Tolerated Migrants in Germany:
Migration Practitioners' Perspectives on the Changing Meaning and Purpose of Duldung since the 1990s
Marisa Raditsch
Student ID Number: 961420
Joint European Master in International Migration and Social Cohesion
April 2015
Supervisors:
Dr. Helen Schwenken, University of Osnabrück, Germany Dr. Jeroen Doomernik, University of Amsterdam, the Netherlands
2 Table of Contents
1. SETTING THE STAGE ... 4
1.1 Introduction ... 4
1.2 The Research Problem ... 5
1.3 The Research Questions ... 7
1.4 Methodology of the Study ... 7
1.5 Hypothesis ... 9
2. "DIE BUNDESREPUBLIK DEUTSCHLAND IST KEIN EINWANDERUNGSLAND" ... 10
2.1 Introduction ... 10
2.2 Considering deportation in Germany ... 11
2.3 Deservingness... 12
2.4 Non-removed or non-deportable? ... 13
2.5 Regularization ... 15
2.6 Spelling it out: why is Duldung granted? ... 17
2.7 Vulnerable groups and Duldung ... 19
3. DULDUNG AS A "QUICK FIX" SOLUTION, AND OTHER THEORETICAL PERSPECTIVES ... 22
3.1 The Regime Perspective ... 22
3.2 The Deportation Regime ... 28
3.3 The Gap Hypothesis ... 29
3.4 Street-Level Bureaucracy in Immigration ... 31
4. THROUGH THE DECADES: A BRIEF HISTORICAL OVERVIEW OF THE USE OF DULDUNG IN GERMANY ... 34
4.1 Duldung in the Weimar Republic... 34
4.2 Foreigner's Act of 1965 ... 37
4.3 The "Asylum Crisis" ... 38
4.4 Foreigner's Act of 2005 ... 42
4.5 Bleiberechtsregelung and Altfallregelung of 2006 and 2007 ... 42
4.6 2015 Reform Bill ... 44
5. "IF SOMEONE IS TOLERATED FOR EIGHT YEARS, HOW MUCH MOTIVATION WILL BE LEFT OVER AT THE END?" ... 45
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5.1 Introduction ... 45
5.3 Changes that have taken place since the 1990s ... 46
5.4 Kettenduldung ... 52
5.5 Reforming Duldung... 58
6. CONCLUSIONS ... 60
References ... 64
4 1. SETTING THE STAGE
The introduction to the thesis begins by explaining the concept of Duldung, presents the research problem and questions, explains the methodology that was utilized, and ends with the hypothesis of the study.
1.1 Introduction
Duldung, or literally, “toleration,” refers to the suspension of a removal order in German asylum
law. It is a type of temporary status which obligates people to live with limited opportunities and prospects for the future for an unknown and often prolonged period of time. It is most commonly (although not exclusively) given to rejected asylum seekers and irregular migrants as “an official postponement of deportation,” (Reichel, 2014: 2). People with Duldungstatus, or toleration status, have limited access to social rights. Although the specificities change occasionally, entrance into the labor market is currently possible after three months of tolerated status with express approval from the Bundesagentur für Arbeit [Federal Employment Agency]; status holders must live within certain districts (Residenzpflicht), causing further difficulties in finding employment; and they receive only basic healthcare and basic social allowance (Reichel, 2014). Social benefits for tolerated persons are extremely limited: "Asylum seekers and refugees often find themselves in a situation of complete dependency on the state, taking the consequences of an asylum policy which needs to satisfy a moral imperative, but at the same time does not want to favor the integration of refugees," (Finotelli, 2004: 93).
Although there are cases of fully undocumented migration in Germany, asylum migration tends to be the main type that is linked to undocumented migration, and is an important area that has contributed to increases in the numbers of persons with toleration status (Reichel, 2014), which in 2014 stood at 113,888 (Statistisches Bundesamt, 2015). A major issue in Germany is "the
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treatment of rejected asylum seekers and other foreign citizens who cannot be deported due to humanitarian or practical reasons," (Reichel, 2014: 2). Duldung can be issued "for a period of days, weeks or a few months, and may be prolonged indefinitely, each time for a short period, as long as the obstacle for deportation persists," (Kraler et al., 2009: 53).
The present study attempts to provide an updated and systematic English language account of the use of toleration status in Germany, following a historical perspective, and implementing such conceptual guidelines as the migration regimes approach, the gap hypothesis, deportability, as well as street-level bureaucracy to provide theoretical framing. This research seeks to explain how an instrument like Duldung comes into being and continues to be used, despite its evident contradictions and numerous problems. This study places emphasis on determining whether there have been noticeable changes in the meaning and purpose of this policy for the state, since the 1990s, when it was first implemented en masse due to asylum claims resulting from the high incidences of armed conflicts taking place in the context of the Cold War in various parts of the world, and particularly in the Balkans. A historical account is provided, followed by the empirical research results and an analysis of the findings.
1.2 The Research Problem
Duldung presents somewhat of a paradox to the classical concept of the nation-state in that it
raises questions about the notion of sovereignty and the control that states have over their borders. Traditionally, sovereignty implies that the state can decide who has the right to remain and who must be expelled from the established territory, but Duldung makes evident that this notion cannot be entirely implemented , as some people cannot be deported. While it is often the case that deportation cannot take place because the country of origin is unclear or unwilling to take back the citizen, Duldung can also be used in the context of Abschiebestopps [deportation
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stops], a type of temporary non-refoulement for those who are not granted asylum in Germany but for whom it is considered inhumane to send back to their country of origin, although this may chiefly stem from political grounds. In the case of missing travel documents or non-collaborative foreign embassies, however, the concept of Duldung implies limitations to sovereignty, since foreign nationals cannot simply be removed or extracted from one country and dumped in another one. This idea is reminiscent of globalism and the ceding of power from states to other actors or institutions. The case provides an example of the classical argument that state sovereignty is limited by international law, since international law and resulting human rights standards are essentially what prevents Germany from following through with its claims to sovereignty and control of territory. Nevertheless, sovereignty is not completely lost, since tolerated people can and often do eventually get deported at a later date. Duldung is a suspension of deportation with unclear outcomes since the people to whom it is granted are neither being expelled from the country or formally accepted in it. As they stay, their status becomes a norm, and thus a practice that is meant to cover a gap (as presented in the gap hypothesis discussed by Hollifield et al., 2014) is converted into a norm.
