Immigrant Policy Project

Recent Immigration Developments in Germany and France

By Dirk Hegen, October 2001

GERMANY
Legislative Situation and Developments
Refugees and Asylum
Demographics

FRANCE
Legislative Background
Refugees and Asylum
Demographics

Introduction

Throughout history, migration has always had a profound impact on countries, their societies and economies. Particularly the 20^th century, which brought about two world wars and the fall of the "iron curtain", produced migration flows to an extent that surpassed many countries' experiences with migration and its effects. Furthermore, the process of globalization accelerated, and produced unprecedented mobility of goods, information and of course persons.

Today, governments reexamine their complex strategies regarding immigration and asylum procedures, and - with varying levels of dedication - national and supranational governments live up to their internationally organized humanitarian commitments. Many governments also discuss the benefits and challenges of an ethnically diverse social and economic fabric, as well as which steps to take in order to combat ever-increasing illegal immigration and its negative consequences for a society.

Moreover, virtually every industrialized nation strives to facilitate arrangements that would allow highly skilled professionals and academics to settle and supplement the respective workforce, ensuring its future competitiveness in an international economy.

Thus, this abbreviated version of an earlier research paper sets out to specifically investigate Germany, France, and the European Union with respect to these countries' multi-facetted responses to immigration, asylum and integration. Additional focus will be placed on issues, which are closely related, such as workforce structures, the social policy framework and principal demographic developments.

Germany

In the past five years, Germany introduced a variety of far-reaching modifications with respect to its immigration and asylum policies. Three sets of causes account for these current developments. First, Germany, similar to France, faces major transitions in the nation's demographic structure and its workforce demands and, therefore, started to consider new concepts expected to alleviate negative effects of aging and workforce decline through liberalized, labor-based immigration provisions. Secondly, the intensifying process of European integration and the European Union's endeavor to harmonize immigration and asylum procedures obligate Germany to adopt legislation, which takes into account these transnational commitments. And thirdly, federal, state as well as local legislators find themselves under increased pressure generated in scores of public debates on asylum, foreigners and Germany's identity with respect to immigration and integration issues per se.

Germany has, until recently, never considered itself as an "immigration nation". This notion might be rooted in the fact that post-war Germany, with the exception of several guest worker programs in the 50's until the mid-70's, and in contrast to the United States' labor quota systems, has never established immigration legislation aiming to constantly optimize workforce structures.

Still, according to the latest figures provided by the Federal Statistics Office, Germany has a population of more than 82 million and nearly 9% of the population, or 7.32 million people, are foreign or from foreign parentage. This percentage is the fourth highest in Europe. While those born in Germany make up about two thirds of Germany's foreign population, today's foreign population is constituted by four major groups of migrants:

"Labor Migrants", (Gastarbeiter, "guest workers"), who were recruited from the 1950's until the mid-1970's to work in construction and mechanical industries. Their family members followed them and are, today, in third generation. Immigrants from Turkey (2.05 million), Yugoslavia (720,000), Italy (616.000), Greece (364,000), Spain (130,000) and Portugal (133,000) constitute Germany's largest foreign communities originating in guest worker programs.
"Asylum Seekers", who migrate to Germany seeking asylum, because of claimed political persecution.
"Ethnic Germans", who claim and can prove their German origin, from the former eastern part of pre-World War II Germany until 1937. During the last decade about 1.8 million ethnic Germans, predominantly from the former USSR, Poland and Rumania, migrated to Germany. Their integration is intended, because when they receive permission to migrate to Germany, they are officially recognized as Germans and are naturalized automatically.
"Contingent Refugees", who are refugees, granted a permanent staying permit, because of international treaties. According to Section 33 of the Aliens Act, the Federal Minister of the Interior may decide to receive specific aliens in Germany for reasons of international law or on humanitarian grounds. This is usually done according to a defined quota. In the early eighties and the nineties, Vietnamese "boat-people" and Jewish immigrants from Russia respectively were able to come to Germany as quota refugees. Germany has no agreement with UNHCR regarding the reception of quota refugees.

