Koffer

1.2.2007 | Von:
Jessica Guth

What legal framework is in place in Germany to attract highly-skilled workers?

The legal framework affecting the movement of highly-skilled workers to Germany is comprised of legislation at both the EU and national level.
Broschüren mit dem Titel «Arbeitsrecht Informationen für Arbeitnehmer und Arbeitgeber» (© picture-alliance/dpa)
At the EU level, Regulation 1612/68 on the Freedom of Movement of Workers within the Community [1] gives individuals the right to take up employment in another member state under the same conditions afforded nationals of that member state. The free movement of workers was one of the most controversial aspects of the 2004 EU enlargement [2]. As a result, the Accession Treaty of April 2003 introduced a transitional period during which the EU15 [3] countries are permitted to derogate from Articles 1-6 of Regulation 1612/68 for a maximum of 7 years [4]. Apart from the UK, Sweden and Ireland, the EU15 states initially decided to impose transitional restrictions for citizens of eight of the new member states (EU8) [5] for the first two years. In 2006 Finland, Italy, Greece, Portugal and Spain also opened their labour markets for EU8 citizens. Seven countries, including Germany, continue to keep the restrictions in effect. As a result, the Polish and Bulgarian scientists who are the subjects of the research presented here were in the same position when seeking to work in Germany, even though Poland was an EU member and Bulgaria was not at the time the research was conducted. Due to Germany´s implementation of the transitional measures, the Polish and now also the Bulgarian scientists are subject to the same national immigration laws as third country nationals, despite being citizens of the European Union.

Scientists from outside the EU15 wishing to work in Germany are subject to the regulations concerning work permits set out in national legislation. Work permits are issued under the Residence Act, which states: "The admission of foreign employees shall be geared to the requirements of the German economy, according due consideration to the situation on the labour market and the need to combat unemployment effectively." [6] A work permit is only issued if there is a concrete job offer and if there are no job seekers available who would take precedent (i.e. German or EU15 nationals) [7]. However, under Section 19 of that Act, a settlement permit which is not tied to a specific job offer can be granted to highly-qualified foreigners, allowing them to settle anywhere in Germany and automatically awarding them and accompanying family members [8] the right to work. The term "highly-skilled" is defined rather vaguely in Section 19 (2) of the Act, referring to "scientists with special technical knowledge", "scientific personnel in prominent positions" and "specialists with special professional experience who receive a salary corresponding to at least twice the earnings ceiling of the statutory health insurance scheme." [9]. Given this wording, Section 19 appears to be aimed at established senior scientists or senior executives and managers rather than scientists who are at the beginning of their careers. In fact, none of the early career respondents in the present study and only one senior scientist interviewed in the course of the research had benefited from it. The Residence Act is currently under review and, when revised, is likely to implement two recent EU directives dealing with the admission of students and researchers from third countries. [10]

Fußnoten

1.
Official Journal of the European Communities; O.J.SP.Ed 1968, no. L257/2, p.475.
2.
In 2004 ten countries joined the European Union: the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia, Malta and Cyprus.
3.
The EU15 are Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Portugal, Spain, Sweden, the Netherlands and the UK.
4.
For a clear and useful analysis of the transitional measures with special reference to Germany and the UK see Focus Migration Policy Brief No. 4 (see Heinen and Pegels 2006).
5.
Citizens of Cyprus and Malta are not affected by the restrictions.
6.
Residence Act (30 June 2004), last amended by Article 2 of the Law Adapting Federal Statutory Provisions as a Result of the Accession of the Republic of Bulgaria and Romania to the European Union from 07.12.2006 (Gesetz zur Anpassung von Rechtsvorschriften des Bundes infolge des Beitritts der Republik Bulgarien und Rumäniens zur Europäischen Union vom 07.12.2006, BGB1.IS.2814) (hereafter Residence Act).
7.
Section 5 of the Employment Regulations does stipulate that a limited residence permit can be issued to scientific and academic personnel of universities and research institutions without prior approval from the Federal Employment Agency (Bundesagentur für Arbeit, BA).
8.
Residence Act, Section 29.
9.
Usually the earnings ceiling of the statutory health insurance scheme is adjusted slightly each year. At the time of writing, twice the earnings ceiling amounts to approximately EUR 85,500.
10.
This refers to Directives 2004/114/EC and 2005/71/EC respectively. Neither of these directives will be dealt with here any further, as they were of no relevance to the respondents taking part in this particular study. Also, it is too early to be able to assess the potential impact of these Directives on scientific mobility.

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