Duldung also presents a considerable human rights dilemma. It would not seem difficult to argue
that Duldung is a reasonable mechanism in the short term, especially since it depends on the unique circumstances of individual cases. When the case extends over a very long period of time, however, it becomes not only highly irrational, but it also contradicts basic standards of human rights as well as international human rights instruments and contributes to the formation of a group of people who are dependent on benefits and are often struggling to make ends meet. People who have lived with Duldung for extensive periods of time tend to be more difficult to integrate into society as time passes. In some cases, the economic troubles that families
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encounter may make it difficult or impossible for these families to take the necessary steps to fulfill integration requirements (as discussed later in the UNICEF report by Knaus et al. 2010). Along these lines, it is relevant to pose the question of why it has been so difficult to abolish the practice of Kettenduldung [chain toleration] especially since measures have been taken against it (e.g., the Ausländergesetz of 2005).
1.3 The Research Questions
This research seeks to answer one main question and two related questions.
1. What is the meaning and purpose of Duldungsstatus for the state?
2. How has the meaning and purpose of Duldungsstatus changed since the 1990s (and over the span of the informants' careers)?
3. What is the purpose of Kettenduldung and why is the practice of Kettenduldung still continued?
1.4 Methodology of the Study
This qualitative study draws upon academic journal articles, individual chapters in edited books, as well as monographs in both English and in German. The empirical section of the study relies on seven interviews which were conducted with migration practitioners in different cities located within the federal state of Lower Saxony, Germany.1 The selection criteria used required informants to have experience working with refugees and people with Duldung in Germany for a relatively long period of time, setting the decade of the 1990s as a minimum; this was to ensure that interview partners have had sustained interaction and experience surrounding the issue,
1 This area was chosen mainly due to geographical proximity and because it was assumed that it would ensure more
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which was assumed to mean that these informants would also be able to share their perspectives on the topic from a historical standpoint. One exception was made to the selection criteria for an informant who began working with tolerated migrants five years ago; this was due to the desirable quality of the interview in regards to the detail, insight and perspectives that were expressed.
Semi-structured interviews were conducted with migration practitioners that are active in NGOs as well as the civil service sector (Ausländerbehörde, or German Immigration Office); six informants were males, and one was female. Informants' identities will remain anonymous in this study for confidentiality reasons. The interview partners will be referred to as NGO Worker (1 through 3) or Immigration Official (1 through 4). Informants were mainly recruited via email, and snowball sampling was utilized in three instances so as to take advantage of practitioners' professional networks.
The interviews took place during the months of February and March 2015 in private, one-on-one, in the informants' workplaces (with one exception). All interviews took place in German, five were recorded with a voice recorder, and later transcribed and coded using the content analysis method. Two of the interviews with immigration officials were not recorded due to interviewee request, and were instead noted on paper, which affected both their quality and usefulness. Relevant quotes were translated into English by the author in order to include them in the present text. One of the limitations of the study is related to the selection criteria: most of the recruiting for interview partners took place via email, and many of these interview request emails went unanswered or were respectfully declined due to a purported lack of time. Furthermore, since one of the criteria was to interview people with professional trajectories dating back to the 1990s, even some of the practitioners who did respond positively to emails could not be accepted
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because they were too young to have been professionally active during the aforementioned time period.
1.5 Hypothesis
The purpose of Duldungsstatus is to maintain a relatively high number of aliens in a circumstance in which they are technically still deportable instead of to accept them unconditionally by granting them asylum or residence permits, a practice that can be related back to classical ideas of sovereignty and control over population and citizenship. Over time, the meaning and purpose of Duldungsstatus for the German state has been in flux, expanding and changing according to situational circumstances and specific influxes of migrants, adapting, but in an unsustainable and insufficient manner, to social realities and the global political landscape.
10 2. "DIE BUNDESREPUBLIK DEUTSCHLAND IST KEIN EINWANDERUNGSLAND"
2.1 Introduction
Germany is an interesting example of the so-called "new countries of migration" because of its history of denial of its migratory situation over the years. Since 1991, when Helmut Kohl, the longest-serving German chancellor, famously declared that "Die Bundesrepublik Deutschland ist
kein Einwanderungsland" (Konrad Adenauer Stiftung, n.d.) [Germany is not a country of
immigration]2, the legacy of this statement is still tangible to some degree, at least in the conservative sector of German politics. This section reviews some of the significant literature on
Duldung that is relevant to the research questions.
The body of academic research on the topic of Duldung is not overwhelmingly large, perhaps surprisingly so when considering that the phenomenon has a relatively long history. A number of academic articles and book chapters making reference to the topic are not exclusively about
Duldung, but mention it briefly or include it in one of the subsections of the text, as part of a
larger discussion of the German migration regime, history, or asylum policy (Martin, 2014; Glorius, 2008; Borkert and Bosswick, 2011) or in comparative studies or multi-country studies; e.g. juxtaposing German migration policy with that of the United States (Castañeda, 2008b; Vogel, 2000); Italy (Finotelli, 2009); or several European countries, such as in the REGINE study (Kraler, et al., 2009). Literature by Castañeda (2008a, 2008b 2010, 2014) was found to be highly insightful, as was the REGANE I "Feasibility study on the labour market performance of regularised migrants in Europe" in which Reichel (2014) analyzes the role of Duldung as related to labor-market integration and regularization. More recent German-language research on the matter is also relatively sparse; some notable literature that encompasses Duldung was written by
2
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Vogel and Aßner (2011) and Böcker and Vogel (1997). On the other hand, it does seem that over the years, Duldung has been a relatively popular topic for Masters theses for budding migration scholars, as is evidenced by the number of theses (eight before the addition of the present study) at the University of Osnabrück which take an in-depth look at different aspects of Duldung, as well as the evidence of Masters theses on Duldung written at other German universities which can be accessed, or at least displayed, via an internet search of the topic.
