Charles University Prague

Faculty of Social Science

Multiculturalism in Western Europe and North America

PhDr. Laura Laubeova

Summer term 2001

Immigration Policy in Germany

Markus Müller

1.       Introduction

2.       The Asylum Law

2.1 The law from 1949 before the change in 1993

2.2 Reasons for the change

2.3 Discussions before 1993

2.4 Results and the new law

2.5 Critics and the actual debate

2.6 Excurse: The new citizenship law of 1999

3. Summary

4. Bibliography

1.                   Introduction

“Germany is an immigration country and everybody should see it as this.” This sentence can be heard very often in the actual debate about the question whether to change a law in connection with immigration or not. Politicians and scientists agree that there is a need for immigration because of the declining German population and the need for young workers who can stabilize the German pension system. But what kind of immigrants do the Germans like to have? Who should have the right to enter, to live and to work in Germany? Should it be regulated and who should regulate it? All these questions are not new and the question of immigration is discussed in Germany since the birth of the state in 1949.

This essay will focus on the change of the article 16 (so called Asylum-article) of the German constitution in 1993, which is one example of a change in German politics according immigration and the treatment and the understanding of foreigners in this country. The essay will show the discussions, the change of the article and the reasons for the changes. At the end there will be a discussion about actual problems and in short excurse a look on a related problem – the German Citizenship-Law.

2.                   The Asylum Law

2.1               The law from 1949 before the change in 1993

The “fathers” of the new German constitution, which was passed in 1949, decided to introduce a very liberal article concerning the question of asylum in the Federal Republic of Germany. The article 16 section 2 clause 2 GG was very short and consisted only of one sentence without any limitations: “Persons persecuted on political grounds shall have the right of asylum.”[1] The first articles in the German constitution are the so called basic rights, which means that a change of this articles is more difficult and can only be done by a two/third majority of the parliament. Article 16 GG is one of the basic rights, so it is obvious that the right of asylum has a special position in German constitutional theory. Klaus J. Bade mentions in his book “Auslaender, Aussiedler, Asyl” that this liberal article without any limitations was a unique specimen in the international comparison of constitutions.[2] This liberal law must be seen in the historical background of the creation of the new German constitution after World War II. A lot of the “fathers” of the Constitution had suffered persecution in the Third Reich and had been depended on the possibility to get asylum in other countries to rescue their lives, that they believed that this liberal asylum law is very important for a democratic German state.

But from the beginning there has been some differences between constitutional theory and constitutional practice and it was very often criticised that Germany set the standards, who is persecuted on political ground by their own interpretations. The Geneve Convention on Refugees was not used in the German jurisdiction.[3]

2.2  Reasons for the change

In the whole literature dealing with the change of the Asylum Law in 1993 you can find mainly one reasons for the change of the law: the increasing number of Asylum seekers. The Asylum article came on the political agenda and became aware in the mind of the people with the beginning of the 80ies when the number of asylum seekers increased from 100.000 in 1980 to 193.000 in 1990 and 438.000 in 1992.[4] Because of the increasing numbers of Asylum seekers the proceedings for the people started to be very long and the situation was very unsatisfied for the people who had asked for asylum and had to wait for a long time until they knew whether they could stay in Germany or not.

The increase of people seeking for Asylum in Germany has mostly one reason: the collapse of the communistic states in Central and Eastern Europe. Many people from these countries try to find asylum in Germany. Important has been the number of refugees from former Yugoslavia, who left the country because of the Civil War and a high number of Romani refugees, who came mostly from Rumania.[5] A special group in this time has been the so called “Aussiedler”. These people are Germans according to the citizenship law of 1912 because their parents have been Germans even when they had lived for more than one generation in another country. A lot of these (mostly Russian-) Germans could come to Germany without applying for Asylum because they were regarded as German citizens even when they could not speak any word of German. But the integration process of these group and the problems connected to this special immigration is too broad to be discussed in this work.

