Immigration Policy in the Federal Republic of Germany

Negotiating Membership and Remaking the Nation

Douglas B. Klusmeyer, Demetrios G. Papademetriou

• Publisher: Berghahn Books
• Year: 2009
• ISBN:
  9781845459697
• Edition: 1
• Topic: Scienze sociali
• Subtopic: Emigrazione e immigrazione

German migration policy now stands at a major crossroad, caught between a fifty-year history of missed opportunities and serious new challenges. Focusing on these new challenges that German policy makers face, the authors, both internationally recognized in this field, use historical argument, theoretical analysis, and empirical evaluation to advance a more nuanced understanding of recent initiatives and the implications of these initiatives. Their approach combines both synthesis and original research in a presentation that is not only accessible to the general educated reader but also addresses the concerns of academic scholars and policy analysts. This important volume offers a comprehensive and critical examination of the history of German migration law and policy from the Federal Republic's inception in 1949 to the present.

Part 1

Membership and the Basic Law

The Basic Law of 1949 established the Federal Republic of Germany (FRG) as a liberal-democratic polity that is subject to the rule of law. While originally conceived as a provisional document, the framers intended this constitution to establish a supreme, authoritative set of norms for the new political and legal order they were seeking to construct. Because all policymaking is guided by normative considerations, we begin by examining some of these foundational principles and values to establish the framework for our analysis. This section uses the Basic Law as a starting point to investigate five fundamental dimensions of membership in the FRG: an international (or transnational) one grounded on universal human rights; a federal one that more fully reflects the complex character of German political traditions than any abstract notion of unitary national sovereignty; a civic/political one that distinguishes between citizens and foreign residents; a social one that provides collective insurance against individual risk; and an ethnonational one based on shared descent and cultural affinities. These dimensions express both complementary and conflicting membership norms. The ambiguous relationships among these norms reflect not only the particulars of German history, but also the multiple modes of membership that every modern liberal-democratic polity must confront. These norms have framed the debate over membership issues in the FRG, and have determined the constraints and alternatives available to public policymakers dealing with these issues.

Chapter 1

The International Dimension

The drafters of the Basic Law inserted their catalogue of fundamental rights at the beginning of their document rather than the end, as the authors of the Weimar Constitution had done, to signify its paramount importance. Article 1 of the Basic Law provides,

1) The dignity of man shall be inviolable. To respect and protect it shall be the duty of all state authority.

2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.

3) The following basic rights shall bind the legislature, the executive and the judiciary as directly enforceable law.¹

The wording of this Article bears a striking resemblance to the preambles in the United Nations Convention of 1945 and the Universal Declaration of Human Rights of 1948.² The Article establishes the principle of respect for human dignity as the highest constitutional value and anchors this principle on the recognition of universal human rights. Although the first two paragraphs are written as programmatic statements, the third makes them binding on all component parts of the federal government. Article 2 expands on the meaning of its predecessor: “(1) Everyone shall have the right to the free development of his personality in so far as he does not violate the rights of others…(2) Everyone shall have the right to life and to inviolability of his person. The liberty of the individual shall be inviolable” (Hucko 1987: 194). Both Articles can only be read as a repudiation of Hitler's National Socialism and all other particularistic ideologies that deny the equal dignity of every human being. By making it the cornerstone of their constitutional edifice, the framers set forth an explicit commitment to international human rights standards.

