Expats in Germany – Inbound and Outbound

Nicole Elert, Christopher T. Brooks

• Publisher: De Gruyter
• Year: 2017
• Print ISBN: 9783110403831
• eBook ISBN: 9783110404043
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The increasing internationalization of business leads to a cornucopia of differing cross-border exchanges in one's daily work. Participants and other beneficiaries of this internationalization include not only multi-national companies but also SMEs (small and mid-sized enterprises), for which the increased global market access offers substantial opportunities. With the growth of internationalization, too, comes an increase in employee assignments. In business practice, the number of questions from foreign companies, management, HR, tax and legal professionals, investors and non German employees etc., ist growing.

In order to be certain that sending employees to or from Germany on work assignments can take place as smoothly and efficiently as possible, relevant questions asked by companies and workers need to be taken into consideration. This text does just that with a focus on answering common expat-relevant questions posed by professionals. It is a reference work for those foreigners subject to and applying German law.

Part 1
Immigration

I.Introduction to German immigration

1

Germany is one of the founding members of the European Union and is a Schengen Agreement signatory. The 1995 Schengen agreement abolished passport and other border controls for those transiting the common Schengen member states’ borders1. Among the 34 Organization for Economic Co-Operation and Development (OECD) nations, Germany is currently ranked as the second most popular country for immigration2.

2

According to the Central Foreigner’s registry (Ausländerzentralregister), in 2015, 1,810,904 foreigners immigrated to Germany. This was an increase of 57.6% compared with the same statistic in 2014. Out of the total incoming foreign population in 2015, 1,125,419 were non-EU nationals and 685,485 were citizens of EU countries (excluding Germans nationals returning to Germany). Of the total non-EU nationals, 3.4% came to Germany for employment purposes.3

3

The focus of this book is on those foreigners coming to Germany for business or employment purposes, independent of the planned duration of stay (long-term or short-term), or if the foreign worker is a local hire or intra-company transfer.

4

The bulk of the legal framework for this group of individuals can be found in the Residence Act (Aufenthaltsgesetz), Freedom of Movement Act (Freizügigkeitsgesetz), Ordinance on Residence (Aufenthaltsverordnung), and Employment Regulation (Beschäftigungsverordnung). These laws and provisions are interpreted through the Implementing Regulation on employment of foreigners (Durchführungsanweisungen zur Ausländerbeschäftigung) and the Implementing Regulation on the Employment Regulation (Durchführungsanweisungen Beschäftigungsverordnung), both published by the federal employment office (Bundesagentur für Arbeit).

5

The German regulations are affected by European laws and EU directives are being implemented in German national law (e.g. the EU directive on the EU Blue Card was implemented into German national law).

6

With so many different sources for determining the legal grounds for compliance in Germany, many companies struggle to understand how to relocate their employees in a timely manner.

7

Probably the biggest challenge for many companies is the determination of what is classified as business travel vs. travel requiring a work permit. It is not uncommon for companies to send their employees to Germany on business-trip status when they actually require official permission to work. The fast moving needs of the business often override the necessity to be compliant. The possible consequences of this lack of compliance can be read in our chapter on noncompliance.

8

Another challenging situation is the deployment of foreign employees to perform work activities in more than one EU country at the same time. A common work permit for all EU countries has not yet been introduced in order to solve this problem. The work regulations for each EU country are still different and it may be difficult or unrealistic to try to obtain work permits for each required EU country at the same time.

9

A further challenge that companies face when sending foreign employees to Germany is that, through pressures of the business, there is often a big hurry to get the employee to Germany and working as soon as possible. There usually is not enough lead time ensure keeping in line with immigration compliance. This is especially true for shorter term assignments. Unfortunately, Germany does not have a short term work permit type with shorter processing times. Thus, winning work at a client site in Germany can be challenging if the company is not able to get their resources in order quickly. As it currently stands in Germany, irrespective of whether an employee is coming, for example, for 1 month, 6 months or 3 years, the processing times for most work permit types are the same. There is little flexibility for accommodating work assignments where the employee needs to be in Germany quickly.

10

Another common challenge companies have is the need to send their employees to Germany intermittently but over a longer period (e.g. 1–2 years). This usually means spending a few weeks in Germany and then several weeks back in the home country before returning. This situation can be difficult due to the local residential address requirement in order to obtain a long-term work and residence permit and because German immigration authorities stipulate that an assignee must be spending at least 50% of their work time in Germany in order to qualify for a work permit. Intermittent travelers coming to work in Germany will usually stay in a hotel for the few weeks that they are there, however, this is not always the same hotel and German immigration requires the applicant to register an address at the city registry office and be able to receive mail. In addition, the new registration law has made registration in a hotel more difficult (due to the landlord confirmation requirement) and often mail does not reach the recipient there, which can lead to automatic deregistration by German registration authorities. One way around this issue is to secure a company apartment that travelers can use for the duration of the work requirement so they have a place where they can receive mail even if they are out of country.

11

Generally speaking, Germany’s immigration procedure is still decentralized, with over 580 immigration offices throughout the country. The immigration offices for issuing the residence permit are located in each city and administrative district,4 and a change of residential address to another jurisdiction means a change of responsible immigration office. This can present special challenges, if, for example, the new immigration office assesses a case differently than the previous authority and request additional documentation or even decide that a different permit type applies (exceptions made by one office might not be made at another).

12

Another tricky point at the immigration offices is determining which documentation needs to be submitted for the residence permit application. Each immigration office not only has its own application form (there is no one common form throughout Germany, not even for each German federal state!) but the documents requested vary by office (and even the officer processing the case!). For these reasons, each case needs to be researched individually.

13

While it is possible to provide general information on processing times and document requirements, there is still a lot of room left for interpretation by the immigration and employment offices and the outcome can always vary from the initial assessment.

14

Another unfortunate challenge is the reaction time and communication with the authorities. It can be difficult to reach officers by phone, especially during the consultation hours for the public. Unfortunately, it can be very time consuming to try to reach an immigration office by phone to make inquiries or determine the status of an application. E-mail contact can be successful, but response times tend to be very slow, especially on inquiries not already linked to a current application that is being processed. Immigration offices are sometimes understaffed due to illness and vacation absences. It can therefore happen that an application is left unprocessed while the officer is away. In addition, staffing at government authorities is not as simple as in the free economy. Just because an employee shortage is recognized doesn’t mean you can go ahead and hire to fill the gap, as there are more bureaucratic processes for hiring in place.

15

Despite these challenges, Germany still ranks high in popularity for immigratio...

Table of contents

• Cover
• Title Page
• Copyright Page
• Preface
• Contents
• Copyright
• Part 1 Immigration
• Part 2 Employment Law
• Part 3 Social Security
• Part 4 Income Tax
• Useful Links
• Glossary