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31.7.2012 | Von:
Daria Braun

The Professional Qualifications Assessment Act

Eine Sachbearbeiterin der Ausländerbehörde in Stuttgart gibt am 21. November 2006 ausländischen Mitbürgern Rechtsauskünfte.A clerical assistant at the immigration services in Stuttgart gives legal advice to foreign citizens. (© AP)

On December 12, 2011 the "Accreditation Act" was published in the German federal law gazette and on April 1, 2012 it went into effect. Because of the limited time that has passed since it went into effect, no conclusive statements can yet be made concerning its practical impact, but still an initial view of the new regulations can be traced. By developing a law on the accreditation of foreign certificates, it was hoped that uniform and transparent structures and equal opportunities would be created for recognizing the qualifications of all people who had acquired an educational certificate abroad. In part the law fulfills this demand and resolves some of the basic shortcomings of previous accreditation practice. Nonetheless it should be noted that the law exhibits a number of weaknesses and that it only partly meets the demands and claims made in the public and political debate concerning accreditation. First, the improvements brought about by the law will be acknowledged. Then a critical look will be taken at the revisions.

Basic Structure of the Law

Accreditation Paths in GermanyAccreditation Paths in Germany Lizenz: cc by-nc-nd/2.0/de (bpb)
The Professional Qualifications Assessment Act is a so-called framework law.[1] The first article of the law comprises the new "accreditation law" (complete title in German: Gesetz über die Feststellung der Gleichwertigkeit von Berufsqualifikationen). The follow-up sections deal with changes in the occupational laws and the official regulations governing the regulated professions, such as in the Vocational Training Act, in the Crafts Code, in the Civil Service Act, in the Tax Consultancy Act, etc. In relation to these occupational laws and regulations the BQFG is subsidiary, that is, it is subordinate to them (BQFG Art. 2(1); Maier et al. 2012: 4). Thus, under the purview of the BQFG are the 350 recognized trades of the dual system, approximately 40 regulated professions at the federal level, and approx. 100 additional regulated master-craftsman professions – not, however, professions governed by state (Bundesland) law, higher education degrees in the non-regulated area as well as the entire area of school and academic accreditation (Maier et al. 2012: 5) (cf. Figure 2).

Regulations of the Act

General Legal Claim

One of the greatest drawbacks of the previous accreditation system and the one most in need of being resolved was the linking of the right to an accreditation procedure to the origin of the individual seeking accreditation. Citizens of third states had no legal claim to a procedure for the accreditation of their qualifications acquired abroad. The new law immediately resolves this shortcoming by making the general legal claim to an accreditation procedure independent of the country of origin. In doing so, it clearly expands access to the accreditation procedure. Henceforth, any person who has acquired proof of formal qualifications and can prove that they intend to work in Germany in their learned profession may make an application for an examination of equivalence (Art. 2(2) BQFG). Because of this regulation, many immigrants for the first time are given the legal right to an accreditation procedure. This especially applies to citizens of third countries, who until now were without any legal basis for accreditation but are now treated on equal terms. The EU Directive on the Recognition of Professional Qualifications and the German Law on Expelled Persons continue to apply to EU citizens and Spätaussiedler.[2]

Accreditation Procedure for Non-Regulated Professions

The right to an accreditation procedure applies in addition to all non-regulated professions for which until now there was no possibility of accreditation but rather only of assessment.[3] As was the case before the coming-into-effect of the new act, the accreditation of foreign certificates in the area of the regulated professions continues to be binding for the practice of a profession, while it remains voluntary as far as non-regulated professions are concerned (Maier et al. 2012: 10). Consequently, in the case of non-regulated professions the option still exists of applying for employment in the labor market directly without undergoing an accreditation procedure; this also applies in the case of a negative notification of accreditation (Maier et al. 2012:10).

Fixed Terms

Another innovation consists of the fixed periods of time stipulated in the BQFG for the accreditation procedure so as to ensure more efficient procedures. Whereas the procedures before could extend over months (in exceptional cases even years), the accreditation agency must now reach a decision concerning the equivalence of qualifications acquired abroad within a period of three months following the submission of all required documents. Under special conditions the procedure may be extended once for a maximum period of one month (Art. 6(3) BQFG and Art. 13(3) BQFG).

