Inside Immigration Law

Migration Management and Policy Application in Germany

Tobias G. Eule

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317116165
• Edition: 1
• Topic: Law
• Subtopic: Immigration Law
• Index: Law

Inside Immigration Law analyses the practice of implementing immigration law, examining the different political and organisational forces that influence the process. Based on unparalleled academic access to the German migration management system, this book provides new insights into the 'black box' of regulating immigration, revealing how the application of immigration law to individual cases can be chaotic, improvised and sometimes arbitrary, and either informed or distorted by the complex, politically laden and changeable nature of both German and EU immigration laws. Drawing on extensive empirical material, including participant observation, interviews and analyses of public as well as confidential documents in German immigration offices, Inside Immigration Law unveils the complex practices of decision-making and work organisation in a politically contested environment. A comparative, critical evaluation of the work of offices that examines the discretion and client interactions of bureaucrats, the management of legal knowledge and symbolism and the relationships between immigration offices and external political forces, this book will be of interest to sociologists, legal scholars and political scientists working in the areas of migration, integration and the study of work and organisations.

Chapter 1 Can I Stay? Migration Policies in Germany

DOI: 10.4324/9781315588728-1

Amira’s family came to Germany escaping the chaos of a civil war. Their plea for asylum was denied in the late 1990s but due to the father’s bad health and the family’s three underage children the local immigration office decided not to deport them to their state of origin. Amira has never possessed a residence permit; instead, for over a decade she has resided in Germany on the sufferance of the immigration office. She cannot remember living anywhere other than in Germany, has only attended school in Germany. In a few weeks, Amira will turn 18 and, as an adult, her case will be judged independently from that of the rest of her family. Without a right to remain in the country, and on her own, she could be deported to a country she barely remembers having lived in – she has lived in Germany for most of her life, has her entire social network here. Today, Amira has gone to the immigration office to extend her certificate of sufferance, and to ask her caseworker about her future. Can she stay?

Yu studies Chemistry at the local university and is about to finish his Master’s degree with a good result. His studies were funded by a German foundation, and through them, he has been offered an internship at a pharmaceutical company that, if successful, could turn into a full-time job. His residence permit does not allow him to work and expires with the end of his degree. Can he stay?

Hassan has worked for a construction company for the past three years. He has enjoyed the work, and his supervisor has suggested that he could have his contract renewed. His residence permit and work permission expire with his contract, and his boss wants him to have them renewed first. Also, his wife and daughter have been living without him in his home country. Today, Hassan is visiting the immigration office to enquire about his residence permit, and the possibilities of bringing his family to Germany. Can they come? Can he stay?

Ursula has been visiting her daughter for the last three months, celebrating her seventy-fifth birthday with her grandchildren. Since the death of her husband, it has been difficult for her to cope on her own. During the past few months, she has enjoyed being around her grandchildren very much, and made life considerably easier for her daughter, who struggles with balancing work and being a single parent. Since Ursula’s visa expires next week, she is at the immigration office today to see if it could be extended for a few weeks, perhaps even for longer. Can she stay?

Saadi is Amira’s older brother and found it harder to adapt to living in Germany. He dropped out of school early and has struggled to keep a job for more than a few weeks. As a teenager, Saadi got into all kinds of trouble and has been charged with drug possession, theft, and assault. He has a son with a woman he no longer sees, but a residence permit because of the child, who is German. Last month, he had a huge argument with his ex-girlfriend because he cannot provide for his son. Also, he has been caught twice evading bus fares in the last couple of weeks and is now afraid that due to this, he will be considered a repeat offender and will not have his residence permit renewed. Today, Saadi has an appointment with the immigration office. Can he stay?

The lives of the five people waiting at the immigration offices could not be more different, and yet they share a crucial commonality: all five are at a decisive moment of their lives, at which it is not up to them to determine what will happen. All five individuals, their lives, hopes and imagined futures have to be assessed and decided on by the staff of the immigration office. Here, they become cases, organised not by name but by a code of letters and numbers, categorised by nationality and legal status. Here, they wait to be called into a conversation from which they hope to gain the answer to the one important question: Can I stay?

