German Immigration Law Clears Final Hurdle
By Veysel Oezcan
Humboldt University Berlin
September 1, 2002
Germany's president has signed the nation's first immigration law, which has been welcomed by several organizations including business and labor federations, but criticized by both conservative politicians and immigrant advocates.
The law, which contains many of the recommendations of the government-appointed Independent Commission on Migration to Germany, chaired by Rita Suessmuth of the Christian Democrats, was signed by President Johannes Rau on June 20 and will take effect in the beginning of 2003. The law passed in the Bundestag (lower house of Parliament) on March 1 with the backing of the governing Social Democratic and Green coalition. However, after a bitterly contested vote in the Bundesrat (upper house of Parliament), it was unclear if Rau, a Social Democrat, would sign the law.
At issue was a decision by the president of the upper house, a Social Democrat, to count the state of Brandenburg among those voting for the bill, despite claims that the state officials had not given a definite vote. Several states governed by the opposition Christian Democrats have already filed a lawsuit with the Constitutional Court.
The Christian Democrats have opposed the law since its inception, saying it will increase immigration at a time when inflows of foreigners should actually be restricted. As reasons, they have cited the need to make jobs available to Germany's four million unemployed, and the importance of integrating foreigners already in the country.
In any event, several parts of the law have to be clarified by executive orders and administrative instructions. Many of the details of how the law will actually be implemented will be worked out in talks between the federal and state governments.
The new law makes radical changes in the area of migrant labor, creating four different channels through which foreigners will have the opportunity to enter Germany for work. First, part of the market for migrant labor will be demand-driven. Second, as a general rule, renewable temporary work permits (whose duration has yet to be determined) will only be issued if a position cannot be filled by a German or European Union citizen.
Second, provisions are made for a point system along the lines of the Canadian model, under which applicants who meet certain criteria in categories like age, education, work experience, family status, language ability, relationship to Germany, and country of origin will be entitled to come to Germany without having to show proof of employment beforehand. Applicants from upcoming member states of the European Union will receive particular consideration. In addition, migrants coming on the basis of the point system will be eligible for a settlement permit, which is of unlimited duration.
Skilled workers, including scientists with specialized knowledge, managers, and other experts, are the third group whose entry is regulated by the new law. In a move applauded by the business community, the law will also award unlimited residence permits to these workers. The president of the Federation of German Industries, Michael Rugowski, has welcomed the new rules, saying that the German economy urgently needs skilled employees and specialists to keep pace with the competition on the global market.
Finally, the law contains the first-ever provisions for the immigration of entrepreneurs. Immigrants planning to start up a business that creates at least 10 jobs, with a minimum investment of one million Euros, will initially receive a temporary residence permit. After three years and proof of success, the temporary residence permit can be converted into an unlimited settlement.
The law does not mention any quantitative restrictions or quotas. There will be a regular assessment of the number of immigrants arriving each year based on the point system and independently from the labor market situation. The immigration of entrepreneurs will be decided on a flexible basis according to "economic interests." The federal Ministry of the Interior, meanwhile, is expecting an initial demand for about 20,000 work-related migrants. Furthermore, the ministry estimates that around 5,000 highly skilled workers are likely to be admitted, along with an influx of about 500 entrepreneurs. While these numbers represent the ministry's intakes, it is the situation in the labor market that will shape the overall number in several admission categories. There is no official information yet on whether these numbers are of an annual character, since many details of the law's implementation have yet to be worked out.
Beyond the existing Federal Labor Office, which will play an important role in deciding if there is demand for migrants on the labor market, a Federal Office for Migration and Refugees and a Migration Council will be created for this oversight process.
As of July 1, one part of the law had already been implemented. The former Federal Office for the Recognition of Foreign Refugees was renamed the Federal Office for Migration and Refugees. The new office will continue its predecessor's tasks, such as handling asylum procedures, but will also be responsible for organizing integration courses for immigrants. Furthermore, the office will supervise the central register of foreigners in Germany.