This interpretation is buttressed, in 1952, by the FRG's ratification of the European Convention on Human Rights (ECPHR), which came into force in 1953. As stated in its preamble, this convention “aims at securing the universal and effective recognition and observance of the Rights therein declared” (Brownlie 1992: 327). As the wording suggests, the norms set forth in the convention are at once both aspirational and formally binding as statements of principle. Article 1 declares that these norms apply not simply to the citizens of State Parties, but to “everyone” within the jurisdiction of a State Party (Brownlie 1992: 327). As a matter of law, the European Convention was clearly intended to be “subsidiary to national protection,” that is, “a system of ‘outer protection’ for the traditional range of civil and political freedoms which, by and large, are already protected under the legal systems of the participating states” (Hannum 1992: 136). The Convention also established the first supranational mechanism of international human rights law through the creation of the European Commission of Human Rights and the European Court of Human Rights (ECHR). The latter's decisions are binding on the domestic courts of the signatory state parties, including the FRG. More recently, Protocol 11 to the Convention has given individuals, groups, and other nongovernmental organizations the right to apply directly to the ECHR.³ Convention provisions specifically addressing the rights of immigrants were not adopted until Protocol 4.⁴ Article 2 of this Protocol guarantees the right of free movement to “everyone lawfully settled within the territory” as well as the “freedom to choose his residence.” The construal of these rights is subject to rather broad restriction as determined “by the public interest in a democratic society” (Brownlie 1992: 346–347).⁵ Article 4 of this Protocol prohibited the collective expulsion of aliens. Article 1 of Protocol 7 of the Convention went a step farther in prohibiting the arbitrary expulsion of individual aliens without due process.⁶ Over time, the ECHR developed the position that the European Convention on Human Rights had not merely the status of an international treaty, but also that of a “constitutional instrument of the European Public Order.”⁷ However, in its judgment of 14 October 2004, the German Federal Constitutional Court disagreed with this expansive interpretation of the Convention and its Protocols. It ascribed them the status of statutory law within the German national legal order, thereby subordinate to norms of the Basic Law.⁸ The Court held that German judicial and administrative organs are obliged to observe the Convention, its Protocols and ECHR case law as a guide to interpreting the scope and content of domestic fundamental rights, but reserved to the German courts the competence for integrating ECHR case law into the domestic legal order.

In honoring its commitment to universal rights and mindful that the Nazi state had driven many German citizens into exile, the framers of the Basic Law included another Article that applied universally to anyone suffering political persecution irrespective of his or her ethnicity, national origin, gender, religion, or relationship to the FRG. The Article codified that “[p]ersons persecuted on political grounds shall enjoy the right of asylum.”⁹ This right gave foreigners an important claim of protection under West German constitutional law by reinforcing the international norms expressed in Article 1 of the Basic Law. It also paralleled the right of asylum recognized in Article 14 of the 1948 Universal Declaration on Human Rights. As we will discuss later in the text, the exercise of this constitutional right of asylum was restricted drastically through an amendment to the Basic Law in 1993.

The most extensive international dimension of membership in the Federal Republic has been the FRG's progressive integration into a supranational union of European states. Article 24 of the Basic Law authorizes “the Federation…by legislation [to] transfer sovereign powers to intergovernmental institutions” and to “consent to such limitations upon its rights of sovereignty as will bring about and secure a peaceful and lasting order in Europe and among the nations of the world.”¹⁰ Consistent with this article, the FRG became a founding member of the European Coal and Steel Community (ECSC), of the European Economic Community (EEC), and of the European Atomic Energy Community (Euratom). The Treaty of Paris of 18 April 1951, which established the ECSC, also created the European Court of Justice (ECJ) to interpret the treaty and subsequent Community laws.¹¹ The Treaty of Rome of 25 March 1957 established the EEC and Euroatom. Together these founding acts created a set of supranational institutions to coordinate the construction and enforcement of a common market. The Treaty of Rome provided for the free movement of workers among Member States by 1970 and prohibited “any discrimination on grounds of nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.”¹² The rights of the worker as expressed in the treaty ensured the equality of all workers within the emergent European labor market, but it fell short of defining workers as European citizens by limiting their status to “functionally specific factors of production” (Joppke 2001: 48). In this regard, a worker's rights encompassed issues of entry into and residence in another EC (European Community) Member State.

