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By Daniel Thym, Universität Konstanz 

Last year‘s general election was a game changer in German politics. The ‘grand coalition’ of Christian and Social Democrats, which had governed the federal republic from 2005-09 and 2013-17, lost considerably and won no less than 53.5 % of the vote (33 % for the CDU/CSU; 20.5% for the SPD). Moreover, a populist right-wing party entered the German Bundestag for the first time: the Alternative für Deutschland AfD which gained 12.6 % last September and continues to do well in opinion polls.

Disappointment on the part of the – not quite as ‘grand’ – coalition was one factor why it was difficult to set up a new government. Initial attempts to form a so-called ‘Jamaica coalition’ of the CDU/CSU, the Greens and the Liberals failed before Christmas, thus the two biggest parties assumed what they described as their ‘responsibility’ towards the general public to form another coalition to prevent a return to the polls, which would have benefited the populists and would have hurt attempts to reform the European Union. Ms Merkel will be re-elected as Chancellor on 14 March 2018.

It is a German tradition that the incoming government agrees on a so-called ‘coalition agreement’ describing essential features of government policy for the next parliament. It is, notwithstanding its name, a gentleman’s agreement with no legal force which can be supplanted by later political decisions in response to new developments or a change of opinion. Nonetheless, it serves as an indicator of where migration, asylum and integration policy will be heading in the years to come. This blog post will present core features of the section dealing with migratory issues (pp. 103-108).

Factual and Political Background

Most readers will be familiar with the overall situation. While Germany has been a country of immigration for decades, the past three years were exceptional: the ‘refugee crisis’ resulted in no less than 1,200,000 asylum applications during 2015/16 (Germany did not count the initial registration with the police, but the formal application with the asylum office which entailed that many people who had entered during 2015 were officially registered during 2016). While the numbers declined considerably thereafter, they remain high in comparison to the early 2000s: there were roughly 200,000 new asylum applications during 2017 and 15,000 in January 2018.

These figures help explain why migration has become highly salient issue in domestic politics and featured prominently in the election campaign. It is beyond the scope of this blog post to analyse public discourses, but it seems to me that they can be rationalised as what psychologists call a ‘cognitive dissonance’ when a person simultaneously holds contradictory beliefs, ideas or values. 2015/16 was full of dissonance: the welcome culture of joy and excitement juxtaposed with a sense of insecurity following several terrorist attacks and the Cologne events of sexual assault – and the insecurity was reinforced by a widespread impression that the state had lost control of the situation.

As a result, public debates are treacherous; public opinion remains volatile and willing to reconfigure its view of migration in a situation of cognitive dissonance. The outcome of such reassessment need not be anti-immigrant, but it can be – as the success of the AfD illustrates, whose campaign highlighted migratory issues. Thus, a core sentence of the coalition agreement may be the generic reassurance that the government intends to avoid any loss of control in the future: it aims at reinforcing efforts “to govern and to limit” (“zu steuern und zu begrenzen“) migration towards Germany and Europe “so that a situation like in 2015 is not replicated” (“damit sich eine Situation wie 2015 nicht wiederholt“).

It is in the nature of public discourses to concentrate on the domestic situation, while broader academic and political attention will often lay greater emphasis on European and international developments. Germany’s coalition agreement confirms this rule. It focuses on the domestic reaction to the ‘refugee crisis’. In that respect, five themes take centre stage, which will be discussed below: access to Germany and Europe including the so-called upper limit (Obergrenze) und the Dublin Regulation; family reunification; integration policy; efficient asylum and return procedures.

Political action depends, in part at least, on the visibility of a theme – as the coalition agreement validates in line with the election campaign. Whereas migration via the asylum system is highly salient and contested, other forms of entry are less visible and did not receive much attention. This includes free movement from other EU Member States which continues at a very high rate. Germany has had a net inflow of roughly 300,000 EU citizens per annum since 2012, i.e. there has been a net inflow of more than 2 million since 2011, in particular from Poland, Romania and Bulgaria.

The coalition agreement remains largely silent on that front, as it does on Brexit. There is a only a generic reference to ‘fair mobility’ and a warning against ‘abusive movement into the social security systems’ (p. 7). Indeed, intra-European mobility doesn’t cause much political headache at the moment, since most EU citizens are economically active, do not rely on state-sponsored accommodation or direct financial support and are generally perceived to conform with mainstream cultural norms (moreover, the last government had introduced a five year waiting period for access to social benefits for those who do not qualify as EU workers in response to the ECJ’s Dano judgment).

