Working without a residence permit
Consequences and possible solutions regarding the employment of foreigners without residence permits.
German Citizenship through VISAGUARD
whether and when it is possible to work without a residence permit
Consequences of illegal employment
everything about customs inspection procedures
Defense options in the case of illegal employment of foreigners
Table of Content
1. Working without a residence permit
2. Can you work without a residence permit?
3. Illegal employment of foreigners is a criminal offense
4. Procedure for customs inspection/examination by migration authorities
5. Conclusion: illegal employment of foreigners
1. Working without a residence permit
Special labor and residence laws apply to the employment of foreign nationals in Germany. These laws impose specific obligations on both employers and employees. Failure by either employer or employee to comply with these obligations constitutes illegal employment of foreign nationals. This can constitute both an administrative offense and a criminal offense . In serious cases or in the event of repeated offenses, the immigration authorities can also completely prohibit an employer from employing foreign nationals (entry in the Central Trade Register) and impose entry bans on the employee (so-called deportation interest).
Employers should therefore thoroughly review the residence permits of foreign workers to avoid illegal employment. It is important to review the work permit and any ancillary provisions (e.g., regarding employer commitment) and deadlines (e.g., regarding the expiration of the residence permit). Companies should inform themselves about the legal requirements of the Residence Act ( Section 4a of the Residence Act ) and ideally implement a documented review process. This minimizes legal risks and ensures legally compliant employment practices.
2. Can you work without a residence permit?
Working without a residence permit is only possible if the respective employment does not qualify as employment or gainful activity within the meaning of the residence permit (so-called " fictitious non-employment "). In all other cases, it is considered illegal employment. This applies in particular if the employee holds a Schengen visa. Therefore , illegal employment with a Schengen visa is also considered a criminal offense (Section 95 (1a) of the Residence Act) if no fictitious non-employment applies.
According to Section 30 of the Employment Ordinance, a fiction of non-employment exists in the following cases:
Management activities in a specific period
Business trips (including trade fair visits) and certain assignments
Research and in-company training
Vander-Elst stay in certain constellations
Activities of flight crew and seafarers
There are other (sometimes very specific) non-employment fictions (e.g., for charitable and religious workers or journalists). However, these are so specific that a description of them would go beyond the scope of this article. You are welcome to consult one of our lawyers about further exceptions to employment without a residence permit .
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3. Illegal employment of foreigners is a criminal offense
If customs or immigration authorities detect illegal employment or working without a residence permit (or with a Schengen visa), severe consequences may arise. The consequences for working without a residence permit include, among others, the following:
Possible penalties for employers illegal employment
Fine of up to 500,000 euros (Section 404 (3) SGB IV)
general ban on the employment of foreigners (GewO)
In serious cases of repeated offenses, imprisonment of up to one year (Section 11 (1) No. 2 SchwarzArbG)
Possible penalties for illegal employment
Fine of up to 5,000 euros (Section 98 (5) Residence Act)
Revocation of a residence permit and expulsion (Section 53 of the Residence Act, Section 51 (1) No. 4 of the Residence Act)
Issuance of a ban on residence permits (Section 5 (1) No. 2 Residence Act)
Entry ban (Section 11 (1) Residence Act)
4. Procedure for customs inspection/examination by migration authorities
Violations of the law on the employment of foreigners are frequently punished by the Customs and Immigration Administration . Customs regularly conducts inspections into undeclared work and illegal employment of foreigners. During the inspection process, employer and employee data are reviewed, interviews are conducted, and documents are requested. If suspicion arises, house searches and company audits may be conducted.
Anyone subjected to a customs inspection should immediately consult a specialized attorney to avoid legal errors and optimally defend themselves. Prompt and professional action can minimize penalties and limit the legal consequences. Often, a professional and efficient defense during the investigation can lead to charges being narrowed down or even dropped entirely. Even if a penalty is imposed, a defense by a specialized attorney can result in fines being kept to a minimum or entries being deleted from the Central Trade Register .
Summary of this Page
The illegal employment of foreign nationals in Germany is associated with significant legal risks for employers and employees and can result in fines of up to €500,000 as well as criminal proceedings. It is particularly important to thoroughly review residence permits and work permits before starting work – even with Schengen visas, illegal employment can be subject to severe penalties. Companies should establish clear review processes and adhere to the requirements of Section 4a of the Residence Act and the Employment Ordinance (Section 30 of the Employment Ordinance) to prevent the illegal employment of foreign nationals. In the event of suspicion or investigations by customs and immigration authorities, early legal advice is crucial to reduce penalties and prevent long-term consequences such as entry bans or business prohibitions.
