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

By Daniel Thym, Universität Konstanz

Notwithstanding a lack of popular support, the German government managed to bring a rather extensive set of eight bills on immigration through parliament before the 2019 summer break. This blogpost aims at introducing the core piece of legislation of Germany’s recent migration package to a transnational audience: the Skilled Immigration Act, which indicates the determination of the largest Member State not to confine migration policy reform to supranational harmonisation, even though the reform step may reinforce the international debate about legal migration and its interaction with the asylum system. Closer inspection of the Skilled Immigration Act also offers insights into specificities of the German debate.

By contrast, other elements of the migration package do not raise many issues that are relevant for the pan-European debate, since they essentially implement or complement existing EU rules. Some measures were however politically contested and raise important legal questions, but their effects are often specific to the German context. Those who want to learn more about corresponding measures on the regularisation of illegal stay, return and detention, the residence requirement for beneficiaries of international protection or deprivation of nationality are invited to consult the reports submitted by experts to the parliamentary hearing.

A German Narrative: Towards an Immigration Code

In the EU, supranational lawmaking often coincides with segmented public discourses at the national level. When it comes to migration, there is a German specificity that is difficult to grasp for outsiders: preoccupation with whether Germany should be qualified as a ‘country of immigration’ (Einwanderungsland) and the desire for an ‘immigration code’ (Einwanderungsgesetz or -Gesetzbuch). For decades, calls for or against a move in that direction have served as symbolic reference points on different sides of the political spectrum. They reflect a double desire.

● Firstly, the obsession with an ‘immigration code’ builds on a deep-rooted belief in the merits of systemic legal treatises in structuring the society and the economy in line with the civil code (Bürgerliches Gesetzbuch) and the patriotic weight of the constitution (Grundgesetz). They reflect the assumption that the state and legal rules can play an active role in bringing about social change. There is an almost naïve assumption among some actors that the dilemmas and conundrums of migration and asylum policy might disappear if the legislature adopted an ‘immigration code’ replacing the seemingly hyper-complex and dysfunctional legal status quo. European rules are often absent from that debate. Many journalists and political actors are unaware of important pieces of European legislation on labour migration, family reunification or long term residents.

● Secondly, the debate about Germany as an ‘country of immigration’ has accompanied migration and asylum policy ever since the 1970s. Indeed, the very term ‘immigration’ (Einwanderung) has been highly controversial for many years. The last comprehensive legal package, the ‘migration act’ of 2004 (Zuwanderungsgesetz), deliberately evaded the word ‘immigration’ and used a somewhat neutral formulation instead, whose semantic nuances are lost in any attempt to translate them into English.

Against this background, it should not be underestimated that the grand coalition baptised its bill on immigration ‘Skilled Immigration Act’ (Fachkräfteeinwanderungsgesetz). It shows that the political actors finally accept immigration as a defining feature of German politics. Of course, such step will not end political debates about how to position Germany as a country of immigration, both in terms of entry policies and public self-perception between diversity and common values. Nevertheless, the ‘Skilled Immigration Act’ marks an important step towards the normalisation of German migration policy. Since the new law is limited to skilled labour migration, we can expect future governments to adopt bills playing with the ‘immigration’ metaphor, and they may be eager to prevent European legislation from limiting their room for manoeuvre decisively.

Labour Migration: Liberalisation by Stealth

The symbolism of the Skilled Immigration Act was reinforced by the lack of awareness among many observers that German labour migration rules had been liberalised significantly over the past decade. A collection of roughly eight laws and regulations had reduced most hurdles for the immigration of the highly skilled, i.e. those with tertiary education such as a university degree. Officially, the Residence Act maintained that residence permits for economic purposes shall be granted only exceptionally and subject to a labour market test with preference for domestic workers, but these rules had been watered down through numerous exceptions, which led the OECD to conclude that Germany has the most liberal immigration regime for the highly skilled in Europa.

When it comes to the highly skilled, there was therefore not much to liberalise as a result. Nevertheless, the legislature embarks on important symbolic changes, which render the degree of liberalisation visible. Thus, residence permits will comprise a work permit as a matter of principle in the future, since the law will have to be lay down any exception explicitly (section 4a of the Residence Act). Most importantly, however, the labour market test will be abandoned, unless it is reintroduced for specific segments (section 39(2)), thereby abandoning a concept, which has defined labour migration policies across Europe for decades, even though it had already been considerably narrowed through numerous exceptions and procedural simplifications in recent years.