There is, however, an important debate about migration for economic purposes by third-country nationals on which the new government wants to present changes which will be discussed at the end of this blog post after asylum and integration.

Upper limit (Obergrenze)

Political communication often relies on simplification by highlighting certain features which gain a symbolic visibility far beyond the practical effects of the topic in question. Examples of such symbols in the domestic German debate on migration are safe countries of origin, dual citizenship or the upper limit (Obergrenzen), which both supporters and opponents employ as a symbol to demonstrate their general approach towards migration, asylum and integration policy. The coalition agreement, which presents itself as a point of transition between election mode and government policy, includes such issues which need not feature prominently in practical politics – in the same vein as the latter may concentrate on themes the agreement did not touch upon at all.

The so-called ‘upper limit’ (Obergrenze) is a perfect example of a symbolic theme. It was a political pet project of the Bavarian CSU, the junior partner of Merkel’s Christian Democrats. References to the Obergrenze became popular at the height of the ‘refugee crisis’ to signal that uncontrolled immigration should come to an end (although the political justification shifted towards the administrative, social and financial limitations of integration efforts in the meantime). It was often associated with a possible rejection of the border, although the CSU never spelt out clearly what the upper limit concept might involve in practice. Angela Merkel rejected the idea, arguing instead that migration should be “governed and limited” (“geordnet und begrenzt“), while the Social Democrats emphasised their attachment to the right of asylum without being crystal clear what that meant on questions such as Dublin. In short, debates about the upper limit were largely symbolic.

During the election campaign, the former First Minister of Bavaria, Horst Seehofer, who will also be Germany’s next minister for the interior, had insisted early on that he would not sign up to a coalition agreement without a reference to an upper limit of 200,000 people per year. Thus, there was a lively debate during the negotiations which resulted in a classic compromise formula: the coalition partners “note” (“stellen fest“) that, based on experience over the past 20 years and with a view to the measures taken, there will be an annual net inflow of 180-220,000 people for humanitarian reasons.

While the term Obergrenze isn’t taken up, the agreement mentions a numerical corridor, albeit as a mixture of statistical observation, factual prognosis and implicit policy objective – combined with an explicit assurance of legal and humanitarian obligations, including the right to asylum and the Geneva Convention. Neither seems to have direct political or legal implications; the upper limit, in particular, will not acquire any legally binding form. It remains a rhetorical device in the form of a political reassurance.

Reform of the Common European Asylum System

In contrast to the upper limit, the reform of the Dublin Regulation has important legal and practical repercussions. Germany’s new minister for the interior, Horst Seehofer, had famously dubbed the Western Balkans route the ‘reign of illegality’ (“Herrschaft des Unrechts“) during 2015/16, thereby indicating that Germany’s open borders policy and the ‘wave-through approach’ were contradicting the spirit of European rules (see my public response in an interview ‘that is a myth’ with the German magazine Der Spiegel).

Most readers will be familiar with the basic tenets of the Dublin rules, reaffirmed by the ECJ in Jafari, Mengesteab and Shiri, which I will discuss in the forthcoming issue of the Common Market Law Review: whereas primary responsibility rests with the state of entry, irregular secondary movements will result in a change of responsibility to the state of territorial presence whenever the latter fails to surrender a person within a six month time limit. The Dublin rules are, in other words, not as one-sided as the public discourse often assumes – as recent German statistics illustrate: no more than roughly 10 % of all surrender procedures initiated by domestic authorities are “successful”.

It is well known that the Commission tabled its proposal on a revised Dublin IV Regulation which would discontinue the transfer of responsibility in situations of secondary movements and support the states at the external borders via an automatic corrective mechanism instead. Not surprisingly, the coalition agreement voices explicit support for a “fair distribution mechanism” (which, in practice, would entail that less asylum seekers end up in Germany than under the Dublin III regime). Moreover, it reaffirms that the primary responsibility of the state of entry shall be a “paramount consideration” (“übergeordnete Rolle“), while adding, somewhat ambiguously, that an unlimited jurisdiction of the state of entry cannot be the answer (“ausscheidet“).

