Full text of DOI:10.1111/1467-954X.00213

Rights and controls in the management of
migration: the case of Germany
Lydia Morris
Abstract
In May 1999 Germany took a significant step away from its reliance on blood
based belonging, revising its nationality law to introduce an element of territory
( jus soli) in the designation of citizenship. This paper offers Germany as a case
study in the management of migration through a hierarchical system for the
granting of rights, and considers the likely impact of the new law on the legal
structures of inclusion and exclusion. It is argued that alongside the enhanced
recognition of the original guestworker population a set of contradictory pressures
now dominate the politics of migration ± the recognition of human rights, the
management of the labour market and the protection of welfare resources. These
pressures are mediated by the grantingand withholdingof rights as part of a system
of selection, surveillance, deterrence and control which has broader implications
for our thinkingabout citizenship.
Rights and controls in the management of migration: the case of
Germany1
One feature of recent attempts to rethink the nature of social divisions and
the role of the state has been a revival of sociological interest in the concept
of citizenship. The term has been stretched to encompass almost all claims to
fuller recognition of disadvantage and difference (eg, Young, 1990), but its
meaningin the context of national belonginghas been given particular
urgency by the variety and scale of trans-national migrations in post-war
Europe (see SOPEMI, 1998). In the case of migration, there are two salient
dimensions to citizenship, the civic and the ethnic; the former concerned
with rights and the latter with identity or `belonging' (see Smith, 1995: 99).
The linkage between these two dimensions is closest in countries, such as
Germany, which operate a blood-based ( jus sanguinis) system of citizenship
(Brubaker, 1992). In May 1999, however, Germany took a significant step
away from reliance on blood based belonging, revising its nationality law to
introduce an element of territory ( jus soli) in the designation of citizenship
(Migration News Sheet, May 1999). The new law came into force in
January 2000.
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The Editorial Board of The Sociological Review 2000. Published by Blackwell Publishers,
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Rights and controls in the management of migration
Treatment of Germany's migrant population has to date been based largely
on the accumulation of rights by passage through a hierarchy of statuses
accordingto a set of specified conditions. While ease of access to citizenship
could end the resultant partial incorporation of Germany's non-citizen
guestworker population, its significance must be read in the context further
migratory inflow through family unification, the continuing recruitment of
non-EU labour, and the arrival in 1998 alone of 99,000 asylum seekers
(Migration News, February 1999). This paper considers the likely effect of the
new nationality law against the broader background of Germany's complex
legal structures for dealing with its foreign population. The change warrants
our attention in part as a step towards convergence in the conferment of
citizenship within Europe, and there are other recent indications of cross
national influence. The design of the new British asylum law (HoC, 1999), for
example, has clearly been shaped to some degree by the German system, while
Italian legislation in March 1998 included for the first time the possibility of an
unlimited carta di soggiorno under terms in many ways similar to the German
unlimited permit (De Vincentiis, 1998). In Germany ± with the largest intake of
asylum seekers in the EU ± we may now have a glimpse of at least one possible
future migratory regime for Europe. The article to follow offers Germany as a
case study in the management of migration through a hierarchical system for
the granting of rights, reflects on the changes signified by the new nationality
law, and draws out the more general implications of the German experience for
theorisingcitizenship.
Citizenship, rights and migration
Sociological approaches to citizenship usually begin with the work of T.H.
Marshall (1950) and his developmental account of civic, political and social
rights. However, a number of writers (Barbalet, 1988; Bottomore, 1992;
Turner, 1993; Kymlicka, 1995) have noted the inadequacy of this framework in
the case of `multi-cultural' or `poly-ethnic' societies. While both Bottomore
(1992) and Turner (1993) have argued that a human rights perspective offers an
expanded (and potentially universal) framework for the sociology of rights, the
nation state remains a key actor in mediatingthose rights as part of an often
conflictual process (Waters, 1996; Morris, 1997). In fact, it will be argued here
that state control over the granting and withholding of rights is a key
component in the management of migration. Citizenship, for example, has
been seen as an instrument and object of social closure; both a marker of
membership and a scarce good to which access is sought and restricted
(Brubaker, 1992). But the role of rights in the management of migration goes
much further.