Legislative Situation and Developments

In 1995, Germany made international headlines by adopting a law that authorized denial of refuge and deportation of asylum seekers arriving in Germany from "safe third countries", i.e., arriving overland. And in 1997, concerned that asylum seekers were exploiting the social safety net, the German parliament passed a law to reduce financial support for some 30,000 foreigners seeking asylum by 20%. Both of these examples demonstrate a growing public concern, and therefore political pressure, regarding immigrants' use of German social welfare programs, such as pensions or income-maintenance programs.

Particularly the year 2000 brought about a substantial change of paradigms in the field of German immigration policy, reflecting the speed with which German views on citizenship and integration, as well as priorities in immigration policies have evolved.

In January, Germany radically reformed citizenship law from a jus sanguinis to a jus soli system, allowing birthright citizenship. As a result, the naturalization and integration of Germany's 7.3 million foreign-born long-term residents, who constitute almost 10% of the national population, was liberalized significantly.

In July, Chancellor Schroeder's Social Democrat and Green Party Government introduced so-called "green-card" legislation, similar to H1-B visas in the United States, which for the first time since the 1973 immigration halt, created liberalized labor immigration policies. Since adoption of the law in August 2001, approximately 9,000 foreign IT-specialists came to Germany on a green card-visa. Taking into account that the law provided for 20.000 of such visas, the overall outcome is considered only moderately successful and stirred discussion over amending the law to appeal more to needed IT-specialists.

Partly as result of the green card debates and the increasing need for a comprehensive legislative framework, in September 2000, Minister of the Interior, Otto Schily (Social Democrat Party) installed an independent commission, composed of 21 prominent politicians, academics and NGO-representatives, similar to the 1997 Weil Commission in France. The commission's main task was to evaluate Germany's immigration and asylum system within the broader, interconnected political contexts of education, family, science and technology as well as labor- and social welfare policy.

In July 2001, the commission presented its final report "Facilitating Immigration - Enhancing Integration", containing numerous recommendations for innovative regulations in the field of immigration, asylum and integration policy. Key recommendations convey that immigration reform should simplify the entry and integration of qualified individuals and, by no means, substitute other necessary alterations in the field of social and labor policy. In addition, the report advised that immigration cannot fully alleviate the population's aging and that immigration should not interfere with efforts to reduce domestic unemployment.

In August 2001, based on the commission's recommendations, Mr. Schily introduced legislation to the cabinet containing a new immigration policy concept. The controversial bill was expected to pass the cabinet on September 26 and to pass the Bundestag before the 2002 federal elections. However, this is very unlikely, due to the Christian Democrat's, as well as the Green Party's intense criticism, on the one hand and the terrorist attacks in the United Sates, on the other.

Nevertheless, the bill, for the first time, combines provisions relating to work permission and residence status. Furthermore, the variety of different immigration statuses is reduced to temporary and unlimited residence permissions. The law would also create a new federal office for Migration and Refugees including a commission of independent advisors to provide further recommendations on the implementation of immigration policy and integration practices.

Refugees and Asylum

German law acknowledges the 1951 Geneva Convention and the 1967 Protocol, which accord special protection to refugees, particularly those in occupied territories. The Convention also includes the principle of non-refoulement or involuntary repatriation on which refugee law is based.

According to the wording of the Geneva Refugee Convention (GC), characteristics relevant to asylum are race, religion, nationality, membership of a particular social group, and political convictions. General hardship - such as poverty, natural disasters or unemployment - is thus excluded from the reasons justifying the granting of asylum.

Furthermore, the German Basic Law's ("Grundgesetz") Section 16a(1) states that "persons persecuted on political grounds enjoy the right of asylum". Following the amendment of the Constitution in 1993, however, the right to seek and be granted asylum in Germany was seriously restricted. Whereas Section 16a(1) provides for an individual's right to enjoy asylum in Germany, the amended section 16a(2) incorporates the concepts of "safe third country" and "safe country of origin" into the Constitution. Since all EU member states and countries neighboring Germany were deemed "safe third countries", the constitutional right of asylum was no longer applicable to refugees who came to Germany by land. A Federal Constitutional Court decision dated 14 May 1996 confirmed the 1993 amendment of the Constitution on all essential points and ended a embittered debate.

