Employment Procedure Ordinance

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Basic data
Title: Ordinance on the Procedure and Admission of Foreign Nationals Living in Germany to Work
Short title: Employment Procedure Ordinance
Abbreviation: BeschVerfV
Type: Federal Ordinance
Scope: Federal Republic of Germany
Issued on the basis of: Section 42 subs. 2 AufenthG ,
Section 61 subs. 2 AsylVfG ,
Section 288 SGB ​​III
Legal matter: Immigration law
References : 26-12-2
Issued on: November 22, 2004
( BGBl. I p. 2934 )
Entry into force on: January 1, 2005
Last change by: Art. 5 para. 4 G of June 1, 2012
( Federal Law Gazette I p. 1224, 1233 )
Effective date of the
last change: 		August 1, 2012
(Art. 6 para. 1 G of June 1, 2012)
Expiry: July 1, 2013
(Art. 4 Regulation of June 6, 2013,
Federal Law Gazette I p. 1499, 1508 )
Please note the note on the applicable legal version.

The ordinance on the procedure and the admission of foreigners living in Germany to work ( Employment Procedure Ordinance - BeschVerfV) was a German ordinance that came into force on January 1, 2005 together with the Residence Act and supplemented it.

The ordinance governed the conditions under which foreigners' approval for taking up employment could be waived or given without a priority check .

With effect from July 1, 2013, the provisions of the Employment Procedure Ordinance were integrated into a new version of the Employment Ordinance (BeschV).

History of origin

The ordinance was the result of the new concept that came into force on January 1, 2005, to issue a residence permit and work permit in one act and to renounce the previous coexistence of two permits.

There were no historical precursors for the regulation. Until then, the Federal Employment Agency had issued a work permit that did not check the legal requirements for residence. The use of the work permit therefore always required a residence permit that was issued by the immigration office and in which the taking up of employment had to be expressly permitted (often with the additional provision: employment only in accordance with a valid work permit. ). Without a parallel residence permit, the work permit was worthless.

The responsibility of different authorities with different, insufficiently coordinated legal bases often led to long proceedings and to friction losses. The confusion of the regulations also created uncertainty among employers and foreign employees. For this reason, the double approval process (work and residence permit) has been replaced by an approval process (multi-level administrative act) in which the labor administration is internally involved by the immigration authorities. The sole decision-making authority on access to the labor market continued to be incumbent on the labor administration even after the BeschVerfV came into force. However, the employment was now only approved by the immigration authority, which had to coordinate with the Federal Employment Agency, provided that consent was not already dispensable by law.

The main features of the internal coordination procedure were regulated in §§ 39 ff. AufenthG; the BeschVerfV regulated the necessary details.

scope of application

The ordinance only affected foreigners who required a residence permit in Germany and who had to be allowed to take up employment separately. EU citizens or citizens of another country of the EEA ( Iceland , Liechtenstein and Norway ) or citizens of Switzerland and their close family members living with them were not affected , even if they were third-country nationals . This group of people was already entitled to a right of residence and the right to be self-employed or gainfully employed based on European law (freedom of movement under Article 21 of the Treaty on the Functioning of the European Union (TFEU), freedom of movement for workers under Article 45 TFEU). They did not need a residence permit or an employment permit. This group of people received a certificate of freedom of movement until January 28, 2013 and no longer received a residence document at all. Their family members who were not citizens of an EEA country received a declaratory residence card . Nationals of Switzerland received after the accession of Switzerland failed to EEA because the referendum of 6 December 1992 on the basis of the free movement EC-Switzerland of 21 June 1999 for a residence permit with the special entry permit-CH , which allowed the employment restrictions.

The ordinance only affected other foreigners in terms of their area of ​​application if they already lived in the federal territory and already had a residence permit . The version of the Employment Ordinance of November 22, 2004 ( Federal Law Gazette I p. 2937) applied to foreigners who stayed abroad and intended to enter Germany in order to work there .