An implicit critique of overly legalistic approaches to citizenship has focused
much recent debate on cultural rights, and the problem of social cohesion given
a culturally diverse citizenry (eg, Taylor, 1995; Kymlicka 1995). However,
access to citizenship is still shaped by legal structures, and so too is a shifting
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array of lesser statuses which has been largely neglected by the multi-cultural
approach. Indeed, the presence of legal statuses offering only partial
membership (Brubaker, 1989; Hammar, 1990; Baubock, 1991) could have
powerful effects on the potential for cohesion both within and between ethnic
groups. While the multi cultural debate principally addresses the problem of
equality among citizens, through the drive for cultural recognition of
minorities, citizenship itself creates further inequalities by the designation of
non-members and the attendant statuses of partial membership. This
phenomenon is not readily incorporated into existingtheories of citizenship
per se, but invites analysis of the grantingand withholdingof rights as a
possible basis for the management of migration. The German case offers a
prime example of this process in operation, both in relation to its guestworker
history and in its current response to more recent migratory flows.
The development of positions of partial membership may be seen as an
administrative attempt to accommodate a set of contradictory tendencies
which confront all the member states of the European Union (Morris, 1997a).
While national resource concerns and fears of unemployment meant stops on
inward migration from the mid 1970's onwards, such protectionism collides
with the continuingdemand for cheap labour and the more recent development
of the single market in Europe. Meanwhile trans-national human rights in the
form of asylum and family unification also challenge the closure of borders in
any narrowly defined defence of national or regional interest. These rights may
be restricted but rarely completely denied. In practice, there are conflicting
dynamics in operation, requiringsome administrative system for the manage-
ment of their contradictions. One result has been that, with the notable
exception of political rights, some of the rights of citizenship have been
extended to resident non-citizens and in this context Soysal (1994) heralds the
era of `post national membership'. Different categories of residence, however,
mean that key rights can still be withheld from certain groups, while definitions
of citizenship and criteria of access are themselves open to change. It remains
to study the operation and effects of this nascent system of civic stratification
(Lockwood, 1996; Morris, 1997); a system of inequalities structured by rights
granted or withheld by the state, whose contours may shift over time.
A hierarchy of statuses
The German case is of special interest involvingas it does a bureaucratic
attempt to resolve contradictory pressures through a particularly elaborate
system of classification and regulation. Its most overt effect has been a
hierarchy of statuses which simultaneously represents a structure of
opportunity for some migrants (cf. Baubock, 1991) and a set of insuperable
barriers for others. Amongthe reasons for the complexity of the German
system have been the well documented descent based system of citizenship, the
restrictive conditions for naturalisation, and the limitation on dual citizenship2
(Baubock and Cinar, 1994; Brubaker, 1992). Under the new law Germany still
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Rights and controls in the management of migration
retains the ideal of a sole citizenship, but accepts dual citizenship for a
transitional period, with those born in Germany of settled foreign parent3
havingto choose their sole citizenship at the age of 23. Naturalisation rules
have also been eased,4 with a reduction in the residence requirement from 15
years to 8, and to 3 years for the foreign spouse of a German citizen. This may
enhance both eligibility for and take-up of citizenship, and will correspondingly
facilitate family unification for many. However, naturalisation still requires
proof of self-maintenance, and for non-citizens family unification remains
conditional. At the same time restrictions on temporary workers continue, and
the classification of asylum seekers becomes ever more elaborate.
Germany currently shows one of the highest proportions of non-citizen
residents in Europe, at 8.8% of the total population, amongst whom
naturalisation is extremely low. Of the 2.2 million Turks only 220,000 have
so far naturalised (FCFA, 1997: 11; Baubock and Cinar, 1994; Migration
News Sheet, February 1999), while the bulk of naturalisation to date has been
explained by the continuingacceptance of ethnic Germans (people of German
descent) who are granted immediate citizenship (Federal Commissioner of
Foreigners Affairs (FCFA), 1997: 11). In contrast to the colonial labour
reserves of Britain and France, Germany's guestworkers ± recruited from 1955
to 1973 (Castles and Kosack, 1973) ± arrived without access to citizenship, and
administrative measures to accommodate them developed piecemeal. As a
result Germany has relied to a greater extent than other EU countries on
measures of `partial inclusion'.