Even though the language in the treaty was unequivocal about a worker's right to free movement, EC regulations and treaties failed to define precisely the definition of “worker” (Mancini 1992: 68). The ECJ clarified the matter in a 1986 ruling when it established that a worker is “any person performing for remuneration work the nature of which is not determined by himself for and under the control of another, regardless of the legal nature of the employment relationship” (quoted in Mancini 1992: 68).¹³ In court cases leading up to the 1986 decision, au pairs and professional athletes had been included under the original conceptualization of the worker (Mancini 1992: 8–69).¹⁴ Beyond a legal conceptualization of the worker, a precise definition also had important implications for the discussion about rights. Since workers enjoyed a privileged status as migrants within the EC area, clarifying the menu of workers’ rights remained a matter of contention (Joppke 2001: 49, 51). The tension between the ECJ, in particular, and Member States about workers’ rights centered on the Member States’ insistence on protecting their authority to grant specific rights to their citizens and withhold others from non-citizen workers from other EC Member States (Joppke 2001: 49). Until the introduction of citizenship at the European level in the Maastricht Treaty, questions about workers’ rights relating to economic welfare benefits such as equal access to education and social welfare benefits, including protections against immediate deportations, clouded the distinction between an EC worker and a Member State citizen (Joppke 2001: 50–52; Mancini 1992: 74–76).

The necessity to maintain this distinction lost importance when the Maastricht Treaty of 7 February 1992 established citizenship at the level of the European Union (EU) for “every person holding the nationality of a Member State.”¹⁵ Besides turning the EC worker into an EU citizen, this treaty gave EU citizens, who reside in a Member State of which they are not a national, the right to vote and stand for office in both municipal elections and European parliamentary elections.¹⁶ The treaty also extended to EU citizens the right to petition the European Parliament on matters that involve their personal interests and that fall within the scope of EU jurisdiction.¹⁷

Building upon the work done at Maastricht, the 1997 Treaty of Amsterdam affirmed the status of fundamental human rights among the founding principles of the European Union.¹⁸ In the wake of this affirmation, critics pointed out that the EU had yet to translate its rhetoric of human rights into a comprehensive, coordinated human rights policy with adequate institutional mechanisms to support it (Alston and Weiler 1999). At its 1999 meeting in Cologne, the European Council took the “view that, at the present stage of development of the European Union, the fundamental rights applicable at Union level should be consolidated in a Charter and thereby made more evident” (European Council 1999a). It pointed out the EU's obligation to respect these rights as specified by the European Court of Justice. “In order to make their overriding importance and relevance more visible to the Union's citizens,” the Council prescribed that a body be established to draft such a Charter, composed of Heads of State and Government and of the President of the Commission, and that it include members of the European Parliament and national parliaments (European Council 1999a). Four months later at Tampere, the European Council agreed upon the practical arrangements for convening this body, which took the name “Convention” (European Council 1999b). After the Convention had finalized a draft text, the Presidents of the European Parliament, the Council, and the Commission adopted the Charter on behalf of their institutions at the European Council's meeting in December 2000 at Nice.

Like Germany's Basic Law, the Charter reaffirmed the universalistic character of the rights it recognized against the background of shared European “common values.” As stated in its preamble, the Charter elaborated, “Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security, and justice.”¹⁹ The reference to EU citizenship qualifies the preceding language emphasizing the centrality of the “individual” in this scheme of rights by narrowing the application to leave out even lawfully resident third-country nationals. Despite the growing willingness that the European Council had shown at its 1999 Tampere meeting to address precisely such questions, the Charter did little to strengthen recognition of the rights of aliens in the EU, and did not deal with the issue of access to citizenship.

