EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

By Daniel Thym, Professor of European and International Law and Director of the Research Centre Immigration & Asylum Law, University of Konstanz, Germany.

Germany is an important player in EU migration law and policy. More than 6 million third country nationals are living in the country, which receives the highest overall number of asylum applications in Europe. This blogpost presents the projects on migration in the coalition agreement of the new government of Social Democrats, Greens, and Liberals, dubbed Ampelkoalition (‘traffic light coalition’, after the colours commonly used for the participating parties). We shall see that it foresees noticeable innovations and surprise outcomes, both for the domestic and the European debate. Germany swims against the tide of restrictive policies.

Double Nationality and Swift Naturalisation

In a symbolic move, the coalition agreement speaks of a ‘modern country of immigration’, thus bringing to an end the decade-long debate as to whether Germany should be labelled as a ‘country of immigration’ (Einwanderungsland). To be sure, the distinction had lost its former fascination in recent years. Few people would seriously doubt that a country with a foreign-born population of 16.1% qualifies as a ‘country of immigration’. Yet the move is symbolically relevant, not least since it is supported by another decisive move to facilitate naturalisation. 

Waiting times for naturalisation will be lowered from eight to five years (p. 118), and can be shortened further to just three years for ‘special integration achievements’. Like with many other projects in the coalition agreement, the abstract declaration of intent will have to be translated into precise legislative criteria later on. That is the ‘turbo-naturalisation’ the Expert Council on Integration and Migration (Sachverständigenrat), of which I am the vice chairperson, had called for. Waiting times are even shorter than under our proposal; some may say too short. The new rules will bring German nationality law in line with classic ‘countries of immigration’ like Australia, the US or Canada. Canada has a four-year limit, but waiting times are calculated much stricter than in Germany. 

Moreover, the new government will do away with the much-discussed prohibition of double nationality, which is subject to important caveats at present already. Double nationality will be generally permitted. Noticeably, the agreement includes a political mandate to assess the legal and practical feasibility of a ‘generational cut’ (Generationenschnitt), which would limit double nationality to the first, second, and, possibly, third generation. While the idea is normatively appealing to prevent political over-inclusion (with President Erdoğan campaigning for votes among nationals residing abroad which had never lived in Turkey), a ‘generational cut’ would effectively require transnational coordination of nationality laws. That may prove unrealistic in practice, but the idea will be discussed nonetheless.

We can expect the legal amendment to result in a temporary surge in the number of naturalisations, with Turkish nationals, in particular, applying for a second German nationality. It is less certain, however, whether the changes will result in significantly higher naturalisation ratios is in the medium-run, once the catch-up effect fades. They decreased markedly after the previous reforms in the late 1990s and early 2000s. There are several million Union citizens and third country nationals living in Germany who meet the naturalisation requirements but do not apply to receive a passport (for underlying reasons, see here, pp. 38-47). They simply do not feel a desire to become Germans given that long-term resident status or Union citizenship provide them with an extensive set of rights. Apparently, the right to vote does not make a crucial difference for many.

Underbidding EU Legislation: Domestic Permanent Residence

While nationality laws receive much public attention, long-term resident status is equally important from a practical perspective. It establishes extensive equal treatment and residence security, thus presenting a sort of ‘citizenship light’. Somewhat surprisingly, the coalition agreement wants to lower waiting times for domestic permanent residence permits as well: to three years, instead of the regular five-year rule at present (p. 118). Doing so will effectively ‘undercut’ the five year requirement in Article 4(1) Long-Term Residents Directive 2003/109/EC, which the Court of Justice has found to be mandatory (here, paras 26-37). 

Crucially, the three-year period concerns the domestic permanent residence scheme (Niederlassungserlaubnis), which Germany runs in parallel to long-term residence status under Directive 2003/109/EC (Daueraufenthalt/EU). Most third country nationals usually receive the domestic German scheme, although they can alternatively (or even cumulatively) receive long-term residence under Union law. As a matter of principle, such more favourable national schemes are permitted under Article 13 Directive 2003/109/EC—a provision judges found to permit Member States to shorten waiting times. Domestic schemes exist in parallel and do not bring about the guarantees under the Directive (here, paras 38-44). Prima facie, the government’s plan for the domestic policy reform is supported by secondary legislation and case law.

Nevertheless, one may question the legality of the move. Why? The case law concerned more generous domestic rules for specific scenarios, while the German initiative will result in an extensive liberalisation across the board. One could possibly argue that doing so undermines the effet utile of Directive 2003/109/EC, if Member States openly ‘compete’ by means of more general rules (here, ch. 13, pp. 617-618, which is currently being shipped to the bookshops). In the German case, the potential for criticism could be reduced if the legislature ensured that third country nationals received European long-term resident status more or less automatically, once the conditions under Directive 2003/109/EC are fulfilled.