Another innovation is the creation of an independent council of advisors. This so-called Migration Council, with members appointed by the secretary of the interior for a term of four years, will consist of seven experts in demography, labor market policy, migration and integration. The council will issue an annual advisory opinion about the development of immigration in Germany. In addition, the council will make a statement on the necessity of immigration through the point system, and also recommend how large this category should be.
Changes in Residence Permits
The immigration law also amends the rules affecting the residence status of foreigners -- that is, non-Germans -- and the immigration of family members, as well as the integration of migrants and the situation of asylum seekers.
The complex residence law will be radically restructured. From 2003 on, the current system of five different residency permits will be replaced by two kinds of residence permits: temporary or unlimited. In the future, settlement permits will be of unlimited duration and will be automatically connected with an employment permit. Foreigners already living in Germany who now have the so-called residence eligibility (Aufenthaltsberechtigung), or hold an unlimited residence permit (Unbefristete Aufenthaltserlaubnis), will be entitled to a settlement permit.
In addition, immigrants arriving as highly skilled workers and through the point system will receive a settlement permit from the beginning. Finally, foreigners who have lived in Germany for five years and who can provide evidence of their ability to earn a living, five years of social security contributions, and sufficient knowledge of German, will also be entitled to a settlement permit.
In another change, only children 12 years and under of foreigners living in Germany will be allowed to come to Germany to join their parents. This is a change from the present cutoff point of 16 and was made to accommodate concerns by the opposition, which has argued that young immigrants will integrate into German society more smoothly if they arrive at an earlier age. However, exceptions to the "under-12 rule" are possible: all immigrants who move with their entire family to Germany are allowed to bring offspring up to 18 years old with them (regardless of the point system score, being a highly qualified immigrant, etc). Furthermore, children of highly skilled immigrants and those coming on the basis of the point system are allowed to join their family up to age 18.
Asylum Rules Tightened
The law also makes changes to the system of granting asylum. Approved asylum applicants will only receive temporary residence permits. After three years, authorities will determine whether the requirements for the approval are still being met; an unlimited residence permit will be issued only if this is still the case. At present, approved asylum seekers automatically receive an unlimited residence permit.
The change has elicited sharp criticism from Pro Asyl, a human rights organization for refugees in Germany, which maintains that refugees will not feel safe even when their application has been approved. Furthermore, the organization has criticized the law's failure to provide social and legal improvements for undocumented migrants, despite recommendations from the Independent Commission on Migration, which had called for waiving the obligation of schools to report students living illegally in Germany to the authorities. Furthermore, the commission also recommended that persons and organizations caring for illegal migrants, e.g. in the area of health care, should be granted immunity to accusations of involvement in criminal actions.
On the other hand, advocates on behalf of refugees have welcomed the law's offer of "Convention refugee status" to people who are subject to non-governmental or gender-specific persecution. Up to now, the residence of these refugees was simply tolerated through a temporary suspension of deportation, depending on the situation in the person's home country. As of 2003, these refugees will be granted protection against deportation in accordance with the 1951 Convention Relating to the Status of Refugees. Like approved asylum seekers, and after meeting the same criteria, they may receive an unlimited residence permit after three years.
The new law also contains provisions to facilitate the integration of immigrants by offering them courses on the German language and the country's social and legal institutions. Failure to attend such courses could result in the government's refusal to grant them unlimited residence status. At the same time, the responsibility for financing these courses is still unresolved and has been one of the most heatedly disputed points in talks between federal and state authorities. Although the Ministry of the Interior is offering to pay two-thirds of the costs, the financial burden will have to be shared by the states and cities involved. The immigrants themselves will also have to pay to participate in courses, albeit on a sliding scale according to their means.
There are signs that this arrangement will cause friction between lawmakers and local authorities. Already, the mayor of Frankfurt has announced that the city will not implement the immigration law because of financial restrictions.
2002-2013 Migration Policy Institute.
All rights reserved.
Migration Information Source, ISSN 1946-4037
MPI · 1400 16th St. NW, Suite 300 · Washington, DC 20036
ph: (001) 202-266-1940 · fax: (001) 202-266-1900