The recent creation of a single market in Europe introduced a new layer of
rights in all member states, but the absence of citizenship for a majority of
Turks has produced a particularly complex picture in Germany. Some of the
original guestworker population (eg, Italians) became privileged EU citizens,
while the association agreement between the EU and Turkey (Guild, 1992) in
turn favoured Turkish workers over the rest. These broad distinctions are
augmented by a system of residence permits with associated rights such that the
original guestworkers and their family members may currently occupy one of
five different legal statuses. The recent incorporation of an element of jus soli
into its jus sanguinis law, and more generous rules of naturalisation could ±
over time ± considerably simplify this picture. Conversely, Germany has
initiated a system of bilateral agreements for the recruitment of strictly time
limited labour under yet another status, while a further layeringis discernible
amongasylum seekers, attracted to Germany in very lareg numbers
throughout the eighties and early nineties. Germany is unusual in offering a
constitutional guarantee to asylum seekers,5 but in 1993 became part of a trend
amongEuropean countries to restrict access by denyingasylum to those who
have travelled through a safe third country. A case rejected under the
constitution, however, may still be recognised under the terms of the Geneva
Convention (paragraph 51(1) of the Aliens Act; ZDWF, 1996), or increasingly
offered some lesser form of protection. There has also been an expansion of
persons formally required to leave but whose continuingpresence is `tolerated'.
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The overall outcome is a complex hierarchy of statuses which represents an
administrative system for the management of migration in the context of a
political rhetoric of denial. Material presented below outlines the existing
structure of the German system, notingthe possibility of movement up or down
the hierarchy of statuses, and highlighting the centrality of employment rights
and social rights in this process. The grantingor withholdingof these rights has
functioned as part of a system of selection, surveillance, deterrence and control,
with implications for both individual prospects of advancement, and for societal
prospects of cohesion. The new nationality law may now represent a final stage of
integration for the original guestworkers, but alongside this potential consolida-
tion of their position we find a continuingelaboration of statuses whose
functioning highlights a set of complex interactions between rights and controls.
The current Foreigners Law6
The 1990 Foreigners Law (FL) revised and rationalised a prior legal
framework for dealingwith migration which dated back to 1965. The 1990
law details the rights and conditions of a highly differentiated system of
statuses for non-EEA nationals, with EEA nationals handled separately under
European law and granted the right to work and reside in any member state.7
`There are two key aspects to the current Foreigners Law. One is to stabilise
the situation of non-EEA nationals who are already legally present, and to
offer them the chance of integration. The other, putting it bluntly, is to keep
the rest out ± and that includes those who may be here illegally, or in a legal
but temporary status'. (Spokesperson, Foreigners Office, Hamburg)
These different intentions are reflected in the way the system for dealingwith
non-EEA nationals has been structured. The law, in effect, operates through
distinctions between different groups of migrants, each of which represent one
or other of the contradictory pressures identified above. There is the need to
integrate established guestworkers and their families; the need to balance
labour supply and demand; and a continuing (though diminishing) commit-
ment to asylum seekers. Each of these objectives must be accommodated, but
in the context of a generally restrictive migratory regime and strictly limited
welfare and employment rights.
Table 1 details the origins and numbers of those occupying each of the
different residence statuses ± outlined in the body of the paper below. This
distribution does not, however, represent a static picture; there is movement off
the chart from the right of abode into full citizenship status, there is movement
between statuses, and there is also movement off the chart through
deportation, denial of permission, voluntary departure, or the slide into
undocumented status. It is these movements which are the most interestingand
revealing aspects of the rationale for managing migration, and which provide
the key to both the political intent and its social structural effects. We therefore
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Table 1 Non-EEA foreigners statuses
Residence permit
Right of
abode
Fixed
purpose
Humanitarian
leave
Asylum
seeker
Origin
Total
limited
unlimited
Toleration
Turkey
2110223
719474
190119
283604
208909
115094
89801
85452
82748
68267
764708
122589
37638
88424
47767
23945
20501
19605
32576
7459
610417
160750
18398
60989
73024
44954
12882
26614
23545
12668
12439
13136
7312
500391
105272
16596
6903
67107
11453
504
1370
10344
246
6863
3693
2483
41637
5809
2118
9653
1139
4527
287
19192
15448
11334
10157
811
8742
2494
4903
206
14057
5405
417
16447
131
49355
80832
7618
2236
643
11656
3804
4260
581
14937
11955
219
4309
407
11516
119838
69768
1478
3375
1054
1240
13832
365
10651
2389
81
5788
111
Ex-Yugi
Bosnia-Herz
Poland
Croatia
Iran
Rumania
Vietnam
Marocco
Afghanistan
Sri Lanka
Hungary
Lebanon
Tunisia
58309
51905
55074
14690
11251
12054
8862
2263
3815
329
283
14443
490
1044
24549
6940
3406
Total
7319593
1775339
1985030
849259
206379
164570
283612
284767
Source: Daten und Facten zur Auslander Situation, Beauftragte der Bundesregierung fur Auslanderfragen, Bonn, June 1999 (data for Dec. 1998).
i Migrants registered with Yugoslav citizenship on the date of reference.

