From Refugees into Immigrant Germans

The current massive influx of refugees into Germany – estimated for the year 2015 at about 1 million persons – is considered by nearly all observers to both reflect and contribute to a multifaceted and long-term crisis. It is a crisis that threatens the cohesion of the EU as most of the newer EU members refuse to accept migrants and resist German leadership. As masses of people move across the continent from Lesbos to Calais, it is a crisis that threatens the Shengen intra-EU free mobility agreement and highlights the woeful inadequacy of a rudderless Frontex external border control system. The failure of the UNHCR to organize and maintain centers for identifying and housing the war refugees among the migrants and to allocate them to willing resettlement nations underscores the inadequacy of the regime established after World War II and greatly aggravates the crisis, leading to unprincipled ad hoc agreements, such as recently negotiated between the EU and Turkey.

The further inability of European states effectively to implement their asylum and non-refoulement obligations under the 1951 UN Refugee Convention and 1967 Refugee Protocol has turned the Dublin “country of first entry” and safe-third country provisions adopted in the 1990s into an embarrassing dead letter. At the same time, the established Article 33 based definition of refugee or asylum seeker – someone persecuted “on account of his race, religion, nationality, membership in a particular social group, or political opinion” – has been stretched beyond all recognition. As to potential asylees who have reached the border or are inside a signatory country, by Treaty no numerical ceiling is allowed; as to refugees in camps outside a country, on the other hand, no state is obligated to accept any, though many negotiate a quota with the UNHCR. These legal distinctions have broken down, and Chancellor Merkel’s original humanitarian impulse turned into a call to “get there.”

Yet the rapid, barely manageable movement of a million people is only one aspect of the crisis. The migration crisis exacerbates an already widespread moral panic and fear in European (and North American) electoral democracies, where neo-liberal economic policies and the fear that “things are out of control” have already badly eroded middle- and working-class security and boosted populist and xenophobic sentiments both outside and inside the halls of parliament. The fact that the overwhelming majority of these migrants are Muslims and that fears of Islamic Terrorism have become a staple of political debate from the Urals to the Rockies only makes matters that much worse. With countries both inside and adjacent to the EU reasserting nationalist, if not outright xenophobic, postures, the pressure on Germany is building. That pressure both to accept the migrants and to hold fast to and continue to propagate the enlightened-liberal conception of an ever-closer EU is exacting a considerable toll. Vaunted German “can do” and administrative capabilities are being called into question. Fear and ugliness and arson are in the air in Germany as well: the political “system” is being denounced in the name of an allegedly neglected and disdained volk, and, in places, shouts of treason have moved from the risible fringes to the ranks of the electable.

For Germany there is one factor that I would point to in particular making the situation less manageable politically and more incoherent legally. “Immigration by asylum” will not work, either as a legal or a social matter. Using asylum law this way only discredits both immigration and asylum, mystifying the former and vitiating the latter. Germany has long used ersatz mechanisms to satisfy its labor market and demographic needs. First, of course, came the vast post-WWII ingathering of Germans from former lands in the East. Then came the “guest worker” program with participants from Europe and beyond – most notably, Turkey. Never mere guests, the human incarnations of such labor migration are only with ongoing difficulty being integrated into German society. More recently, asylum has served as the immigration substitute.

From 1913 to 1998, German citizenship law was characterized by a very ungenerous jus sanguinis model, making integration difficult. Until 1998 children born in Germany simply took the nationality of their parents while naturalization was both arduous and rare. Only in the last decade or so has it been possible for children born in Germany to acquire jus soli citizenship– provided at least one parent has lived in Germany for at least 8 years in an “unlimited” status. And only during the same period has naturalization after 8 years in unlimited status been a matter of right and reasonably accessible.

Although these reforms have contributed to better formal integration of the descendants of guestworkers and supplemented the free mobility of other EU citizens in the German labor market, they have not constituted an immigration law. The feeble effort to legislate one in the 2004 Immigration Law was essentially limited to inducing highly-skilled and employed workers to come to Germany as temporary “blue card” workers with a limited potential future prospect of staying. It proved very unappealing and has left immigration to Germany to continue to take place overwhelmingly through the back door of asylum.