The Asylum Procedure Act of 16 July 1982, as amended by law of 29 October 1997 provides for a detailed regulation on the right of asylum. The act provides the basis for improvements of organizational conditions and staffing, in order to accelerate handling of the asylum procedure. One of the prerequisites is the distribution of asylum seekers prior to presenting their asylum applications to so-called "initial reception centers" and taking photos and fingerprints of all applicants, to prevent one and the same person - using different identities - from submitting several asylum applications. Furthermore, decision-making gathered speed in cases of so-called "manifestly unfounded" asylum applications, in particular. An asylum claim is "manifestly unfounded", if it is clearly deemed unsuccessful from the very start. This involves shorter time limits regarding departure, legal remedies and court decisions.

The Act Concerning the Entry and Residence of Aliens in the Territory of the Federal Republic of Germany of 9 July 1990 was amended in November 1997 and July 1999. Its Section 51(1) states that an alien may not be removed to a state "in which his life or freedom is threatened by virtue of his race, religion, nationality, membership of a particular social group, or political opinion", in accordance with Article 33(1) of the Geneva Convention.

As a result of the reformed asylum legislation the number of asylum seekers dropped from 438 000 in 1992 to approximately 78 500 in 2000, i.e. by more than 82 per cent.

Germany participates in the "Schengen Agreement" which eliminated border checks between participating EU member states and the "Dublin Convention," which determines the state responsible for processing asylum applications lodged on EU territory. Both the Schengen Agreement and Dublin Convention will be portrayed in more detail in the European Union Section of this paper.

The Federal Office for the Recognition of Foreign Refugees (BAFL) is responsible for implementing the procedure of the Dublin Convention. Asylum applicants processed under this procedure, like other asylum seekers, are issued with an authorization to stay which is valid for the duration of the procedure and are given the same social rights as other applicants.

With regard to the current situation of asylees and refugees in Germany, the U.S. Committee for Refugees (USCR) estimated that in 2000, approximately 180,000 refugees sought asylum in Germany. According to the German Federal Commissioner on Foreigners' Affairs in 2000 the total number of refugees residing in Germany was at almost 1.2 million. The latter, cumulative estimation includes categories of refugees and asylum seekers not taken into the account by USCR, and is therefore significantly higher.

In 2000, according to the USCR, large numbers of asylum applications were filed from refugees coming from the Federal Republic of Yugoslavia (28,046), Turkey (14,355), Iraq (12,023), Afghanistan (11,136), Iran (5,797), Syria (3,069), the Russian Federation (3,001), Vietnam (2,770), and Bosnia and Herzegovina (2,625).

In December 2000, Germany lifted an employment ban on asylum seekers, affecting an estimated 75,000 claimants (USCR). As of January 1, 2001, asylum seekers will be able to work 12 months after entering Germany provided no German citizen or foreign national with permanent residence status is obtainable to take the job.

Demographics

"The rapid decline of births taking place in German population since the mid-sixties, has severe consequences for the structure of society and it would be dangerous to ignore this development. We are very fortunate to have the opportunity to compensate this decline through migration and naturalization efforts. It is the responsibility of German politics to make use of these chances. On top of that, it will be important to fulfill the task of integrating foreigners."

This quote has not been taken from the well-known United Nations' report "Replacement Migration: Solution to declining and aging populations?" as one might assume. In fact, this statement was made 21 years ago, in 1979, by the German sociologist Prof. Dr. Stirn. Since then, numerous other studies and reports indicated a significant decline and an aging of Germany's population and warned about the possible consequences for the workforce and the overall economic situation of the country. Consequently, it is safe to say that most of the UN-reports findings are not entirely new and it seems that before the publication of the UN-study, both media and politics were not excessively concerned with demographic changes and challenges. The UN-report's publication coincided with Germany's momentous controversy about the "green card" visas, thus interpreted as advice for replacement migration rather than an attempt to project different, possible scenarios of population development in connection with migration flows.

However, United Nations projections indicate that over the next 50 years, the populations of virtually all countries of Europe as well as Japan will face population decline and population aging. Aging occurs when fertility rates decline while life expectancy remains constant or improves at the older ages.

The report concludes that these new challenges of declining and aging populations will require comprehensive reassessments of many established policies and programs, including those relating to international migration.