Lydia Morris
need to consider the rights which attach to the different statuses, the conditions
for the granting or withholding of each status, and the criteria for transition
between statuses, as well as the likely impact of the new law.
Probationary status: Befristete Aufenthaltserlaubnis=FL para 15
Time limited residence was the status occupied by the original guestworker
population, most of whom have now established more secure residence, or
more rarely citizenship. While time limited status may still be granted to a very
small number of specialist workers, it has become the key transitional status for
arrivals under family unification rules. German citizens and workers from EEA
countries have an immediate and absolute right to family unification, but
others must undergo a waiting period and demonstrate adequate accommoda-
tion and maintenance (FL, paragraph 17). Conditions of this kind are common
to a number of European countries which attempt to honour the right to family
life, but only in the context of protectingwelfare resources (JCWI, 1993).
Renewal of a time limited permit rests upon whether the applicant has
become dependent on means tested benefit, so clearly the right to work could
be crucial. There are two types of permit ± the general permit (Allgemeine
Arbeitserlaubnis), which is in fact highly restrictive, granted only with labour
office approval, for a specified job with a specified company, and applyinga
strict preferential hierarchy;8 and the special permit (Besondere Arbeitserlaub-
nis), which grants full access to the German labour market (Federal
Employment Service, 1995). The foreign spouse of a German citizen or an
EEA worker has immediate access to a special (full) work permit, but the
spouses of other foreign residents must wait one year before qualifying for even
the general (restricted) permit, and four years for the full permit.9 Yet meeting
the housingand maintenance conditions of residence is extremely difficult, and
failure can mean the non-renewal of the spouses permit.
To date time limited status has also affected the second generation, who
without the new nationality law did not unproblematically inherit the
achievements of their parents and had to demonstrate good prospects of self-
maintenance. Of course the possibility of citizenship at birth will remove this
pressure, but only for children of a parent who has already undergone this
selection process to achieve a minimum 8 years of legal residence.10 The new
law will have a further effect in easingfamily unification, but with time limited
status retainingits significance in cases of early divorce when the spouse has
not established independent security of residence, and for family members of
non-citizens.
The prospect of security: Unbefristete Aufenthaltserlaubnis=FL para 24
Aufenthaltsberechtigung=FL para 27
One of the advances made by the 1990 Foreigners Law was in granting
progression to a more secure status as a right if people met a set of specified
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Rights and controls in the management of migration
conditions. The move from a limited to an unlimited permit can be made after
five years in the former status if the applicant also holds a special (full) work
permit. The full permit is granted after a wait which varies from four to six years,
and of course the applicant must survive the interveningperiod without
significant reliance on welfare. The accommodation and maintenance conditions
must be met at the point of application, and the applicant must also have a
rudimentary knowledge of the German language. After achieving unlimited
residence a welfare claim is unlikely to be damaging, and in fact, people holding
such a permit may have their right to welfare protected by international
convention.11 Officials were anyway unable to identify any circumstances under
which someone might routinely lose an unlimited permission,12 though welfare
receipt could disqualify them from the right of abode. However:
People won't necessarily know or understand the detail of these laws, but
they will know there is somethingabout welfare support. The thingis that it
has been written into the law and this will be emitted to the person as a
general insecurity. The law is sitting there as a threat and they feel they must
have work to be safe. (Adviser, Foreigners Commission, Hamburg)
Self-maintenance is one condition for the next incremental step, the right of
abode (Aufenthaltsberechtigung), which as a right rather than a permission
offers a more robust basis for secure residence.13 The transition requires eight
years with a residence permit (five years limited and three years unlimited, or
eight years in a humanitarian status). It also requires some measure of
`integration', in the form of a five year record with a pension fund. So once
again access to employment and related rights provides a pivotal point in the
accumulation of security. As noted above, the citizenship at birth option is
reserved for children of parents with 8 years residence, and therefore eligible
for the right of abode.
Outside of citizenship there is no ultimately secure status and there are a
number of specific circumstances under which loss of status is a real possibility.
One of the changes introduced by the 1990 Foreigners Law was a clearer
specification of the conditions for expulsion, which become more stringent the
weaker ones residence status:
The law here contains a may, a normally, and a must (Foreigners Law,
paragraphs 45±47). Someone may be deported, for example, for receipt of
welfare, endangering public order, using drugs; will normally be deported for
one or more criminal acts warrantingtwo years imprisonment, producing,
importingor distributingdrusg, or violent demonstration; and
must be
deported for more severe criminal acts or drugrelated offences. (Lawyer,
Foreigners Commission, Hamburg)
Citizenship thus removes a residual element of insecurity. Without it, to secure
their status non-EEA nationals must surmount some difficult obstacles; they
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Lydia Morris
must guarantee their own maintenance (avoiding criminal activity), but only
14
after some years of doingso are they granted full access to the labour market.
