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Abstract
Asylum and labour migration used to be processed along sharply separate legal-political tracks, recognising either humanitarian need or individual performance, respectively. This binary is losing traction, as neoliberal performance criteria and mundane labour needs hold entry in the asylum domain. This trend is illustrated along the Spurwechsel (track change) in German migration policy. While the preference for track change traverses party lines, it is marked by a tension between the imperatives of migration control and migrant integration. This allows for political variation, the right tending towards the control and the left towards the integration horn of the dilemma. Under a recently left-dominated government, which is at the same time receptive to business calls for more Fachkräfte (skilled labour), the control versus integration dilemma has been decisively resolved in favour of integration, up to a point that the state’s sovereign migration control function and the integrity of asylum policy are put at risk.
Acknowledgements
I am grateful for helpful comments by Holger Kolb, Daniel Thym (who lifted his anonymity as reviewer), and a second reviewer for this journal.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Much of the need for labour migrants, at all skill levels, is met by intra-EU migration, which dominates the migrant intakes in all EU states. However, legally speaking, this is not international migration but the free movement of EU citizens.
2 In all OECD countries combined, the family migration share has consistently been the largest, constituting 42 percent of all inflows in 2021 (OECD Citation2022: 25).
3 For neoliberal social policy, the early works by Gilbert (Citation2002) and Handler (Citation2004) are still instructive.
4 In the United States, for instance, which never had integration policies for immigrants, refugees were the only migrant category ever entitled to special integration benefits (such as free language classes).
5 While Foucault (Citation2008), in his late Collège de France lectures, was one of the first thinkers to understand the society-changing force of neoliberalism, the logic of ‘governmentality’, which means to rule through the freedom of the individual, is strangely indifferent to the liberal v. neoliberal distinction.
6 In Italy, courts have issued humanitarian protection status based on ‘successful integration’, judged by migrants’ voluntary community services and related civic performances (Marchetti Citation2020: 245).
7 ‘Equal participation’ is the motto of Land-level integration laws passed since 2010 in left-ruled Berlin, Nordrhein-Westfalen, and Baden-Württemberg. In these laws, the burden of adjustment is all on the side of state institutions, such as the requirement of their ‘intercultural opening’. By contrast, in conservative-ruled Bavaria, a recent integration law is under the sign of Fördern und Fordern (Supporting and Demanding), with the burden of adjustment being on the migrant. See SVR (2017a).
8 SPD/Grüne/FDP. Koalitionsvertrag: Mehr Fortschritt wagen. Berlin, 2021 (typesript), 139.
9 A classic work on the earlier ‘conspiracy of silence’ is Messina’s case study on the UK (Citation1989).
10 On ‘binary logic’, see Luhmann (Citation1986: ch. 13).
11 Typically, a deportation is not possible because of the lack of identity papers, with or without the asylum claimant’s own doing.
12 Academic migration lawyer Daniel Thym is more straightforward, calling for a migration policy under the sign of Humanität und Härte (Humanity and Toughness), in Frankfurter Allgemeine Zeitung, 17 June 2019, 6. ‘Humanity and Order’ remained the logo of the CDU migration policy after it lost the federal election of September 2021. However, once in opposition, the CDU has moved the ‘Order’ component greatly to the fore, and ‘Order’ now appears more like ‘Toughness’ (CDU/CSU Citation2023). The current programme calls for the ‘clear separation between asylum and labour migration’, in order to ‘remove all signals and measures that could constitute an incentive for additional irregular migration’. This would imply that ‘a track change or even “freedom of choice” between the asylum procedure and labour migration is in principle no longer necessary’ (ibid. 6, 7, 10).
13 So far, as in the 2005 Zuwanderungsgesetz (that includes the Residence Act), the preferred notion had been Zuwanderung instead of Einwanderung, the former perhaps to be translated as ‘in-migration’, suggesting temporariness and repudiating the finality of ‘immigration’.