Accreditation from Abroad and Uncoupling of the Application Requirements from Residence Status

The new law represents real progress regarding the possibilities to access accreditation procedures. Immigrants who are still abroad but wish to work in Germany are now able to apply for accreditation of their foreign certificate from abroad (Maier et al. 2012: 13). The expectation is that this will significantly simplify the recruitment of skilled foreign workers and their integration into the German labor market (Council of Experts 2011). A central aspect of this is the signaling impact of a Willkommenskultur [welcoming culture]. The obstacles facing those who want to emigrate to Germany should decline once it is clear that the qualification acquired abroad is recognized and as a result the assessment of the qualifications of the immigrating person is made possible for business enterprises, by which means access to the labor market is in principle facilitated.

In addition, the decoupling of the application requirement from the residence status also offers asylum seekers and "the tolerated" the possibility of applying for an examination of their certificates for equivalence, something that was not previously possible (Maier et al. 2012: 13).

Consideration of Work Experience

The BQFG allows for taking into account relevant (proven) work experience in the case where differences between the foreign qualifications and the domestic (German) qualifications have been determined (Art. 4(2.3) BQFG). If, for example, a doctor has worked for 20 years as an internist in Russia, this work experience may in future be counted towards the examination procedure, even if the field of internal medicine in Russian medical studies carried significantly less weight than in comparable German medical studies. This can enormously shorten the period of adjustment qualifications and also involves an appreciation of the practical experience that has been acquired by immigrants.

Accreditation where Required Proof Is Missing

Those seeking accreditation who for reasons beyond their control no longer have proof of their educational career may now, thanks to the BQFG, apply for an accreditation procedure. Until now this has not been possible. In Art. 14(1) the law stipulates that in such cases "other suitable procedures" for establishing and assessing equivalence must be used. These procedures may include "in particular work samples, expert discussions, practical and theoretical examinations as well as testimonials by experts" (Art. 14(2) BQFG). This provision opens up the opportunity for refugees in particular, who may lack proper documentation, to obtain an accreditation procedure.

Quality Assurance

There were repeated demands for improved efficiency and more transparency in the accreditation procedure before the BQFG came into effect. Thus, for example, the Bündnis 90/Die Grünen parliamentary group and various of their members from the German lower house in an application to the German Bundestag demanded the establishment of "a central agency under the control of the German Ministry of Education and Research" charged with the role of "developing quality standards for a uniform accreditation and assessment practice." In addition, this institution would be charged with the task of regularly examining and further developing compliance with the established standards of accreditation procedure and at the same time with gathering information on foreign courses of studies and educational certificates (Bundestag document 17/6919: 2). The accreditation act fulfills these demands by determining the establishment of a central database aimed at compiling on an annual basis the personal data of applicants (inter alia, nationality, sex, country where educated, equivalent German occupational title, subject and type of decision) in order to evaluate the procedure (Art. 17(1–5) BQFG). In addition, the federal government at the expiry of four years is supposed to evaluate the actual implementation of the law and its impact (Art. 18(1) BQFG) on the basis of this statistical database.

Interim Conclusions

The regulations of the BQFG roughly outlined here point to the main features of the new law governing accreditation practice in Germany. Many shortcomings of the "old system," such as the lack of the legal right of citizens of third countries to a procedure for the accreditation of their qualifications and the associated discrimination of them vis-à-vis immigrants from the EU or Spätaussiedler, can now be resolved. The law nonetheless also has a number of weaknesses, which will be discussed in the following.

This text is part of the policy brief on "Procedures for the Assessment of Qualifications Acquired Abroad in Transition".

Fußnoten

1.
An umbrella law (omnibus law) is a law consisting of articles which include amendments in other laws or the introduction of new so-called principal laws. The individual amending acts are for the purpose of simplifying the legislative process brought together in an omnibus law (Maier et al. 2012: 4).
2.
Spätaussiedler may choose if they wish to apply for accreditation pursuant to Art. 10 BVFG [Law on Expelled Persons] or pursuant to BQFG (Maier et al. 2012: 8).
3.
Spätaussiedler who have obtained accreditation in non-regulated professions on the basis of the Law on Expelled Persons form an exception (Maier et al. 2012: 12).
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