The full right to work is thus earned only after a period of restricted rights,
rather than being granted as an immediate means to self-reliance. Social rights
are more widely conferred, but the link with residence means that they may in
practice be curtailed by the non-renewal of a residence permit. While duration
of stay and the ability to be self-maintaining, together with minimal language
proficiency means that people can earn their way to security, the weaker one's
initial status the harder this will be.
The huge potential significance of the new law ± if a large majority of the
eligible population opt for German citizenship ± is that the graduated steps
towards right of abode, along with their staggered access to social and
employment rights, would all but fade away. However, while the new
citizenship laws may represent the final stage of the long struggle for security
by the guestworker population, a different population of migrants is
experiencinga newly developingset of constraints. For them, as we shall see,
the problem is access to a residence status of any kind, a necessary condition
for embarkingon the route to security.
Denial of transition: Aufenthaltsbewilligung=FL para 28
The opportunity to earn security of residence was developed as a means of
accommodating the original guestworker population, confirmed in the 1990
Foreigners Law and having its culmination in the new citizenship law.
However, the other objective of the 1990 law has been to deny this possibility
to certain other categories of migrant. The most overt restriction comes in the
form of `Bewilligung', a status which prohibits transition and from which it is
impossible to move to a more secure position ± except through marriage to a
German. One common application of this status is for students, but more
contentious has been its use to revive the guestworker pattern but with stricter
enforcement of the rotation of workers. This stems, in part, from a wish to
secure a supply of cheap labour, without any of the complications involved in a
longterm stay.
There are various employment possibilities, some linked to trainingand
others to international collaboration (Federal Employment Service (FES),
1995: 16), but numerically most significant has been the recruitment of
seasonal workers in agriculture and the holiday trade, and the use of contract
labour in construction. Seasonal workers are limited to three months, and
guestworkers to 18 months (FES, 1995) and both types of labour represent
attempts to contain a particular form of undocumented migration. The new
status thus offers minimal opportunities as a means of regulating a previously
existingbut unregulated process, settingin train a number of responses. There
have, for example, been recent attempts to displace seasonal labour by
requiringthe registered unemployed to take on this work (Migration News
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Rights and controls in the management of migration
Sheet, February 1998). Contract labour has also been contentious, in relation
to both German and EU labour supply.
Contract labour is largely used in the construction industry, with the
workers presence in Germany limited to 18 months, and with immediate return
or renewal prohibited. The contract of employment is made in the country of
origin and the right of residence is linked to a specified job for a specified
company. Even a change of site with the same employer requires a new permit,
which is negotiated by the employing company not by the workers themselves.
Health and social insurance are in the country of origin and so once the job is
over, or the permit expires ± whichever is the earlier, the worker technically
speaking, has no reason or right to remain (eg Golinowska, 1995). Centralised
registers record the named workers for whom permits are issued as a means to
enforce the rotation of workers, and there is also an established system of
15
raidingbuildingsites to check the legality of workers.
Formally this use of non-EU labour is to be run down, with cheap labour
for construction comingfrom other EU countries (Guardian, 21.3.96), and for
seasonal work from the indigenous unemployed. In practice, the issue of
undocumented labour remains. The restricted permits for contract and
seasonal workers provide the legal means through which to impose rotation
and control numbers. They are integral to the management of the German
labour market, but a challenge to the operation of a European labour market.
This, however, is only part of the picture. While the workers are denied
movement through the hierarchy of formal statuses, transition to an
undocumented status built on the contacts and experience accumulated during
the stay are an inevitable by-product of the arrangement.16
Asylum seekers: Refugee status=Basic Law article 16a
Geneva Convention recognition=FL para 51
Aufenthaltsbefugnis=FL para 53
Aufenthaltsgestattung=FL para 55
As well as the residence statuses noted above, there are distinctive routes for
asylum seekers, in which the interplay of rights and controls is central. The
tension here lies in honouringhuman rights commitments while restricting
migration and limiting claims on welfare resources.
On gaining entry to Germany and making a claim for asylum the asylum
seeker will be granted a temporary status of `Gestattung' (Asylum law, 1993,
paragraph 55) which confines them to a specific district and imposes a waiting
period of two years before a special (restricted) work permit can be requested
(MNS, July 1997). Asylum seekers are provided with social support, but since
1993 this has been set at a rate roughly 20% below the standard minimum
welfare provision. For at least the first three months they are placed in a
reception centre with provisions made in kind not cash, reflectingthe dual
objectives of support and control.
