Permission to remain and exceptional leave to remain
Permission to remain (Aufenthaltsgestattung)
A foreign national who is seeking asylum is allowed to stay (permission to remain) in the federal territory during the asylum procedure.
“Permission to remain” is merely a temporary arrangement, and is not comparable to a residence permit. The right of attendance to implement the asylum procedure is based directly on Art. 16a Basic Law. Anyone who reaches the federal territory and expresses their wish for asylum must be accepted and must get the opportunity to apply for asylum. The certificate of permission to remain therefore only serves as proof.
Asylum seekers can be allowed to practice a profession after a waiting period of at least three months has expired. This is an “optional regulation,” which allows authorities to exercise their own discretion. Asylum seekers that wish to commence concrete employment must apply for a permit from the Aliens Authority. If it approves the application, the Aliens Authority must then seek approval from the Federal Employment Agency.
Approval from the Federal Employment Agency is granted if the working conditions are not less favorable than for domestic workers. In addition, there is usually a check to see whether the position can be filled by a German citizen, an EU citizen or another foreign citizen with a permanent residence status (priority check).
The priority check does not apply to employment in bottleneck professions or if an asylum seeker has already been in Germany for 15 months without interruption.
Grounds for exclusion:
As long as asylum seekers are obliged to remain in the first reception center, they are not allowed to take up employment. Since the Asylum Procedures Acceleration Act came into effect on October 24, 2015, the waiting time can be up to six months (§ 61 (1), § 47 (1) S. 1 of the asylum law (AsylG)).
Furthermore, a general employment ban applies to asylum seekers from safe countries of origin in the future, who applied for asylum after August 31, 2015 (§ 60a (6) S. 1 No. 3 of the German law on residence (AufenthG)).
However, persons entitled to political asylum and recognized refugees have extensive access to the labor market. They have a residence permit which allows them unlimited access to the labor market.
Exceptional leave to remain (Duldung)
Foreign nationals that are staying in Germany illegally, and are therefore obliged to leave the country, are at risk of deportation. They may obtain “exceptional leave to remain (Duldung)” as part of a legal process. The exceptional leave to remain temporarily suspends deportation. Exceptional leave to remain is therefore not a residence permit certifying a legal stay; it merely represents temporary regulation of an illegal situation.
Persons with an exceptional leave to remain are not allowed to work during the first three months of their stay (§ 60a, German law on residence (AufenthG)). After three months, tolerated persons can apply to the Aliens Authority for an employment permit for concrete employment (§ 32, Employment Regulation (BeschV)).
This is also an “optional regulation,” which allows authorities to exercise their own discretion. Asylum seekers that wish to commence concrete employment must apply for a permit from the Aliens Authority. If it approves the application, the Aliens Authority must then seek approval from the Federal Employment Agency.
Approval from the Federal Employment Agency is granted if the working conditions are not less favorable than for domestic workers. In addition, there is usually a check to see whether the position can be filled by a German citizen, an EU citizen or another foreign citizen with a permanent residence status (priority check).
The priority check does not apply to employment in bottleneck professions or if a tolerated person has already been in Germany for 15 months without interruption.
Omission of approval requirement
- If the tolerated person wishes to start professional training in an occupation requiring formal training that is recognized by the state or is comparably regulated, approval from the Federal Employment Agency is not required (§ 32 (2) No. 1, Employment Regulation (BeschV)).
- Similarly, according to § 32 (2) No. 2, Employment Regulation (BeschV)) in cases of employment according to § 2 (1) BeschV (highly qualified persons and university graduates), § 3 No. 1 to 3 BeschV (management), § 5 BeschV (scientists), § 14 (1) BeschV (voluntary service and charity work), § 15 (1) No. 1 and 2 BeschV (internship), § 22 No. 3 to 5 BeschV (artists and professional sportspersons) and § 23 BeschV (international sporting events), approval from the Federal Employment Agency is not required.
- Finally, approval from the Federal Employment Agency is not required in cases where the tolerated person wishes to take up employment with a close relative and (s)he lives in the same household as the employer (§ 32 (2) No. 3, Employment Regulation (BeschV)).
Grounds for exclusion:
- According to § 60a (6) No. 1, German law on residence (AufenthG), the tolerated person may not be allowed to take up employment if (s)he goes to the country in order to access services under the Asylum Seekers Benefits Act (AsylbLG).
- Furthermore, according to § 60a (6) No. 2, German law on residence (AufenthG), tolerated persons may not be allowed to take up employment if measures terminating their residence for reasons beyond their control cannot be implemented or
- (s)he is a citizen of a safe country of origin according to § 29a of AsylbLG and his or her application for asylum was rejected after August 31, 2015.