The 2000 study, on the one hand, shows Germany's total fertility rates dropping from 2.49 children per woman in 1965, to 1.3 children per woman in 1995 and, on the other hand, an increase in life expectancy from 68 years in 1955, to 76 years for both sexes in 1995. In addition to aging processes, findings indicate that most European nation's populations will decline rapidly without immigration and that this was particularly true for Germany's population, which is, according to one scenario, projected to drop from its current 82 million to under 60 million people by 2050. Another scenario assumes a constant total population of about 82 million between 1995 and 2050. Keeping the German population at such a level would require an average of 324.000 immigrants per annum, or 17.8 million immigrants total. The Potential Support Ratio (PSR) is the number of persons aged 15-64 supporting each person older than 65, i.e., past working-age. Currently, the PSR is 4.4. The total of immigrants needed between 1995 and 2050 to keep this ratio (PSR) constant would be 188.5 million or 3.4 million immigrants per year.

The study concludes that if retirement ages remain essentially where they are today, increasing the size of the working-age population through international migration is the only option in the short to medium term to significantly reduce the declines in the potential support ratio.

Declining and aging populations create new challenges, which require thorough reassessments of many established economic, social and political policies and programs--not only immigration policies. Vital issues that will have to be addressed in Germany and France are:

the appropriate ages for retirement,
retirement and health care benefits for elderly members of the population,
workforce participation
contributions from the working-population to retired people's benefits, and
policies relating to international migration including the economic, social and civic integration of migrants and their descendants.

Some of the above points are currently being discussed in Germany. Interior Minister Schily's commission on Immigration was mentioned above and another example is German employers' initiative for raising the retirement age from 65 to 67 years to help the economy deal with an aging and declining population. The German Federation of Unions strongly opposes the raise of the retirement age, arguing that, on the contrary, more people should take early retirement to reduce unemployment, which is currently at 3.8 million, or 9.3%. And Mr. Riester Federal Secretary of Labor, too, opposed employers' calls to raise retirement ages, responding that: "We can talk about this after 2010."

In the future, Germany will most likely attempt to further develop innovations of its provisions in the field of immigration and integration. It remains to be answered, though, whether German policy-makers will succeed in implementing laws designed to tackle the above-portrayed demographic changes, within a societal climate that still is to some extent characterized by widespread uncertainties about the dichotomy between benefits and challenges of large-scale immigration.

France

France faces a very similar set of challenges like Germany. France, too, is an integral part of the European Union and equally committed to introduce legislation along the lines of the EU's transnational objectives of immigration and asylum policy. France's population "grays" and shrinks, because of declining fertility rates and increased life expectancy. Finally, similar to U.S. immigration history, France has experienced controversial public policy debates over immigrants and refugees resulting in a record-number of legislative shifts between closed and open immigration concepts.

France, unlike Germany, has traditionally considered itself an immigration country. For the last 25 years, immigrants have comprised just above 7% of France's population of 58 million. Like the U.S., France has seen a shift in the demographics of its immigrants -- African and Muslim arrivals from France's former colonies have increased, in some cases even beyond the level of European and Christian immigration flows. (Insert table B.3.)

In 1998, the largest foreign-born groups were from Portugal (600,000), Algeria (550,000) and Morocco (450,000). The rest of the foreign population consisted of 230,700 Italians, 200,000 Spaniards, 165,500 Tunisians, 160,500 Turks, 46,300 Poles and 51,700 from the former Yugoslavia. Immigrants from Asia made up 360,000 and immigrants from Sub-Saharan Africa accounted for 1.4 million people.

In January 1999, France had 2.1 million working immigrants accounting for 8.1% of the working population. These immigrants are predominantly found in unskilled (manual and non-manual) employment and their wage level is comparatively low. Yet, data indicates that immigrants do run a higher risk of unemployment given equivalent age, sex and qualifications and that women still find it hard to enter the labor market.

Between the end of World War II and 2000, approximately 10 million people immigrated to French shores, a number much greater than the influx of immigrants to Germany in the respective period. And yet, France has only 3.4 million foreigners, whereas Germany hosts well over 7 million foreigners. The reason for this is that French citizenship regulations traditionally rest on the jus soli principle, which entitles those born in France to the right of citizenship, resulting in the naturalization of descendants of France's foreign-born population.

Legislative Background

The Ordinance of November 2, 1945 established basic conditions of entry and residence of foreigners in France, but has been amended by several Acts between 1981 and 98. Like in Germany, asylum regulations in France are in accordance with the Geneva Convention of 1951 and New York Protocol of 1967.