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The recognition rate for asylum seekers in 1996 was about 10% (FCFA,
1997: Table 8). The most secure are those granted protection under the
German constitution, which means an unlimited residence permit, with those
recognised under the Geneva Convention (paragraph 51 of the Foreigners
Law; ZDWF, 1996) granted a special status of Befugnis (see below). Both
recognitions17 carry full employment rights and social rights, and most
importantly the opportunity of progressing to a right of abode for those who
are self-maintaining, unless there is a change in the home country. Again we
find that employment is central in determiningfuture prospects:
One of the things we have to be careful about when advising refugees is to
make them think through their long term aims. If they wish to remain in
Germany they have to move from Befugnis or Unbefristet to Berechtigung,
otherwise they are vulnerable to losingtheir status. To do this they must get
a job ± but there are very large numbers of recognised refugees living on
welfare and they do not qualify for the more secure status. (Department of
Social Work, Hamburg, 24.4.98)
Constraints of this kind are of growing significance. Aside from Geneva
Convention refugees the Befugnis category contains a number of other
subdivisions,18 which normally grant full employment rights only after six
years residence. Bosnian civil war victims have been by far the largest group in
this status (see Table 1), and received distinctive treatment in a number of
ways. Most notably, from the start they were granted the right to work, but on
the understandingthat their stay was to be temporary. 19 Thus employment was
of no use to them as a route to security.
Befugnis has also commonly been granted when people are in flight from a
situation in which their lives or freedom are in danger, but which does not
qualify them for asylum. The German requirement of persecution by the state
as a qualification for asylum20 has ruled out Afghanis, many of whom in the
past have been granted Befugnis. They have, however, become particularly
vulnerable to loss of this status. Again the situation turns upon employment,
despite a possible 6 year wait for full employment rights:
If they are not workingand not tryingto find work now they will get a
Duldung. The first step is their social support is cut by 20%. When it comes
to renewal of their Befugnis they may be given some time to find a job, but if
they are dependent on social support the Befugnis won't be renewed. (Social
Worker, refugee housing complex)
There are other barriers in the way of an improved status for some of the
Befugnis group, notably the stringency with which the requirement to be self-
maintainingis interpreted. Those with recongition under the Geneva
Convention receive children's benefit (Kindergeld) while the other categories
of Befugnis do not. This can be an issue when they wish to apply for an
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unlimited permit as their self-sufficiency is judged on the current (pre-benefit)
income. With housingthe interactions can be even more complex. In Hamburg,
for example, many have a permit limited to 11 months, which effectively
excludes them from eligibility for public housing, for which a minimum
permission of 12 months is necessary. Again this could have implications for
transition to unlimited status as adequate housingis one of the conditions.
Thus we have a status from which it is possible to progress to security, but
the requirement to be self-maintaining, restricted employment rights, and the
manipulation of certain key social provisions act in concert to make such
progression extremely difficult. Again a number of different aspects of the law
are in interaction, with interpretive decisions also playinga central role, such
that the granting and withholding of rights affects not only present
circumstances but more crucially shapes future prospects.
Rejected asylum seekers: Dulding=FL paras 55=56
The failure to achieve recognition is not the end of the stay for many of the
remainingasylum seekers and the impossibility of removal is now perceived as
the current control problem. Those refused asylum but who cannot be
deported because of the absence of documents, a refusal to disclose country of
origin, or the denial of admission by the country of origin, are granted a
toleration (Duldung). Civil war victims granted temporary protection
increasingly fall into this category, and the administration of this system is
itself felt to have a deterrent quality.21
The possession of a Duldungis crucial for claims to social support and
accommodation, and the link is an effective means of control which ties people
into the legal system. This is especially the case since May 1997 when a waiting
period of three years was imposed on people holdinga Duldungbefore they
could apply for even a general (restricted) work permit. In June of the same
year the period duringwhich asylum seekers and tolerated foreigners are held
to the lower rate of support was extended from one year to three (Migration
News Sheet, July 1997). However, the control dimension of continuingsupport
became apparent in a debate duringthe first half of 1998 about removing
benefit rights completely (see Frankfurter Rundshau, 20.5.98). There was a
gradual awareness that the removal of support meant the loss of the means of
control, without which the `tolerated' group would have no incentive to remain
within the legal frame.22 In the event the decision was to reduce (but not
eliminate) support for those who are disguising their identity or not co-
operatingwith their return. This will mean a rate of support, probably in kind,
below the already reduced rate for asylum seekers; an attempt to drive out the
relatively small number thought to be actively resisting departure. It becomes a
formal marker of one of the distinctions already apparent within the Duldung
category.