Who Can Stay – and Why

This book is based on a simple but often forgotten premise: that what actually happens in practice is significantly different from what is theoretically supposed to happen. Through an analysis of migration policy application, it reminds us that we need to take the frictions and discretionary practices of immigration bureaucrats seriously in order to fully understand the management of migration. In this, the book contributes to the field of migration studies and the public debate on immigration in Europe, but through on a detour from the more traditional approaches to the field. Over the course of the last decades, scholars have amassed crucial information about the nature, size and consequences of migration. Thanks to their work, we know a lot about specific migrant groups, distinguished by age, religion, gender, ethnicity or trade. There are also great treatises on hybrid, changing and unsettled (national) identities shaped by, and numerous comparative analyses of policies and legislation that respond to recent waves of immigration. However, we know only very little about how these policies are applied to individual cases, and have almost no insights into the institutions in which the legal status of migrants, and thus their fate as acknowledged members of public life, is decided. In focussing on processes of decision-making in immigration offices in Germany, this book offers to fill this gap, through an account of policy application and implementation on the ‘street-level’, where state officials and migrants interact face to face.

This book is not about individual stories, but the system that assesses and processes their requests. It is based on four four-month periods of participant observation in different immigration offices, gaining repeated in-depth and longitudinal insights into the implementation of immigration law in Germany. However, the study is neither a technical assessment of the efficiency of German immigration bureaucracy nor does it measure the application of individual paragraphs and passages of the law. Instead, this book adopts a broader approach and examines the law as well as those who apply it, the conditions under which it is applied as well as the forces that shape these conditions. In looking at the ‘human face’ of migration policy and immigration policing, this study sheds light on the practice of decision-making, and illuminates the dilemmas, troubles and hazards faced by immigration caseworkers in exercising their power: to decide who can stay – and why.

Migration is a topic that continues to occupy the mind of almost all European nations, from the cheap populism of right-wing parties to highbrow newspaper editorials, from pub brawls to the echelons of the university lecture hall. Indeed, the face of Europe and its member states seems to be changing dramatically, from the diversity of fast food joints to the possibly challenged relationship between religion, politics and private life. Germany, the focus of this study, has been late to acknowledge its role as ‘country of immigration’ and still, many political discussions are instigated much later than in other European states. In the 20 years since the fall of the Soviet Union and its allied states, however, Germany has ‘caught up’ with many developments faced by its neighbours: the rise and fall of populist anti-immigrant parties, a swell of immigrants with ethnic or national ties to Germany as well as high levels of asylum seekers, heated public debates, movements to move towards ‘multiculturalism’ followed by pronouncements of its death, and finally, federal legislation to deter, integrate, remove, naturalise and select migrants on their way into Germany. More recently, migration developments have become somewhat synchronised in Europe, to a great extent as a product of European Union legislation on migration issues, but also of the impact of global events. Thus debates over the nature of Islam in Western societies, counterterrorism legislation that focussed on migrants and targeted specific ethno-religious groups seen as potential enemies in the ‘clash of civilisations’ and increased levels of asylum seekers from countries of war have impacted all European countries, albeit not always to the same extent.

The immigration office – site and subject of this study – is more often than not about as far removed as possible from these debates about the political direction of migration politics and citizenship. Indeed, apart from occasional reporting on the gross mistreatment of individual migrants and their families, immigration offices usually do not appear to bear great relevance to the experts in politics, media and academia – and understandably so: The implementation of law to individual cases is complicated, technical and decidedly unglamorous. Furthermore, individual offices lack both legislative and political power to exert influence or be a part of the immigration debate. Yet decisions made by bureaucrats in the immigration offices have an immense impact on the lives of individuals and families, as residence law is superior to all other laws save the constitution, directly affects and regulates all aspects of life from social welfare to employment and is of particular relevance in countries with low naturalisation rates such as Germany. After all, it is these officials who decide on the conditions of residence as well as the eligibility to stay at all and often, these officials are the first and main points of contacts newly arrived migrants have with the German state. In a way, the bureaucrats of the Ausländerbehörde (Foreigner’s Office) thus represent the whole state apparatus and legal system; in short, they are ‘the State’ to migrants. Their behaviour, their treatment of individuals and their ‘cases’ might thus have a significant impact on the migrants’ perception of the state overall, and consequently hold a great potential for both integrating and alienating foreign nationals. As this study will show, there is value in analysing the procedures and practices of immigration offices. After all, understanding the decision-making processes and the social interactions in the practice of immigration law can not only further our understanding of migration management, but also of the ways in which migrants adapt to and are socialised into society.

