Guest Worker Programs: Germany

I. Introduction

In the 1960s, Germany recruited and admitted large numbers of foreign workers in order to increase German industrial production.  At the time it was generally assumed that the then admitted “guest workers” would leave eventually.[1]  Instead, these workers, most of them Turkish, remained in Germany, brought their families, and now about ten percent of the German population has a migrant background.[2]  The path to permanent immigration status for Turkish workers in Germany and their family reunification opportunities was greatly enhanced by the European Union (EU) Association Agreement with Turkey (see Report on the EU-Turkey Association Agreement, infra).

Since 1973 Germany has pursued an immigration policy that limits immigration to skilled or highly skilled workers[3] and admits unskilled workers only for short periods, thus preventing them from becoming permanent or bringing their families.[4]  Until recently, the most commonly used temporary worker programs[5]  admitted seasonal workers and workers deployed by foreign contractors.  These programs brought short-term labor to Germany from Eastern Europe, yet they became largely obsolete in 2011 due to enlargements of the EU.[6]

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II.  European Enlargement and German Temporary Worker Programs

In 2004, eight East European countries became EU Member States,[7] including Poland, from where many temporary workers had previously come to Germany.  Although EU membership of a country generally grants its citizens the right to work and reside freely within the territory of the EU member states,[8] the accession treaty for the new members permitted old Member States to postpone freedom of movement for the workers of the new countries by seven years, and Germany took advantage of this exception.[9]  Since January 1, 2011, however, the workers from these East European countries, many of them neighboring countries of Germany, have the right to work in Germany[10] without requiring a work permit.[11]  Instead, they may settle in Germany under the observance of minimal formalities that apply to EU citizens and residents in general.[12]

Bulgaria and Romania became EU Member States in 2007,[13] yet until December 31, 2011, they still required a work permit for seasonal work in Germany. Since January 1, 2012, workers from these countries enjoy the same EU freedom of movement as the workers from the Member States admitted in 2004.[14]  Croatia is the only East European country for which the German temporary worker program still is relevant in its originally enacted form.[15]  Until Croatia becomes an EU Member State, which is scheduled to happen in July 2013,[16] Croatia is still a “third country,”[17] that is, a country to which German immigration law for non-EU countries applies.

Even though the 2004 accession treaties for the new East European EU Member States granted Germany the option of postponing freedom of movement to the workers from these countries,[18] the European Court of Justice interpreted the scope of this exception narrowly.  In Case C-546/07[19] the Court held in 2010 that Germany violated article 46 of the Treaty on the Functioning of the European Union (TFEU)[20] when it required a work permit from Polish workers who were deployed by a Polish contractor to work on a specific project in Germany.  Article 46 TFEU requires the Member States to refrain from imposing domestic laws or practices that would impede the freedom of movement of workers.

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III.  The Temporary Worker Program as Generally Applied until 2011

A.  Overview

The following chapters describe the various forms of admission for temporary workers as they applied to workers from Eastern Europe prior to 2011.  The German laws on the admission of workers from non-EU countries (third countries) are still on the books and for a short time they will still apply to Croatia.[21]  In addition, some of the provisions of these laws continue to apply to workers from other non-EU countries.[22]  For the most part, however, these provisions have become obsolete because they presupposed the applicability of bilateral agreements with East European countries.  The following chapter describes the system as it functioned until 2010 as an example of how a restrictive guest worker system could be structured.

B.  Eligibility for Admission as a Temporary Worker

Temporary workers could be admitted either as part of a work crew that a foreign contractor deployed to Germany for a specific project,[23] or as a worker recruited for Germany by his homeland for seasonal work.[24]  In addition, temporary admission was also available for household help,[25] and for workers employed in movable trade fairs and exhibitions.[26]  Most of these programs applied to unskilled labor,[27] yet some of the programs for workers deployed under contract also applied to skilled workers (see below, C.  Recruitment and Sponsorship).

Temporary workers required a residence permit to enter Germany which could be issued by the German consulate in the foreign country and was granted only if a work permit had been promised or obtained in compliance with German law or the governing bilateral agreement.[28]

Residence permits for seasonal workers could be granted for a maximum period of six months within a calendar year to those employed in agriculture and forestry, the food service and lodging industries, the processing of produce industries, and lumberyards, provided that their employment contracts called for a work week of at least thirty hours, with an average working time of six hours per day.[29]  Residence limits of eight or nine months existed for workers in some other industries, among them trade fairs and movable exhibitions.[30]

C.  Recruitment and Sponsorship  

Temporary workers were allowed to enter after having been selected by their home country and approved by the German Federal Employment Agency[31] according to the terms specified in the governing bilateral agreement, which usually adhered to the requirements of German domestic law.  For workers deployed by a foreign contractor, a change of employer was possible only to a limited extent and then only after notifying the German authorities.[32]  Likewise, for seasonal workers a change of employer was generally not foreseen and would in any event have required permission from the Federal Employment Agency which assigned individual workers to individual German employers.[33]  (Incidentally, the Federal Employment Agency continues to provide placement services for seasonal workers from East European Countries to German employers even though the law no longer requires the involvement of the agency.[34]  

An example of such a bilateral agreement on temporary workers is the now obsolete agreement between Germany and Poland of 1990 for work contract deployment.[35]  At the time of its conclusion, it limited the number of workers that could be deployed per year to 11,000 (5,000 of these for the construction industry), and provided a mechanism for increasing the number in future years, depending on unemployment rates in Germany.  It provided  that, for purposes of deployment for a work contract, the Polish contractor had to get the permission from the competent Polish Ministry and assurances from the German Employment Agency that work permits would be granted.  A worker could not be deployed for longer than two years, and later deployments were permissible only after a waiting period equal to the time spent in Germany during the previous deployment.

D.  Visa Conditions

The time limits of residence permits for temporary workers were strictly enforced and could not be extended under any circumstances.  The restriction of seasonal work permits to six months per year[36] led to waiting periods during which the foreign workers had to leave Germany and this prevented them from solidifying their status into a longer residence that might have eventually led to permanence.[37]  Although the admission of temporary workers involved caps and limits of various types,[38] and the number of workers were established by market-based methods, these parameters might have led Germany to admit additional temporary workers[39] but under no circumstances could labor market developments have led to the extension of residence permits for temporary workers.

Throughout the duration of their work permits temporary workers were tied to the German employer to whom the Federal Employment Office assigned them.  If any reassignment were to become necessary, it could be carried out only through the Federal Employment Office.[40]  Altogether, the strict observance of these and other conditions and limits of the temporary residence permit prevented the holders of such permits from becoming permanent.

E.  Admission Status of Family Members

The time limits for temporary worker visas and the mandatory waiting periods between employments in Germany effectively prevented the admission of family members of temporary workers.  The German Residence Act imposes various restrictive criteria for the immigration of spouses and children of resident aliens.[41]  Spouses of aliens may be granted a residence permit only if the alien resides in Germany under a residence permit that is intended to be applicable for at least one year.[42]  Dependent children will be admitted only if both parents or the parents with sole custody have a German residence permit and the center of the child’s life is being moved to Germany.  The duration and renewability of residence permits for children and spouses who join a resident alien are strongly tied to the person and the status of the originally admitted sponsoring alien.[43]

Last Updated: 07/31/2015