2.2 Considering deportation in Germany
In migration research, there are several different approaches regarding the imperfections or “bumps in the road” inherent in a given country's migration regime. Concerning the subject of de
facto toleration, Düvell (2011) observes how, although some countries are strict on immigration,
rigid on employment, and tough on asylum seekers, they are lax when it comes to law enforcement. When the goal is to combat irregular migration, enforcement of goals may not be a priority. Migrants may not be deported for a variety of reasons, depending on the particular legal context of the host country, and in Germany, a lack of adequate travel documents can lead to migrants being put back “into the system” with a toleration status (2011, 292). "Research suggests that often status is not as clear-cut as one might expect, and that migrants are not simply regular or irregular. Instead, migrants' statuses are often a mix of regular and irregular aspects, or on a scale between the two," (ibid). Vogel (2000) notes that in both the United States and Germany, there is a population of tolerated undocumented immigrants, who, although the state knows of their presence, become neither legalized nor deported.
In a study on Duldung and illegality in Germany, Castañeda (2010) argues that deportation is an inefficient tool for controlling migration because it is expensive, often appealed, and has little public support. Deportations that are meant to take place and which involve individuals or families considered to be deserving of national membership frequently encounter protests, public
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outcry, and media attention. A recent example of this is the case of Albina Hamidi, a 19-year-old Albanian-Serb student whose situation garnered protest and media attention, leading to the issuance of a Duldung to allow her to stay, at least until the completion of her high school studies (Schmälzle, 2015). The deportation and return to Germany eight years later of Gazale Salame was a high-profile case of a family, who, thanks mainly to the work of innumerous stakeholders such as human rights organizations, churches, and celebrities, was allowed to return in 2013. Another important tool used to prevent deportation is the practice of Kirchenasyl [church asylum], or the protection from deportation that takes place in churches. Although this phenomenon dates back to the fifth century, it developed into an actual campaign in 1983 in both Berlin and Gelsenkirchen (Castañeda, 2010: 252).
2.3 Deservingness
Chauvin and Garcés-Mascareñas (2012) utilize the term "moral economy of deservingness" to explain why irregular migrants are expected to be able to provide proofs of presence, both official and semi-official, that certify their reliable economic and legal conduct as well as demonstrate their good citizenship. Despite this, the authors note that "the increased fragility and reversibility of formal residence permits in the recent period has translated into a continuum of probationary citizenship, which does not offer a linear route" (2012: 253). Although refugees are commonly seen as negatively affecting or burdening national welfare systems, framing tolerated migrants as a "drag on the system" was not commonly included in the surveyed literature. A
Migration Policy Institute report addressing Duldung at the time that the Altfallregelung
regularization program of 2007 was being implemented touched upon the linkage between
Duldungsstatus and the welfare system. "From the government's point of view, the policy will
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remaining ones employed — and out of the welfare system," (Leise, 2007). Furthermore, the criteria for potential regularization (which was contingent on the successful completion of a two-year probationary period) fits closely to the notion of migrant deservingness as exemplified by Chauvin and Garcés-Mascareñas: a clean criminal record; independent financial security; regular employment; a high level of integration into German society (demonstrated mostly through German language abilities); living quarters that are adequate for the size of the family; and regular school attendance (in cases with children) (Leise, 2007).
2.4 Non-removed or non-deportable?
A term used by the EU Fundamental Rights Agency to refer to individuals with Duldung is that of the "non-removed person." It is utilized in a 2011 report, where a distinction is made between two types of irregular migrants: those who are living undetected by immigration authorities and those whose presence is known but who have not or cannot be removed (hence, "non-removed persons").
The report highlights some of the reasons why people become "non-removed" in the EU 27. These reasons are: a) obstacles embedded in human rights law and humanitarian considerations (such as commitments to the protection of private and family life, medical and health conditions, humanitarian considerations related to the country of origin, and best interest considerations regarding children); b) practical or technical obstacles (i.e., difficulties in identifying the individual or determining his/her nationality, the absence of travel documents and the lack of safe and reasonable travel and/or arrival facilities); and c) policy choices against return (on the basis of values enshrined in national constitutions or to safeguard political interests of the state). The concept of the "non-removed" person is useful because it contextualizes the situation at the same time as it provides a type of internationally accepted categorization for the migratory
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phenomenon being studied. It also implies that similar types of statuses occur in other EU states. At the same time, however, the term detaches individuals with Duldung from their marginal status, and to some degree reinforces the notion that states have the inherent right to remove whomever they please.
Migrants who are not deported, whatever the reason may be, form the so-called "deportation gap," or "the gap between the number of people eligible for removal by the state at any time and the number of people a state actually removes (deports)," (Gibney, 2008: 149). Focusing on non-removed persons in Austria, Rosenberger (forthcoming, 2015) argues that discretionary power is transferred to administrative authorities, social gate-keepers and other frontline workers who deal with non-removed persons, and who utilize a “don’t ask/don’t tell” policy to prevent politicization of the topic. Accordingly, this is "to make sure that non-removed people continue to be a non-issue in the public discourse because anti-migrant campaigns and exploitations by the radical right are feared," (2015: 3). Rosenberger also highlights the implications that non-removed persons have for a state's sovereignty and political power, arguing that tight migration control is indicative of a state's capacity to govern its own territory and citizens, having a strong symbolic component.
The implications of non-removed personhood are considerably far-reaching. According to Rosenberger, "Non-deportation reflects major constraints in national legislation and a rupture in the hegemonic political discourse stressing a tough stance on migration," (forthcoming, 2015: 2). Rosenberger goes on to say that the phenomenon is a reminder of the limits of state power to rule, and exemplifies Stephen Castles' 2004 concept of the failure of the migration control management. Another cause of this phenomenon is that deportations sometimes cannot be carried out because foreign governments may refuse to issue the repatriation documents
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necessary for foreign nationals to be accepted back into their country of origin (Ellermann, 2008). Although European governments have collectively and individually negotiated agreements with many origin countries of asylum seekers, the outcome of these agreements in Germany has shown that non-compliance can remain a significant problem for the state, and policy success has usually only been encountered when countries of readmission have high stakes in cooperating, as in the case of countries attempting to accede to the European Union (ibid).
2.5 Regularization
Duldungsstatus in Germany is a way of controlling or monitoring the presence of those people
who are actually legally required to leave the country, but cannot. Under specific conditions,
Duldung can culminate in more than just toleration; i.e., it can in some cases lead to a lawful
right to stay (Zürcher et al., 2012: 22). In fact, Duldung has an important function regarding the regularization of migrants in Germany, a country in which legalization of migrants' status is not usually provided, and toleration is sometimes the first step or the prerequisite for achieving legalization (Breyer, 2011, cited in Zürcher et al).
