by Gunther Mävers, ABIL Lawyer
#GERMIMMLAW

According to the most recent statistics as published by the OECD for 2012 Germany having seen a significant growth of migration in comparison to last year has been skyrocketed to the second place of the list of the the world’s top migration spots right after the United States of America.

“Germany became the second-largest immigration country, after the United States, in the OECD in 2012, receiving more than 10% of all permanent immigration to the OECD area. In 2009, it was only the eighth largest. This spectacular increase has been fuelled mainly by inflows from central and eastern European countries and, to a lesser degree, southern Europe.”

Cf. also an article as published by Bloomberg.

And it seems to get even better. Based on the official statistics as published by the Federal Statistic Office for 2013 no less than an additional 146.000 foreigners (that equals to a surplus of 13 % in comparison to 2012) have migrated to Germany – the total number of foreign migrants for 2013 being 1.108.000. Since during the same period 649.000 foreigners have left the country there is a significant migration surplus of 459.000 foreigners (as opposed to the alreay high number of 387.000 in 2012). That is the highest growth to report since 1993 (!).

These good news are partly due to the fact that the economies of the Southern European countries are (still) not doing well (e.g. Greece, Italy, Portugal and – to a lesser extent – Spain) and others are also struggling to a certain extent (e.g. France, Netherlands) whereas Germany is happy enough to have a very strong economy despite of the economic crisis on a global scale and therefore is in a position to add a lot of fuel to the EU engine to keep it running. The fact that Germany is getting more attraction is however mainly due to the stable political situation and the reliable legal system that together create an enviroment that apparently seems to be friendly to investors and new arrivals. With regard to the latter one can say that this is not limited to the conditions for migrating to German and the possibilites to secure a “residence title for the purpose of gainful employment” (the offical name of the work permit) – even though the subject matter is still highly regulated and way too complexe in my opinion. Moreover, the frame conditions for establishing a business in Germany, for entering into business relationships by way of contracts with business partners and customers and also – if need given – to litigate are generally seen as advantageous.

At the end of the day it is the mix of all these aspects that makes migration to Germany even more succesful than it used to be over the last couple of years. There is nevertheless no need to stop thinking about how to improve the set of regulations that currently apply. From a corporate immigration law practioner’s standpoint, I am still convinced that with regard to the German immigration law system and its regulations there is still a lot to be changed. For instance, the fact that for many visa categories a local employment contract is a must does pose as many problems as the condition to have health insurance that is at least equivalent to German standards (this being rather difficult if not impossible to proof when having no local coverage). Moreover, processing times are still way too slow not to mention the lack of communication by some (not all of course) authorities. Finally, there should be access to a fast track procedure and to special authorities or competence centers whenever corporate immigration is at stake.

A final comment since this has been discussed a lot in Germany and perhaps also abroad over the last couple of days: It is by coincidence that on the same day the Federal President Gauck has been welcoming any immigrant to Germany by stressing that immigration is key to Germany whereas Chancellor Merkel has been making the point that Germany is not in favour of any misuse of the EU social union rights. This is however no contradiction since the issues at question do quite differ. Gauck has been addressing the issue from a more general standpoint in a speech at the occasion of the 65th anniversary of the Federal Consitution whereas Merkel has been rather commenting on the opinion of the Advocate General preparing the upcoming decision of the European Court of Justice (that in most of the cases follows the opinion) according to which any member state can limit the social rights of EU nationals that have not really sought employmetn during their stay whils receiving social welfare benefits after a period of 6 months. To a certain extent her comment may also be put down to the fact that we are having elections on both the local and the EU level on Sunday so by her commente she has probably also tried to tiece some votes away from EU sceptical right wing parties (that unfortunately have a lot of access notably in the UK and France). At the end of day I do nevertheless strongly believe that both of them are in favour of migration to Germany and are absolutely right!

Looking forward it will be interesting to see if in 2014 Germany can keep the pace and continue or even increase its migration to the country so please stay tuned …

by Gunther Mävers, ABIL Lawyer
#GERMIMMLAW

Since December last year and then continuously growing since the beginning of this year the issues related to (corporate) immigration are getting more and more attraction in politics in Germany this being well reflected by many articles dealing with the issue in the press on a nearby daily basis. In my opinion this is due to various reasons:

Firstly, whereas the discussion – if and how corporate migration to Germany should be facilitated and how talent can be attracted to Germany – has been running at various levels for many years the topic recently has made it to the front pages due to the fact that from 1st January 2014 on Romanians and Bulgarians have been entitled to freely move within the EU without any limitation. It all started with a discussion in the UK that is rather hostile and driven by the fear that, after having taken on hundreds of thousands of Polish nationals after they have been granted full movement of labor rights effective as from 1st, January 2004, now the Romanians and Bulgarians would be “flooding” the country. Some politicians where even suggesting to limit the right of Bulgarians and Romanians to move to the UK and to engage into employment, which is absolutely pointless since any such peace of legislation would clearly be violating EU law.

Secondly, the discussion, which was mainly initiated by the UK, has also been taken up in many other Western European countries, including Germany where nationals from Romania and Bulgaria have been generally accused of wanting to migrate to Germany for the main (if not only) purpose of receiving social welfare benefits from the German state. The latter seems, however, to be proven wrong by statistics as recently published by the Cologne Institute for German economy according to which the percentage of academic backgrounds of migrants from Romania and Bulgaria is even higher than with German nationals. Moreover, many politicians and experts have made it clear that Germany should focus on creating an atmosphere of welcoming rather than trying to block the country for talent that is desperately needed.

Thirdly, the issue is getting attraction for a far more wide-reaching and general reason. According to statistics Germany – like many other EU member states – has both an aging and a decreasing workforce and population. Against this background, it is highly likely that in a number of years (not even decades) Germany will desperately need to rely on foreign workforce. Hence, it is stressed that instead of making the right to immigrate and work in Germany subject to the exception that no third-country national shall be allowed to engage into employment without a residence title allowing him or her to do so this should be rather changed to the opposite.

It is true that over the last couple of years it has been already made a lot easier to attract talent and to secure work permits for companies investing in Germany and the individuals that they want to employ. However, there is still potential for improvement and there are still too many bureaucratic obstacles making it to difficult or even impossible to get the right people into the country which must – based on the needs of nowadays business – often be realized at short notice. Germany needs to improve its system in order to make sure that immigrants feel that they are welcome in the country.

Gunther Mävers ([email protected]), Cologne, January 2014