Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied by the Government in its report.

1. Article 6, paragraph 1(d), of the Convention. The Committee refers to its previous direct request concerning the rights of migrant workers to equal access to legal recourse. Considering that, pursuant to section 72 of the 1990 Aliens Act, an appeal against the refusal to grant or renew a residence permit does not postpone the effect of such a refusal, the Committee asked the Government to indicate whether and by what means migrant workers are able to complete the necessary administrative formalities and have a right of access to legal recourse that is no less favourable than that available to German nationals. According to the Government, refusal to grant or renew a residence permit does not as such entail refusal of subsequent entry into the federal territory. The Government notes in its report that no visa is required for entry into the federal territory for up to three months in the case of the nationals of all countries bordering on the Federal Republic of Germany, provided that they do not carry out any remunerated activity. The Government therefore considers that the migrant workers concerned can attend to the necessary formalities on the spot in Germany. The Government also points out that, since German nationals do not fall within the scope of the Foreigners Act and do not therefore have occasion to have recourse to legal proceedings in this context, migrant workers are not treated less favourably than German nationals. The Committee notes this information. It wishes to clarify that equality of treatment in this respect means that it is necessary to ensure that the persons concerned - with no distinction on grounds of nationality between the migrant workers themselves - have access to the same legal remedies in respect of any decision concerning entry, or refusal to issue or renew a residence permit, or an expulsion order from the territory, as are available to German nationals in respect of administrative acts. The Committee notes that no information is provided on the manner in which migrant workers from non bordering States with Germany are able to fulfil the administrative formalities that may require presence in the country to appeal the denial of a residence permit. The Committee would be grateful if the Government could provide information on the manner in which access to legal proceedings is guaranteed to such persons.

2. The Committee asks the Government to state whether courts of law or other tribunals have handed down decisions concerning access to justice issues and, more generally, involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.

3. The Committee asks the Government to provide statistics on the number and origin of foreigners employed in Germany and to communicate the results of the relevant activities of the labour inspection services, in accordance with the provisions of the Convention.