Without recognition as a refugee under the constitution the only possibility
of upward progression from Duldung and Gestattung is through humanitarian
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leave (Befugnis), granted for two years at a time and renewable indefinitely.
After 8 years of Befugnis the holder becomes eligible for an unlimited residence
permit, and can later graduate to the right of abode. In principle someone who
has held a Duldung for two years is eligible for transition to Befugnis, but this
is extremely rare:
Actually I've never heard of anyone makingthis transition. The other way
around is more likely now. They are beginning to see that Befugnis was a big
mistake, because from there you can get a permanent stay, and that was not
the intention. (Social Worker, refugee housing scheme)
Although there are no guaranteed conditions for transition to Befugnis, again
we see the centrality of employment, but the restrictive nature of the right to
work. The right is withheld from those in the weakest status, but if they can
remain in the system for longenough they may have a small chance:
It is almost impossible for an asylum seeker or someone with Duldungto
work. So the chances of getting and keeping Befugnis are getting smaller,
and that is a deliberate policy. There are people here with families, ten years
or more, with children born here, but they can't get a Befugnis. It is possible
accordingto the law, but they don't want to igve it. (Adviser, asylum
support organisation)
While the range of immigration statuses represents a hierarchy of rights
through which an individual migrant can `earn' progression, comments above
suggest the emergence of a binary division between those statuses from which a
migrant can progress to security, and those from which such a move is
debarred. For those seekingasylum or humanitarian protection, the Befugnis
category is the increasingly fragile link from one side of the divide to the other.
Stratified rights and citizenship theory
With the growing separation of rights from `belonging' (see Smith, 1995) then
the study of citizenship must broaden its focus to take in the granting and
withholding of rights more generally. Indeed, the literature on citizenship has
increasingly been attuned to the varying degrees of inclusion and exclusion,
expansion and deficit in relation to civic rights,23 citizenship representingan
idealised position of `full' inclusion. In Marshall's (1950) model this full
inclusion is guaranteed by social provisions, conditional for the able-bodied on
beingavailable and willingto work. In the system outlined above, however,
and in contrast to Marshall's model, the right to seek and accept employment
has itself been treated as a resource to which access is strictly controlled. In the
German case, the close interaction between social rights, employment rights
and residence permits has provided the means by which decisions are made
about who can and cannot progress through the system of statuses, and on
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Rights and controls in the management of migration
what terms. Thus for the management of migration, while stratified rights may
represent an incremental path to inclusion in Marshall's sense, the rights are
granted or denied according to a broader set of concerns. Central amongst
these are job protection, welfare protection, surveillance, and deterrence, albeit
in the context of trans-national obligations.
For the original guestworker population the route to security has rested on
the ability to be self-maintainingunder conditions which posed no challenge to
indigenous labour. A similar set of conditions have applied to their claims to
the right to family life through family unification, and even in establishing
secure residence for the second generation. For those who have emerged from
this process of selection, German acceptance of full formal integration is now
expressed in the new nationality law. The current intake of temporary workers
is under terms designed to prevent a repetition of this history, with strictly time
limited employment opportunities and no social supports. For asylum seekers,
a more complex set of constraints applies ± to honour human rights
obligations without encouraging entry or settlement, to minimise welfare costs
without facilitatingemployment, and to withhold residence status without
forcingclandestinity.
It is salient here to recall Marshall's (1950) view that status differences are
legitimate: `provided they do not cut too deep, but occur within a population
united in a single civilisation'. The extension of citizenship rights and the
struggle for a genuinely multi-cultural society is part of the process of creating
that `single civilisation' In this context it is instructive to ask of civic
stratification the questions conventionally asked of occupation based inequal-
ity in relation to class formation and social mobility within and across
generations. In so far as foreign residents feel at least the realistic chance of
betterment for themselves or their offspringthen perhaps the conditions of
legitimate status difference have been met. This may now apply to the
descendants of the original guestworker population, but for others, as we have
noted, betterment is debarred or made prohibitively difficult.