Germany thus takes the pool position among the Member States with the most liberal immigration rules for the highly skilled. That was not always the case. In the early 2000s, German governments actively supported those rejecting the Commission Proposals on legal migration. It is ironic that the most important move towards liberalisation for the highly skilled occurred on the occasion of the transposition of the Blue Card Directive of the Blue Card directive on highly qualified employment, when Germany decided not to use the leeway for stricter domestic rules on which it had insisted during negotiations in Brussels. These days are over and yet, we should not expect future governments to necessarily support further EU harmonisation if the latter prohibits the German Bundestag to change domestic rules or to adopt an ‘immigration code’. That was a major problem of Art. 3(4) of the Commission Proposal for a reform of the Blue Card Directive, which the European Parliament insisted upon against the opposition of the Council: it would have prohibited parallel national schemes.

New Rules: Beyond the Highly Skilled

The centre of gravity of the new law lies beyond the highly skilled. It is essential to grasp a specificity of the German labour market to understand the recent reform step: the dual education system (duale Ausbildung), which combines apprenticeships in companies with vocational training in professional schools. Ministries, industry associations and trade unions are proud of that system, which in their view, underlies the famed reputation of the German economy for high quality and corresponding high wages. They are eager, therefore, to prevent any indirect downward pressure on the productivity of and employment conditions for domestic workers via immigration.

One must understand against that background the most important reform step of the Skilled Immigration Act. Germany generally opens the labour market for skilled migrants below the level of tertiary education. The main requirement is a job offer. There is need for a labour market test or a minimum income mirroring the Blue Card Directive. Instead, the legislature introduces an alternative benchmark: prospective skilled migrants will have to show that they underwent professional training abroad that is equivalent to a German degree, in particular under the dual education system (sections 18(2), 18a of the Residence Act). If you fulfil this condition, the German labour market is now open.

There are only two minor caveats besides generic exceptions, for instance on public policy grounds. Firstly, those above the age of 45 will have to show a high income or sufficient savings to prevent reliance on social benefits as pensioners. Secondly, the labour agency will have to check whether the job offer matches the educational requirements and whether the employment conditions are equivalent to those for domestic workers (section 39(2)). We can expect immigration authorities to exercise their residual discretion generously, at least when job offers come from a known local employer. In many regions, companies collaborate constructively with the immigration authorities. They all know that Germany has a shortage of skilled labour and that immigration from Europe and beyond is one element to fill the gaps in labour market.

Towards ‘Home-Grown’ Skilled Workers

The success of the Skilled Immigration Act will depend on whether German companies succeed in hiring third country nationals that underwent professional training abroad. That is no foregone conclusion, since few third states offer professional training that is equivalent to the German dual education system. Many third-country nationals will have practical work experience, but lack the theoretical training that professional schools offer in Germany. In such cases, the equivalence test for vocational training will not be fulfilled.

That is why the legislature establishes an alternative route for entry which aims at replicating the success story of hiring the highly skilled via the university system. In many countries across the world, former students are by far the largest group that obtains a residence permit as a skilled worker. Educating migrants yourself has many advantages: companies are familiar with educational achievements; language skills are better; migrants are familiar with both the labour market and the social and cultural specificities of their future home country. In many respects, students and trainees are ‘ideal immigrants’.

Germany wants to replicate that model by facilitating immigration for the purpose of professional training. For those who get a training contract with a German company, entry will be comparatively easy. There are no specific limitations except for an economic self-sufficiency test, which will be mitigated by a work permit for 10 hours per week besides the training curriculum, for which participants also get some (not much) money in the dual education system. Again, we can expect immigration authorities to exercise their discretion generously, if they trust the employer (section 16(1), (3) of the Residence Act).

In addition, most companies will require a sufficient knowledge of the German language, even though the law does not lay down such a requirement. Without language skills, companies will not regularly agree to give third country nationals a contract as a trainee. Experience with refugees who entered in 2015/16 shows that the lack of language skills is a crucial practical stumbling block for the manifold attempts of local companies to support their integration into the labour market.

Language skills at the A2 level become a legal requirement for those who have practical work experience and want to enter Germany for completing professional education (Nachqualifikation). Business associations hope that this specific route for entry will build a bridge between the situation in third countries and the specificities of the German labour market. Note, however, that the new rule does not abandon the qualification requirement, but allows for its partial completion within Germany. Applicants must show that they have agreed with a company on a reliable path to remedy the vocational shortcomings and that the company will hire the person thereafter (section 16d).

The Challenge of Practical Implementation

The practical effects of the new rules will depend on whether German labour offices, consulates and embassies, chambers of industry and commerce, trade unions and companies will manage to convince prospective immigrants to undergo professional training in Germany, even though that system is not known abroad and offers its benefits, including good salaries, only after the completion of the study curriculum.