This book is based on participant observation, interviews and an analysis of public as well as confidential documents in German Ausländerbehörden, municipal immigration offices. The primary research was conducted in four different phases of four months each between February and May 2009 and between December 2009 and November 2010, with each phase covering a different office in a different city. This led to several follow-up interviews and group discussions with local councillors and state officials, and consulting work on institutional change in 2012 and 2013. Through its research design, the study can thus compare and critically evaluate the work of four different immigration offices regarding the discretion and interactions of officials and their clients, the management and application of legal knowledge as well as the relations to external political forces from media to courts, from NGOs to the higher echelons of state bureaucracy. The study shows how the implementation of immigration law to individual cases can be a chaotic, improvising and sometimes arbitrary practice, partially a result of the complex, politically charged and constantly changing nature of the German immigration law. As well as being heavily dependent on an individual’s knowledge, skills and political position, the implementation process is greatly influenced by interventions from several sub-state levels of both executive and judicial power, and local representatives of civil society.

The individual stories presented at the outset of this chapter are thus more like trappings to the analysis of what happens ‘inside’ immigration law. They serve to remind the reader why this study is relevant, namely that in immigration offices decisions are made about real people, concerning real fates. Immigration offices might be situated at the lowest point in the hierarchy of migration politics, but they matter most to the individuals who move to a new country. This work is not primarily about those individuals, but in a way, it is for them.

The aim of this book is thus to examine the process of applying immigration law to individual cases through an investigation into the practice of decision-making and migration management in German immigration offices. Over the course of the next eight chapters, four significant variations found in the work of the four case studies are explored, and contextualised and explained through a presentation of four different dimensions that impacted the practice of Ausländerbehörden. The notion of law as clearly defined black letter text is challenged and its application shown to be based on techniques of collective memorisation rather than a rational process. The organisational structures and routines in the offices are portrayed as quite inefficient and constantly changing, resulting in unpredictability and uncertainty likely to have a lasting impact on the making of migrants through the interactions of ‘state’ and applicants. Political debate and interventions, especially on the local level, are revealed to greatly affect the work practice in Ausländerbehörden. Finally, strategies of coping and the question of individual responsibility of officials are discussed in order to explain the distance and disassociation between caseworkers and migrants.

The book can thus be read in at least two ways: As a study on migration management in Germany, since the data collection was completed there; or as a study on migration management, based on a case study, Germany. As largest economy and most populous country in the EU, Germany is an interesting case in itself, as national interests strongly influence the European Union and EU-level migration policies. However, the points raised over the course of the work are also valid for other cases. While of course both policy framework and institutional setting vary from country to country (even among the ‘harmonised’ European Union member states), the process of implementation and face-to-face interactions between state officials and migrants will in any case deviate from ‘black letter law’ and always be influenced by the variables presented here: divergent legal practices, bureaucratic friction, local political interests and individual officials. In every national setting, street-level bureaucracy will impact the socialisation of individuals into their role and category as immigrants. There is, perhaps, then, knowledge to be gained here that might further our understanding of the management of non-national residents in Western states and to the sociological discussion of law and public administration.

The Political and Legal Framework of Migration Management in Germany

This section will provide an introduction into the development of migration policy in Germany, describe its current legislation and consider the impact of EU-level harmonisation patterns. However, as the intricacies of migration policies are rather complex and the pace of legislation change is quite hastened, this section is not intended to provide an extensive overview, but only to offer necessary information to follow the argument covered in the remainder of the book. In the immigration offices, it is estimated that it takes between nine and 12 months to acquire expert knowledge on immigration law; to attempt this in a mere chapter would be futile. Chapter 3 explicitly deals with the use of law as basis of decision-making, provides several in-depth examples and argues that ‘black letter law’ is in fact less central to its implementation than collective recollections and rules of thumb. Readers interested in more detailed descriptions of migration policies are thus advised to further consult the excellent contributions of my colleagues that are mentioned in the text.

Trends in European Migration Management

Over the past decade or so, policies and the ‘management’ of migration control have become central foci of the academic debate on immigration. Specifically, academic approaches seem to have shifted from normative arguments about ideal forms of policy to a more dispassionate analysis of the concrete nature of migration control regimes (Geiger and Pécoud 2010: 1). Key aspects of such studies have been the international harmonisation of migration policies (e.g. Boswell and Geddes 2011; Duncan 2012; Fischer 2012; Geddes 2003; Thym and Snyder 2011) and increased cooperation in the management of migration, particularly within Europe (e.g. Geiger and Pécoud 2010, 2012; Ghosh 2000; Koslowski 2011). Within Europe, a general trend towards convergence of migration policies can be identified, partially as a ‘spill over effect’ of the harmonisation of European policies in general (Triandafyllidou and Illies 2010: 23).

This trend towards convergence is visible particularly regarding four aspects, the first and most sweeping being internal mobility through the 1985 Schengen Agreement or the Treaty of Maastricht from 1992. Both the abolition of border controls and the freedom of movement for EU citizens and their spouses increase the difficulty for states to control its migra...