2.3               Discussions before 1993

As mentioned in chapter 2.1 the article 16 GG is one of the basic rights in the German constitution so it was necessary to convince a majority of 2/3 of the German members of parliament to change the article. The situation in the German parliament in 1992/93 looked like this: The majority of votes had the two coalition parties CDU/CSU (Christian Democratic Union/Christian Social Union) and the FDP (Free Democratic Party) who formed the actual government at this time. In opposition has been the SPD (Social-democratic Party of Germany) the Green Party and the PDS (Party of Democratic Socialism). With the beginning of the discussions it was soon obvious that the Green Party and the PDS would never agree to a change of article 16 GG, so the effort of the governmental coalition was focused on convincing the SPD, which would lead to a 2/3 majority in the parliament. The CSU, which is the more conservative part of the CDU/CSU group, wanted to abolish section two of article 16 GG which means that there would not be the basic right for asylum in Germany anymore. The SPD and the FDP were against this abolition, so the negations to find a compromise started between the SPD and the government coalition and within the governmental coalition. The whole discussion was very emotional and very often far away from political or parliamentary culture. Politicians played with the emotions of the population and there was a tendency in some parties to find a very populist solution.

A lot of scientists and serious journalist were afraid that the political culture could get unchanging damage and they have been afraid of the German reputation abroad.[6]

One of the most popular sentences in this time was: “the boat is full”. This sentence was used by politicians of parties from the right wing as well as from politicians of the conservative parties.

Edmund Stoiber (CSU - at this time minister in Bavaria) was quoted in 1992 when he spoke about the “misuse of the law” and “refugees because of economical reasons”.[7] Even harder words has been used by Max Streibl in 1991 (CSU – at this time prime minister of Bavaria) when he spoke about a “multi-criminal society”.[8]

On the other side Joschka Fischer (Green Party – at this time minister in Hesse) said in an interview in 1991 about the personality of Volker Ruehe (at this time general secretary of the CDU): ”Mister Ruehe is not a racist. But he is using the methods of one - […] -political dirty thing, which plays cynically with irrational, xenophobic, racist instincts, to lead his party to more success in the elections.”[9]

The questionable thing about this sentence is, whether it was or still is possible to be successful with this kind of politics in a democratic state as Germany.

Heribert Prantl of the German Newspaper “Sueddeutsche Zeitung” criticized the whole argumentation and discussion: “We discuss article 16 GG as if it is a kind of a name for a new virus.”[10]

Topic of the more serious discussions has been analysis of the push- and pull-factors, which lead to immigration and emigration. Most theories believe that the push-factors are the stronger factors, which make people emigrate from their home country. Push-factors can be civil wars and wars, the spread of diseases, natural catastrophes as earthquakes or pollution. Pull-factors can be the liberal immigration law of a country, the good financial support for immigrant or families who have been already immigrated to other countries. The CDU/CSU politicians mostly argued that the pull-factors of Germany are to big and could make people ask for asylum even when they are not persecuted. Politicians from other parties had a more global view on the problem and where trying to find solutions to improve the situation in the home-countries of the refugees to help there.

Parallel to the discussions inside and outside the parliament there has been frightening attacks on foreigners in Germany. Houses were asylum seekers lived were set on fire and people died because of violence, which was used more and more often by skinheads and so called Neo-Nazis. The reputation of Germany was suffering a lot and people argued that the politicians with their populist arguments opened the way for criminal acts against foreigners, because these radicals thought that they express the will of a huge number of people in Germany. Fortunately there has been a protest movement against this violence and hundred thousands of people build some light-chains to show their support for the questions and interests of the foreign population in Germany.

Perhaps the best suggestion from politicians in this time came from Gerhard Schroeder (SPD – at this time prime minister of Lower-Saxony) in 1992. He asked for a commission, which should deal with all questions of immigration and refugees and which should develop standards and quotas. “Let’s create a real immigration policy, the ‘asylum-problem’ will be solved immediately.”[11] He argued that Germany has to consider itself as an immigration country.

2.4               Results and the new law

The change of the basic right for asylum was part of the so-called “asylum-compromise” in December 1992 between the CDU/CSU and the FDP and the SPD. The main goal was it to keep the right on asylum for really persecuted people but to limit and to control immigration, “to save the inner peace and security, and finally not to endanger the reputation as a tolerant and open state.”[12]

New is the article 16a GG, which still consist of the individual right for persons persecuted on political grounds to get asylum in Germany but now with some limitations expressed in section 2 of the new article. Nobody can claim on the basic right on asylum when he enters Germany from another state of the EU or from a so-called “safe-third-country”. Safe-third-countries are states in which the Geneve Convention on Refugees is accepted. According to this interpretation all states surrounding Germany are “safe”. As there are Norway, Czech Republic, Poland and Switzerland. Refugees coming from this country do not have to be heard, no proceedings will be opened and they have to be sent back to the country, where they are coming from (the safe-third-state).[13]This limitation is the strongest in the new article but in section 3 of the new article 16a GG there is mentioned the possibility to announce some other countries, in which it is obvious that people do not have to suffer persecution. People coming from these countries do not have the right for asylum in Germany as well. These countries are called “safe-origin-countries” and include: Bulgaria, Ghana, Rumania, Hungary, Senegal and Slovakia.[14]