It is helpful to contemplate the significance of regularization to understand the issue of toleration status in Germany because, in theory, it ultimately signifies the end of the uncertainty and precariousness experienced by migrants with Duldungsstatus. In practice, however, regularization programs sometimes only provide residence permits on a probationary basis. Baldwin-Edwards and Kraler define regularization as "Any state procedure by which third country nationals who are illegally residing, or who are otherwise in breach of national immigration rules, in their current country of residence are granted a legal status," (2009: 9). According to Kraler, those who traditionally oppose regularizations stipulate that it undermines
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the rule of law by rewarding bending or breaking of the law; furthermore, opponents argue that it "rewards 'queue-jumping', thus not only discriminating against law-abiding migrants but effectively also undermining effective management of migration at large," (2011: 298). Supporters of regularizations, on the other hand, frequently cite humanitarian reasons for doing so, although in the past, regularization programs have usually been associated with labor market participation.
In Germany, the highest number of regularizations at one time occurred in 2000 (Bundesministerium des Innern, 2015) with the entry into force of the
Staatsangehörigkeitsgesetz [Nationality Act], which allowed all children that had been born to
foreign nationals legally residing in Germany for at least eight years to acquire German citizenship if the application occurred within a year of the law's entry into force. A marked stance against large scale regularizations (in contrast, for example, with Spain) has been attributed to fears that it could have a pull effect and encourage further irregular migration to Germany (Reichel, 2014: 7-8).
Reichel (2014) examines the link between having Duldung and accessing the labor market, and whether this helps to obtain a regularized status. It appears that structural factors such as length of residence, access to jobs as well as to support are necessary to attain successful labor market integration. The author concludes that legal status and regularization play an important role in migrants' labor market integration, pointing out that both migrants and refugees require special support because they need to learn the language at the same time as they lack information and social networks which are necessary for their success.
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According to Chauvin et al. (2013), an ample range of measures have been utilized in Germany since the 1990s to regularize migrants classified as persons that cannot be removed. Nevertheless, "in numerical terms, regularization has been insignificant while 'toleration' (Duldung) – essentially a temporary suspension of removal – has been the standard response to the prolonged presence of irregular migrants," (2013: 9). A series of small-scale "amnesty" programs have taken place since 1991, offering regularization to employed people of specific nationalities with no criminal records (in Cyrus and Vogel, 2005, cited by Kraler et al., 2009). The Bleiberechtsregelung and Altfallregelung of 2006-2007 are more contemporary examples, and will be discussed below in more detail.
2.6 Spelling it out: why is Duldung granted?
On an analytical level, Castañeda (2010) sees suspension of deportation as "moments of exception in an otherwise restrictive migration regime" which at the same time make evident that there are "ambivalences and contradictions inherent in the exercise of state power," (2010: 260). Although these examples of deportation suspension granted in special cases of hardship and in relation to healthcare could be considered a "veneer of equity and justice in extremely small allocations," the author nonetheless concludes that the practice is relatable to the long-term interests of restrictive policy. Furthermore, Castañeda criticizes the practice of Kettenduldung: "[...]there has been no straightforward implementation of current laws ostensibly providing residency permits for all long-term holders of Duldung," (ibid).
Duldung is most frequently associated with failed asylum seekers, but its reach actually goes far
beyond this. Castañeda (2010) addresses some instances in which suspension of deportation is implemented due to pregnancy, illness, and other forms of hardship. The multi-functionality of
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can be granted to authorize pregnant women access to prenatal care and covers delivery costs (2008: 348). Nevertheless, Castañeda found that many pregnant, irregular migrant women preferred not to apply for Duldung despite the increased access to health care and social allowances that it brings; this is attributed to a general fear of the implications of dealing with state bureaucracy based on rumors as well as past experiences. When undocumented women migrants receive Duldung, they are simultaneously making themselves known to officials and to police who will inevitably seek them out upon completion of the Mutterschutz [maternity protection] period, leading to a high probability of deportation (ibid).
From a legal standpoint, there are a variety of different reasons for which Duldung can be granted. A publication in the framework of Project Q by GGUA (Gemeinnützige Gesellschaft zur
Unterstützung Asylsuchender), an NGO, grouped them reasons into five different categories to
give a comprehensive understanding of these reasons along with the law or international convention that stipulates this usage.
Anspruchsduldung [toleration through right]: granted if the deportation conflicts with legal or factual obstacles and no residence permit is granted.3 This includes the protection of marriage and family,4 imminent marriage to a person with a right to stay, or pregnancy and legal prohibition of deportation5, as long as no residence permit is issued. It also applies to additional obstacles to deportation such as missing passport, lack of means of transport, lack of a receptive state and the inability to travel.
Zeugenduldung [toleration for witnesses]: granted if the temporary presence in federal territory of the person concerned is deemed to be appropriate by the prosecution or the
3 § 60a paragraph 2 sentence 1of the Residence Act. 4 Art. 6 § 1 of the Basic Law and Article 8 of the ECHR. 5 § 60 paragraphs 1 to 7 of the Residence Act.
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criminal court, for criminal proceedings or a crime, because without the person's statements investigating the matter would be difficult.6
Ermessensduldung [discretionary toleration] granted when urgent humanitarian or personal reasons or significant public interests require the temporary presence of the person concerned in the Federal Territory.7 This could be to complete school or training, take care of a close relative, or in the case of medical treatment that is difficult or impossible to carry out in the home country.
Abschiebungsstopp: [deportation stop] granted by the State Interior Ministers due to international law or humanitarian reasons, or to safeguard the political interests of the Federal Republic of Germany. The deportation of foreign nationals from certain countries or certain groups of foreigners is suspended in general or in certain countries for a maximum of six months. This is especially meant for war and crisis situations, and has also been implemented during the cold winter months, so as not to expose deportees to unnecessary hardship.
Duldungsgrund wegen Familienmitglied [toleration because of family members]: Duldung can be granted when an immediate family member (spouse, minor children) is
still in the asylum procedure and the outcome of the proceedings are being awaited.8 (Project Q, 2010.)
2.7 Vulnerable groups and Duldung
Although it is beyond the scope of this research to include an in-depth discussion of vulnerable groups affected by Duldung, it has been deemed important to include a brief mention of this
6 § 60a paragraph 2 sentence 2 of the Residence Act.
7 § 60a paragraph 2 sentence 3 of the Residence Act.