14 Entwurf eines Gesetzes zur Einführung eines Chancen-Aufenthaltsrechts. Deutscher Bundestag, 20. Wahlperiode, 28 September 2022, Drucksache 20/3717, 1.
15 Holger Kolb has been for years the centrist brain of the Sachverständigenrat (SVR), responsible for its high-quality and often influential annual reports (Jahresberichte). He is also the (anonymous) author of at least two of the SVR policy briefs quoted in this article (SVR Citation2017b, Citation2019).
16 Detlef Seif (CDU/CSU), Deutscher Bundestag, 1. Beratung, 19 October 2022, 7002.
17 SVR (Citation2022). This was even more obvious in the earliest law proposal, which had set the deadline at 1 January 2022, thus excluding all arrivals since early 2017.
18 Entwurf eines Gesetzes zur Einführung eines Chancen-Aufenthaltsrechts, op. cit., 15.
19 Interior Minister Nancy Faeser (SPD), when presenting the bill in parliament (Deutscher Bundestag, 1. Beratung, 19 October 2022, 7001).
20 Lamya Kaddor (Greens), ibid. 7003; also Stephan Thomae (FDP), ibid. 7005.
21 Lamya Kaddor (Greens), ibid. 7004.
22 Bundesgebiet literally means ‘federal territory’, which is less than ‘country’ because more technical and legalistic.
23 Entwurf eines Gesetzes zur Einführung eines Chancen-Aufenthaltsrechts, op. cit., 17.
24 ‘Spurwechsel statt Abschiebung’, Mediendienst, 30 June 2022.
25 Andrea Lindholz (CDU/CSU), Deutscher Bundestag, 2. und 3. Beratung, 2 December 2022, 8743.
26 Article 104c only excludes those who ‘repeatedly’ and ‘intentionally’ ‘falsified’ their identity. Conversely phrased, a one-time falsifier or someone who passively non-cooperated can take advantage of this clause.
27 Andrea Lindholz (CDU/CSU), Deutscher Bundestag, 2 December 2022, 8743.
28 Katrin Göring-Eckardt (Greens), Deutscher Bundestag, 2 December 2022, 8752. A leading Green politician and long-time public office holder, Göring-Eckardt once claimed, on German morning television, that ‘the Nazis destroyed’ Dresden’s famous Frauenkirche (later rebuilt). While this may be (very) indirectly true, it was Allied fire-bombing that turned the church (and the whole of Dresden) to ashes, in three catastrophic bombing nights in mid-February 1945.
29 At a Green Party convention in November 2015, the height of the Syrian refugee crisis, Göring-Eckardt said: ‘Our country will change, and drastically. And I am looking forward to this’ (https://beruhmte-zitate.de/autoren/katrin-goring-eckardt/). It is not clear why a country that accepted hundreds of thousands of refugees in very short time, and overall in a friendly way, should be in need of changing ‘drastically’, and what exactly she was ‘looking forward to’.
30 Lamya Kaddor (Greens), Deutscher Bundestag, 1. Beratung, 19 October 2022, 7003.
31 For the US, see Gerstle (Citation2022); for Europe, see Streeck (Citation2013).
32 Entwurf eines Gesetzes zur Einführung eines Chancen-Aufenthaltsrechts, op. cit., 1.
33 The first of the announced ‘further statutory measures’ is the amended Fachkräfteeinwanderungsgesetz (Skilled Immigration Act), which was passed by the Bundestag on 23 June 2023. Its two key provisions are to facilitate the recognition of foreign qualifications and degrees; and the introduction of a points-based Opportunity Card that allows migrants with vocational training or a university degree, but without a work contract, to enter Germany and look for employment over a one-year period. The amended law also includes a new track change possibility: asylum seekers who entered Germany before 29 March 2023 and who fulfil the general qualification requirements and have an employment offer or are already employed, can now withdraw their asylum request and apply for a legal residence permit as ‘skilled worker’ (Fachkraft), without the necessity to first leave the country and make a new visa request from abroad. Interior Minister Nancy Faeser dubbed the amended Skilled Immigration Act the ‘world`s most modern immigration law’ (Deutscher Bundestag, 2. und 3. Beratung, 23 June 2023, 13827).
