Why “Erwerbstätigkeit gestattet” doesn’t always mean you can do whatever you want

Once you’ve been in Germany for a few years, the restrictions imposed on your work permit might melt away with the magic words “Erwerbstätigkeit gestattet” or “Erwerbstätigkeit erlaubt”. But these words can be misleading and have been known to put freelancers in a tight spot. We explain the confusing caveats of “free access to the job market”.

When you first come to Germany and get a residence permit that allows you to work, there can be very tight restrictions. If you’re an employee, your first work permit is usually tied to a certain job with a certain employer, at least for the first couple of years. If you’re a freelancer, you get a “job title” on your permit and you’re only allowed to work in that industry – the thing for which you have skills, qualifications and experience. Maybe it’s “graphic designer” or “software developer”.

But then the years pass and the restrictions can be loosened. In Berlin, it typically happens to freelancers after 3 years of working. The magic words “Erwerbstätigkeit gestattet/erlaubt” get added to your permit the next time you go to get it renewed. Surely this means you can take up any type of work that brings you profit, right? You’re finally completely free to do whatever you want…. aren’t you?

Not exactly.

There are some concepts you need to know more about to understand why these words aren’t always what they seem.

Erwerbstätigkeit

The definition of Erwerbstätigkeit is any type of activity that brings in a profit. It could be self-employment or employment: minijobs, part-time jobs, full-time jobs, skilled jobs, unskilled jobs, trade self-employment or freelancing.

Your permit’s legal basis

This is the main reason for your stay in Germany, your “main activity” from an immigration perspective, and it references a certain section of the German Residency Act (Aufenthaltsgesetz).

• If your spouse, parent or child is living legally in Germany and that’s why you’re here, it’s family reunification (e.g. §27 et seq AufenthG or EU Freedom of Movement Act).
• If you’re studying at university, it’s study (§16).
• If you have a skilled full-time job, it might be a blue card (§18b (2)), skilled employment (§18b (1) or another category of full-time employment (§19c).
• If you’re self-employed, it’s self-employment – §21 AufenthG – either §21 (1) if you’re a tradesperson or §21 (5) if you’re a freelancer.

…. just to name a few.

Nebenbestimmungen

Nebenbestimmungen are “ancillary provisions” or “side rules”. They are written on your permit and detail the conditions and restrictions of your permit (including your ability to work) in closer detail. Typical examples of Nebenbestimmungen include:

Erwerbstätigkeit gestattet – all types of work are permitted. If you have a family reunification permit, these words might be there from day one. Otherwise, you might have to wait a few years to get them.

Erlischt mit dem Bezug von Leistungen nach dem SGB II oder SGB XII bzw. AsylbLG – the permit lapses if the bearer receives benefits pursuant to the Social Code of Germany books II or XII or to the Asylum Seekers Benefits Act. This includes Bürgergeld (previously Hartz IV / ALG II).

If the legal basis for granting you the permit ceases to exist, then the permit can lose its validity too, even if the permit itself hasn’t expired yet.

Here are some examples:

• If you’re here as a spouse (family reunification) but you get divorced, the legal basis for granting you the permit (your right to reside with your spouse) no longer exists. You need (eventually) a new reason to continue to stay in Germany…. even if an ancillary provision says Erwerbstätigkeit gestattet. (However, the spousal residence permit can survive the divorce under certain conditions (§ 31 AufenthG), and if kids are involved, there are also ways to stay based on the child rather than the spouse, so this is by no means a reason to stay in an unhappy marriage!)
• If you’re a student at uni but you drop out of your course, the legal basis of your stay (your status as a student) is gone. Your permit can lose its validity, even if on paper, it is valid for another two years. This is true even if a Nebenbestimmung says that you’re allowed to take up employment.
• If you’re a skilled worker in a full-time job and you lose or quit that job, the legal basis of your permit doesn’t exist anymore. You need to make an application for a new type of permit, even if a Nebenbestimmung on your permit says you’re allowed to work as a freelancer. The new type of permit will depend on what your new reason for being in Germany is: maybe you get a full-time job or maybe you decide to go freelance, or maybe you marry your European sweetheart. Whatever you decide to do next as your main reason for being in Germany will be the new legal basis of your new permit.
• And: If you’re a freelancer and you stop being a freelancer because someone offers you a full-time job, your legal basis (being a freelancer) no longer exists. You need to switch permit types and get a permit based on the full-time job. Even if the Nebenbestimmung on your freelance permit says Erwerbstätigkeit gestattet.

To clarify, if you, the freelancer, have Erwerbstätigkeit gestattet on your permit and you still think that freelancing is your main occupation, then you can take up a minijob or a part-time job while you have a freelance permit, but only on the side/temporarily. Your main activity and income should continue to come from freelance work, otherwise, you need to switch permit type (the legal basis).

So if you, the freelancer, are done with freelancing in Germany (who could blame you?) and want to take up a full-time job instead and you have Erwerbstätigkeit gestattet on your permit, you must apply for a new type of permit and get permission to do the new job as your main activity. It’s OK to start working at the full-time job while you wait for a decision to be made on this.

Your new employer, unless they are particularly well-versed in immigration law, might not be aware of this. They will tell you they can employ you because your permit says Erwerbstätigkeit gestattet, and they are right – you can start working there. But they will probably fail to tell you that you need to switch permit types in the long run if this full-time job is not temporary in nature.

%&*$! What do I do now?

1: Once you get permanent residency, this issue goes away. So check to see if you are eligible for permanent residency, and if you are, apply for it while you can. If you’d like more information about permanent residency, feel free to book a coaching.

2: If you’re having heart palpitations reading this because you interpreted your permit incorrectly, let me assure you that you are not alone. You are one of many hundreds of immigrants who have assumed that the words Erwerbstätigkeit gestattet give you permission to do whatever you want in any scope, from now on. Often, people don’t even realise that their change of circumstances creates this issue until they get to the next permit renewal. Do not panic. I am not suggesting that you will get into trouble.

No one I have worked with has ever gotten into serious trouble, even years down the track – at the most, I have seen it incite a groan and a head scratch from the case worker at the permit renewal appointment. BUT:

• You are supposed to let the foreigner’s office know within 2 weeks if the work activity for which you were granted the permit (e.g. your freelancing) ends prematurely (§82 para 6 Residency Act).
• At your next appointment, you might be asked to make a decision about the main purpose of your stay in Germany and to change your renewal application accordingly.

If you have a freelance permit and you want to keep it that way, this might mean reducing the hours of the (employed) job to part-time and keeping freelancing as your main activity and main source of income. Or they might just let you continue with the full-time job on a freelance permit because hey, you’re earning enough to cover your living expenses one way or the other and that’s a good thing. I’ve seen that happen too. The outcome depends on so many different things.

What to do now? Don’t panic. Have a chat with an immigration lawyer (we recommend Legal Links) to figure out how to best approach your permit renewal.