It is not crystal clear what this might mean in regulatory terms, but this indecision need not be a deficit of the agreement given that the Dublin IV Regulation is being negotiated at European level anyway. In Brussels, the German government will be one actor among many and it will not be in a position to enforce its view on the European partners (most of which benefit from the design of the current system). Unlike in monetary union, Germany is no hegemon that may dictate the design of asylum policy. In that respect, it is a realistic move if the coalition partners agree to position themselves at European level in a “coordinated” manner, i.e. with the support of both the Social and the Christian Democrats. The coalition agreement does not pre-empt the final shape of the Dublin reform.

The new government also supports further harmonisation of asylum procedures and reception conditions, including the Commission’s proposal that full social benefits shall only be available in the Member State responsible under the Dublin rules. That issue is particularly sensitive for Germany, since domestic social benefits are comparatively high and do not generally distinguish between asylum seekers, beneficiaries of international protection and German nationals on the basis of a controversial constitutional court judgment, which the coalition agreement challenges indirectly.

Moreover, there are abstract references to Frontex as a “veritable border police”, cooperation with UNHCR, IOM and countries of origin or transit, relocation and resettlement (depending on the number of entries via the asylum system) as well as the root causes of irregular migration – although the coalition agreement shies away from giving us detailed information of what that they want to do in practice. Finally, the government states that intra-Schengen border controls are “justified” (“vertretbar“) for as long as the external EU (not: Schengen) borders are not “protected” effectively, thereby indicating that the new government is not willing to terminate border controls in the near future.

Family Reunification

From an empirical perspective, family reunification has always been an important channel of entry, including in the aftermath of the “refugee crisis” when beneficiaries of international protection seek the entry of spouses and children (or wider relatives). In recent months, there was a lively and highly politicised debate over family reunion in Germany, which, for legal reasons, concentrated on those with subsidiary protection, since the EU legislature had laid down a generous regime for refugees under the Geneva Convention in the Family Reunification Directive by exempting the latter from the economic self-sufficiency, accommodation and integration requirements most third-country nationals (and German nationals) have to comply with.

As a result, the Bundestag cannot change family reunification rules for Convention refugees (and the Commission hesitates to propose any amendment to the said directive, since it wants to prevent the Council from opting for stricter rules). The political desire to curtail family reunification rules concentrated on those with subsidiary protection as a result. While German immigration law had originally applied the “ordinary” regime for third-country nationals, including the financial self-sufficiency requirement, the Bundestag had aligned rules for all beneficiaries of international protection in August 2015. These generous new rules were suspended a few months later at the height of the “refugee crisis” for a two-year period, which meant that the new government had to react quickly if it wanted the generous regime of August 2015 to be reinstated in March this year. Thus, the coalition negotiations were superseded by a lively legislative debate.

The end-result is a monthly quota of 1000 family reunification visas for humanitarian purposes, which are complemented by a hardship clause, which, from a constitutional perspective, allows human rights arguments to be fed into the decision-making process (supreme courts in Denmark, Austria and Switzerland have accepted three-year waiting periods in light of Article 8 ECHR). The new rules will apply from August 2018 onwards in line with an initial act of parliament adopted at haste in February, which will be supplemented by another bill laying down the legal and administrative criteria for the selection and prioritisation of visa applications within the monthly quota of 1000 entries. Since it presents a formidable challenge to lay down corresponding rules, we can expect the issue to remain in the frontline of policy and legal debates in Germany.

In contrast to the heated debate on family reunification for beneficiaries of subsidiary protection, other family migration issues do not feature in the agreement. The CDU did not insist on its earlier call for a revision of the Family Reunification Directive nor did the grand coalition revisit the long-standing debate on language requirements as a precondition for family reunification with third-country nationals or Germans. Of course, these questions may resurface during the next Parliament, but for the time being the grand coalition seems to be exhausted from discussions on subsidiary protection.

Integration Policy

Integration is a dominant theme in domestic debates stretching from structural challenges, such as schooling and labour market integration (which proves to be difficult due to the relatively low skill level of many refugees), to broader themes, such as the self-perception of the German society at a time of increasing diversity. Indeed, the aftermath of the “refugee crisis” continues to keep many municipalities busy. They shoulder structural integration and bear important costs, which, according to most estimates, add up to roughly € 15 bn per year for the German state as a whole (and boost economic growth, since much of the money flows into housing, social services, etc.).

On integration, there is nothing surprising in the coalition agreement. It is a broad reminder of existing policies, such as language courses or other support measures. Moreover, the coalition agreement takes up the issue throughout the text, often through the prism of “social cohesion” (“gesellschaftlicher Zusammenhalt“) in an apparent attempt to react to the success of the populist AfD, which campaigned successfully on the migration ticket, thereby cashing in on wider unease with an equal distribution of economic and social opportunities and cultural changes among the population.