Against the Tide: Family Reunification without Language Skills

Germany introduced pre-departure language requirements as a precondition for family reunification 14 years ago. Corresponding rules have received much attention in the international debate, as a symbol for a migrant integration policy actively supporting social cohesion. German and European courts had accepted the requirement under the condition that Member States establish a hardship clause. During the next parliament, the symbolically significant provision will be discontinued (though spouses will still be expected to learn the language after entry). Similarly, family reunification for those with subsidiary protection status will be aligned to the regime applicable to those with refugee status (p. 140). 

At an intermediate level, the long-lasting debates about family unity illustrate that labelling Germany as a ‘country of immigration’ is no magic formula resolving political controversies. The new government may promote a more liberal visions of what it means to be a ‘modern’ country of immigration, but alternative views remain equally valid. Immigration and asylum policies are, like the idea of the welfare state, essentially contested concepts when it comes to defining what they mean in specific scenarios, as highlighted in an expert report to the German parliament, in the drafting of which I participated (here, pp. 322-324; see also here, pp. 411-415).

Points’ System for Jobseekers

Labour immigration policies rarely receive the attention they deserve and require. Germany is a case in point. Demographic change and a booming economy mean that labour shortages are likely to increase considerably in the medium term. Some companies already have problems finding qualified workers (Fachkräfte), especially in towns in southern Germany where many of the ‘hidden champions’ are located. That is why previous German governments have considerably lowered the legal thresholds for labour migration over the past decade. The latest reform under the ‘highly skilled immigration act’ (Fachkräfteeinwanderungsgesetz) became effective in March 2020, together with the pandemic. I have presented core aspects of this major reform step in an earlier blog post.

As a result, there was not much the new government could have reformed further, unless it had wanted to open the labour market for people without formal qualifications or informal professional skills (a step the Green election manifesto had openly considered, which, however, trade unions and the Social Democrats do not usually support). Instead, the new government commits to rendering the recent reform steps effective in practice. It also agrees to use the optional clauses in the new Blue Card Directive (EU) 2021/1883 for ‘higher professional skills’, i.e. skills and competences attested by professional experience, not however by a formal diploma (p. 33). The vague formulation could even be understood to call for national rules replicating the Blue Card scheme for people not covered by the Directive ratione materiae.

In addition, Germany will introduce a points’ system, which is often depicted as a sort of magic formula in the policy debate (presumably as a result of the ostensible simplicity of mathematic formulae). It will come in the form of an ‘opportunity card’ (Chancenkarte), as had been proposed by the Liberals. ‘Opportunity’ stands for the focus of the future German points’ system on third country nationals without a job offer. That is a reasonable limitation, since an extension of the points’ system to those with a work contract else would have duplicated existing pathways under earlier reform measures and the Blue Card Directive.

The contours of the new system will have to be hammered out in the coming years. Will it cover people without formal qualifications? Do they receive social benefits while job-hunting in Germany? Can they bring family members along from the beginning? And what if high potentials end up working in unskilled jobs, for instance as waiters or taxi drivers? At a more basic level: which criteria will be used for assigning points? Once the new law has been agreed upon, we shall see whether it succeeds in attracting many people. Indeed, Germany had introduced comparatively generous entry schemes for labour migrants previously, which few people residing abroad use in practice (here, p.17 for § 20 AufenthG ‘ohne vorherigen Titel’). We need veritable campaigns to fill existing rules with substance.

Significant Extension of the Regularisation Programmes

‘Changing lanes’ (Spurwechsel) has become a popular concept in the German public discourse on asylum over the past years. While it literally refers to asylum seekers ‘switching’ to a labour migration status during or after the asylum procedure, very few people meet the criteria for a residence permit for economic purposes. One step further, the notion of ‘changing lanes’ was equally employed for classic regularisation schemes for unsuccessful asylum seekers. Such regularisation schemes, which allow returnees to obtain residence permits, are usually subject to much lower conditions than entry or stay for economic purposes. By way of example, most existing German regularisation schemes do not require full economic self-sufficiency.

Both projects will be introduced during the next parliament. While the Liberals had supported a switch to labour migration without lowering the standards, the Greens had promoted significantly more generous regularisation schemes. Corresponding comments cover almost one page with quite some detail (pp. 138-139). Such complexity does not come as a surprise for those familiar with the intricacies of the German regularisation rules, which, depending on how you count, comprise between six and ten different instruments already (see §§ 18a, 23a, 25(4)(2), 25(5), 25a, 25b. 60b, 60c, 104a, 104b Residence Act).