An Act of July 25, 1952 established the Office for the Protection of Refugees and Stateless Persons, which, since then, the first instance asylum determination body, which works autonomously within the Ministry of Foreign Affairs. Following the Act of May 11, 1998, all the provisions related to the right of asylum have been moved from the 1945 Ordinance and amended to the Act of July 25, 1952 defining the status of the OFPRA, which was then renamed the "Asylum Act."

The restrictive period of the 1970's post-oil crisis era was followed by a large scale amnesty in the 1980's. Then, in 1986, anti-immigrant, right wing Front Nationale gained parliamentary representation and subsequently neutralized naturalization efforts of past governments. In 1988, the Socialist President Mitterand pursued a "grand bargain" of stronger controls over immigrant inflows along with increased efforts to integrate current residents. In 1993, a coalition of Gaullists took over, again launching a more restrictive period of immigration policy, with increased police powers to deport foreigners, reduced opportunities for asylum seekers, and attempts to restrict naturalization. The Second Pasqua Law denied equal protection and due process to foreigners, reducing migrants' ability to appeal negative asylum decisions and increasing police jurisdiction in investigating and deporting illegal immigrants. August 1993 Conseil Constitutionel ruled certain provisions of 2nd Pasqua Law unconstitutional.

In 1995 Presidential election - Jacques Chirac (narrow margin over left candidate Lionel Jospin). Govt led by Alain Juppe, Chirac's lieutenant. UDF and RPR still controlled 80% of the seats. Pasqua gone, had supported Balladur, was replaced by Jean-Louis Debré. Le Pen received 15% (on first round).

Because of the Schengen Agreement and the Dublin Convention France added a new section to its Constitution by the Constitutional Act of 25 November 1993. This law provides that asylum applications submitted in France may not be considered if they fall within the reach of these agreements. For instance, when migrants entered another convention-state before arriving in France, the respective state is responsible for processing their asylum applications.

In 1997, the socialist party won the National Assembly. Prime Minister Jospin called for a renewal of the "grand bargain". Consequently, Mr. Jospin commissioned a report by the prominent political scientist Patrick Weil to survey France's immigration structure and to establish policy recommendations, especially, but not only, with respect to illegal immigration. As a result, in 1998, France liberalized its citizenship law to permit children born in France of foreign parents to become French citizens automatically at age 18, provided the child has lived in France for five years. The previous law required children to apply for French nationality between the ages of 18 and 21. Another recommendation of the Weil report that suggested creating special visa provisions for highly skilled immigrants became the groundwork for several French 1998 laws, similar to the United States' H1-B visa legislation.

At present, France maintains four ministries and three agencies that share responsibility for immigration and other related issues: (1) the Ministry of the Interior, until August 2000 under Mon. Chevenement; (2) the Ministry of Public Order and Security that regulates the entry of immigrants; (3) the Foreign Affairs Ministry, responsible for international treaties and French citizens abroad; and finally (4) the Ministry of Urban Affairs, which is concerned with immigrants' integration, as well as their legal and social problems

Three agencies perform services in direct contact with the immigrants or refugees. (1) The "Fund for Social Action" aims at the integration of immigrants and subsidizes private sector organizations, in order to provide immigrants with assistance in the fields of language access, housing and labor market. (2) The "National Office for Immigration" established welcome services and orientation to newcomers as well as an initial medical check-up. (3) The "Office for the Protection of Refugees", the equivalent to Germany's Federal Office on the Acknowledgement of Foreign Refugees, determines whether refugees can be granted political status. In case that status is not approved, the agency suggests and executes the immigrant's deportation.

Refugees and Asylum

France administers significantly fewer asylum applications than Germany. Between 1990 and 1996, asylum applications declined from about 55,000 to 17,000 in 1996, when Germany still had well above 140,000 applications to consider. Since then however, asylum applications increased again, by 20% in 1997 to 21,000 applications. Rejection rates for asylum applications are, in comparison to other European countries, relatively low at around 80% for most years. Only Sweden, generally having fewer applications, accepted a higher percentage of asylum applications, up to 97% of the 40.000 applications in 1993.