Citizenship law is a prominent field for symbolic debates about societal self-perception and it features prominently in the domestic Germany discussions, not least with regard to dual nationality. Somewhat surprisingly, the coalition agreement does not take up the issue, although all parties involved had promised to consider dual nationality for an intermediate period of one or two generations (Generationenschnitt), which the German Expert Council on Integration and Migration, of which I am a member, had proposed. It promises, however, to establish a new ground for the revocation of nationality of all dual nationals irrespective of their family background, thereby evading the legal difficulties which had led to the aborted French project of a constitutional revision.

Asylum and Return Procedures

During the “refugees crisis”, asylum procedures were infamously lengthy and resulted in massive delays and quality deficits despite considerable efforts on the part of the federal asylum office to hire new staff and to increase efficiency. These endeavours are to continue and recent statistics show that the length of the asylum procedure is decreasing finally. The government will follow down that road even if it doesn’t commit to a Soviet-style numerical objective, which could prove difficult to meet in practice anyway.

Moreover, swift asylum decisions are to be accompanied by more efficient return procedures, which is hardly surprising given that roughly half of all asylum applications are being rejected, if no protection status under German or European law is granted. As a result, there are more and more people in Germany which are obliged to leave the country, but do not do so, since German authorities are notoriously ineffective in complying with the EU law obligation for an effective return policy.

If the government wants to enhance returns, much will ultimately depend on administrative practices on the ground and cooperation with countries of origin. Yet, there are new projects the government intends to pursue, including a relaxation of the comparatively strict German rules on return detention. More visible in the public debate is the idea of integrated arrival, decision and return centres (ANKeR for Aufnahme-, Entscheidungs- und Rückführungseinrichtungen), which pursue a double objective: to render cooperation between local, regional and federal authorities more effective and to promote a swift asylum decision and, possibly, return after rejection.

It is not immediately clear what this might entail in practice. One interpretation hints at camp-style centres in rural areas mirroring the Bavarian example, while another reading of the coalition agreement supports the “simple” intention of streamlining pre-existing projects on coordinated procedures, which are already being implemented throughout Germany and need not hinder the integration of those who are bound to stay in the country. In that respect, much will depend on how the ANKeR centres are being realised in practice. There might, also in future, be differences between regions, since the reception conditions and return are a regional administrative responsibility.

Legal Migration for Economic Purposes

We can describe the migration and asylum policy of most European states as a succession of policy failures when laws fail to achieve the declared objective. That may be one reason why politicians are eager to present themselves in full control of migratory movements. Rhetorical devices to emphasise state control include the Bavarian-style Obergrenze or the Social Democratic claim that the adoption of an “immigration act” (Einwanderungsgesetz) would help overcome existing difficulties. While I support the idea of such an act, we should be careful not to overstate its potential. The manifold dilemmas of asylum policy in the Mediterranean would not disappear overnight if Germany adopted a Canadian-style points system on the admission of the highly skilled.

That said, the section of the coalition agreement on economic migration deserves being taken seriously, since it indicates an important change of direction (p. 105). At the symbolic level, however, it watered down the ambition of the interim agreement, which had called for the adoption of the “migration or immigration code” (Migrations- oder Einwanderungsgesetzbuch), whereas the final agreement only refers to new rules on labour migration without indicating whether they are to be part of a broader reform package rearranging domestic laws under a new umbrella with a symbolic name.

In substance, the new rules concentrate on qualified workers (Fachkräfte) to fill jobs in the booming German labour market that a substantial number of EU citizens entering each year do not take up. While the rules on the so-called “highly qualified”, i.e. those with a bachelor’s degree, are quite lax already as a result of a liberal implementation of the Blue Card Directive, the government will focus on those without a university degree.

When dealing with legal migration of qualified workers, the new government has to confront a structural problem of a labour market relying heavily on formal qualifications that many immigrants do not have. In that respect, the coalition agreements indicates plans to introduce rules considering a range of factors, such as qualification, age, language skills, a job offer or economic self-sufficiency to decide whether a person shall be admitted. We can expect exciting debates on how to implement these rules in the coming years. In doing so, the German government will complement ongoing efforts at European level to reform the Blue Card Directive, although the coalition agreement is adamant that EU harmonisation shall not pre-empt room for national regulatory choices.