Germany’s new migration and asylum legislation: extraordinary opening, shrinking protection space, or both?

Germany’s strong economy and its relatively welcoming approach towards refugees during the peak arrival years of 2015 and 2016, have contributed to the country becoming a magnet for immigrants and asylum seekers. The number of foreigners living in Germany increased from 6.7 million in 2005 to 10.9 million in 2018. Among European Union Member States, Germany has one of the highest shares of residents whose nationality is non-EU. About 1.1 million refugees are registered in Germany, making it the fifth largest refugee-hosting country worldwide.

Migration and asylum issues have become controversial in the German society in recent years; nationalist voices have been demanding more restrictive asylum policies and stricter border controls, while private sector stakeholders have been pushing for smoother immigration procedures for potential workers. The German government responded with a new legislative package[1] on migration and asylum that aims to achieve two main objectives: allow more non-European foreigners to come to Germany and fill unmet labour demands in the local economy, and ease deportation procedures of foreigners who have been denied residency.

This article examines why the German government pushed forward this new legislative package, how the demand-driven approach towards migration that’s reflected in this legislation may impact migration to Germany, and whether the new measures shrink the space available for foreigners in need of protection.

Which foreigners does Germany seek to attract? 

As of the end of the first quarter of 2019, there were 1,380,000 vacancies across the German economy. A recent study by the Bertelsmann Stiftung projected that to meet labour shortages, which are a result of an aging native population, at least 260,000 foreigners will need to settle in Germany every year during the next four decades. The study identified that migration from other European Union countries will not be sufficient to meet the labour demand in Germany, and therefore most of the foreigners would need to come from outside the EU.

The professions most in demand are health care workers and engineers, according to Petra Bendel, the chairwoman of the Expert Council of German Foundations on Integration and Migration, who said that these labour shortages are already hurting German businesses. “In many enterprises, capacities are already – and sometimes even permanently – overloaded because they lack personnel. Investments are low because enterprises know they won’t find skilled workers,” Bendel told MMC. For six out of 10 German enterprises workforce shortages are a threat, according to a 2018 survey by the German Chamber of Commerce and Industry.

Bendel noted that it was the German private sector that lobbied hardest to include in the new legislative package reforms to the Skilled Immigration Act. One of the key reforms is expansion of the group of foreign nationals that qualify to come to Germany; previously, only academics and highly qualified foreigners could come to work and live in Germany, but as a result of the new reforms, which will come into force in early 2020, foreigners with lower qualifications will also be eligible.

Lowering obstacles for immigration of non-European workers is the objective of other new measures in the new legislative package. Visa requirements for skilled non-EU nationals who have an employment contract in Germany have been eased, and non-EU nationals who do not have a concrete job offer but do have basic German language skills and can financially support themselves and their families, will now be able to come to Germany for up to six months to search for a job. In essence, the new legislation makes it possible for foreign nationals of all skill levels to come to live in Germany if they can secure employment and meet certain standards, according to Demetrios Papademetriou of the Migration Policy Institute. “This is a rather extraordinary opening as far as Germany is concerned,” Papademetriou told MMC.

According to Papademetriou, the loosening of immigration laws in the recent legislation is a continuation of the demand-driven approach towards migration that Germany began adopting at the start of the decade. In the demand-driven model, as explained by Papademetriou, the selection of immigrants is led by employers who choose the workers they need to fill existing vacancies.[2] Papademetriou expects that Germany’s new measures will motivate employers to recruit workers internationally and cause an increase of arrivals as long as the German economy continues to grow.

Which foreigners does Germany want to deter? 

A key component of the recently approved legislative package is the Orderly Return Act, which aims to ensure the departure from Germany of people who have been listed for deportation; such as asylum-seekers whose application have been rejected, and students, workers or tourists who overstayed their visa. Germany’s list for deportation included 238,740 foreign nationals as of the end of January this year; that represents an increase of 15% compared to 2015. Last year, Germany managed to execute deportations of only about 25,000 foreign nationals – just over a tenth of the stock of people who were listed for deportation – and overall since 2015, approximately a half of the 188,000 people that German authorities listed for deportation were actually deported.

The reasons the deportation of these people have not been executed vary. In about a quarter of the cases those listed for deportation had either already left Germany, or their location was unknown to authorities, or their country of origin was either unsafe or uncooperative with Germany’s repatriation efforts. The rest of the people listed for deportation – a total of 182,169 foreign nationals as of the end of January 2019 – have obtained “tolerated” status, which means their deportation is temporarily postponed due to one or a combination of reasons such as lack of travel documents, family ties to a person with residency, or a serious medical concern that must be treated in Germany. Since the ”tolerated” status is temporary and can be revoked, the affected person has little legal certainty and constant fear of deportation.