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topic. Some literature has specifically addressed people of Roma background living in Germany and how they have been affected by Kettenduldung. Castañeda (2014) discusses a repatriation agreement between Germany and Kosovo from 2010 involving 14,000 people who had fled during the wars of the 1990s but who were unable to acquire permanent residency in Germany:
The vast majority of refugees facing deportation have been Roma (10,000 of them), and for more than two-thirds of them, their refugee status was never finalized. Instead, they had been issued temporary suspensions of deportation (Duldung) for six months at a time, so that they faced the constant possibility of deportation – in some cases, for more than a decade. (Castañeda, 2014: 8.)
Children are another group that is particularly affected by Duldung. Of the 4,000 Kosovan Roma who have been deported, around half are children who were born and raised in Germany but cannot return since they are not EU citizens (ibid). A 2010 report by the United Nations Children's Fund (UNICEF) focuses on a similar issue: the effect of Duldung and eventual deportation on Kosovan children. One of the criticisms of the Altfallregelung [regulation for dealing with old cases] regularization program outlined in the report is that even in cases where children have had success integrating, parents' difficulties integrating result in a failure to fulfill the conditions for temporary residence permits, although this may mean that only one parent is holding an entire family back. The report continues by pointing out that many of these Roma families living under the threat of deportation were often partially or completely dependent on welfare for many years, due in part to their lack of education and professional qualifications –
even for those who had work experience in manual occupations in Kosovo. That, in conjunction with a lack of German knowledge or literacy, has resulted in employment as unskilled laborers in the low-wage sector. Social workers interviewed for the UNICEF study indicated that few chances to engage in training, dropping out of German courses to work, and pressure on youths to contribute to the family economy are all ways in which comprehensive integration is made
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nearly impossible, making the only type of integration attainable being the integration that is associated with the lowest sector of the labor market (Knaus et al., 2010: 28).
22 3. DULDUNG AS A "QUICK FIX" SOLUTION, AND OTHER THEORETICAL PERSPECTIVES
The present chapter discusses a series of theoretical tools which provide a framework with which to address the topic of study, Duldung, and the research question; namely, to determine the meaning and purpose of Duldung and how these have changed since the paradigmatic shift that took place in Germany and elsewhere around 25 years ago.
3.1 The Regime Perspective
The origins of the so-called "migration regime" perspective that is used in migration scholarship can be traced back to regime theory, which emerged from the realist perspective in international relations and is also associated with international political economy. Its consolidation as such dates back to the 1970s and '80s. Notions on regimes within international relations build upon Keohane and Krasner, and the so-called "consensus definition" (by Krasner, 1983, in Hasenclever et al., 1997), upon which a large number of other definitions are based, reads as follows:
Implicit or explicit principles, norms, rules and decision-making procedures around which actor's expectations converge in a given area of international relations. Principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision-making procedures are prevailing practices for making and implementing collective choice. (1997: 9.)
According to Keohane, there are two important features pertaining to the international context in which regime theory is relevant. The first is that world politics lacks authoritative governmental institutions; the second is that the international context is characterized by pervasive uncertainty (Keohane: 1983, 148). Karakayali and Tsianos highlight that the concept of regime reflects the problem of the absence of any external monopoly of power and the lack of a global state. "A regime therefore is something like a virtual state for certain segments of internationally
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intertwined political and economical processes," (2010, 376). Using the example of the General Agreement on Movements of People (GAMP) which was debated within the International Organization for Migration (IOM), Karakayali and Tsianos point out that "[...] in the context of migration, the State is an agent among others," and that "discourses and practices beyond classical institutions are more than merely 'ideology' but rather seem to replace them," (ibid).
International regime theory was criticized as early as 1983 by Strange, who pointed out the 'imprecision' and 'woolliness' of the concept, noting that, when discussing international regimes, 'people mean different things when they use it' (Strange 1983, in Hasenclever et al., 1997). Hasenclever et al. also cite Young, who in 1989 wrote: 'the concept of a regime itself is often used so loosely that critics have reasonably questioned whether the concept is anything but a woolly notion likely to produce more confusion than illumination.'
The regime lens is also utilized in migration scholarship. Like in the case of its predecessor, the international regime, there is very little consensus within migration scholarship about the term; however, it seems that unlike the theory of international regimes, migration regimes are sometimes not considered to be a specific theory, but more of a conceptual guide or an analytical tool. Koslowski (2011) makes the link between international regimes and international migration regimes, citing Ruggie's 1975 regime definition, which surfaced a good deal prior to the Krasner consensus definition: "mutual expectations, rules and regulations, plans, organizational energies and financial commitments, which have been accepted by a group of states" (2011: 1). Based on this shorter and more concise definition, Koslowski argues that there is no such thing as an international migration regime because there is relatively little cooperation within this sphere on the global level. To illustrate this point, Koslowski claims that there is an established international refugee regime; it is based on the 1951 UN Refugee Convention and the 1967
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Protocol on the Status of Refugees, complemented by developments in the United Nations High Commissioner for Refugees (UNHCR). Following this logic, it could be argued that Duldung is a concrete example why the international migration regime does not exist: cooperation between actors – in this case, states, is relatively cumbersome, as demonstrated by the difficulties in enforcing readmission agreements, a topic that was also addressed in this study.
Migration regimes are also conceptualized as something unique to each individual state. Sciortino (2004) presents the following discussion of national migration regimes in the context of the "irregular migration regime":
[...] a country’s migration regime is usually not the outcome of consistent planning. It is rather a mix of implicit conceptual frames, generations of turf wars among bureaucracies and waves after waves of 'quick fix' to emergencies, triggered by changing political constellations of actors. The notion of a migration regime allows room for gaps, ambiguities and outright strains: the life of a regime is the result of continuous repair work through practices. Finally, the idea of a 'migration regime' helps to stress the interdependence of observation and action. (2004: 32.)
This definition is seen as the most relevant for the purpose of the present study because it introduces the idea of migration regimes as practices that are essentially unplanned, that occur as a response to a problem, implying solutions of which the consequences are not previously contemplated and not properly dealt with. The definition is exemplified various times throughout the present research and serves as a basis for arguing about the shortcomings associated with
Duldung.