Suffice to say, the conditions for the existing schemes will be lowered considerably. Moreover, two new elements will be introduced. Firstly, a one-time measure for anyone residing on the territory for at least five years at the turn of the year. It is designed as a sort of ‘probatory scheme’ (Chancen-Aufenthaltsrecht) for a one-year period, during which applicants are expected to qualify for one of the existing schemes. If the government decided to hand out a ‘residence permit’ (as the wording indicates), instead of an enhanced ‘toleration status’ (Duldung), the time limit might be semantic wrapping for the seemingly unconditional regularisation of anyone who had entered during 2016 at the latest. Automatic renewal of the previous return decision after the expiry of the one-year period would test the limits of Article 7(4) Return Directive 2008/115/EC.

Secondly, the new government is not the first to promise to end the practice of ‘chain toleration’ (Kettenduldung), as the recurrent renewal of (declaratory) confirmations that foreigners do not return voluntarily and are not forcibly returned are often labelled in Germany. Exactly the same had been promised on the occasion of Germany’s extensive immigration law reform 18 years ago (here, p. 8). § 25(5) Residence Act, which was introduced at the time (and whose informal English translation uses the mistakable term ‘temporary residence permit’ for a toleration status, which technically does not qualify as a residence permit under Union law), remains practically highly relevant (here, pp. 13-35). Its significance may be boosted further by a seemingly technical change. Anyone obliged to leave the country will be able to sign an affidavit that she has done her best to meet reasonable demands to eliminate the obstacles to departure. 

‘Return Offensive’: Rhetoric without much Substance

The coalition agreement uses military language to announce a ‘return offensive’ (Rückführungsoffensive), which was taken up by the media widely. However, there is little the government proposes to change the status quo, also considering that the administrative responsibilities for return primarily lie with the Länder. Regional governments are not obliged to follow the political preferences of the federal government. 

Existing initiatives will be reinforced to increase the administrative leverage of the federal level, to actively support voluntary departure, and to enhance cooperation with third states. However, the government does not announce anything new in addition. Unlike in the case of the ‘extended national efforts’ (nationale Kraftanstrengung) under the government of Angela Merkel, the future ‘offensive’ is not sustained by legislative amendments (unless one counts the decision not to repeal previous restrictions as legislative backing). The ‘return offensive’ is by and large rhetoric.

Those dealing with return in practice will perceive the coalition agreement as a moderate application of the brakes anyway: the affidavit complicates the clarification of identity; regularisation schemes legalise illegal stay instead of ending it; laws restricting social benefits for asylum seekers and returnees are to be ‘developed further’ without giving much detail.

Finally, ‘work bans’ (Arbeitsverbote) will be eliminated. Asylum seekers and returnees, including those from safe third countries and those not cooperating with the authorities, will apparently be authorised to work immediately after their arrival in Germany. This might prove, together with the prospect of regularisation, to be another factor sustaining secondary movements within the Schengen area. Research shows that the prospect of labour market success is an important element informing the choice of destination country. The coalition agreement claims that secondary movements shall be reduced, notably by improving conditions at the external borders, but domestic policies point to a different direction. 

Europe: Active Support for Humane Asylum Policies

The coalition partners are not naïve. They know how terribly complex negotiations at the European level are, and they also understand that the idea of open borders is practically and politically unrealistic. Rhetoric emphasis on ‘active management’ (aktive und ordnende Politik) and a commitment to ‘reduce irregular migration and to facilitate legal entries’ indicates continuity as a starting point. Similar language had been used repeatedly before, notably the Chancellor Angela Merkel. By way of example, consult my blog post on the previous coalition agreement.

Nevertheless, the new government makes crystal clear that it will fight for a humane and humanitarian approach. The section on European and international asylum policy (pp. 139-140) is full of positive language accentuating human rights and the need to counter containment. The government supports interstate coordination of search and rescue (including with neighbouring countries, which practically means the Maghreb), to which Frontex shall contribute ‘within its mandate’. A ‘fair distribution’ of refugees shall be achieved, together with ‘better standards’ at the external borders. ‘Suffering at the external borders’ shall come to an end; the vision of Frontex is one of ‘effective and law-based external border protection’.

Note that the language remains decidedly abstract. There is little practical detail, let alone an indication of what exactly the government means with ‘fair distribution’ or what it wants to do to achieve ‘better standards’. The small print will have to be hammered out, and, most importantly, partner countries within Europe will have to be convinced. Observers of the supranational policy debate will understand that doing so remains an uphill struggle. Coalition partners, including many young parliamentarians inspired by the work of NGOs, will certainly try their best to turn the tide in Brussels. However, success is far from guaranteed.

