1. Beschäftigungsduldung

Recently, we have become aware of cases in which Gambians and other Africans would actually have fulfilled all the requirements for Beschäftigungsduldung, but have not received it. The problem is that they have not handed in their proxy passports despite being asked to do so, sometimes several times, usually because they are afraid of being deported. Some people think they can wait for the 12 months of Duldung and then hand in their passports.

In doing so, they are absolutely certain to be banned from working. Even if this is immediately lifted, if the passport is then presented, this is considered a self-inflicted work interruption!
Only “short-term interruptions for which the foreigner is not responsible” (§60dAufenthG) – normally up to 3 months, during Corona up to 6 months – are not counted as work interruptions when counting the 18 months of employment.
However, it is different in these cases where the request to hand in the passport is not respected. Even if the work interruption lasts only one month and the person can continue to work in the same company, the Regierungspräsidium Karlsruhe does not issue Beschäftigungsduldung. It does not even check the other requirements. The counting of months in full employment starts again at zero. The affected persons thus have a year and a half ahead of them, during which they have no legally guaranteed protection against deportation. Their behavior is completely counterproductive.

We would like to ask everyone in the network to check whether your clients and your supported persons are such candidates for the employment toleration and to inform them accordingly. Especially the Gambians in the network we would like to ask to point out these rules to their compatriots and to make clear the consequences if the passports are not handed in.

  1. cost reimbursement or subsidy for the procurement of documents.

What is not always known is that if a refugee does not have the financial means to obtain proof of identity, assistance can be applied for at the social welfare offices of the counties and cities.
According to information from the Regierungspräsidium Karlsruhe the responsible social authorities have the obligation to ensure that the benefits are provided. These are therefore the social welfare offices (Sozialamt) in counties (Landkreis) and cities, which also pay out all other benefits according to AsylbLG.
The basis is the “Asylbewerberleistungsgesetz (AsylbLG), § 6, Other Benefits”, where it states:
“Other benefits may be granted in particular if they (… ) are necessary to fulfill an obligation to cooperate under the administrative law.”

However, it is unclear how the costs are estimated by the social welfare offices and whether and what receipts are required for them. Especially in The Gambia, receipts for expenses and fee notices are not readily available. If there are any experiences in this regard, please let us know.

  1. problems with the issuance of a residence permit after successful vocational training.

Fortunately, more and more tolerated refugees are able to successfully complete theirvovational training and apply for a residence permit (Aufenthaltserlaubnis) under the so-called 3+2 rule.
207 Gambians throughout Germany have a residence permit (§ 18a/19d AufenthG) for employment with completed vocational training as of December 31, 2020. This makes Gambians the third largest group after Afghans with 652 persons and Albanians with 317 persons. It is becoming evident that this summer, too, many Gambians will be able to successfully complete their training and apply for a residence permit.

We ask you to note the following in this regard:
a. The residence permit can only be issued if, after the training, employment is taken up that corresponds to the qualification acquired. In the case of employment that does not require the vocational qualification acquired, the residence permit will not be issued.

b. The granting of a residence permit for employment requires the consent of the Federal Employment Agency (§ 39 AufenthG)! However, it does not do so if the foreigner is employed as a temporary worker ( § 1 section 1 of the Temporary Employment Act). According to § 40 section 1 no. 2 AufenthG, therefore, no residence permit is issued if the foreigner works as a temporary worker.

Thus, skilled workers with Duldung who are not employed by the training company after their vocational training, but who have found employment with a temporary employment agency in their trained profession, cannot be granted a residence permit (Aufenthaltserlaubnis). Instead, they are usually issued a Duldung “without resolutive bond”. According to the Regierungspräsidium Karlsruhe, this means that deportation is reliably suspended until the person concerned is employed by the hiring company or has found direct employment with another company and can reapply for his or her residence permit in accordance with § 19 d AufenthG. It may also be possible and reasonable to apply for an Beschäftigungsduldung according to 60 d AufenthG for the duration of the employment with a temporary employment agency. The residence permit (Aufenthaltserlaubnis) according to § 19 d AufenthG can then also be re-applied at any time after being taken over by the company or after a change to direct employment.

4. Competence for Migration shifts in Baden-Wuerttemberg

In Baden-Württemberg, the responsibility for migration, asylum, residence and deportations no longer belongs to the Ministry of the Interior, and thus to Thomas Strobl, but to the Ministry of Justice under the leadership of CDU Minister Marion Gentges. State Secretary Siegfried Lorek will focus on migration issues. It is not yet known what impact this change will have.

Source: Gambia-Helfernetz