Temporary agency work with third country nationals in Germany: how section 40 blocks most models
Section 40(1)(2) AufenthG forces the Federal Employment Agency to refuse consent when a third country national is to work as a hired out employee.
An employer who wants to hire a third country national through a staffing provider and place that person at a client site usually stops at section 40(1)(2) of the Residence Act (AufenthG). The Federal Employment Agency must refuse consent to the residence permit where the person is to work as a hired out employee under the Temporary Employment Act (AÜG). The refusal is mandatory, not discretionary.
The block sits inside the consent procedure
Almost every hire from abroad runs through the consent of the Federal Employment Agency. The foreigners authority or the German mission abroad brings the agency into the file, the agency checks pay and working conditions against a comparable domestic job, and only then is the residence permit for employment issued. Section 40 AufenthG sets out when that check ends in a refusal.
Two grounds are mandatory. Under section 40(1)(1) AufenthG consent must be refused where the employment relationship came about through unlawful placement or recruitment. Under section 40(1)(2) AufenthG it must be refused where the person is to work as a hired out employee within the meaning of the Temporary Employment Act. In both cases the agency has no room to decide otherwise. The text is published at gesetze-im-internet.de.
Sections 40(2) and 40(3) AufenthG add discretionary grounds. Consent may be refused where the employer has been sanctioned in the past five years for a breach of labour, tax or undeclared work law, where earlier breaches of that kind are on record, or where an employment relationship exists only on paper to obtain entry. A company that has closed a customs inspection with a fine carries that history into every consent file for five years. How those inspections run is set out in the customs inspection for undeclared work.
What remains possible
The block attaches to the consent, not to the hiring out itself. Where the residence permit is issued without consent of the Federal Employment Agency, or where the person already holds unrestricted access to the labour market, section 40(1)(2) AufenthG does not apply. That covers holders of an EU Blue Card, holders of a settlement permit, and holders of any title that allows employment without further involvement of the agency. Legal commentary on the 2026 position, including Noerr and Rödl, reads the provision the same way.
In practice the question is not whether a foreign worker may work in staffing. The question is whether the residence permit behind that worker rests on agency consent.
| Residence status | Consent of the Federal Employment Agency | Hiring out under the AÜG |
|---|---|---|
| Permit under section 18a or 18b AufenthG with consent | required | excluded by section 40(1)(2) AufenthG |
| EU Blue Card | generally not required | possible |
| Settlement permit | none | possible |
| Permit with unrestricted labour market access | none | possible |
| Entry through the fast track skilled worker procedure | required | excluded |
Employers planning entry under section 81a AufenthG should price the block in early: the procedure shortens appointment waiting times but leaves the consent requirement untouched. The steps are set out in the fast track skilled worker procedure.
The AÜG licence and the cost of not holding one
Regardless of the nationality of the workforce, every provider that hires out staff needs a licence for temporary agency work. The Federal Employment Agency issues it under section 1 AÜG through its regional directorates, and publishes the application papers and fee notes at arbeitsagentur.de. The licence is first granted for one year and has to be extended before it lapses; after three uninterrupted years an open ended licence becomes possible.
Where the licence is missing, the statute states the consequence itself. Under section 9 AÜG the contract between provider and client is void, and under section 10 AÜG an employment relationship is deemed to have come into existence between the worker and the client company, with wage and contribution duties from day one. For borderline cases the agency's own instructions on the AÜG apply, currently in the version in force from 1 July 2026.
The usual failure runs like this. A client company orders twenty welders for an assembly season, the staffing provider recruits in Nepal, the employment contracts name the provider, and only in the consent procedure does it emerge that the place of work is a third party. The agency refuses, the visa applications go nowhere, and the season starts short. The fix is almost always to place the employment contract with the company where the work is done, which means new contracts, a fresh comparability check and often a further recognition of the vocational qualification. Those requirements are set out in foreign qualification recognition.
An employer covering demand through a provider therefore settles two points before recruitment starts: who is named as the employer in the contract, and whether the planned residence permit depends on agency consent. Both answers exist before the first flight is booked, not after. Employers working a specific corridor can find the same detail under employers.
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