A more contemporary definition of migration regimes is provided by Wolff (2013), who utilizes an updated version of Krasner's consensus definition which is meant to consider a more complex definition of society. A migration regime, then, can been seen as
a changing and internationally negotiated field based on norms, principles and laws, in which actors (persons, institutions, organizations) communicate in order to manage
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migration to their favor. These interests often go beyond the primary field of migration. Therefore we need to step back from outcome oriented research and rather ask for the internal mechanisms that shape the regime and for the constitution of its actors. (Wolff, 2013: 1.)
While more neutral than the definition by Sciortino, Wolff makes an important point in saying that more focus should be placed on internal mechanisms rather than merely the outcomes. This evaluation is relevant to the present study in that it highlights the value of taking a more in depth look at the background of the problem.
According to one working definition by Rass, a migration regime is
A mode of observing/analyzing migration in order to understand negotiations of entrance and presence between complex sets of related actors with different measures of agency by the study of their practices framed by (all kinds of) institutions where the set of actors as well as their ensuing network are neither exclusive nor stable, and processes of convergence occur (C. Rass, Migration Regimes: Past and Present class on October 14, 2014).
One of the central tenets of the migration regime perspective seems to be the involvement of many interacting parts (actors, institutions, states, etc.). The working definition by Rass, while slightly more abstract than the previous two definitions, imbues a sense of both complexity and interconnectedness between various aspects which can likewise be related back to Duldung, as a type of practice involving migration in which actors have varying levels of agency. The migration regimes approach allows for plenty of liberty in the application of the concept to migratory phenomena, both current and historical. Much like the international regime concept in general, however, migration regimes have been subject to some critique. On one hand, there is a lack of consensus to whether or not migrants themselves can be included in the migration regime. The classical viewpoint collocates migrants outside of the regime, portraying them as passive beings that are regulated by the regime. Newer research, however, calls for a migration regime in which migrants are very much present and are either represented by the migration
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regime or are actors who make decisions and are actively engaged in it (C. Rass, Migration Regimes: Past and Present class on October 14, 2014). Relating this back to Duldung, however, it would appear that migrants themselves have an extremely limited ability to engage in the migration regime, and are therefore regulated by it, as in the classical conceptualization.
As we can observe, there is some ambiguity about the nature of the migration regime perspective and its status in migration scholarship (e.g. whether or not it is a theory); this can lead to some confusion and ambivalence about how to apply it in migration research. Furthermore, it has lead to the coining of multiple other regime-oriented approaches, which could lead to some mixing-up of terms: the above-mentioned international refugee regime, as well as border regimes, deportation regimes, irregular migration regimes, along with many others. This observation leads to more questions: to what extent can the regime perspective be used, and until what point does it make sense to use it? Can it result in overuse, and is the idea of the "regime" a sort of all-encompassing term that can be applied in almost any way the researcher pleases? Does this suggest that it is, in some way, a catchall phrase? While it is beyond the scope of this study to answer these questions, they can be used to help direct the critique of the present argument.
What the migration regimes approach seems to tackle, then, are some of the shortcomings associated with other disciplines in which migration is traditionally studied. As we have already seen, the migration regimes approach is borrowed from international relations theory. Within the realist perspective, from which the regime approach ostensibly springs, the main unit of analysis is usually understood to be the state, (which, as discussed previously, is associated with methodological nationalism). It could be argued, then, that migration regimes frame out concepts that are traditionally associated with disciplines such as sociology and anthropology, in which the main unit of analysis is usually individuals, groups, or social interactions. Concepts such as
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ethnicity, race, gender, and intersectionality – all of which can be crucial to help us understand issues surrounding migration, so-called "integration", and "othering" of immigrants and minorities by dominant members of society – do not seem to be explicitly included within the political science branch of the migration regime perspective, and therefore run the risk of being addressed only marginally, if at all.
Finally, – although this topic is only briefly addressed in regards to Duldung, it shall nevertheless be incorporated to conclude the critique of the migration regimes approach – it would seem prudent to point out that concepts such as race and ethnicity, etc., although dragged down by their own epistemological baggage, cannot be ignored, nor should they be dismissed as merely being social constructions. The very concept of social constructions, although essential in breaking down traditional and outdated ideas, as well as battling stereotypes, can also undermine the subject of study, implying that a given social phenomena is not real but perceived and constructed by society. While this may be true, it can take away from the seriousness of the impact that these concepts could be having within the research problem at hand, or on the people being studied or being affected by the research. While innumerous studies have demonstrated that racism is socially constructed, racism is nevertheless all too real for people who encounter it and live with its consequences on a regular basis. Indeed, this argument may point towards both the strength and weakness of applying the regime perspective to migration studies. Therefore, the migration regime approach should be implemented with caution so as to not overlook important information that does not explicitly lay within its scope. It might be difficult to carry out discussions surrounding race and ethnicity in relation to Duldung when using this approach.
28 3.2 The Deportation Regime
One of the numerous conceptual offshoots or orbiting concepts of the migration regime is the that of the deportation regime. De Genova has frequently discussed deportability,9 which is associated with vulnerability. Most recently, the author described deportability as
[...] a temporal predicament that renders one's way of life and one's life projects to be always relatively tentative and tenuous, vexed with precautions and often overshadowed by a diffuse but persistent terror – the fear of detection, apprehension, detention, and expulsion. Yet, these more or less torturous conditions of life for those who are compelled by circumstances to make their lives beneath the horizon of the possibility of deportation have been made ever increasingly normal – 'terribly and terrifyingly normal' (to recall Arendt's phrase) within our modern global 'deportation regime.'" (De Genova, 2014: 2). De Genova (2010) considers the ever-increasing attempt to control human mobility to be a manifestation of states' sovereign power. In conjunction with this, the author emphasizes increases in militarized border policing and securitization in all aspects of travel and transit, placing deportation in the forefront of this scheme. A global, neo-imperial sovereignty paired with a rescaling of various state functions and capabilities has lead to an inverse relationship between the shrinking fortunes and returns of the sovereignty of nation-states and the increasingly draconian controls imposed by states to restrict both crossing and settling over borders (2010: 34). This phenomenon, in which the practice of deportation has emerged "as a definite and increasingly pervasive convention of routine statecraft," (ibid) is known as the deportation regime, and it has been noted to be on the increase globally.
For Castañeda (2010), illegality causes people to be deportable regardless of their social networks, personal achievements, and emotional ties which bind them to their host society.
9 "Migrant 'illegality' is lived through a palpable sense of deportability, which is to say, the possibility of deportation, the possibility of being removed from the space of the nation state," (De Genova, 2002: 439).