If they do not succeed, the German parliament will be asked sooner or later to experiment regulatory tools to render the qualification requirement more flexible, in line (see here, pp. 55-57) with proposals of the Expert Council for Integration and Migration. As it stands, an experimental clause is only established for IT workers, which can replace the professional diploma requirement with five years of practical work experience plus advanced German language skills (section 19c(2) together with section 6 of the Implementing Regulation).

Apart from the specific case of IT workers, the German legislature does not follow the trajectory of the Blue Card scheme to generally open the labour market for certain categories of skilled migrants with practical work experience under the sole condition that they have a job offer with a solid minimum income. The German model is different: it focuses on skills and trusts companies to select immigrants irrespective of the salary paid provided that they participate in professional training courses.

Job Searchers: Shadows of the ‘Points’ System’

Political actors often associate in Germany the vision of an ‘immigration code’ with the adoption of a points’ system, which they hope might resolve the diverse dilemmas of migration and asylum policies with seemingly magical formula, even though closer inspection of existing points systems shows that they have their own problems or do not differ decisively from the existing German rules, if they award many points to a job offer. The Skilled Immigration Act does not introduce a points’ system, but there are traces of it.

Ever since 2012, Germany has allowed university graduates who are economically self-sufficient to apply for a jobseeker’ visa for up to 6 months, during which they can apply for jobs, but are not be allowed to work. That option has little relevance. Practitioners report that the idea underlying is too complex: those who want to find a job in Germany and have enough money, often talk to companies on the basis of a Schengen visa, which is much easier to achieve than a jobseeker’ visa. During the first six months of 2018, only 150 people lived in Germany on that basis.

Nevertheless, it is an important conceptual and political novelty that the jobseeker’ option is extended to skilled migrants, provided that they have advanced German language skills and a foreign professional education that is equivalent to the degrees of the domestic German dual education system. Companies may hire these people for short periods to test their capacities (section 20(1) of the Residence Act). Third country nationals may even apply to enter the country to look for a training course if they fulfil a number of rather strict conditions (they shall not be older than 25 years, must speak German at the B2 level, have sufficient resources and are allowed to study at university in their home country (section 17(1)). Experts of labour migration law will realise immediately that these conditions are equivalent to what points’ systems require.

It does not come as a surprise that many political actors, especially among the Christian Democrats, were concerned that such rules could be abused. That is why they insisted on strict conditions, which are complemented by a generic discretion of the embassies and the option to exclude certain nationalities or professions by means of implementing regulation if there are indications of abuse (section 99(6)). Rules on social assistance exclude people who entered for purposes of jobseeking from social assistance.

Labour Migration: A Piece in the Asylum Puzzle?

Political debates on migration in Germany and beyond tend to focus on asylum. The German Skilled Immigration Act shows that demographic change and the shortage of skilled labour in some labour markets is gradually resurfacing as an alternative reference point, for which the political dynamics are different, since the general public and most political parties tend to support moderately generous entry rules. Moreover, there can be feedback loops between the rules on labour migration and the debate on asylum.

It is popular among political actors, not least among the German Social Democrats, to portray the new rules on labour migration as an alternative to the asylum system for those without protection needs. The linkage will be indirect, since few people who entered via Libya will meet the conditions for skilled migration. However, that does not exclude the political combination of both questions, if restrictive asylum practices are justified with new entry routes for labour purposes. Angela Merkel is a known supporter of that idea. During her trips to Western Africa, she has argued repeatedly that Europe should find arrangements with countries of origin that include options for legal migration.

Against this background, the new general rules offer new opportunities. Thus, the state-owned Goethe Institutes may offer German language courses, which could be combined with training programmes in third states that are set up with the support of development cooperation money or German businesses. Some participants in these programs could be offered to continue training in Germany, thereby becoming labour immigrants. The Skilled Immigration Act even introduces a facilitated route of entry in the context of agreements between the German labour office and third states (section 16d(4)(1) of the Residence Act), with which the government aims at experimenting in the health sector and for care workers on the basis of a recent agreement with Kosovo.

On this basis, countries of origin may be offered opportunities for labour migration to Germany’s biggest economy in the future (albeit outside the health sector to prevent brain drain from Western or Northern Africa). Ideally, they may benefit both the German economy and the home country, if the training projects are not limited to those who aspire to enter Germany. Such an offer may be an important contribution to an overall agreement with third states on legal and illegal migration. It may be good news for the new President of the European Commission that she can expect support from her home country in trying to bring about a bigger deal on migration and asylum.