The Orderly Return Act was the most controversial and intensely debated part of the new legislation; with nationalist voices calling for harsher restrictions, and Germany’s left saying the measures infringe on asylum seekers’ rights. The Act includes the following measures:

  • The length of time asylum seekers and people listed for deportations can be obliged to reside in reception facilities increased from a maximum of 6 months to maximum 18 months
  • Asylum seekers who mislead authorities about their nationality or identity and those who come from countries defined by Germany as safe[3] can now be obliged to reside in reception facilities indefinitely
  • People listed for deportation can now be placed in regular prisons with convicted criminals (though in separate sections) as there is not enough space in existing reception facilities
  • Authorities responsible for carrying out deportations of people that are not residing in reception facilities are granted the right to access apartments without a judicial order in certain circumstances
  • Public officials (and others who are employed in positions of authority) that secretly notify people listed for deportation about the date and time of a planned deportation will now be liable to criminal prosecution

While the above-mentioned measures negatively impacted the so-called “tolerated” people, the new legislative package does also include a new measure that allows certain, well-integrated “tolerated” individuals to gain extended-but-not-permanent stay. This new measure will make residence permits for 30 months accessible to “tolerated” people who entered Germany before August 2018, have an employment relationship lasting a year and  a half with a weekly number of hours of at least 35, are able to secure their own livelihood, have sufficient German language skills, and have been fully cooperative with authorities. However, these are such high requirements that in practice only a few people will actually benefit from it, according to the German NGO network Human Rights Forum. Germany’s policymakers have in previous decades implemented mass regularizations of people with tolerated status – in 1990 and in 2007 – but the 2019 legislative package does not do that.

Does the legislation shrink protection space? 

Interior Minister Horst Seehofer described the legislative package as crucial for protecting the asylum system from people who do not have a protection need. But Professor Thomas Groß, of the Institute of Migration Research and Intercultural Studies at Osnabrück University, suggests that the legislation in fact aims to deter all who arrive through irregular means  – including asylum seekers – from coming to Germany: ”The basic idea [reflected in the new legislation] is that only people who were admitted to Germany in the regular procedure of visa are welcome, but people who came on their own and claimed to be refugees, are not welcome,” Groß said in an interview with MMC. He explained the new legislation signals that Germany opens its arms only to foreigners who are useful for its economy.

Twenty-two civil society organisations, including Amnesty International and Pro Asyl, have criticised the legislation in a letter to parliament, saying it imposes disproportionate penalties and a limitless extension of the grounds for detention, and will cause tens of thousands of people in Germany to live in permanent fear of imprisonment and deportation. German historian Jochen Oltmer sees the new legislation as an attempt by the government to show it is politically able to control migration. He noted that in the early 1980s and 1990s when German governments were also faced with relatively large influxes of asylum seekers, they similarly responded with new laws to restrict migration and asylum: “There has been a relatively straightforward pattern: whenever the number of people seeking protection increases and there is a debate in society where many are in favour of shutting down access to asylum, the government promotes legislative tightening that threatens the livelihood of refugees,” Oltmer said in an interview with the Berlin-based Migration Media Service.

What is the international context of the German legislation? 

Germany’s legislative package appears to be a continuation of two existing trends in migration and asylum policies in the EU and worldwide. The measures that make it easier for certain selected foreigners to come work in Germany are part of the global competition for labour, in which governments of advanced economies are adopting more welcoming policies to attract immigrants who can help drive economic growth. The measures to ease deportations of “tolerated” people follow in the footsteps of European governments like Italy, France and Spain, who have also increased efforts to deport non-Europeans that have been denied residency. At a time when it has become politically crucial for governments to grow the economy and demonstrate control over migration flows, Germany’s legislation on migration and asylum is trying to do both.

[1] The package includes reforms to six German laws: the Orderly Return Act, the Skilled Immigration Act, the Asylum Seekers Benefits Act, the Residence Act, the Foreign Employment Promotion Act, and the Education and Employment Tolerance Act.

[2] Aside from Germany, the demand-driven model is used by the United States, Japan, South Korea, China, and European Union members like Spain, Sweden and Norway. The alternative model, a merit-based approach in which the government selects immigrants based on their human-capital attributes, is used in Canada, Australia and New Zealand.

[3] Germany’s “safe countries” list includes Ghana, Senegal, Serbia, Northern Macedonia, Bosnia-Herzegovina, Albania, Kosovo, Montenegro and all EU member states.