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Castañeda relates Duldung to deportability, at the same time noting that, in contrast to other unauthorized migrants, people with Duldung "occupy a state of hypervisibility":
The Duldung is a temporary suspension of deportation, which can be issued based on Article 60a of the Residence Act. It is a liminal status that can be assigned to undocumented migrants but is not identical to a residency permit. The term "Duldung" literally means "toleration"; in other words, their presence is "tolerated," a rather undignified condition. It marks individuals as neither fully "legal" nor fully "illegal and does not alter the fact that the person is obligated to leave the country. This status is most typically issued to asylum seekers whose claims have been denied but who cannot be returned to their respective countries of origin, for example, because of political strife. Thus the Duldung is the badge of deportability. (Castañeda, 2010: 253).
3.3 The Gap Hypothesis
Migration scholars have debated the gap hypothesis for nearly three decades. Hollifield et al. (2014) define this phenomenon as the chasm between the goals and actual results of national immigration policy, be it laws, regulations, executive actions or court rulings. This gap between intention and outcome has been growing ever wider in major industrial democracies, which results in burgeoning public hostility towards immigrants regardless of their legal status. At the same time, this phenomenon increases pressure on political parties and government officials to opt for policies that are more restrictive. Insofar as labor-importing countries are concerned, Hollifield et al. consider the policy gap to be reinforced by structural elements:
In some countries and sectors, there is a structural element to employer demand for foreign workers, such as in agriculture, construction, health care, domestic help, and hospitality. That is, employers continue to hire foreign workers regardless of legal status and irrespective of the business cycle. (Hollifield et al., 2014: 4).
There are many instances in the popular history of migration which exemplify the gap hypothesis in action. One example of this can be seen with the Asian Barred Zone Act of 1917 in the United States, which targeted immigration from “any country not owned by the U.S. adjacent to the continent of Asia,” (Park, 2012: 146) and although it did not intend to impede migration from the Western Hemisphere, it indirectly had a prohibitive effect on it due to the implementation of
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restrictive measures such as a head tax and a literacy exam, (Martinez, 1971: 17), leading to the illegalization of Mexican labor migration to the United States.
Another classical example of the policy gap hypothesis is that of the European guest worker programs of the 1950s and 60s (although it is interesting to observe that Germany's experience with the importation of foreign labor dates back to the Prussian era experience of agricultural labor from Poland). The German guest worker programs aimed only to add temporary workers to the labor force, but eventually led to permanent settlers in the population (Martin, 2014). In the case of Germany, the Rotationsprinzip [principle of rotation] assumed that laborers would return home to Turkey or Yugoslavia, etc. with their savings, after one or two years; if additional labor was required, new workers could be recruited. Surveys had been conducted in the 1960s, with results showing that migrants planned to return to their families and communities for the long term. Nevertheless, 70 percent of foreigners in Germany from 1960-1999 returned home, while 30 percent remained (Martin, 2014: 228).
Finally, returning to the United States, it is possible to observe the results of the Immigration Reform and Control Act (IRCA) of 1986. This law, which majorly revised the Immigration Act of 1965, was a success for 2.3 million Mexican immigrants who obtained legal status through amnesty (Aguila and Gratton, 2011). Its unintended consequences, however, are noteworthy. Immigrants applying for amnesty were required to stay within the United States until their process of legalization was completed. This, paired with heightened enforcement measures on the US-Mexican border (another of the law's three main provisions) led to a drastic change from seasonal to more permanent migration to the United States. This, in conjunction with the family reunification measures stipulated by IRCA, led to a huge increase in the immigrant population of the United States. Ironically, the third main provision of the law – sanctions to employers, – was
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never actually applied; a clause stipulated that only employers who knowingly hired undocumented migrants could be sanctioned, and this factor resulted in a black market for fake documents (Aguila and Gratton, 2011).
While the gap hypothesis provides a coherent framework from which to analyze the difficulties in achieving policy goals, and although some examples are more extreme than others, it would seem to imply that migration policy is generally doomed to fail. It leads us to question whether, at least in some cases, the intended policy goals were perhaps different than perceived to be – by policy analysts, news media, and other actors. At the same time, it should be emphasized that the gap hypothesis is clearly not something that is limited only to migration policy. Policy in many other spheres also tends to fail at achieving the goals that were originally intended by policymakers.
3.4 Street-Level Bureaucracy in Immigration
The role played by bureaucrats is highly important but would sometimes appear to be a backburner issue within migration research. In the interest of exploring migration regimes and one of pivotal actors involved in them, this study incorporates some elements regarding bureaucracy in relation to Duldungsstatus.
In the seminal work that focused on the United States bureaucratic and political system, Lipsky (2010) emphasizes that more than any other contributing actor, street-level bureaucrats10 are the ones who enact policy. Relatively high degrees of discretion paired with autonomy from organizational authority grant them certain freedoms; they have a large influence over and
10 "Public service workers who interact directly with citizens in the course of their jobs, and who have substantial discretion in the execution of their work," (Lipsky, 2010: 3). Street-level bureaucracies are defined as "Public service agencies that employ a significant number of street-level bureaucrats in proportion to their work force," (ibid).
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impact on peoples' lives, especially those who live in poverty. This impact and interaction with citizens, paired with the fact that street-level bureaucrats have to be dealt with in order for change in policy to be brought about, are two main generators of controversy surrounding the street-level bureaucrat. Lipsky introduced the bureaucrat-citizen relationship in the following manner:
They socialize citizens to expectations of government services and a place in the political community. They determine the eligibility of citizens for government benefits and sanctions. They oversee the treatment (the service) citizens receive in those programs. Thus, in a sense street-level bureaucrats implicitly mediate aspects of the constitutions relationship of citizens to the state. In short, they hold the keys to a dimension of citizenship. (2010: 4.)
For the purpose of this research, Lipsky's observations on the relationship between bureaucrats and citizens will be expanded toward bureaucrats dealings with noncitizens. In this case, it will be applied to the interactions between Ausländerbehörde workers and non-removed migrants. Lipsky depicts the relationship between a public official and the person receiving the public service as one between the street-level bureaucrat and a client, a social process that assigns people to categories for treatment by bureaucrats. It is important to point out, however, that the client is most often a "nonvoluntary" one, implying that it may be difficult to distinguish whether modes of compliance are coercive or utilitarian (2010: 42).