At the end of 1999, France hosted about 30,000 refugees and asylum seekers. This number includes roughly 4000 individuals granted asylum, an estimated 15,500 asylum seekers whose applications remained pending. An additional 4,000 Algerians with territorial asylum, an estimated 5,000 Kosovo-Albanians, and some 1,000 Yugoslavs denied asylum who nevertheless remained in need of protection.

In 1999, asylum seekers submitted around 31,000 applications in France, an increase of 38 percent over 1998. France received the sixth most applications among Western European countries and ranges in seventeenth position in applications relative to its population. During 1999, the largest numbers of new asylum applicants came from China (5,100), Yugoslavia (2,400), Congo-Kinshasa (2,200), and Turkey (2,200).

Like Germany, France introduced a law (No.96-625) which established holding zones in ports and airports for foreigners who arrive without authorization to enter France. Asylum seekers who are determined to have provided manifestly unfounded applications for asylum must leave the country.

Recent legislation established an innovative project that attempts to ease the transition newcomers face when arriving in France. The so-called "Welcome Centers," located all over France, provide new immigrants with a warm welcome and a basic orientation regarding their new host-country. Immigrants receive a medical check-up and are informed about their rights and their duties living in France as immigrants. The "Welcome center"-concept was founded through the federal ministry's initiative. A committee of national, state, local and grassroots organization receives funding and organizes and implements the project.

Asylum seekers in France are not permitted to work, but entitled to a one-time "waiting allowance" of about $275 per adult and $100 per child upon arrival in France. Many refugees, waiting for the decision of the acknowledgement process reside in collective centers, which have been found to offer insufficient reception capacity, according to a June 2001 report of the National Consultative Commission on Human Rights (CNCDH). Moreover, CNCDH proposed an overhaul of asylum policy in France and called for an "in-depth reform of the conditions under which the right to asylum is offered". The commission criticized the current system as being too complex, involving too many people and taking too long to process applications.

Demographics

According to the December 1999 census of the Federal Institute for Statistical Research (INSEE), France has 60,19 million inhabitants, 2,1million more than in 1990. Since 1990, roughly 40.000 more people moved to France than moved away. The average yearly population growth is 0.4%, although it appears that this percentage tends to decline. This tendency can be partially attributed to a decrease in France's total fertility rate. This rate was well over 2.8 children per woman in 1965 and dropped to 1.7 in 1990-95. On the other hand demographic data suggests that France's population ages, although not as swiftly as in Germany. The percentage of past working age people in France, i.e. 65 years and over, was 11.5% in 1950 and increased to 15% in 1995. Similarly, life expectancy combined for both sexes rose from 66.5 years in 1950 to 77 years in 1995.

These past trends were the basis for an extensive study conducted by the United Nations Population Division (UNPD) earlier this year. The report creates several scenarios of demographic development based on earlier developments in French population dynamics. Like Germany, public and media responses to the report's findings and its controversial implications were intense and, consequently, widespread debates on immigration and the workforce surfaced.

The report includes one scenario of population development with zero immigration. The total population of France would increase to 61.1 million in 2025, and then start decreasing to less than 60 million in 2050. The population aged 65 years and older would keep increasing from 8 million in 1995 to 15.2 million 2050. As a result, the potential support ratio (PSR) would decrease by nearly half, from 4.4 in 1995 to 2.3 in 2050. In absence of immigration, the figures show that it would be necessary to raise the working age to about 74 years in order to preserve the same PSR as in 1995, i.e. 4.4 persons of working-age per each person past working-age.

Another scenario keeps the potential support ratio at its value from 1995, i.e. 4.4. In order to keep the PSR constant until 2050, France would need to facilitate the immigration of 93 million migrants, which would translate into a yearly average of about 1.7 million immigrants. Obviously, no country would be able to facilitate immigration and integration to such a degree. But, nevertheless, these figures indicate that the challenges brought about by population aging are enormous.

The process of aging and population decline is moving at a significantly slower pace in France than it is in Germany. However, French legislators seem aware of these challenges and, since 1997, are moving towards policies to mobilize the workforce to its full extent and to raise retirement ages. In addition the French government established programs to promote further training and education of unemployed persons.

In 1998, France liberalized the entry of foreign information technology specialists. Any person with a computer science degree, who is offered at least a minimum income, receives an authorization to work for one year, which is renewable for 3 times. The family of such an IT-specialist can join after 1 year.