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Germany: Amendment Act marks continued hostility towards foreigners and second generation immigrants

01 October 2007

Decades of restrictive handling of asylum and migration rules have, in Germany as in the rest of the EU, led to a large number of asylum seekers and migrants living permanently without a secure legal status. Forced into illegality, undocumented migrants are economically marginalised and often excluded from basic social services that help to meet a decent standard of living with regard to housing, food, clothing, health care, legal advice, education and training. As a result of this structural violation of migrants' basic rights in Europe, the sans papiers, asylum and migrant rights groups in Germany and other EU countries are demanding the regularisation of undocumented migrants and rejected asylum seekers living in the EU without a secure residency status.

Germany has now introduced the possibility of regularisation for a certain group of these de facto residents, as well as introducing a plethora of amendments to existing residency and family reunion laws in the name of EU harmonisation. However, the overall reform package introduced with the Immigration Amendment Act, which came into force on 28 August this year and claims to implement eleven EU migration and asylum Directives, (1) was received by migrant communities and asylum rights associations with serious criticism. For one, the legal changes continue to favour highly-skilled workers over and above refugees and those deemed economically worthless for the economy. Then the government presented the law as a straightforward implementation of EU law into national law, whilst legal experts argue it fails to do just that. Furthermore, certain restrictions in family reunification procedures are presented as an instrument in the fight against trafficking and forced marriages, which is perceived by human rights campaigners as cynical as it fails to implement typically humanitarian and generous aspects of the EU Directives whilst introducing unrelated immigration restrictions. However, it was particularly the restriction of family reunion and compulsory integration courses which created discontent in the migrant communities and are criticised as hostile towards the integration of Muslims. Turkish associations have therefore announced legal action with the Federal Constitutional Court to test the new rules.

Regularisation of de facto residents

The Amendment Act (2) reforms existing laws on residency, freedom of movement, asylum procedures, the foreigners' database and citizenship. With regard to the regularisation of long-term undocumented de facto residents, the Amendment Act follows a decision by the regional interior ministers' conference in November last year, (3) which for the first time introduced the possibility of large-scale regularisation in Germany. The regional regulation grants third country nationals who have been living without interruption for six (families) or eight (individuals) years the right to apply for a residency permit until 17 May 2007. Applicants had to prove they could support themselves financially, whilst families with small children were granted certain exceptions with regard to employment. Although the introduction of residency rights for long-term de facto residents is generally seen as a positive move by the government towards the integration of foreigners, the preconditions applied to qualification are so strict and exceptions and exclusions in practice so far-reaching that it is estimated that only half of the estimated 170,000 to 190,000 migrants concerned will be able to receive residency (4). Preliminary statistics have shown that depending on the situation in the employment market in the different regional states, the acceptance quota is between 2.7% and 31.5%. (5) The low acceptance quotas are explained by the various criteria for exclusion, particularly the precondition of finding work.

The residency provision passed by the regional interior ministers' conference was taken over by the Ame