A good example is the ‘Malta declaration’ the government wants to reactivate as a ‘coalition of the willing’ to relocate those rescued at sea. It is one of the very few specific measures the coalition agreement announces in the European chapter. I wish the government good luck, but experience shows that the prospect of success is limited. The initiative did not bring about the dynamism some had hoped for. Few countries were willing to sign up with substantial commitment, and the mechanism was silently buried during the pandemic. 

Thus, the only element of the agreement that may find the support of European partners is enhanced cooperation with third states. Indeed, the government rhetorically commits to follow this line, which, in practical terms, concerns cooperation with countries such as Turkey, Morocco, Tunisia, and, controversially so, Libya. The Greens, in particular, had been highly critical of such initiatives in the past. Nevertheless, they might learn quickly that international cooperation allows EU institutions to circumvent toxic policy debates about how to deal with new arrivals.

Big Surprise: External Processing

Migration policy can be confronted with new developments overnight; the escalating crisis at the Polish-Belarusian border unfolded in parallel to the coalition negotiations. The incoming government had to confront this challenge—and the outcome is a real surprise. It commits to ‘examine … whether status determination may exceptionally take place in third states’ (p. 141). Doing so is supposed to try to fit the proverbial square peg into a round hole in terms of overcoming a real policy dilemma. 

One the one hand, the government states paradigmatically that all asylum applications must be examined and that ‘illegal pushbacks’ have to stop. The coalition agreement even indicates that the (unanimous) enlargement of the Schengen area may be made conditional upon compliance with the rule of law, thus effectively threatening a veto against Croatian accession in case the pushbacks continue. On the other hand, it signs up to the prevalent language that the ‘instrumentalisation’ of migration cannot be tolerated and that Europe should not be ‘blackmailed’ by a dictator, in the form of determining how many people cross the external borders.

External processing presents itself as a seemingly magic solution, by ‘outsourcing’ status determination to Ukraine or elsewhere. Few people beyond the German-speaking world will have heard of such an idea before. It effectively takes up the proposals of the leader of a think tank, Gerald Knaus, who is extremely visible in the German debate and is habitually referred to as the ‘architect’ of the EU Turkey statement in the media. 

While external processing could theoretically be realised in full compliance with international law and the Refugee Convention, the project is bound to fail in practice—mirroring the failure of previous initiatives, including disembarkation platforms envisaged by the European Council in June 2018 (here, para 5). Realisation of the project would require a reform of the Asylum Procedures Directive, the willingness of third states to sign up to the project, the determination of the procedural standards applicable in the third state, the guarantee of humane living conditions, and a strategy of what to do with those receiving protection or being denied asylum. The coalition agreement remains silent on these matters (as does Gerald Knaus in most of his rather general interventions promoting the idea).

Legal Pathways and Humanitarian Visas

Luckily for the new government, some elements of international asylum policy can be determined at the domestic level semi-autonomously. Critics of the prevalent externalisation and containment policies will rejoice at the announcement of more resettlement, a quota for humanitarian admission from Afghanistan, as well as the introduction of humanitarian visas. We can expect the government to realise these projects, even though it remains silent on the numbers involved, or the relevant criteria. These issues will have to be determined during the next parliament. 

Lacuna: Reform of the Common European Asylum System

The new government understands that the European level is crucial. The coalition agreement subscribes to the objective of a ‘fundamental reform of the European asylum system’ (p. 141), but it fails to give even the slightest idea of what it will support in practice. Border procedures in hotspots at the external border? Reform of the Return Directive? Less social benefits in case of secondary movements? Restriction of legal remedies against Dublin transfers? Anyone who wants to learn more about the German position will not find any indication in the coalition agreement.

That might be a smart tactical move, since the coalition partners have diverging views and know that the policy debate in Brussels is full of pitfalls and the need for compromise. Silence effectively defers decisions on the road to be taken to a later point. Central topics will be taken up in the coalition committee, where all three parties are represented, while most of the ‘daily business’ will be dealt with by the ministries of the interior and justice. 

The absence of detailed prescriptions on core questions puts the social-democrat interior minister Nancy Faeser and the liberal justice minister Marco Buschmann in the driving seat. The Greens will watch from the sidelines (their focus during the negotiations was on climate change), with the exception of international cooperation, coordinated by foreign minister Annalena Bearbock. When it comes to EU asylum policy, in particular, the coalition agreement can be compared to a trailer of a blockbuster movie: it makes you curious of the things to come, without revealing too much detail.