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Untitled -- Jürgen Haberland

Jürgen Haberland D 53117 Bonn, Febr. 6, 1998

Ministry of Interior - Germany Graurheindorfer Straße 198

Tel. ++ 49/228/681-3892

Fax: ++ 49/228/681-5103

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PLEASE NOTE: THE FOLLOWING REPRESENTS THE VIEW OF THE AUTHOR

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NOTES FOR THE SAN DIEGO CONFERENCE

Managing Migration in the 21st Century

Comparative Immigration and Integration Program

Institute on Global Conflict and Cooperation

Winter Workshop

Center for US-Mexican Studies

University of California, San Diego

February, 20, 1998

1. Introduction


Immigration and asylum policies are matters of common interest and of common concern in the Member States of the European Union.


The long-standing official policy of the German Government is to prevent further in-migration from outside European Union states and the European Economic Area, while supporting the integration of foreigners already residing in Germany.


The German economy is in the middle of a structural transformation, with the result that many jobs in the manufacturing sector are being eliminated as new positions in the service sector are being created. The same broadly applies to the rest of the EU Member-states.


Estimates predict that by the year 2010, more than 3 million low-skilled jobs will have disappeared. In addition, influential German labour unions have fought long and hard for the subsidisation of low-skilled, low-wage jobs, with the result that more and more companies feel compelled to out-source to lower wage countries in order to control labour costs.


Currently there are approximately 4.8 million unemployed in Germany, of which some 500,000 are foreigners.


Many foreigners arriving in Germany today face great difficulties with the language, lack the appropriate secondary school education, not to mention job training for skilled professions. With an overall unemployment rate of more than 20 percent, many foreigners in Germany end up on welfare. The percentage of foreigners on welfare in Germany has increased dramatically since 1980 from 8.3 percent of total welfare recipients to 26,3 percent in 1996, nearly three times their proportion of the total population (9 percent).


Any immigration law proposal would have to take current labour market conditions into consideration, with the result that any quota for employment based immigration could easily be filled by the millions of unemployed already living in Germany!


The need for large numbers of unskilled workers is gone. The elimination of the Iron Curtain has resulted in increased east to west migration through Europe, whereas pre-1989, most migration flowed south to north.


Germany, due to its central geographic location in Europe, and because of its generous social welfare systems and high wages, is one of the most attractive destinations for asylum seekers and illegal immigrants.


France has equal problems and pursues a similar official policy. France faces like all the other European states - strong pressure from immigrants and must combat illegal immigration.


None of the Member States of the European Union presently pursues an active in-migration policy.


On the contrary: All Member States´ policies take into account an extremely high level of unemployment throughout the Union which compels them to restrict further in-migration, especially for the purpose of employment.


The Governments of Germany and France do not support the introduction of an immigration law with quotas along the lines of traditional immigration countries like the United States or Australia .


2. Immigration policy of the European Union


France and Germany are Germany are not the only countries that restrict immigration. In December 1991, the European Ministers responsible for Immigration met in Maastricht and agreed on a restrictive policy. The European integration process requires the EU Member states to co-operate closely to solve problems related to immigration. This is where co-operation in the so-called Third Pillar of the EU Treaty comes in. The Council of the Justice and Home Affairs Ministers of the EU has confirmed this view in a number of resolutions and placed it on a European basis.


In February 1994, EU Commissioner Padraig Flynn submitted a "Commission Communication on Immigration and Asylum Law", in which it is underlined that the admission of foreigners needs to be restricted.


This Communication contains a number of statements which are still valid. The most important of them read as follows:


"Principles should be defined concerning the admission of .. third country nationals. With the present economic and labour market situation these admission policies will generally have to remain of a restrictive nature in the short term. This implies that the setting of quotas, a measure which has been suggested as a means to alleviate migration pressure, does not correspond with the existing economic situation in the short run.


The longer term approach to the issue of labour related migration will also of necessity have to take account of the developments in the economic and labour market situation in the Community. ... A longer term perspective will equally require the impact of demographic changes on the labour market into account.


It will therefore be necessary to monitor closely labour market developments in order to ensure that admission policies are capable of adapting to new demands....


If it were to be established that there was a long-term need for additional labour supply, the analysis should proceed defining costs and benefits of allowing for migration in order to fill up these gaps. Only if it were to be established that the net effects would be positive, the setting of quotas should be considered.


Such analyses should also be able of distinguishing between short-term conjunctural developments and structural changes."


