WORK PERMIT
| GERMANY |
| ARBEITSERLAUBNIS WORK PERMIT |
In principle, all individuals who are not German within the meaning of the Basic Law need a work permit (Employment Promotion Act ยง 19). Permits are issued in the light of the labour market situation and the personal circumstances in each individual case. EC subjects and aliens with right of abode do not need a work permit.
A work permit may be issued with or without restriction to a specific form of work in a specific establishment ("Betrieb"). Spouses and children of an alien who have lived in the Federal Republic for a specified period can also obtain a work permit. However, a work permit cannot be obtained for taking up employment in the context of the hiring-out of labour . Permits are issued at the limited discretion of the Federal Employment Service , through the appropriate local Employment Office.
Certain individuals are able to obtain a special work permit irrespective of the above conditions. They include people who for the five years immediately preceding the period of validity of the work permit have been lawfully engaged in continuous employment in the Federal Republic, and aliens married to a German citizen whose habitual place of residence is in the Federal Republic. Children of foreign citizens who are lawfully resident in the Federal Republic are entitled to be granted a work permit if they have accompanied one or both parents to the Federal Republic before reaching the age of 18 and have there completed schooling or concluded a vocational training contract. The Federal Labour Court has ruled that a contract of employment is invalid if it was concluded in the knowledge that the employee did not possess a work permit. Nevertheless, in accordance with the principles of the de facto employment relationship there is still entitlement to pay; the employer can, however, refuse to provide work without the situation being deemed to be one of non-acceptance. If the employee does not yet possess a work permit but one is expected to be issued, the contract of employment is only provisionally invalid and becomes valid when the permit is issued. If the work permit lapses in the course of an existing employment relationship, this does not automatically nullify the contract of employment. A separate act of termination is needed. Depending on the individual case this will be either ordinary termination with notice or summary termination , the deciding factor being whether the employer needs to refill the job immediately or can reasonably be expected to accept a delay. General and special protection against dismissal applies in all cases. Employment without a work permit is punishable by a fine imposed on both employer and employee.
Please note: the European industrial relations glossaries were compiled between 1991 and 2003 and are not updated. For current material see the European industrial relations dictionary.