-called positive list),
  3. granting or undertaking to grant a license to practice a profession,
  4. equivalence or recognition of the qualification; and
  5. if the applicant is 45 years or older at the time of the first application, the salary must be at least 55% of the annual income threshold of the general pension scheme, unless there is an adequate pension.

This means in concrete terms:

If there is an employment contract, skilled workers can enter the country in the future without a priority check.

The residence permit for skilled workers will be issued for a period of four years. When the employment contract is with a fixed term the residence permit will be issued for these dates. It is noteworthy that skilled workers must be granted a settlement permit after four years if they meet the requirements.

A skilled worker must be granted a settlement permit in accordance with Article 18 c Par. 1 AufenthG n.F. if

  1. it has had a residence permit for professionals for four years,
  2. it has a job which it may occupy,
  3. pension insurance contributions of at least 48 months have been paid in,
  4. sufficient knowledge of the German language (B1) and
  5. the general requirements for the issue of a settlement permit are fulfilled.

In the case of completion of domestic vocational training or study, it is even possible to obtain a settlement permit after only two years.

Critic Voices in Media, Politics and from Jurists

There is some criticism by the oppositional party in the parliament concerning the new law. They argue that the law is not sufficient enough to fill all vacancies. The government expects up to 25.000 new immigrants, while there will be more than a million unoccupied working places in the future. The consequences are that the new law only takes small steps although the Germans need a great leap in order to ensure the business location Germany. So many people demand a big reform of the immigration law in Germany instead of a small reformation.

According to the critics, the problem is not the lack of specialists, since there are more than three million unemployed people in Germany. The real problem is the bad working conditions and salaries in sections like health and craftsmanship. Jobs in these sectors are not as attractive as they were some decades ago. The new law will not solve these problems but rather heat the competitions and price dumping between German and foreign immigrants up. The government only pursues economic targets but should try to improve the places of employment to make them more attractive for everyone. If Germany would work on this problem, more vacancies could be taken by Germans and there would not be such a high need of foreign workers anymore.

Besides, it is not quite clear, how especially vocational training will be approved. The Comparison between a German and a foreign vocational training is not always easy as there are some countries (e.g. Portugal) which do not recognize the German dual training system. In these countries the vocational training only takes place in a vocational school, while in Germany the trainees learn the theory in school and collect important working experience in a company. The immigrants would have a lack in practical experience compared to Germans and the new law does not answer the question if the vocational trainings are still comparable or what the scale of the comparison is.

Conclusion

It is to be welcomed that the Federal Government finally wants to tackle the plight that prevails on the German labour market. The innovations are positive and continue to make Germany attractive alongside other industrial nations. Canada, for example, has a much friendlier immigration policy and is therefore popular with emigrants. However, it is doubtful whether the promise of fast processing can be kept. The reality in practice is quite different at the moment: Some applicants have to wait several months until they get an appointment with a consulate because that is still the first point of contact. First an application for an appointment has to be made, at which all necessary documents have to be handed in. Only then  the documents will be sent to Germany. There are a lot of unanswered questions and the practical application of the new law will show if the democratic and economic issues in Germany can be solved or at least countered sustainabilly. It remains to be seen whether the very bureaucratic procedure actually will  be simplified and accelerated.

 

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