Regulatory matter

The ordinance was divided into three blocks:

  • The first regulated the cases in which the consent of the employment agency was not required or the consent could be given in a simplified manner (Sections 1 to 11 BeschVerfV),
  • the second the procedure (§§ 12 to 14 BeschVerfV) and
  • the third contained final provisions (§§ 15 to 17 BeschVerfV).

Employment without consent

The first block was again subdivided into a section listing jobs that did not require the approval of the Federal Employment Agency from the outset (Sections 1 to 4) and a section with jobs for which approval could be given without a prior priority check (Section § 5 to 9).

Outside of the ordinance, consent was not required in all cases in which the Residence Act had already ordered it. These included:

Here access to the labor market existed by law. The Federal Employment Agency was not involved.

In addition, employment could be permitted for legally (with residence permit ), tolerated (with tolerance ) and permitted (with residence permit ) foreigners ( Section 1 ) if consent was not required according to the Employment Ordinance ( Section 2 ) or the foreigner wanted to work in the company of a close family member ( Section 3 ). Professional or training activities of young foreigners already living in the federal territory ( § 3a ) or activities of people with two or three years previous employment ( § 3b ) were also free of approval . Activities that primarily served the purpose of healing, re-acclimatization, moral improvement or upbringing were also free of approval ( § 4 ).

Consent without priority check

The second section, with a simplified consent procedure, concerned employment that should be continued with the same employer after the period of validity of a consent granted for at least one year has expired ( Section 6 ), employment of persons who have been victims of a crime ( Section 6a ) and employment with certain Family members of skilled workers ( Section 8 ). With them there was no need to check whether Germans or privileged foreigners (e.g. EU and EEA citizens) were available for the specific activity as jobseekers.

The hardship provision in Section 7 was also particularly significant . A priority check was omitted if the refusal of consent would have meant particular hardship, taking into account the particular circumstances of the individual case.

Consent to tolerated persons

The third section concerned tolerated foreigners, i.e. people without a residence permit who could not be deported to their home country for factual or legal reasons (e.g. rejected asylum seekers). They could not actually be allowed to work because a residence permit would have been required for this ( Section 4 subs. 2 AufenthG). In deviation from this, however, Section 42 (2) No. 5 AufenthG authorizes this group of people to work by means of a statutory ordinance. This happened via § 10 . According to this provision, tolerated persons could be permitted to work if they had been tolerated or permitted in Germany for at least one year. Without a priority check, consent was only given for completing vocational training or if the tolerated person had already lived in Germany for four years. This did not apply to people who had gone to Germany to receive benefits under the Asylum Seekers Benefits Act , or to people who were responsible for the impossibility of deportation ( Section 11 ).

Procedure

Section 12 stipulated that the employment agency was responsible for the approval in whose district the activity was to be carried out. Section 13 authorizes restrictions on the approval with regard to the professional activity, the employer, the district of the employment agency and the location and distribution of working hours. Section 14 stipulated the scope of approval with regard to the residence permit.

Final provisions

Section 15 referred to the continued existence of more favorable regulations for Turkish nationals. See also → main article Decision 1/80 of the EEC-Turkey Association Council . Section 16 provided for transitional regulations that later became obsolete. Section 17 concerned the entry into force of the ordinance.

materials

The employment procedure regulation did not require the approval of the Bundesrat. Federal Council printed matter with a corresponding official justification therefore does not exist.

Web links

Individual evidence

  1. ↑ Ordinance on the Employment of Foreign Nationals (Employment Ordinance - BeschV) of 6 June 2013 ( Federal Law Gazette I, p. 1499); Valid from July 1, 2013.
  2. ^ So the official justification for the abolition of the work permit, BT-Drs. 15/420 , p. 60, PDF doc. 896 kB.
  3. ↑ Consolidated version of the Treaty on the Functioning of the European Union (PDF, 475 kB), accessed on 20 June 2012. .