This account of the German system of foreigner rights thus endorses an
expanded remit for thinkingon citizenship, to take in the full continuum of
rights ± an approach which may have growing relevance elsewhere. While
qualifyingconditions have always been present to some degree in the delivery
of rights, most notably in relation to welfare (see Morris, 1994), the material
above demonstrates their central role in the management of migration. In the
German system, the fulfilment of certain conditions has been a pre-requisite for
the acquisition of further rights, and has therefore served as the basis for
selection in the route to longterm security, and ultimately citizenship. So, for
example, full employment rights may only be granted after a period of self-
maintenance, while a claim for social support, though permissible, eliminates
the claimant from achievingthe next staeg of security. Such a process
highlights the sometimes ambivalent nature of rights and their close association
with mechanisms of control. In the case of asylum seekers, the restriction
placed on certain rights whether to social welfare, housing, or employment ±
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Lydia Morris
and crucially their mutual interactions have so far served to hold many in a
marginal position.
A strategy based on the denial of rights, however, runs the risk of driving the
most marginal into an underground existence. If these latter groups remain
present in the longer term ± as many of them do ± but with their rights severely
curtailed and denied the prospects of betterment, there will be attendant
problems not only of social justice, but of social cohesion and social control.
This is precisely what the dual objective of the Foreigners Law sought to avoid,
by offeringprospects of improvement for those legally resident, but securing
the removal of those with undocumented or temporary status. The first aim is
at least in sight for the original guestworker population and their families, but
since the second aim is not fully achievable, the presence of a group with
minimal rights and poor prospects is an inevitable result. This tendency stands
as a caution against too optimistic an assertion of the emergence of a `post-
national' society, even at a time when the migrants of 40 years ago have at last
achieved at least the possibility of formal inclusion for their offspring.
University of Essex
Received 8 September 1998
Finally accepted 17 August 1999
Notes
1 Thanks to the Hanse Wissenschaftskollegfor the chance to conduct the research on which this
paper is based, and particularly to Martin Kronauer, my co-fellow there, with whom I discussed
many aspects of this work and an earlier draft of this paper.
2 Does not apply to ethnic Germans or to those whose prior citizenship cannot be renounced.
3 ie. legally resident for 8 or more years.
4 Conditions of linguistic competence and self-maintenance remain.
5 Paragraph 16 of the Basic Law, now amended to 16a, provides the highest form of protection.
6 My understandingand discussion of this law is informed by a series of interviews with state and
city officials, minority rights groups and immigration lawyers in the city-state of Hamburg,
conducted January to June, 1998.
7 EEA refers to the European Economic Area ± with slightly broader membership than the
European Union. We should note the restrictions even here. Non-workers must not be a charge
on the state, while work seekers will be allowed only a limited time on benefit to find work.
8 The first test is whether a German worker is available, then an EEA worker, and so on through
a hierarchy of preference. The checks on available workers are very rigorous and take so long
that any potential employer would be unlikely to wait.
9 While spouses do not routinely have an independent right to remain until four years of
marriage, Turkish spouses who are in employment are slightly privileged in relation to other
non-EEA workers through the protections offered by the Association agreement between
Turkey and the EU (Guild, 1992). This grants them certain employment rights which have been
deemed to imply a right of residence.
10 For comment see Statewatch, May ± August 1999: 3.
11 The European Convention on Social and Medical Assistance covers such cases, but does not
protect against denial of the renewal of permission to stay, which as we have seen may be for
welfare dependence. Unlike employment rights cited above social rights do not imply a right of
residence, but are conditional on that right. Signatory countries include Turkey but not
ex-Yugoslavia, Morocco or Tunisia.
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12 The exception is when an unemployed applicant moves from contributory benefit to means
tested benefit They can meet the income with contributory benefit but if they have not found
work by the time this expires they would move to limited status.
13 The actual differences between these two statuses are not clearly spelt out and may change over
time. But, for example, unlimited permission is lost after an absence from Germany of more
than 6 months, whereas the right of abode is not.
14 This can be after four years for Turks, but five or six years for other non-EEA nationals.
15 Confirmed by interviews with a Workers Council representative in construction, and the
Foreigners Expert, Hamburg Labour Office (4.3.98 and 9.4.98 respectively).
16 See 15 above.
17 NB ± these recognised statuses must be distinguished from civil war refugees, whose situation is
dealt with later in the paper. I have used the term `victim' to avoid confusion.
18 For a note on these different statuses see Federal Commissioner for Foreign Affairs, 1997.
19 Other measures specific to the Bosnians were a bar on transitions from Duldungto Befugnis,
and exclusion from `old cases' rulings.
20 This qualification is now under review.
21 Interviews with asylum seekers support organisation (3.6.98) and Red Cross representative
(9.6.98).
22 Interview with lawyer and advisor to the BundestagCommittee on support for asylum seekers
(15 5.98).
23 For discussion of these terms see Lockwood (1996).
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