34 Filiz Polat (Greens), Deutscher Bundestag, 2. und 3. Beratung, 2 December 2022, 8744.
35 Klaus Ritgen (Deutscher Landkreistag), Anhörung Deutscher Bundestag, 28 November 2022 (Ausschussdrucksache 20(4)/43D).
36 Andreas Dietz (Administrative Court of Augsburg), ibid.
37 The federal government itself estimates that of the pool of 136,000 Geduldete in the plus-5-year category, about 98,000 would file a request under Article 104c, with only ca. 30,000 expected positive decisions (Entwurf eines Gesetzes zur Einführung eines Chancen-Aufenthaltsrechts, op. cit., 22, 20).
38 According to Jonitz and Leerkes (Citation2022: 32), the deportation risk entailed by self-identifying is among the reasons why only 10 to 15 percent of the ca. 120,000 Geduldete by 2019 took advantage of the 2016 ‘vocational toleration’ and the subsequent ‘employment toleration’.
39 Axel Ströhlein (Bayerisches Landesamt für Asyl und Rückführungen), Anhörung Deutscher Bundestag, 28 November 2022 (Ausschussdrucksache 20(4)/43D).
40 Alexander Throm (CDU/CSU), Deutscher Bundestag, 1. Beratung, 19 October 2022, 7008.
41 Beschlussempfehlung und Bericht des Ausschusses für Inneres und Heimat. Deutscher Bundestag, 20. Wahlperiode, 30 November 2022 (Drucksache 20/4799), 6.
42 SPD/Grüne/FDP, Koalitionsvertrag, op. cit., 140.
43 Ibid.
44 On the other side, there is a new post of ‘Special Delegate for Migration Agreements’, located in the Interior Ministry, among whose tasks it is to facilitate deportations. The first incumbent, Joachim Stamp (FDP), promptly declared that he does not see himself as a ‘deportation delegate’ (Abschiebungsbeauftragter). ARD-Tagesschau, 1 February 2023 (https://www.tagesschau.de/inland/innenpolitik/stamp-migration-beauftragter-101.html).
45 Bernd Baumann (AfD), Deutscher Bundestag, 2. und 3. Beratung, 2 December 2022, 8747.
46 Entwurf eines Gesetzes zur Einführung eines Chancen-Aufenthaltsrechts, op. cit., 3.
47 Already the 2021 Koalitionsvertrag (op. cit.) announced a ‘paradigm change’ in migration policy (137).
48 This is the view of sociologist Jürgen Gerhards, who disagrees with the grander ‘progressive neoliberalism’ interpretation suggested in this article (personal communication).
49 This is confirmed by the most recent track-change expansion in the amended Skilled Immigration Act of 2023 (see endnote 33).
50 Predictably, the liberal FDP stressed mainly the economic advantages of the enhanced track change in the Opportunity Residence Act. As the FDP deputy Stephan Thomae put it during the first reading of the law, ‘now these people are cost factors; in the future, they shall contribute’; ‘We want to turn charity recipients into tax payers in this country’ (Deutscher Bundestag, 1. Beratung, 19 October 2022, 7006).
51 Since 2021, the SVR is financed no longer by private foundations but by the federal government. I should say at this point that I was a member of the SVR between 2015 and 2020.
52 That ‘one voice’ betrays a ‘problematic understanding of science’, as Stefan Luft (Citation2023: 138) criticizes, is a severe understatement.
Additional information
Notes on contributors
Christian Joppke
Christian Joppke is a Professor of Sociology at the University of Bern. He has written widely on immigration and citizenship, among other topics. His most recent book is Neoliberal Nationalism: Immigration and the Rise of the Populist Right (CUP 2021). [[email protected]]