Something must be done: something to help provide Germany with the broad range of immigrants, skilled and unskilled, that it needs – and that at the same time would permit asylum law to be restored to its proper, limited place while also allowing Germany in good faith also to set and stick to a reasonable quota of annual UNHCR-refugee admissions. That something is an immigration law that combines legitimate labor market, mercantilist needs in the Canadian points-based fashion with a decent respect for the humanitarian and family needs of current German citizens and residents, not dissimilar to the U.S. model combining some mix of job skills, family connections, and a lottery. If Germany with 81 million people accepted 300,000 immigrants per year, it would fall between Canada with 35 million which accepts roughly 250,000 per year (2/3 on the basis of economic and professional utility) and the U.S. with 318 million and which accepts about 1 million annually (2/3 on the basis of family connection).

For immigration to work, however, will require serious inducements to integration. The folklore of “multiculturalism,” whatever it may have meant elsewhere, until recently had two meanings in Germany. One was to let resident foreigners live undisturbed, as they wished, because they really were not part of the “we” and would eventually be leaving anyway. This was the conservative delusion, an abdication of responsibility, one that went along with the claim that Germany was not a land of immigration and had a fixed Leitkultur. The liberal-left meaning combined a critical view of Germany’s own culture and history with a pluralistic vision of society in which loyalty to the rules of the game, above all the Constitution (Habermas’s famous Verfassungspatriotismus advocacy), was sufficient to constitute a “we” and would generate enough of an overlapping or overarching consensus to foster a harmonious civic nationalism. It hasn’t been a disaster, but neither has it really worked. Now, however, a more serious integration commitment is essential – especially if a solidarity-based, redistributive social welfare regime is to be maintained in an era of capitalist hegemony.

My own reading and writing in the vast literature on immigration and social solidarity rather accords with the findings of Ruud Koopmans’ team here at the WZB. E Pluribus Unum is not so simple: Reciprocal trust, willingness to share, and readiness to invest in the commonweal are less where public diversity is greater. Immigration thus risks undermining the welfare state, itself a condition for equality and a functioning democracy. To preserve the both, accelerating integration is called for. America has it easier. The U.S. is more successful in incorporating immigrants because it is marked by lower levels of solidarity and a weak welfare state. Immigrants are on their own–along with everyone else. The playing field is level, but there are no ladders for anyone, so the feeling of belonging together is less important and the incentive to acquire skills and contacts greater.

Integrating immigrants into and for the sake of viable democratic welfare states requires both bonds and bridges. Strong anti-discrimination policies, accelerated language instruction, job training programs, residential and school integration, the discouragement of enclaves (though not necessarily of beachheads), and liberal naturalization policies are all a start. Countering cultural fissiparousness and combating neo-liberal economics go hand in hand. Lest they turn exclusionary or ethnocratic, significant integration demands must, however, be matched by the provision of significant opportunities for immigrants to think of themselves as “citizens in the making.” Germany, like any country, is a contingent historical formation with an array of practices, values, customs, and ideals shaping and enforcing social, political, and legal life. A regular flow of immigrants into Germany may be necessary and justified on numerous grounds. But especially at a time when social equality is being undermined by aggressive neo-liberal advances, the integration of those immigrants must be an equally high priority.

David Abraham’s article “Immigrant Integration and Social Solidarity in a Time of Crisis: Europe and the United States in a Postwelfare State” has been published in Critical Historical Studies 1, no. 2 (2014): pp. 215-253.
Access to the article is available here.

Written by

David Abraham is Professor of Law at the University of Miami School of Law. Between October 2015 and January 2016 he was a Visiting Researcher at the WZB Center for Global Constitutionalism on a German Academic Exchange Service (DAAD) grant.
Website at the University of Miami School of Law

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