The authors of the Charter had no mandate to introduce any new rights, but rather had been commissioned to combine “in a single text the civil, political, economic, and social rights hitherto laid down in a variety of international, European or national sources” (European Council 2000a). The Council left the actual legal status of the Charter to be determined later, so it had no independent force of its own. The Charter was designed to be complementary and consistent with the earlier European Convention on Human Rights. This complementarity is reflected in Article 52(3) and Article 53, which provide that those rights enumerated in the Charter corresponding with the rights covered in the Convention shall have the same “meaning and scope.” At the same time, the Charter's provisions make clear that it applies only to EU law, and not to the law of Member States. Article 51 stipulates that they are “addressed to the institutions and bodies of the Union with due regard to the principle of subsidiarity and to the Member States on when they are implementing Union law.”

At its 2001 meeting in Laeken, the European Council began considering seriously the question of whether the Charter should be incorporated into the basic treaty as well as whether the “European Community” should accede to the European Convention on Human Rights (European Council 2001). It set this question within the larger one about whether the EU should adopt a constitution, and, mindful of the need for internal reform of the EU institutional framework brought to the fore by the prospect of enlargement, decided to create a Convention under the chairmanship of former French President Valéry Giscard d'Estaing. Like the Convention that had drafted the Charter, this one, the Convention on Europe's Future, was composed of fifteen representatives of the Heads of States and Governments of each Member State, thirty members of national parliaments, sixteen members of the European Parliament, and two Commission representatives. The resulting Convention on Europe's Future drafted a constitution for the EU,²⁰ which incorporated the Charter of Fundamental Rights. Giscard d'Estaing submitted the Convention's 200-page draft to the European Council at its 2003 meeting in Thessaloniki. The Council described the proposed constitution as a “good basis for starting [discussions] in the Intergovernmental Conference” (European Council 2003a), but Council approval of the Convention's much amended product did not occur until the waning moments of the Irish Presidency, a year after the Thessaloniki Council.

During the drafting and ratification process, the German government stood out as one of the strongest advocates for an EU constitution. In a speech at Humboldt University on 12 May 2000, German Foreign Minister Joschka Fischer (Green) outlined his personal vision of a federal system as the next step to complete European integration, which could be achieved through the adoption of a formal constitution. Likewise, in a speech before the European Parliament on 4 March 2001, German President Johannes Rau (SPD) called for transforming the EU into a “federation of nation-states” by means of a constitution. In May of that same year, Chancellor Gerhard Schröder (SPD) proposed his own plan for creating a federal system through constitutional reform (Pond 2001: 31–33). All of the major German political parties came out in support of the d'Estaing constitution. On 12 May 2005, the lower house of the German parliament voted to ratify the European constitution with 569 yes votes against 23 no votes and 2 abstentions. Two weeks later, the upper house also approved the constitution by a nearly unanimous vote. Although the issue was not subject to a popular referendum in Germany, a March 2005 Eurobarometer report indicated that 54 percent of the German electorate supported ratification, while only 17 percent opposed it (Leonenko 2006). Despite the German endorsement of the constitution, momentum behind its adoption quickly collapsed after voters in France and the Netherlands rejected it by substantial margins.

By the time Germany's Chancellor Angela Merkel (CDU) became EU Council President in January 2007, it was clear that no new effort would be undertaken to push through the adoption of a constitution. As an alternative path toward the same goals of structural reform, she made it a priority to achieve agreement on a new reform treaty. Her efforts proved successful. At a meeting in Berlin on March 23 to mark the fiftieth anniversary of the EU's founding, EU leaders issued the “Berlin Declaration,” which expressed their intention to establish a new legal basis for the EU by 2009. At the EU Council's June meeting in Brussels, Merkel guided negotiations to an agreement over the basic form of a new treaty. On December 13, the 27 EU Heads of State and Government signed the Lisbon Treaty with the goal to ratify the treaty by the end of 2008. Although extremely complicated by potential ramifications that will require years to assess, the treaty is designed to streamline the EU's governing process to make it more efficient. Having learned from the failure of the proposed constitution, nearly all Member States planned to ratify the treaty in parliament rather than through popular referenda. Ireland was the lone exception to this ratification process, and on 13 June 2008, the Irish public voted against the treaty in a popular referendum by a vote of 53.4 to 46...