Ausländerbehörde refuses work permit and is acting against the law

Question

Dear all,

My wife has filed an asylum application on  the 29th of January 2022, I have to also mention that she lives neither in Ankunftszentrum and nor in Aufnahmeeinrichtung. Now that she has found a job and we sent her work permit application to the ZAB Oberbayern on 03.05.2022, today on 16.05.2022 I called the ZAB Bayern and talked with the person responsible for her application, she was telling me that she must wait up to 9 months before applying for the work permit, I told her that she has the right to get work permit just after 3 months. She is telling us that ZAB Oberbayern is working differently from other office and there is no way to get work permit before 9 months. 
What are the legal ways to take actions on this matter? Do you think that she has the right to ignore our request and act against the law? I need your urgent response on this matter, Thanks

Comments

Dear @liebenleben, thank you for constantly reaching out to our plattform with your questions and I am also very sorry to hear that you have not gotten the information you were looking for yet. I will link our mbeon-experts @mbeon-Éanna, @mbeon-PetraN, @mbeon-rike, @mbeon-Gabriele, @mbeon-ruth here and I hope they have a **** at your questions you've asked and help you with an answer. All the best, Julia

Answer 1

Dear Wefugees team, I want to thank you for your kind answer on this matter.

We have been in contact with the person who is responsible for my wife in the ZAB through the counselling services (Diakonie), now she (Die Sachbearbeiterin) says that my wife's case is in progress and it will take up to three months to be processed since they have sent the application to the Agentür für Arbeit and BAMF and waiting for their answer. 

My question is is there a way to work and not get paid until she gets her work permit? since she does not want to lose this opportunity. 

Regards,

Comments

@Julia.Wefugees

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Update:just contacted Agentür für Arbeit, they have received the application for work permit and decided positive about it on 02.06.2022, but still it has not reached the ZAB.

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Dear @mbeon-Éanna, could you please have a **** at this question? Thanks alot. Best wishes, Julia

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If the job offer has already been approved by the Agentur für Arbeit, then it should not take long until the work permit is given.

It is not possible for her to work until the permit is issued, even if she was to be paid later.

The only alternative would be to work as a volunteer as voluntary work does not require a work permit, even if a small amount of money is given to cover the costs of volunteering (in German 'Aufwandsentschädigung').

Answer 2

Hi @liebenleben

Thanks for detailing your situation. I myself work in Saxony, not Bayern, and the rules around accessing the labour market while in the asylum process can vary slightly from German state to state. This is my understanding of the situation:

The Bavarian Ministry for the Interior states the following:

An asylum seeker who does not have to live in an ANKER center can be allowed to take up employment after the third to ninth month after submitting the asylum application if he or she does not come from a safe country of origin, unless the asylum application has been filed before August 31, 2018. Albania, Bosnia and Herzegovina, Ghana, Kosovo, North Macedonia, Montenegro, Senegal and Serbia are considered safe countries of origin. The granting is at the discretion of the immigration authorities. The positive and negative discretionary aspects resulting from the respective individual case are taken into account.

Here's the link to the original German text:

https://***.stmi.bayern.de/mui/asylsozialpolitik/zugang_arbeitsmarkt/index.php

The important word here is 'can'. The decision to allow your wife to work or not is at the discretion of the authorities (ZAB).

There is a detailed account of how the authorities are to decide on this in a document called Vollzugshinweise bei Beschäftigung und Berufsausbildung von Asylbewerbern und Geduldeten from the Bavarian Ministry of the Interior. It explains in great detail how the authorities are to decide in the case of a person who wishes to work in the months 3 - 9 of their asylum process and who do not live in a asylum seeker reception centre. Pages 13 - 20 cover your wfie's particular situation.

https://***.fluechtlingsrat-bayern.de/wp-content/uploads/2021/07/1_Vollzugshinweise_zur_beschaeftigung_und_berufsausbildung_von_asylbewerbern_und_geduldeten_vom_13.07.2020.pdf

An authority does not have the right to ignore a request. They are obliged to provide you with an asnwer in writing, either providing the work permit or rejecting the application. If they reject the application, they are obliged to provide the legal grounds for having done so.

If your application is not being processed, you can lodge a legal application called an emergency application (Eilantrag) with the local administrative court (Verwaltungsgericht). Depending on the circumstances, they can then make the authority decide on the matter. I advise you to seek out legal advice before taking such a step.

I also recommend you first contact a special project called Bleib in Bayern who work specifically on issues related to access to the labour market for asylum seekers in Bayern. Here's their contact information:

https://***.fluechtlingsrat-bayern.de/projekte/bleib-in-bayern/

Let us know if you need any more help with this.

Éanna

Comments

Dear @mbeon-Éanna, thank you very much for your answer! I will also link my dear colleague @Meike here, who works in Bavaria, maybe she could also add something to your answer. All the best, Julia