3. No need for Immigration Quotas


Nonetheless there is a permanent public discussion as to whether it would make sense to have immigration laws with annual immigration quotas:


Some of those who advocate legislation of this kind argue:


There is still a need for foreign labour, because even illegals very often find a job and earn their own living.


It is true that illegals very often find jobs. But this often happens because they are willing to work for extremely low wages. By doing so they probably succeed in forcing Germans, EU-Member-States nationals and Third country nationals, already legally residing in the Member states, out of their jobs. Those who now are unem-ployed must be supported by the system of Social Security or live on welfare programs.


4. Admission of Third country nationals to the European Union


There are a limited number of legal bases for certain groups to enter and reside in Germany. German law allows legal entry and residence to individuals in the following categories:


EU country nationals

This is a consequence stemming from the right of free movement and free settlement for nationals of EU-member states.

There is presently no right of free settlement for third country nationals legally residing in one of the EU-member states. Thus a Turk living in France for 10 years is not entitled to look for a job in Germany or to settle here.

This however has been in discussion within the framework of the so called Third Pillar in the EU. Proposals to introduce a right of free settlement as an element of a new Europe without internal border controls has been rejected by most of the Member States. It is clear that this discussion will continue.

Spouses of guest workers, their children up to age 16

Within the European Union, Germany is the only country that requires parents from third countries to apply for family unification for children only up to age 16; other countries like France allow family reunion up to age 18 The reason for this relatively low age requirement is to prevent the immigration of juveniles lacking the proper education, language ability and professional training, necessary for successful integration into the German labour market.


Children arriving at the age of 16 or more regularly do not seek the care of their parents, who either left them in their country of origin or sent them there following their birth on German soil. These young people are looking for admission to the German labour market, rather than for family reunification.


They obviously have little chance to complete secondary school or acquire a proper school leaving certificate. Given this deficit they have little chance of finding a vocational training slot or a job.


It would be better for them to come to Germany at an earlier stage, attend a German school, learn the language and qualify for vocational training.


Otherwise they will more or less be condemned to live a life at the very bottom of the social ladder. They will be denied a life on equal footing with their German neighbours.


This is neither in the interest of the young people concerned nor in the interest of the receiving society.


Asylum seekers, once they are recognised as refugees

Certain asylum seekers who cannot be deported for humanitarian or other reasons

Since 1949, Germany had one of the most generous asylum laws in the world, guaranteeing the right to asylum without restriction. In 1993, after the number of asylum seekers swelled to nearly half a million, the German Parliament agreed to amend Article 16 of the Basic Law (German Constitution).


The new law restricts the right to asylum to politically persecuted individuals not coming from safe countries of origin and not travelling to Germany via safe third countries. These restrictions were found by the Federal Constitutional Court to be constitutional, and brought German law back into line with European norms. Since 1992, when the number of asylum applications reached a peak of 438.191 persons, the figures have shrunk considerably (1993: 322.599; 1994: 127,210; 1995: 129,937; 1996: 116,367; 1997:104,353).


Jews from the former Soviet Union


Germany offers permanent resettlement for Jews from the former Soviet Union. As a result of this initiative, the total population of Jews living in Germany has more than doubled.


Ethnic Germans called Aussiedler

Ethnic Germans, mainly from the States of the former Soviet Union, make up approximately up to 220,000 immigrants per year. The figures are declining. (1994: 222,591; 1995: 217,898; 1996: 177,751; 1997: 134,419).


It must be noted that the conditions for admission to Germany for ethnic Germans have become increasingly restrictive since 1990 and especially since 1993.


Would-be Aussiedler have to apply for admission from their country of residence and receive a special permit only if they qualify for admission. Inter alia they must now demonstrate a proficiency in German.


5. The Enlargement of the European Union


Those who advocate a proactive immigration policy for the EU-Member States fail to consider the prospect of European Union enlargement in the very near future.


For instance Poland, the Czech Republic and Hungary will soon become Members of the EU. This implies that the Right of Free Movement within the EU will be granted to all nationals of these new Member States. They will be entitled to look for jobs within the Member States of the European Union and to settle in any other Member State.


It can easily be predicted that many nationals of the new Member States will find it extremely attractive to leave their countries of origin and move westward. The appeal undoubtedly lies in the fact that wages generally are much higher in the existing Member States. The expectation of the European Commission that present differences in national wage levels will decrease seems to be a little bit too optimistic.


Free Movement will likely not be granted from the very first day of the adherence of the new Members to the European Union. There will most certainly be a transition period, at the end of which free movement will be established. This was the case with Greece, Spain and Portugal, where a period of 7 years was laid down in the relevant accession-treaties with the EU.


Free Movement will lead to growing pressure for increased immigration.