There are many problems related to goals in bureaucracies, because "street-level bureaucrats characteristically work in jobs with conflicting and ambiguous goals," (2010, 40). Reasons for this conflict and ambiguity are manifold: the idealized dimension in public service goals makes them "difficult to achieve" and "confusing and complicated to approach" (ibid). Lipsky points out that conflict in agency goals that was not resolved in a piece of legislation since its initiation may be simply be passed on to the administrative level for resolution. Additionally, goals may
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have accumulated gradually over time without rationalization, and may continue to not be addressed over time because it is more convenient when dealing with two different parties with conflicting interests to make an arrangement or compromise where neither side can have the upper hand. Finally, goal ambiguity can be traced to the uncertainty of social service technologies; this uncertainty makes it possible to tolerate a larger variety of approaches and objectives.
In a dissertation on how immigration offices fulfill their role as institutions of migration management and analysis of the differences of practice and legal application, Eule (2014) points out that immigration offices are meant to apply immigration law. Eule states: "In practice, this means deciding on the stay of immigrants in Germany through different technical steps. However, immigration law is not a mere set of technical guidelines, but a political instrument." (2014: 25.)
The role played by bureaucrats in making decisions about migrants' lives and livelihoods frequently appears to be undermined, or at least framed out of, much migration research where it might actually help shine a light on outcomes of migration policy. In the case of Duldung, immigration officials are social gatekeepers who, albeit basing themselves on official policy documents, may make liberal usage of their decision-making powers.
34 4. THROUGH THE DECADES: A BRIEF HISTORICAL OVERVIEW OF THE USE OF DULDUNG IN
GERMANY
This chapter examines some of the historical background to the use of Duldung in Germany. While not exhaustive, it aims to provide a basic understanding of some of the most relevant periods leading up to the present context.
4.1 Duldung in the Weimar Republic
To trace the roots of the present day utilization of Duldungsstatus in German asylum policy, the present study shall look back to the consequences of World War I and the foundation of the Weimar Republic, which was established in 1919 and replaced the German imperial system. Oltmer (2005) provides a survey of the practice of Duldung during this time period, in which the basis of economic, political, and geographic conditions underwent major changes which were reflected in migration policy. For example, although asylum policy was influenced by humanitarian interest, during this period in time it was considered to be a problem linked to social and labor market policy (2005: 19).
A large number of people were expelled and fled the conflicts and civil wars of the continent in the period between 1914-1922. After World War I, Germany, much like other European states at the time, was overwhelmed through the mass arrival of asylum seekers and displaced persons (2005: 219). As Oltmer discusses, there was little willingness to grant these groups of immigrants legal status and security, or to develop political and legal instruments to deal with the refugee situation. Due to political reasons, refugees and displaced persons in the Weimar Republic were instead subject to the precarious status of toleration; although asylum was not fundamentally denied them, it remained controversial, limited and jeopardized (ibid).
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Two main groups sought asylum in the Weimar Republic: Jewish people from East, Central East, and Southeast Europe, as well as Russians fleeing the revolution and civil war. Jewish people who had been recruited to work in Prussia during World War I and who could not return to their places of origin in Poland due to measures taken in Poland, as well as those Jewish people who had crossed the border in the post-war months were allowed to stay (2005: 242). In a decree issued by the Prussian Ministry of the Interior in November of 1919, it was stated that expulsion to their countries of origin put Jewish people at risk of direct danger "to life and limb"; furthermore, expulsion to third countries was not possible due to the European passport and visa requirements and because of the formation of new states in the East, Central East, and Southeast Europe, wherein the circumstances of nationality were still unclear (2005: 243).
Oltmer goes on to point out that Jews from Eastern East Central and Southeastern Europe who had been properly classified by the police authorities, were tolerated "until further notice".
Duldung was not a controlled residence status, rather, it was a kind of temporary non-expulsion,
a limited exception to the all-encompassing expulsion authority of the police.11 The power of police to expel Jewish people was further restricted: expulsions based on lack of housing and unemployment should not take place if a Jewish aid organization was caring for that person and could verify that they do not present a burden on the public poor relief or unemployment relief. The involvement of the Jewish aid organizations eventually meant that the nature of the Duldung was less precarious than previously (2005: 244).12 Due to continuing anti-Semitic discourse,
11 The decree issued by the Prussian Ministry of the Interior stated that expulsions would continue to take place in the case of Jewish immigrants who were convicted, could not demonstrate adequate housing, or who were unemployed (Oltmer, 2005: 243).
12 The anti-Semitic nature of the decree caused controversy, particularly since special provisions left Jewish people at a disadvantage in comparison to other foreign groups (Oltmer, 2005: 244). Despite this, it was seen with goodwill by Jewish organizations and criticized in anti-Semitic groups (2005: 245).
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however, it was soon mandatory for Jewish migrants to participate in the labor market if they intended to stay (2005: 250); expulsions of Polish nationals led to an overrepresentation of Jewish people in the overall expulsions. Supported by Jewish welfare organizations and internationalized further through organizations based in the United States, more Jewish people opted to migrate overseas (2005: 260).
The other group of migrants living under Duldung in the Weimar Republic – those who fled Russia – experienced the same restrictive climate but a different international response, culminating in the birth of the basis for the contemporary international refugee regime. The Russian Famine of 1921-1922 caused large numbers of people to flee, and Germany received the second-highest share after Poland, which it later surpassed (2005: 261). As in the case of the Jewish immigrants, Oltmer highlights, the Prussian authorities showed no interest in the conditions of stay of migrants or in improving and facilitating their integration, and Russian refugees were generally treated as foreign workers. Additionally, a large majority of them were stateless persons due to the Soviet Russian expatriation decrees; in Germany, they did not receive any type of welfare support and relied on private welfare organizations (2005: 263).
Like in the case of the Jewish immigrants, the German policy of restrictive intake and refusal of integration opportunities led to efforts by the government to internationalize the problem, particularly in relation to the passport situation of the Russians. In contrast with the case of the Jewish refugees, however, the League of Nations took up the task of assisting the stateless refugees. At a conference initiated by the International Red Cross in February 1921, private refugee aid organizations demanded the League of Nations to establish an international coordination agency and to introduce a common international legal status for all refugees (2005: 264). An intergovernmental conference was subsequently held by the League of Nations with