Parallel to the limitation of the basic right there has been some other new regulations for asylum seekers. The problem, which is discussed very often during the last years, is the question of the airport proceeding in Frankfurt. This airport is the main entrance for asylum seekers and the new law tries to build some barriers directly at the airport. The asylum seekers are kept in a kind of “camp” at the airport until the finish of their proceedings so that they have not the possibility to enter Germany before the end of the juristic procedure. The whole proceeding should be done in less than 19 days directly at the airport. This system is criticized very often and the living conditions at the airport are often questioned by organisations like “amnesty international” and “human right watch”.[15]

But not only the article 16 GG has been changed, there has been as well some changes in the laws concerning the treatment of asylum seekers. The amount of money they receive has decreased and instead of money they often get coupons for buying things. So the living conditions of asylum seekers are worse than before which should be a sign for the withdrawal of the pull-factors.

One part of the problem has been shift to the German embassies, which should restrict the delivering of Visas for people willing to visit Germany.

One really new and good result of the debate was the introduction of  extra categories for war and civil war refugees, who are now not longer seen as asylum seekers and who do not have to get through the whole proceedings.

2.5 Critics and the actual debate

The discussion about the new asylum law is still going on and there are still some political parties as the CSU, which wants to abolish the basic right for asylum in Germany. They do not have the majority but this idea is still visible and vivid in the German immigration discussion. “The basic right for asylum must be changed into an institutional guarantee,” is one basic sentence in a paper published by the CSU.[16] The CSU stresses again the problems, which the society has to faced, when there is a massive immigration of non-German-speaking refugees.[17]

Erwin Teufel, the prime minister of Baden-Wuerttemberg (CDU), calls for “dramatic limitations” for asylum seekers and for stricter Visa regulations.[18]

On the other hand there are some politicians who say, that with the introduction of limitations to article 16 GG there is a de-facto abolition of the basic right for asylum. In 1949 Hermann von Mangoldt (CDU) said that if there would be any limitation of the article 16 GG, there had to be controls at the boarder, which are made by boarder officials. According to this (the lack of the possibility to go to court) the whole article would be useless.[19] This quotation is used by politicians of the Green Party to defend the basic right for asylum in the old version.

The Green Party criticizes as well the airport proceedings and the inhuman living conditions in the “airport camps”. After the suicide of a young woman in Frankfurt, who asked for asylum and waited at the camps for refugees at the airport, there has been again a big discussion whether the conditions should be changed. But either Hessia or Otto Schily, the German minister of home affairs (SPD), have the will for any change according the proceedings at the airport. The living conditions should be improved, but there will be no possibility for asylum seekers to enter the country and to wait somewhere else for the end of their proceedings.[20]

The next important topic in the actual debate is the harmonization of European asylum policies. Jack Straw, the British minister of home affairs, calls for a radical and quick system of European immigration and asylum regulations to reduce the pressure on certain states in the EU which are more affected by the increasing numbers of asylum seekers.[21]

On the other hand Kofi Annan, the general-secretary of the UN, criticize the European asylum policy for being intolerant. The EU misses its obligation to protect refuges according to international law. Restrictive policies would lead to an increasing number of refugees and illegal immigration.[22]

The last point is one of the most interesting because nearly everybody, who is concerned about asylum policy, sees the problem of increasing illegal immigration, when legal immigrations seems to be no possible way for most of the refugees anymore.

2.6 Excurse: The new citizenship law of 1999

In 1999 there has been an historic change in the citizenship law of Germany. The old law was very old (from the year 1912) and the principle for the German citizenship was the so-called “ius sanguis”. German is who has German parents. Being German was a kind of fame, as Georg Hansen mentioned in his article about the German citizenship law in 1999. German citizenship was based on the German “race” (very often the term “German people” has been used). One goal of this law was to allow “Germans” who were living in other states to feel as “Germans” and to spread German culture in different countries than Germany.[23]

According to this law it was very difficult for people who immigrated to Germany to get the German citizenship. For a lot of so-called “guest-workers”, who lived for more than two generations in Germany it was still not easy to get German citizenship without loosing there own. Dual-citizenship was not very common and the possibility was restricted.