It can be expected that - not only because of their geographical situation - France, Germany, Austria and the Netherlands will be the preferred destinations for nationals of future Eastern member states of the EU.


6. The repatriation of Bosnian civil war Refugees


Although Germany's official policy aims at restricting immigration, for humanitarian reasons it admitted some 345.000 refugees from the civil war in the former Yugoslavia under Temporary Protected Status. Germany has been criticised for implementing a repatriation program for Bosnians with Temporary Protected Status, rather than offering them permanent residence (especially by European countries that did not take not so many Bosnian refugees themselves).


Since 1994, the European Union member states have agreed in principal to burden sharing, but have been unable to agree upon concrete guidelines. The idea behind burden sharing is for all members to have a common plan of action in the event of future emergency, so that the distribution of a large flow of refugees, for example, could be quickly and fairly implemented without long multilateral discussions.


Burden sharing came up as a particularly controversial topic because Germany took in more Bosnian refugees than all other European countries combined (345,000), and has received little or no support from other countries, with the notable exception of the United States. According to its own criteria, the US has agreed to process approximately 12,000 Bosnians still in Germany for permanent resettle-ment.


Contrary to public perception, the German Länder have not forcibly repatriated all Bosnians. To date approximately 950, primarily criminals, have been deported, and some 100,000 have returned voluntarily. Repatriation is proceeding in phases, with traumatised individuals and ethnic Croats and Bosnians from the Republic of Srpska being returned in later phases, and emphasis being placed on voluntary repatriation where possible.


7. Repatriation of Asylum seekers whose applications have been denied.


Germany has a strong interest in repatriating asylum seekers who have not been granted the status of refugee under the Geneva Convention.


The rigorous removal of rejected asylum-seekers and other foreigners is of decisive importance when it comes to solving general immigration problems. The termination of residence always depends on the co-operation of the receiving state. Therefore Germany plans to set up a network of readmission-agreements, especially with all Central and Eastern European neighbouring states.


Such an agreement was concluded with Romania in 1992. It proved to be exceedingly successful. The number of asylum applications from Rumania (103.000 in 1992) fell by more than 96 per cent (the rate of positive decisions was 0.14 per cent in 1992). Asylum seekers from Romania who after an Amendment to the German Constitution in 1993 were no longer admitted to the asylum-procedure upon reaching Germany via Poland, because they had already been in a third safe country where they could have applied for asylum under the Geneva Convention. Those who were rejected at the German border in most cases did not apply for asylum in Poland but simply returned to Romania.


8. The consequences or the Maastricht Treaty and the Schengen System


The Schengen Agreement has resulted in a number of positive developments towards a common migration policy. Such as:


A harmonised visa issuance policy
The use of a uniform counterfeit-proof Schengen visa
Introduction of a common information and look-out computer system (SIS)
Co-operation in fighting narcotic trade
Interagency and transborder law enforcement cooperation in tracking wanted criminals
Legal cooperation with representation and extradition

In the area of asylum, it is now possible to hold one and only one EU member state responsible for evaluating an asylum claim; thereby eliminating the duplication of effort and so-called asylum shopping. The EU member states have also agreed to common policies on 1) the legal definition of refugee, 2) clearly unfounded asylum claims, 3) safe third countries, and 4) safe countries of origin.


The EU member countries have also agreed to a catalogue of minimum guarantees for asylum applicants, including the :


Right to remain until the first decision is made regarding one's asylum application
The principle that deportation is suspended until the legal process (including court appeals) is completed
Right to a hearing
Right to an attorney and an interpreter if necessary
Possibility to communicate with the UN High Commission for Refugees

9. Excursion into: Naturalisation


German nationally is not acquired by birth on German soil.


Common rules related to the acquisition of nationality do not exist within the frame-work of the European Union.


Two groups of foreigners living in Germany have an absolute legal entitlement to naturalisation as of 1 July 1993:


1) Young foreigners, who

- apply for naturalisation after attainment of age 16 and before attainment of age 23

- have legally had their ordinary residence in the federal territory for eight years,

- have attended school in the federal territory for six years, of those at least four years at schools of general education.

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2) Such absolute legal entitlement is also granted to foreigners who have legally resided in the federal territory for 15 years or more and who are able to sustain themselves and their dependants.


German naturalisation legislation is based on the principle that multiple nationality should be avoided. In practice in about in one third of all naturalisations dual nationality is permitted for various reasons. Those who want to remain in Germany permanently should apply for German citizenship. When naturalised they acquire the right to vote on all levels and the right of free movement within the entire European Union.