After big discussions between the political parties and inside the society the parliament found a solution and in May 1999 a new citizenship law was passed with the votes of the SPD, the Green Party and the FDP. The discussion can be compared with the discussions before the change of the asylum law in 1993. Some politicians played with irrational xenophobic feelings and the CDU started a discussion about the “German leading culture”.

The result is a new law which mixes “ius sanguis” and “ius solis” and makes it easier for foreigners in Germany to get the German citizenship. For persons older than 18 years it is possible after a 8 years stay (instead of 15 according to the old law) to get the German citizenship, and for people under 18 years it is possible after 5 years (instead of 8). The appliers have to agree to the free democratic basis of the German constitution and they have to have sufficient knowledge of the German language. Dual-citizenship is possible.[24]

The actual German law is (as mentioned) a mixture of  “ius sanguis” and “ius solis” and Otto Schily, the minister of home affairs, valued the new law as a law, which will bring Germany to a European level and which will open Germany a new understanding of the state and their citizens.[25]

Of course, the new law is criticized by a lot of people. The CDU is unhappy with the possibility of dual-citizenship, because their politicians think that it will be an obstacle for real integration and the citizenship must be at the end of the integration and not at the beginning.[26]

On the other hand some members of the Turkish community say that the new law is not going far enough and the possibilities to get the German citizenship are still stricter than in other European countries. They argue that the citizenship is the basis for good integration and should not be the result.

But, to conclude with the words of Otto Schily, Germany made a right step towards a common understanding of citizenship in Europe and has now a more modern citizenship law, which allows a lot of families to become Germans.

3. Summary

The preceding chapters showed the difficulties and the problems according to the question of immigration into Germany. Because of the special history of Germany, the treatment of foreigners and refugees is regarded strongly by other countries and the German politicians have to think about the reputation of the country abroad when they deal with these sensitive topic. Populist arguments may help to win the next elections, but they do not solve the problems of integration and they do not improve the relation between foreigners and Germans. Today there is the hope for a broad discussion on all topics of immigration and there is a development, which shows that Germany is an immigration country and which also shows that Germany needs to be an immigration country to solve the problems of the future.

The governmental commission on immigration topics will finish its work at the end of June 2001 and their results should be the basis for a new time in German immigration history, when immigration starts to be regarded as something positive, which helps the country to develop. But the politicians should not forget to take their citizens with them on this new way. They should spend more money and effort on integration programs and on efforts in educational work to get the support of the people for the new politic.

4. Bibliography

Bade, K.J. (1995): Ausländer Aussiedler Asyl. Eine Bestandsaufnahme, München.

Basic Law (1949): In: http://eng.bundesregierung.de/frameset/index.jsp

Hansen, G. (1999): Deutschsein als Schicksal. In: Frankfurter Rundschau 10.02.1999.

Gamillscheg, H. (2001): Annan rüffelt die Europäer wegen ihrer Asylpolitik. In: Frankfurter Rundschau 31.01.2001.

Rethmann, A. (1996): Asyl und Migration. Ethik für eine neue Politik in Deutschland,  Münster.

Wecker, G. (1995): Das Bundesamt für die Anerkennung ausländischer Flüchtlinge. Aufgaben und Entwicklung im Spiegel der Asylgesetzgebung. In: Schock, H./Wecker, G.: Einwanderung und Asyl, Nürnberg/Bonn, p. 41-60.

Frankfurter Rundschau 08.01.1999: Türken-Appell an die Deutschen. Entsetzen über die Haltung der Union zur Staatsbürgerschaft.

Frankfurter Rundschau 10.02.2001: Der Brite schwingt die Axt. In der Frage eines einheitlichen Asylrechts liegen die Positionen der Eu-Minister noch weit auseinander.

Frankfurter Rundschau 16.03.2001: Hessen lehnt Änderung bei Flughafen Asyl ab.

Frankfurter Rundschau 02.04.2001: Teufel fordert deutliche Einschnitte beim Asylrecht.

Frankfurter Rundschau 20.04.2001: CSU beharrt auf Änderung des Asylrechts.

Frankfurter Rundschau 22.05.2001: Ein unpolemischer Schlusspunkt. Bundesrat beschließt die Reform des Staatsbürgerschaftsrechtes.